The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Rankings

The US News T14 Is Dead, and Has Been Replaced by the T11 (or, if You Prefer, the T10 with 11 Members)

The revamped US News law ranking methodology adopted in 2023 has killed an old grouping and created a successor.

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To state the obvious, many people put a lot of weight (far too much weight, in my view) on the US News law school rankings. Good evidence of this is the prevalence of the term "T14." The label arose in the 1990s when people noticed that the same 14 law schools—and only those 14—occupied the top 14 spots in every US News overall ranking starting with the first one in 1990. (There was a 1987 ranking that was simply a survey sent to selected law school deans, but the rankings with multiple metrics began in 1990.) That is, not only were these 14 schools always in the top 14, but no other school even tied for 14th.

That pattern continued with remarkable regularity through the rankings released in 2022, with three tiny exceptions noted below. (Sidenote: after Georgetown fell out of the top 14 a couple of times, some—often Georgetown supporters—suggested that the T14 should instead be defined as the top 10 schools that had ever appeared in the US News top 10, noting that Georgetown ranked #10 once, in 1993. But by that reasoning Georgetown would forever remain a top 14 school, even if consistently ranked #30, which is pretty silly.)

Between its 2022 and 2023 law rankings, US News changed its methodology considerably, moving toward more objective metrics and away from spending per student—a metric that wasn't reported to the ABA and could easily be manipulated. We now have four years of rankings under the new regime, and a few things have become clear:

  1. The 1990–2022 rankings are so different from the 2023–2026 rankings that they are effectively separate regimes.
  2. The T14 is dead. The top 14 is the second-least coherent grouping in the 2023–2026 rankings.
  3. The 2023–2026 rankings show more variation (unsurprisingly, since they put more weight on things that change year to year, like employment numbers).
  4. Perhaps surprisingly, at least for now there is a coherent replacement for the T14 in the new regime. Say hello to the T11—or, if you prefer, a T10 with 11 members.

On the first claim: There are various ways to illustrate the differences between the pre-2023 and 2023–2026 regimes, but the visualization above is the one I liked best. (You can open these visualizations in a new tab to enlarge them.) The lines move dramatically after 2022. Look at the table on the right side showing how much movement occurred. Only three of the current top 23 schools (based on the 2023–2026 average rankings) moved less than one rank, and many moved much more. Indeed, I found that I couldn't include the full movement of UNC and Georgia without severely compressing the rest of the chart. And charting the top 25 schools in the current regime would have included Texas A&M, which moved up steadily before 2023 (from 60 to 53 to 46 in 2020–2022) but then had a massive leap in 2023 to 29, followed by 26 in 2024 and 22 in 2025 and 2026. Its 2023–2026 average (24.8) was thus more than 18 ranks better than its 2020–2022 average. In any event, the bottom line is that the 2023–2026 rankings differ sharply from the 1990–2022 rankings.

That still leaves the question of whether any coherent groupings exist within each period.

The cleanest way to measure deviations from a "Top X" grouping is to identify the minimum total number of changes in ordinal position necessary for the same schools—and only those schools—to constitute the top X each year. This also answers the question of which schools belong in the top X—it should be whichever combination results in the smallest minimum total number of changes. (The proxy I use to determine this is a school's average ranking over the measured time period.)

So the most coherent grouping is the one that requires the fewest moves, and thus has the lowest number in the bar charts below.

For those who aren't interested in how the counting works, feel free to skip this paragraph. There are three exceptions to the same 14 schools (Yale through Georgetown) occupying the top 14 from 1990–2022: 1) In 2011 Texas tied Georgetown for 14th. To put Georgetown alone in 14th place, Georgetown would need to move up 1 position (or Texas down 1). Either way, 1 position would need to change. 2) In 2017, Georgetown tied with UCLA for 15th, and Texas was 14th. Georgetown would need to move up 2 positions (from 15th to 13th) to avoid a tie with Texas. 3) In 2021, Georgetown was 15th and UCLA was 14th, so Georgetown would need to move up two positions, or UCLA would have to move down two positions (or each moves one) to avoid a tie, for a total of two positions moved.

As the visualization below shows, the minimum total number of positional changes needed for the T14 to remain perfectly stable from 1990–2022 is just five. That is a significantly lower number than for any other Top X grouping (except for the Top 1, which is too small to be useful). That low number of moves indicates the coherence of the T14 during those years. Meanwhile the Top 8 was quite incoherent.

