Posts

Education in Democracy: The Importance of Free Speech in American Public Schools (Guest Post by Ronald C. Den Otter)

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My new book, Democracy in Education: The Importance of Free Speech in American Public Schools , is about the importance of the free speech of junior high school and high school students in the U.S., calling into question why the U.S. Supreme Court has treated public schools so differently than colleges for free speech purposes. There are many ways to defend free speech. Instead of defending the free speech rights of students on marketplace of ideas grounds, my focus is on how educational the experience can be when students exchange reasons with their classmates. The exercise of free speech rights over time can become normalized, not only encouraging students to think for themselves but also exposing them to ideas that they otherwise might not encounter elsewhere. An important part of becoming a citizen in a democracy calls for learning how to deal with disagreement in a pluralistic society like our own, which is characterized by considerable partisan divisions. It may seem counterintui...
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The Right Chooses to Stop Being Coy About Its Bigotry

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We all agree that racism is bad, right?  Right?  At least as of this moment, opposing racism still appears to be the public position even of some -- but certainly not all -- of the most extreme Trumpists.  Donald Trump himself has not publicly used the n-word, as far as I know (although no one will be surprised when he inevitably does), but he has been pushing racist ideas for years.  Even so, we have not yet reached that anti-" woke "-est of moments when open, vulgar bigotry will become just another way for Republicans to "own the libs." Why not?  Because it continues to be perversely useful for Trumpists to appropriate the language of anti-racism as a means to promote White supremacy.  That jujitsu move is hardly new, but it is again a favored tool on the right.  The appointed seat-filler in the Florida Attorney General's office, for example, took it upon himself earlier this year to issue a statement  on official stationery that begins with ...
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For Memorial Day: Seemingly Smart Wars Can Prove Dumb, But the Opposite Nearly Never Occurs (and a Dorf on Law Classic)

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Memorial Day recognizes those who made the ultimate sacrifice for their country. Honoring that sacrifice would seem to require, at a minimum, that nobody be asked to make it in vain. Accordingly, fifteen years ago, I considered then-candidate Obama's 2002 statement that he was against "dumb wars" in light of what he had, as of May 2011, accomplished as president. As I noted there, although nations should fight only those wars that are just and smart, even a just war can turn unjust in its execution, and what may have initially looked like a smart (or at least non-dumb) war can prove dumb as it drags on. The opposite transformation, however, seems nearly impossible to imagine. Put aside the fact that Donald Trump's war on Iran violates both the US Constitution and international law . Put aside the possibility that under very different circumstances, an attack on Iran might nonetheless be just. Under the actual circumstances, this war is colossally stupid. Despite earl...
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Federal Courts Exam 2026: Data Center Nuisance Suit; Habeas Corpus; and Sovereign Immunity

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[N.B.  My latest Verdict column discusses the "Anti-Weaponization Fund" that Attorney General Blanche announced as part of the settlement of the Trumps' frivolous lawsuit against the IRS. Among other things, I suggest how a future Congress  might amend the statute that authorizes the executive branch of government to settle lawsuits to prevent future abuses by a future shamelessly avaricious and corrupt president, should we be so unfortunate as to experience another one. Now the exam.] Below you will find the exam I gave my federal courts students in the semester just concluded. They were permitted to consult their casebooks and notes but not the Internet, AI, or the like and were subject to a 4-hour time limit and a 2,500-word limit.   Question 1 (30 percent)             After holding hearings at which are recounted incidents reflecting popular hostility to AI data centers—very large installations of computers ...
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We Have a New Member of the Uniquely Bad Trump Appointee Club

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Are there members of the Trump Administration who are anything other than interchangeable parts in that creaking machine?  That is, are there Trump appointees or advisors who create what economists call "value added" (although in this case the accurate term has to be value destroyed ), doing such unexpected and nonreplicable damage such that getting them out of their jobs would in fact be a net boon to the world at large?  Yes, although not many.  As the title of this column indicates, however, we now have a new inductee into that shameful boys' and girls' club. But what does it mean to say that someone is or is not interchangeable in this sense?  In January of this year, before Donald Trump had dumped Kristi Noem as the ( melting ) public face of his cruel anti-immigration policies, there were some maybe-kinda-but-not-really-plausible rumblings in Congress about impeaching Noem.  The hope was to remove her from her seat in the Administration because of...
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Color Blindness as Judicial Tyranny

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From the very beginning of the Roberts Court in 2005, the Chief along with all the conservative justices except Anthony Kennedy (and for the last few months of her tenure, Sandra Day O'Connor), have been obsessed with imposing a uniform rule of color blindness on local, state, and national legislatures as well as public and private elementary and secondary schools, colleges, and universities.  Roberts made his values known at the end of the first full term of his court when   he wrote the following [in]famous sound bite in a landmark case prohibiting two cities from voluntarily addressing racially imbalanced schools: “the way to stop discrimination based on race is to stop discriminating based on race.” There are now six justices who hold this view. There can be no debate that this country allowed formalized racial discrimination against non-whites for most of our history. From slavery to Black Codes to segregation to red-lining, the law allowed discrimination against racia...
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Realistic Assessments of the Real-World Importance of Gerrymandering

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I will offer below some updates on the ever-changing US situation regarding the effects of gerrymandering on the 2026 midterms.  Spoiler alert: It is still looking good for Democrats overall -- though definitely bad for Black Democratic officeholders, due to the recent dirty deeds of the Supreme Court.  Before I get there, however, it is worth looking back on some very recent history. In late 2022, after the Republicans regained control of the House of Representatives in that year's midterm elections, I planned to write a series of columns under the blanket title "Gerrymandering is the Only Thing that Anyone Should be Talking About."  I never wrote those columns, because I had at that point begun a process that would  completely disrupt my life  for several years, but my intended point was a valid one. Recall that in the first two years of the Biden presidency, the Democrats controlled both houses of Congress.  True, the toxic dyad of Joe Manchin and Kyrste...
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