The Volokh Conspiracy

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

The Volokh Conspiracy

Academic Freedom

Academic Freedom and the Mission of the University

My new article on academic freedom now online at the Houston Law Review

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This fall I participated in the annual Frankel Lecture symposium at the University of Houston Law School. The topic was on academic freedom and diversity, and the lecture was delivered by Jeannie Suk Gersen of Harvard Law School. I provided a response, along with Khiara M. Bridges of Berkeley Law School.

The articles from the symposium have now been published online and printed in the latest issue of the Houston Law Review. The full symposium can be found here.

My article, "Academic Freedom and the Mission of the University," focuses on the relationship between the mission of the university and the commitment to and value of academic freedom to that university. A university dedicated to truth-seeking needs robust protections for academic freedom in order to properly fulfill that mission, and American universities embraced those protections as they reoriented themselves to that mission in the late nineteenth and early twentieth centuries. To the extent that universities deviate from that mission and prioritize other values and commitments, then academic freedom protections will seem less valuable and even counterproductive.

I particularly consider three competing understandings of what universities should be seeking to prioritize and show that in each case academic freedom will likely suffer. The article explores the implications of committing the university to a "patriotic" mission of promoting a rich set of substantive values seen as central to the nation, committing the university to a "neoliberal" mission of preparing students for career success, and committing the university to a "creedal" mission of promoting a rich set of substantive values seen as important to the campus community such as inclusivity or social justice.

From the conclusion:

Modern American universities have struggled to live up to their own ideals, and our current polarized environment will make living up to those ideals harder rather than easier. The educational reformers of the late nineteenth century understood that if universities were to serve their proper purpose of bringing the benefits of knowledge to society, the experts that the university had to offer would have to be broadly trusted. They could not be perceived as just another set of partisans entering into familiar political battles. That is a hard position to achieve. To the extent that society is divided into distant warring camps, it is all the more difficult to bridge that divide. Scholarly judgment might be vilified and dismissed rather than welcomed. But modern universities were launched with a goal of standing above such divides. Their best chance of doing so requires taking scrupulous care to be intellectually open and nondogmatic, standing above the fray rather than diving into it, and protecting dissident ideas rather than suppressing them.

Read the whole thing here.

Khiara Bridges' article ends on a particularly intriguing note. A critical race theorist, she worries about pressure on academic freedom currently coming from the political left and from the political right. Notably, she emphasizes to the left that universities should not be places that prioritize "student comfort," as some diversity, equity and inclusion offices are wont to do. More curious is her discussion of the threat from the political right. There she notes that conservatives responded to critical race theory arguments about free speech in the 1990s by embracing a more libertarian view of free speech principles. She seems wistful that the political right now seems to be abandoning that libertarianism and adopting a more censorious attitude that more closely mirrors CRT.

She writes:

And what is the best way to respond to pressures on academic freedom generated from the right? It seems like the right might need to remind itself of the claims that it made in the 1990s, when self-identified critical race theorists argued that the First Amendment should not be interpreted to protect racist hate speech. During that historical moment, many conservatives (and liberals) rejected these theorists' claims, arguing that the First Amendment was incompatible with protections against injurious speech. They contended that the best response to harmful speech was not to limit speech but rather to ensure that everyone could speak.

In the 1990s, conservatives wanted more speech. In the 2020s, they want less. If conservative pundits, activists, and scholars really value the First Amendment as much as they claimed just three decades ago, then they should recognize the bans on "Critical Race Theory," "divisive concepts," and the like as the wildly un‑American efforts that they are.

Is the implication here that CRT was wrong about free speech and that everyone should embrace the civil libertarian position on speech? That in hindsight it was a mistake for the left to have spent the last few decades advocating for a more restrictive understanding of the First Amendment and free speech principles? Indeed that CRT principles regarding free speech were "wildly un-American"? Or that it would be convenient for left-leaning academics if the right were to continue to adhere to liberal speech ideals while the left continues to embrace illiberal speech ideals? That the left should censor but the right should tolerate? Free speech for me but not for thee?

I'd like to think that my colleagues on the left are starting to see the light when it comes to free speech principles and realizing that they were playing with fire in urging an illiberal vision of free speech, but we are not there yet. Instead some are doubling and tripling down on theories about how to restrict speech they do not like. And meanwhile, Bridges is right that some conservatives are turning to the dark side when it comes to free speech. Things are likely to get worse before they get better, and the truth-seeking mission of the university might be curtailed, if not abandoned entirely.

Free Speech

Court Rejects Lawsuit Against Teacher's Aide Who Criticized Student Who Had Committed Suicide

The student's mother alleged that he had been bullied and the school district had done nothing to protect him; the teacher's aide responded in an online public discussion, saying (among other things) that the student had been doing the bullying; the parents sued.