The 2023–2026 regime tells a very different story. The Top 14 is tied for the second-least coherent grouping in the top 20. The T14 is no more. But an obvious replacement has emerged from the 2023–2026 rankings: the Top 11. The Top 3 is even more coherent, and there is a Top 2, but those clusters are too small to be useful replacements for the Top 14. After the Top 11, the next most coherent sizable group is the Top 7.

You can call the Top 11 the "Top 10" because they are the 11 schools consistently in the top 10, accounting for ties. I prefer "Top 11," but Top 10 is a more conventional number, and there's a faint absurdity (perhaps fitting for rankings that shouldn't be taken as seriously as they are) in having 11 schools in the Top 10.

None of this is to suggest that the 2023–2026 US News law rankings, or the 1990–2022 rankings, or any other rankings system is the "correct" rankings system, whatever that would even mean (and the US News 1990–2022 and 2023–2026 regimes can't both be correct, given the differences between them). Rather, my point is that insofar as you take the US News law rankings seriously, you should not invoke the T14. Invoking the T14 now is like relying on 2013–2022 college basketball polls to identify the strongest teams this season.

The larger point is about the stickiness of old paradigms—a form of status quo bias. It's easy, and lazy, to notice a pattern and assume it will persist. Sometimes it does: a 2021 ranking of universities by endowment will look very similar to one from 2026, and quite probably 2031 as well.

But often a pattern doesn't persist. From 1990–2022, the T14 was consistently the most coherent grouping in the US News law rankings. That era is over. In the post–2022 rankings, the T14 is dead, and the T11—or the T10 with 11 members—has risen from its ashes.

Guns

Massachusetts Denial of Gun Rights Restoration Reversed by Appellate Court

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From In the Matter of K.P., decided June 26, 2024 by the Massachusetts District Court Appellate Division (Judge Thomas L. Finigan, joined by Judges Kevin J. Finnerty and Jean M. Curran) but only recently posted on Westlaw:

In the fall of 2016, the appellant's addiction to painkillers and fentanyl led to the filing by his mother of a "section 35" petition in the District Court. General Laws c. 123, § 35 ("section 35") authorizes the involuntary civil commitment of a person for care and treatment where "there is a likelihood of serious harm as a result of the person's alcohol or substance use disorder." After examination by a court clinician and a subsequent hearing, a District Court judge committed the appellant ("K.P.") to a substance abuse treatment facility for a period not to exceed ninety days. K.P. did not appeal his commitment and was discharged from the facility approximately one month later.

A civil commitment under section 35 has a collateral consequence—it disqualifies an individual from holding a license to carry a firearm. The bar is not absolute. Rather, after the passage of five years, a person may file a petition with the District Court that ordered the commitment, seeking relief from the disqualification to obtain or restore a license to carry. In this case, K.P. did so and was denied. K.P. now appeals that denial….

The court [in a section 35 restoration proceeding] may grant relief "in accordance with the principles of due process" if the person's circumstances, record, and reputation are such that "(i) the person is not likely to act in a manner that is dangerous to public safety; and (ii) the granting of relief would not be contrary to the public interest." In so doing, the court may consider the opinion of a licensed physician or clinical psychologist that the person is "no longer suffering from the disease or condition that caused the disability or that the disease or condition has been successfully treated for a period of 3 consecutive years."

Roughly six and a half years following his commitment, K.P. filed a petition in the court that ordered his commitment seeking to restore his right to possess a firearm. In support of his petition, K.P. submitted letters from his father, mother (the original petitioner under section 35), and his girlfriend, as well as a letter and affidavit from K.P. himself, which included copies of clean drug screenings mandated by his employer. The supporting materials described K.P. as an individual who had overcome his addiction, maintained employment as a commercial truck driver, obtained his real estate salesperson's license, and was in a long-term relationship with his girlfriend while parenting his children. Nonetheless, a District Court judge denied K.P.'s petition without a hearing.

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Politics

AI "Hallucinated Cases" Lead to $47K Sanctions

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A short excerpt from the long opinion in Judge Anna Manasco (N.D. Ala.) in last week's Rivera v. Triad Properties Corp.:

This case is before the court for ongoing disciplinary proceedings against Attorney Joshua Watkins and his former law firm, Burrill Watkins LLC, following Mr. Watkins's misuse of artificial intelligence to make false statements to the court….

