Showing posts from February, 2023

The Attack on Higher Education Heats up from Simmer toward Boil

by Neil H. Buchanan Pending legislation in Florida would, if enacted, make it illegal to teach Economics in the state's universities.  It is not being described that way, of course, but what else could one conclude about a bill that prohibits the state's colleges and universities from offering general education courses "with a curriculum based on unproven, theoretical or exploratory content"? If that sounds like snark, it is.  It is also true even on its own terms, however, because even the most true-believer orthodox economists -- the ones who insist that theirs is the only true science outside of the STEM curriculum, making the field in which I earned most of my advanced degrees "the queen of the social sciences" -- would certainly embrace the idea that economics as they understand it is both theoretical and exploratory.  Many of the rest of us know that it is also unproven (and unprovable), but even setting that aside, the people who glory in the idea

It's (Long Past) Time to End Pretext Stops

  by Tracey Maclin In America, police targeting blacks for arbitrary and disproportionate searches and seizures is a tradition as old as the nation itself. Today, pretextual traffic stops are routinely used against black drivers, and, as in the case of Tyre Nichols, are sometimes fatal. Nichols was stopped by a unit of the Memphis Police Department, known as SCORPION – the Street Crimes Operation to Restore Peace in Our Neighborhoods. Officers in this unit were assigned to crime hot spots in Memphis and utilized pretext stops to investigate motorists and their passengers. American law enforcement officials should abolish pretextual traffic stops immediately. Doing so would save the lives of future victims and end a practice that has haunted black motorists for decades.

Freedom from Fear

by Neil H. Buchanan President Franklin Delano Roosevelt's " Four Freedoms Speech ," which was in fact his 1941 State of the Union address, identified two ideas drawn directly from the nation's founding documents -- freedom of speech and freedom of worship -- along with two that are not as familiar and less often discussed -- freedom from want and freedom from fear. FDR spoke those words nearly a year before the attack on Pearl Harbor but well after the Axis powers had launched what became World War II, so he understandably focused on the fear of the aggression that might come from foreign military powers: "The fourth is freedom from fear, which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor—anywhere in the world."  The four freedoms became essential components of the Universal Declaration

Pending Congressional Revision of Section 230, Courts Should Treat it Like the Sherman Act

by Michael C. Dorf In 2021, a panel of the U.S. Court of Appeals for the Ninth Circuit construed Section 230 of the Communications Decency Act  mostly to shield major internet companies from civil liability to the families of victims of ISIS murders. The plaintiffs alleged that the algorithms of Facebook, YouTube, and Twitter promoted ISIS content, thus rendering them liable under the civil liability provision of the Anti-Terrorism Act (ATA) . On Tuesday and yesterday of this week, the Supreme Court heard oral arguments in the two cases that seek reversal of the Ninth Circuit decision. Why two cases? Because the Ninth Circuit decision reached a split decision.  It approved one district court's determination that Section 230 provides a shield but reversed another district court's dismissal of the complaint on the ground that it failed to state an ATA claim. Accordingly, in Tuesday's argument in Gonzalez v. Google , the plaintiffs appealed, arguing that Section 230 should no

Professor Fallon on Selective Originalism and Precedent

 By Eric Segall Professor Richard Fallon of Harvard Law School is one of our most prominent and productive constitutional law scholars. He brings to the table a strong liberalism that makes him a forceful critic of the current conservative supreme court. His most recent article , "Selective Originalism and Judicial Role Morality," targets the Justices' selective use of originalism in constitutional cases and argues that, even if the justices used originalism consistently, they would still need some theory, steeped in morality and other concerns, for when to reverse what the justices deem to be erroneous non-originalist precedent. How even sincere originalists should blend originalism with non-originalist precedent is under-theorized, although a few originalist professors are beginning to try and articulate some criteria and standards. The Court, however, is nowhere close to having such as theory, as Fallon emphasizes. I want to strongly encourage people to read this exce

