Dorf on Law

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 ...

  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.

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...

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...

 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...

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 re...

  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...

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.

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...

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 ...