On multiple occasions, in multiple filings and hearings, and in response to multiple questions and orders, Mr. Watkins has intentionally misled the court. Rather than taking responsibility for his actions, Mr. Watkins has feigned contrition, obfuscated the truth, changed his stories when it suits him, and attempted to blame others for his own professional misconduct….

Mr. Watkins's misconduct includes—and extends well beyond—the misuse of artificial intelligence to make both misleading and outright fabricated statements of law. Between the protracted misconduct in this case, and the similar AI issue in a sister court, the court is gravely concerned about the consequences of Mr. Watkins's misconduct.

Mr. Watkins's misconduct did not occur in a vacuum. The court also has serious concerns about Burrill Watkins's apparent lack of internal controls and guardrails surrounding its attorneys' use of artificial intelligence—indeed, the very AI the firm pays for and encourages its attorneys to use. Though Burrill Watkins maintains that it acted swiftly to remediate Mr. Watkins's errors, which it says it had no reason to know about, the firm has not explained how it enforced any policies about responsible AI use, how it will prevent improper AI use going forward, or any other circumstance—let alone an extraordinary one—why it shouldn't be sanctioned.

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Gender Identity

Iowa Law Requiring Parental Notification as to Accommodations "Intended to Affirm [Public School] Student's Gender Identity" Upheld

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From Iowa Safe Schools v. Reynolds, decided today by Eighth Circuit Judge Ralph Erickson, joined by Judges Lavenski Smith and Jonathan Kobes:

Iowa Code § 279.78(3) provides: "If a student enrolled in a school district requests an accommodation that is intended to affirm the student's gender identity from a licensed practitioner employed by the school district, including a request that the licensed practitioner address the student using a name or pronoun that is different than the name or pronoun assigned to the student in the school district's registration forms or records, the licensed practitioner shall report the student's request to the administrator employed by the school district, and the administrator shall report the student's request to the student's parent or guardian." …

The district court found part of the statute was unambiguous and another part unconstitutionally vague. The court found the notice provision is unambiguously triggered if a student requests use of a pronoun different than the pronoun assigned to the student in the school district's registration forms or records.

In contrast, the district court concluded that the provision "accommodation that is intended to affirm the student's gender identity" is impermissibly vague because the term "accommodation" has a broad meaning and, without being defined, can lead to unpredictable interpretations and create a substantial risk of arbitrary enforcement. The district court found neither Merriam-Webster's Collegiate Dictionary nor other resources helpful in determining the meaning of "accommodation." The court concluded "accommodation" is a "capacious concept" and severed what it found to be an unconstitutional portion of the statute.

{[Bu t]he examples provided by the district court in an effort to demonstrate overbreadth—such as a female asking to sit with boys at lunch, or a male choosing a pink pencil, or a male choosing to write reports about female historical figures—are not on their face student requests to change or modify gender identity.}

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Free Speech

Court Rejects Facial Challenge to Iowa Law Barring Public School K-6 Programming Related to "Gender Identity or Sexual Orientation"

The law provides, "A school district shall not provide any program, curriculum, test, survey, questionnaire, promotion, or instruction relating to gender identity or sexual orientation to students in kindergarten through grade six." The court held this wasn't unconstitutionally overbroad.

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From Iowa Safe Schools v. Reynolds, decided today by Eighth Circuit Judge Ralph Erickson, joined by Judges Lavenski Smith and Jonathan Kobes:

[Iowa law] precludes a school district from providing instruction relating to gender identity or sexual orientation to students in kindergarten through grade six [the "Instruction Section"]…. [It also] requires school officials to notify parents if a student asks for the use of a pronoun that does not match the school's registration records or requests an "accommodation that is intended to affirm the student's gender identity" [the "Parental Notification Law"]….

Iowa Code § 279.80(2) provides: "A school district shall not provide any program, curriculum, test, survey, questionnaire, promotion, or instruction relating to gender identity or sexual orientation to students in kindergarten through grade six." When enacted, the statute referred to the definition of gender identity as set forth in § 216.2(12), which defined gender identity as "a gender-related identity of a person, regardless of the person's assigned sex at birth." …

Iowa law defines gender identity as "an individual's subjective identification as male, female, or neither male nor female … [and] shall not be considered a synonym or substitute for sex or gender." Sexual orientation is defined under Iowa law as the "actual or perceived heterosexuality, homosexuality, or bisexuality." …

In addressing Plaintiffs' facial challenge, the district court concluded that all but two words in this statute—program and promotion—pass constitutional muster. The court found the words "program" and "promotion" are too broad to refer only to mandatory classroom curriculum and violate the First Amendment by prohibiting school districts and educators from, for example, making extracurricular activities relating to gender identity and sexual orientation available to students in grades six and below.