The US Could Do Much Better for its Citizens, Starting with Keeping them from Being Shot

by Neil H. Buchanan It was only five days ago that the news broke of the shooting at Michigan State , in which 3 students died immediately and 5 others were seriously injured.  Today, that story is completely missing from the news sources that I monitor.  It is old news, and by the standards of the US, that incident is sadly (but frankly) not especially notable. As frequent readers of Dorf on Law know, my academic and professional commitments have changed in the last decade.  In particular since I accepted a position at the University of Florida's Levin College of law four years ago, my work has called on me to do a great deal of foreign travel.  This involves the usual academic trips to attend conferences for a few days, but it also includes spending weeks or months at a time as a visiting scholar at foreign universities.  I am on sabbatical this semester, and I chose to spend part of the time living in Amsterdam and doing my research independently, before resuming my standard p

Time to Retire Presidents' Day?

  by Michael C. Dorf Today is Presidents' Day--or, as we say here at Cornell Law School , Monday February 20, which we treat as no different from any other typical Monday during the academic year. In today's brief essay, I'll offer two reasons to abandon Presidents' Day. (1) There's something more than a little problematic about honoring George Washington, whose Mt. Vernon estate and thus his livelihood did, after all, rest on the enslavement of hundreds of people, most of whom were not in fact emancipated after his death . Needless to say, stripping Washington of the honors our national culture affords him is not going to happen any time soon. There are obvious practical obstacles, like renaming the capital district, the Washington Memorial, Washington state, and much more. There is also a range of reasonable views about whether and how to honor people for their honorable accomplishments despite the evil they also perpetrated. One might conclude that honoring the l

Open the Pod Bay Doors, Hal

by Michael C. Dorf Continuing my recent blurring of the lines between a law blog and the revival of my childhood interest in science fiction that I indulged by my discussion of extraterrestrials on Tuesday (and my more actual-science-based Verdict column on Wednesday ), today I'll talk about artificial intelligence. My point of departure is a story in yesterday's NY Times and an accompanying fascinating and deeply disturbing transcript of a conversation between Times reporter Kevin Roose and the new chatbot that Microsoft is rolling out as part of its relaunch of its search engine Bing. After providing some background info, I'll tackle a couple of questions about the relation between artificial intelligence and sentience. As I'll explain, AI that can mimic sentience without actually achieving it can nonetheless be extremely dangerous.

Republican Fear-Mongering on Social Security Is Nothing New

by Neil H. Buchanan The political news continues to be favorable for President Biden and Democrats, as Republicans continue to flail in response to his calling them out on their longstanding (and that means long standing ) attacks on Social Security and Medicare.  In his State of the Union address, Biden specifically criticized the plan published by Florida Senator Rick Scott -- who, we should not forget, was once forced to resign as CEO of a company that was convicted of 14 felony counts of defrauding Medicare, in what was at the time the largest Medicare fraud in history -- but of course it has not been difficult to find examples of Republicans saying things that they are now frantically trying to explain away. As I discussed in my column yesterday , one prominent example of this is Utah Senator Mike Lee, who explicitly and directly stated in a speech in 2010 that he would "pull [Social Security] up by the roots and get rid of it."  This was not a momentary lapse of reaso

Even Now, the Attacks on Social Security and Medicare Will Not Stop

by Neil H. Buchanan As political strategies go, President Biden's attack last week on the Republicans who have been attacking Social Security and Medicare worked brilliantly -- most likely beyond what anyone in the White House had planned or even dared to hope.  My guess is that the Biden team, as they thought through his State of the Union address and what to highlight,  thought (rightly) that they could position themselves in a favorable political light by pointing out that various Republicans have been very vocal over the years in trying to cut, privatize, or simply eliminate those two wildly popular government programs. Did they expect the political gift that Republicans offered in response?  I honestly doubt it, but who cares?  The Republican caucus, rather than doing what most people would have anticipated them doing, which is to go on the talk shows and try to say that they have always been at war with Eastasia loved Social Security and Medicare and that it is the dastardl

What if Extraterrestrials Sent the UFOs?