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Free Speech

Iowa Law Barring Books with "Descriptions or Visual Depictions of a Sex Act" from Public School Libraries Upheld

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When may public libraries, and especially public school libraries, remove books based on their content?

In Pico v. Bd. of Ed. (1982), the Supreme Court split 4-1-4 on the question. All the Justices agreed that books could be removed if they are "pervasively vulgar" or otherwise age-inappropriate. But four liberal Justices (to oversimplify) concluded that viewpoint-based removals are forbidden. Four conservative Justices concluded that they are permissible (because the government gets to choose what's included in either the curriculum or the libraries at government-run schools). And the ninth Justice, the centrist Justice White, concluded that there was no occasion in the case to decide the matter.

Since then, in Little v. Llano County (5th Cir. 2025), a 10-7 Fifth Circuit en banc majority concluded that the government can pick and choose what books can be removed from public or public school libraries, because people don't have a "right to receive information" via government-run libraries: "It is one thing to tell the government it cannot stop you from receiving a book. The First Amendment protects your right to do that. It is another thing for you to tell the government which books it must keep in the library." And just today, a unanimous Eighth Circuit panel held (in Penguin Random House, LLC v. Robbins, written by Judge Ralph Erickson, joined by Judges Lavenski Smith and Jonathan Kobes), that the government likely has broad (though not entirely unlimited) authority to pick and choose what books can be removed at least from public school libraries. An excerpt:

{[Iowa law] requires Iowa school districts to establish a library program, which contains "age-appropriate materials, and supports the student achievement goals of the total school curriculum." "Age-appropriate" is defined as "topics, messages, and teaching methods suitable to particular ages or age groups of children and adolescents, based on developing cognitive, emotional, and behavioral capacity typical for the age or age group." The law expressly precludes the inclusion of "any material with descriptions or visual depictions of a sex act," as defined in Iowa Code § 702.17.}

[T]he standard set forth in Hazelwood Sch. Dist. v. Kuhlmeier (1988)—that is, whether the book restrictions are "reasonably related to legitimate pedagogical concerns"—… applies to school activities that "may fairly be characterized as part of the school curriculum," and a school library is such an activity….

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Free Speech

Mesa County Clerk Sentence Violated First Amendment by Relying on "Her Protected Speech Regarding Allegations of Election Fraud"

But the underlying conviction, for false statements related to getting someone access to Dominion Voting Systems election equipment, was upheld.

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First, some backstory from NBC News (Gary Grumbach & Dareh Gregorian):

[Tina Marie] Peters was convicted of four felony and three misdemeanor charges in August 2024 for using another person's security badge to allow someone associated with MyPillow founder Mike Lindell, a prominent election denier and ally of President Donald Trump, access to county election equipment involving Dominion Voting Systems.

In Thursday's long opinion in People v. Peters, Colorado Court of Appeals Judge Ted Tow, joined by Judges Craig Welling and Lino Lipinsky de Orlov,  decided Thursday by the Colorado Court of Appeals, in an opinion by Judge Tow, affirmed the conviction, holding (among other things):

  1. President Trump's pardon of Peters could only affect federal offenses, and not the state offenses for which he was convicted (a pretty well-settled principle, since the pardon power extends only to "offenses against the United States," which is generally understood as violations of federal law).
  2. Peters didn't have any Supremacy Clause immunity from state prosecution, because such immunity just affects federal officers discharging their federal responsibilities.
  3. There was sufficient evidence that Peters was responsible for false representations alleged by the prosecution.

But the court concluded that Peters' sentencing (which led to a sentence of 6 months in jail plus 8¼ years in prison) violated the First Amendment by "punish[ing] her based on her protected speech regarding allegations of election fraud":

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$55K Sanctions Related in Part to AI-Hallucination-Filled Court Filings

"Though referred to the Alabama State Bar for any disposition it deems appropriate, the undersigned regrettably recommends" that the lawyer "be found incompetent to practice law."

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An excerpt from the 12K-word opinion in Heimkes v. Fairhope Motorcoach Resort Condo. Owners Ass'n, Inc., decided Tuesday by Judge Terry Moorer (S.D. Ala.):

Attorney Franklin Hollis Eaton, Jr. filed several pleadings which contained fabricated citations and false statements of law that he failed to check or correct prior to submission. The Court had already discovered problems with Mr. Eaton's filings when Defendant filed its first motion flagging numerous misstatements of law. The Court then issued two show cause orders regarding the misstatements, which were partially acknowledged by Mr. Eaton, though he has failed to fully and accurately address the Court's numerous concerns despite as many opportunities to do so.

From the outset, the Court notes that this case is not just about Mr. Eaton's most recent misstatements of law, but rather about a pattern of conduct throughout this case that raises significant concerns about his competency to practice law. In sum, the misstatements and misrepresentations were just the final straw. After a careful review of the matter, the Court finds that Mr. Eaton's conduct amounts to bad faith. Therefore, the Court SANCTIONS him under Rule 11, Alabama R. 3.3, and the Court's inherent authority and ORDERS as follows:

  1. Attorney Franklin Hollis Eaton, Jr. is hereby REPRIMANDED and this reprimand shall be published as follows:
    1. Attorney Franklin Hollis Eaton, Jr. shall file, not under seal, a copy of this Memorandum Opinion and Order in any case in any court wherein he has appeared as counsel and final judgment has not been entered;
    2. Attorney Franklin Hollis Eaton, Jr. shall file, not under seal, a copy of this Memorandum Opinion and Order in any case in any court wherein he appears as counsel for twelve (12) months after the date of this order;
    3. Attorney Franklin Hollis Eaton, Jr. shall provide a copy of this Memorandum Opinion and Order to any jurisdiction in which he is licensed to practice law within two (2) business days of the issuance of this order. He shall further file a notice of compliance with the Court no later than the third business day from the date of this opinion.
    4. The Clerk of Court shall send a copy of this Memorandum Opinion and Order to the General Counsel of the Alabama State Bar for review. Though referred to the Alabama State Bar for any disposition it deems appropriate, the undersigned regrettably recommends that Attorney Franklin Hollis Eaton, Jr. be found incompetent to practice law.
    5. The Clerk of Court shall send a copy of this Memorandum Opinion and Order to the Chief Judges for the Northern District of Alabama, the Middle District of Alabama, and the Southern District of Alabama.
    6. To further effectuate the reprimands and deter similar misconduct by others, the Clerk of Court is DIRECTED to submit this order for publication in the Federal Supplement.
  2. Franklin Hollis Eaton, Jr. shall pay attorney fees in the amount of $55,597.00 to Defense counsel for their time spent addressing Mr. Eaton's misstatements of law.
  3. Pursuant to S.D. Ala. GenLR 83.4(a) and (h)(1), the undersigned refers to the Judges of the Southern District of Alabama a review of Franklin Hollis Eaton, Jr….

The court begins by pointing to a wide range of past behavior by Mr. Eaton:

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Politics

In One Day (Mar. 31), 17 U.S. Court Decisions Noting Suspected AI Hallucinations in Court Filings

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So reports Damien Charlotin's AI Hallucination Cases Database. And recall that likely (1) many hallucinations aren't spotted; (2) many that are spotted aren't noted in court decisions; and (3) the great majority of court decisions are in state trial courts, and thus aren't posted on Westlaw or Lexis or any other place where Charlotin and others can easily spot them.

Birthright Citizenship

Birthright Citizenship as a Second-Best Policy

I oppose Trump's efforts to deny birthright citizenship chiildren of undocumented immigrants. But birthright citizenship is not the ideal policy.

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For a variety of reasons, I oppose Donald Trump's efforts to end birthright citizenship for children of undocumented immigrants and those in the US on temporary visas. And I have argued he deserves to lose the Supreme Court case on this issue. But unlike many other opponents of Trump's policy and of his constitutional arguments, I am not convinced birthright citizenship is the ideal  system. It is, at most, only a second-best option, in the sense that it's better than the currently likely alternative.

Under current political conditions, that likely alternative is subjecting hundreds of thousands of children to deportation, and many adults, as well. Even though Trump's executive order is limited to children born at least 30 days after it was issued, the logic of his legal arguments would deprive millions of adults and older children of their right to live in the United States, as well. If the Fourteenth Amendment denies birthright citizenship to children of undocumented immigrants and temporary visa-holders, that fact did not begin suddenly in 2025, but must have been true all along. Thus, the likely consequence of a legal victory for Trump would be grave harm to millions of children and descendants of immigrants, plus severe damage to the American economy and society from the resulting deportations and legal uncertainty. In addition, millions of other Americans would find it difficult to prove citizenship status if it can no longer be done on the basis of a birth certificate.