  by Michael C. Dorf First of all, I refuse to use the term "UAP," given the rich and weird history of "UFO." I get that "unidentified aerial phenomena" is technically more accurate than "unidentified flying objects" because some of the observations might not be of "objects," while some of the objects lack the capacity to "fly" in the sense of direct their own course. Even so, it's not as though the term UFO offended extraterrestrials or anyone else. It seems to me that the Kansas City pro football team and the Atlanta major league baseball team should change their names (and their fans should abandon the "tomahawk chop") long before we give up "UFO." Meanwhile, yes, I know. By far the most likely explanation for the discovery of the three UFOs that the U.S. and Canada have shot down since shooting down the Chinese spy satellite is simply that the more finely tuned parameters for detecting and acting o

The Perils of American Exceptionalism--at Home and Abroad

  by Michael C. Dorf On Friday of last week, I critiqued President Biden's statement during the State of the Union asserting that the U.S. is unlike other countries in the world, which are based on geography and/or ethnicity because the U.S. is based on the idea that every member of the polity "is created equal in the image of God." I explained that each of the four propositions implicit in that statement is wrong. To recap, those four propositions are: "(1) The U.S. is not defined by or based on geography or ethnicity, but is instead based on an idea; (2) the idea on which the U.S. is based is human equality; (3) the idea of human equality is Divine in origin; and (4) no nation other than the U.S. is based on an idea." Why did I go into so much depth? Because Biden's false claims--which echo views that we might call patriotic hyperbole passed off as conventional wisdom--are widely held and conducive to great mischief in both constitutional law/politics and

Is the U.S., as Biden said in his SOTU, "the only nation in the world built on an idea?"

by Michael C. Dorf Very near the end of his State of the Union address on Tuesday night, President Biden said that the United States is  the only nation in the world built on an idea. The only one. Other nations are defined by geography [and] ethnicity, but we're the only nation based on an idea. That all of us, every one of us, is created equal in the image of God.  There are four claims there: (1) The U.S. is not defined by or based on geography or ethnicity, but is instead based on an idea; (2) the idea on which the U.S. is based is human equality; (3) the idea of human equality is Divine in origin; and (4) no nation other than the U.S. is based on an idea. The good news is that no one in the chamber booed or heckled when Biden delivered the foregoing patriotic and inspirational lines. The bad news is that none of those four propositions is true. I offer the analysis below not so much as a criticism of Biden in particular--who, in making the foregoing statement expressed somethi

With Manchin in the Lead on the Debt Ceiling, What Could Possibly Go Wrong?

by Neil H. Buchanan Now that the first wave of uninformed press coverage about the debt ceiling has run its course, superseded by things like the Turkey/Syria earthquake and Republicans heckling the State of the Union speech, the real work will begin.  That is, even though we reached the nominal debt limit a few weeks ago, we have some unknown number of months (most likely until June or July) before the drop-dead date on which Republicans might shoot the hostage and push the US into a constitutional crisis.  Four or five months is not a long time, and it will involve ebbs and flows of news as real discussions take place that will determine our collective fate. Professor Dorf pointed out a few days ago that the Biden Administration seems to be trying to "win the politics" of the debt ceiling by priming the public to blame Republicans if everything goes to hell.  I completely agree with his forceful retort: If Biden thinks that he has painted McCarthy into a corner where McCa

Schadenfreude and Third-Party Standing in the Student Debt Forgiveness Case

by Michael C. Dorf Later this month, the Supreme Court will hear oral argument in two cases challenging the Biden administration's student debt forgiveness program: Dep't of Educ. v. Brown  and Biden v. Nebraska . Each case presents a threshold question whether the respective respondents have standing as well as a merits question. Although the merits questions are worded a bit differently in each case, they boil down to the same basic objections: (1) that the HEROES Act , which the administration invoked as authority for the debt forgiveness plan, does not in fact authorize it because, say the respondents, most of the beneficiaries of the plan were "not placed in a worse position financially in relation to that financial assistance because of their status" as individuals affected by the national emergency of the COVID-19 pandemic; and (2) the adoption of the plan was procedurally flawed. As I wrote in my Verdict column last week, the recent announcement of the Biden a