But while birthright citizenship is better than the likely alternative at this point in history, I do not believe it is the ideal policy. I explained some of the reasons why in a 2018 post:

Unlike most other advocates of immigration and immigrant rights, I have significant reservations about birthright citizenship. In my view, important human rights should not be so heavily dependent on parentage and place of birth. Our current citizenship system has all too much in common with medieval hereditary aristocracy, under which freedom of movement and other crucial rights were largely dependent on ancestry. I cannot outline anything like a comprehensive alternative here. But, as a general rule, I would prefer a system under which some rights now largely determined by citizenship (particularly freedom of movement, residency, and employment) were delinked from citizenship and made presumptively available to everyone, and citizenship itself were made easier to acquire through pathways that do not require the applicant to be a relative of a current citizen.

More generally, one of my (and many others') main objections to immigration restrictions is that they restrict people's liberty and opportunity based on arbitrary circumstances of ancestry and place of birth.  If you were born to the right parents or in the right place, you get to live and work in the US; if not, you can only do so if the government gives you permission, which in the vast majority of cases is likely to be denied. In that respect, they are very similar to racial segregation and South African apartheid. In both cases, liberty is gravely restricted and many are consigned to a lifetime of poverty and oppression because of morally arbitrary circumstances of birth over which they have no control.

Birthright citizenship is an improvement, in this respect, over a policy based on ancestry and parentage. For many children, it creates an alternative pathway to get around unjust restrictions. But it still restricts liberty and opportunity based on circumstances of birth, in this case based on place of birth, as well as parentage. And people have no more control over the location of their birth than over the identity of their parents. Neither determines your moral worth or how much liberty you are entitled to.

Thus, the far superior policy is simply to let people live and work where they want, regardless of who their parents are or where they were born. If that liberty is to be restricted, it should be only if the people in question pose some grave danger that cannot be addressed in other ways. And, in such extreme situations, native-born people's liberty could potentially be restricted, as well. I develop these points in greater detail in Chapters 5 and 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.

Obviously, under current circumstances, citizenship includes not only the right to live and work in the US, but also rights to vote, hold public office, and receive various welfare benefits. In an ideal system, restrictions on voting and office-holding would be based on competence and (in some cases) there might be exclusions based on a demonstrated danger to liberal democratic institutions (as with Section 3 of the Fourteenth Amendment, which the Supreme Court wrongly gutted, to a large extent). We already have some competence-based constraints on the franchise, such as excluding children, some convicts, and immigrants who cannot pass a civics test most native-born Americans would fail if they had to take it without studying.

Access to welfare benefits should, I believe, be much more severely limited than is currently the case for both immigrants and natives. But even now the vast majority of immigrants contribute more to the public fisc than they take out, and limiting the welfare state is a bad argument for immigration restrictions that - if applied consistently - would also justify severely restricting many other liberties.

Thus, the ideal political system would have a strong presumption against restrictions on migration, while also imposing competence-based constraints on voting rights and office-holding, and limiting welfare benefits in various ways. We need some combination of decoupling citizenship from freedom of movement, constraints on access to government power, and limiting welfare benefits to a class of people who genuinely cannot avoid severe privation without them. And none of these rights and privileges should be, to any great extent, based on parentage or place of birth.

But, obviously, there are serious questions about whether governments can draw these lines in the right places and be trusted not to abuse their powers. Elsewhere, I have argued that we probably cannot rely too much on competence-based restrictions on the franchise, because real-world governments generally cannot be trusted in this field. We should instead address the problem of voter ignorance and bias by other means. It is also obvious that we are not going to get anywhere close to full freedom of movement for migrants anytime soon.

For these kinds of reasons, I think birthright citizenship for all people born in the United States is the best available option at this time. That's especially true because it does not preclude creating and expanding other pathways to residency, work rights, and citizenship. But we should  be under no illusion that it is anywhere close to ideal, and we should remember that it includes an important element of unjust discrimination based on arbitrary circumstances of birth.

In this case, as with other situations involving unjust discriminatory immigration restrictions, the right approach to arbitrary discrimination is to "level up" rather than "level down." We should not deny birthright citizenship to those who currently enjoy its benefits. But we should also do all we can to expand these opportunities to others.

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