The UK's Self-Immolation Proves (Among Other Things) That Business Needs Regulations

by Neil H. Buchanan Apparently, " Everyone Regrets Brexit ," according not only to one UK-based news outlet but to poll after poll showing that the people of the UK now rue their country's 52-48 plebiscite vote to leave the EU.  Astonishingly, according to a recent mega-poll of ten thousand respondents, the "we should have stayeds" outpace the "glad we lefts" by almost a two-to-one margin.  That is hardly surprising, because the idea of getting out of Europe was sold on lies in the first place, and the county's long, grinding decline has only accelerated in the last six years. Does that mean that the UK will soon be back in the EU?  That would make too much sense.  Before we even get to the question of rejoining, recall that that 2016 vote was non-binding, and it was only when the Conservative Party decided to go all-in on carrying through with Brexit -- and "hard Brexit" at that -- that the divorce was hammered out.  In addition, the s

A Debt Ceiling Deal That's Not Called a Debt Ceiling Deal is Still a Debt Ceiling Deal

by Michael C. Dorf Following his meeting last week with President Biden, House Speaker McCarthy stated that he and the President should be able "to find common ground" regarding raising the federal debt ceiling. Yet the two sides seem to be starting at an impasse. McCarthy says he wants budget cuts in exchange for raising the debt ceiling; Biden says that raising the debt ceiling is non-negotiable. Biden clearly has the moral high ground here. This is not like a budget negotiation in which, say, Democrats want billions for some domestic program while Republicans want billions for some military program, so they come together to fund both. Biden's ask is not on behalf of any Democratic agenda item. Raising the debt ceiling is necessary to avoid tanking the global economy and perhaps permanently undercutting the role of the dollar as the world's reserve currency. And yet, even though McCarthy's position is unreasonable, to paraphrase Donald Rumsfeld, you don't n

How Might We Make Britain (and America) Great Again?

by Neil H. Buchanan The UK's many problems have become too obvious for even the most obtuse anglophiles to ignore or deny.  That country's post-Brexit meltdown, which has (among many other things) renewed the possibility of Scotland declaring independence -- Sexit, it seems -- continues to get even worse, with the empire on which the sun once never set now seeing an acceleration of its long, agonizing decline. In yesterday's column here on Dorf on Law , I asked whether the US or the UK will be the first to fully implode, economically and politically.  I acknowledged that the Brits have a significant head start on the Americans in terms of frittering away their many advantages, having begun their decline in 1945 (at the very latest) and showing no signs of rejuvenation at any time since then.  On the other hand, the US's particular pathologies -- most obviously the chaos that Republicans are unleashing via debt-ceiling-based threats of Armageddon, although in fact it

Can the US Best the UK in the Art of Self-Destruction?

by Neil H. Buchanan Russia, emerging from the ashes of the Soviet empire, was until less than a year ago thought to be a world power in its own right, with the invasion of Ukraine to be the first in a series of assuredly unstoppable steps to returning itself to the status of something like an imperial power.  On the other hand, China's post-Maoist history is a mixture of impressive advances and setbacks.  Turning more than 300 million rural peasants into middle-class city dwellers is, after all, almost incomprehensible in its scope.  But perhaps its most consequential setback, as we recently learned, was not caused by a singularly bad decision (like Vladimir Putin starting a land war in Europe).  There is now, instead, the sudden recognition that the country has badly mishandled its population policies for the last half century, with the result that there is now an "age bomb" threatening the country's still-unknowable future. The colonial empires of the various Europ

Text, History, and Tradition in the 2021-2022 Term: A Response to Professors Barnett and Solum

 By Eric Segall The 2021-2022 Supreme Court term was one of the most important in American history. In Dobbs v. Jackson Women's Health , the justices returned the issue of abortion completely to the states (and potentially Congress). In New Yok State Pistol & Rifle Ass's., v. Bruen , the Court substantially limited the ability of states to pass meaningful gun control laws. And in Carson v. Makin and Kennedy v. Bremerton School Dist ., the justices   further weaponized the free exercise clause as a restriction on the states while further limiting the reach of the establishment clause.  Constitutional law scholars across the ideological spectrum have been trying over the last seven months to make sense of these decisions and how they relate to originalism and the use of text, history, and tradition in constitutional law. One such effort is a recent article by two of the country's most prominent academic originalists--Professors Randy Barnett and Lawrence Solum. Their art