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From Spring v. Allegany-Limestone Central School Dist., decided Tuesday by Judge William Skretny (W.D.N.Y.):

Gregory Spring was the son of Plaintiffs Keri and Eugene Spring, and the brother of Plaintiff Julianne Spring. Defendant Diane Lowry was a teacher's aide at the Allegany-Limestone Central School District, where Gregory was a student. Lowry frequently worked in the same classroom as Gregory while he was in middle school but had no contact with him after he completed eighth grade.

Lowry testified that, when Gregory was in eighth grade, she saw him running down the hallways with a group of boys, pushing people over. She also testified that one day she asked the group of boys, including Gregory, not to crowd her and the physically-limited student with whom she was working and Gregory responded, "you need to shut the hell up and mind your own business." Lowry left discipline for this incident to the teacher in charge. She testified that, a few days later, Gregory apologized to her for that incident. Lowry also testified that she had seen Gregory bully a student called Z.C. until he cried but she did not provide a date or context for this incident.

School disciplinary records indicate that Gregory was disciplined on November 12, 2010, and January 19, 2011, for shoving other students in the hallway. What appears to be a complete record of eight disciplinary incidents in Gregory's record does not contain a record of Gregory either bullying another student or telling Lowry to shut up.

Gregory committed suicide on June 17, 2013. In the aftermath of his suicide, an anonymous poster wrote the following on the online message board of the funeral home: "Ha ha. He died. I hope he's in hell." A Channel 4 news article covered his suicide. The online comments section for this article contains multiple posts about his suicide and about his mother Keri's allegations that Gregory committed suicide because he had been bullied and that the school district had done nothing to protect him from bullying. {It is likely that this discussion occurred within several days of Gregory's funeral. In messages to a parent in the District, Lowry asked, "what parent would contact a news station the day after your son's funeral?" This suggests that the Channel 4 coverage occurred in the days after the funeral and this discussion ensued shortly after.}

Lowry engaged in this online conversation. In her first post, she wrote,

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Girgis: A Thought on Equal-Protection Arguments for Abortion Rights

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My colleague and friend Sherif Girgis has sent me the following thoughts on the Equal Protection Clause and the momentous abortion case on the Supreme Court's docket.

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The leaked Dobbs draft spends pages arguing that abortion is not a deeply rooted unwritten right.  That's had me thinking more about the most powerful alternative argument:  that abortion rights follow from the enumerated right to equal protection.  I want to float a thought on this family of views.

The arguments come in two varieties.  A leading proponent of one variety, from whom I've learned (and to whom I owe) a great deal, is Professor Reva Siegel, who co-filed an amicus brief in Dobbs.  She argues that we cannot explain prolife states' policies in terms of their professed concern for fetal life alone.  Those policies also reflect invidious motivations, like stereotypes about women's "proper" role as mothers before all else.  Other equal-protection arguments, including Professor Jack Balkin's, focus less on motivation than on impact.  They suggest that prolife states impose burdens on women they wouldn't tolerate on men.  Either way, the idea is that abortion bans—viewed together with prolife states' other policies—reflect or impose sexist double standards.

The draft opinion finds the equality arguments foreclosed by two cases holding that laws regulating sex-specific procedures don't trigger scrutiny absent some animus and that we needn't posit animus to explain abortion laws.  Critics respond that this answer gives the equality arguments short shrift and refuses to revisit two precedents (including Geduldig, which for some has been overruled in the court of history) in an opinion rejecting much bigger ones.

To be fair to the Dobbs majority, the equal protection arguments depart not only from two cases but from the Court's global framework for equal protection law—with its focus on disparate treatment rather than impact and on classifications as triggers for scrutiny.  But Balkin says that departing from these doctrines would take us closer to the Constitution's original meaning.  Here I'll assume that he's right.  Specifically, as needed for both the unfair-motivations and unfair-impact versions of the argument, I'll assume a doctrinal framework in which courts may reach equal-protection judgments by studying the whole body of a state's statutory (and common?) law to draw (1) inferences about the state's systematic motivations toward particular groups and (2) counterfactual judgments about how the state's laws might change if the burdens they imposed fell on different groups than they currently do.  Granting all of this, I have a concern about the equality arguments for abortion access that isn't based on current precedent.

To preview:  Despite their professed goal, the equality arguments ultimately have to assume that it is not even permissible for states to believe that fetal life is innocent human life.  That the Constitution itself somewhere mandates a position on fetal moral worth—one that discounts early fetuses.  But this was the weakest and most widely criticized premise of Roe and Casey.  So the equality arguments would be no stronger than Roe and Casey's rationale.  In which case, for the Dobbs majority's purposes, they would fail for the same reasons.  In fact, the premise they shared with Roe/Casey would be doing most of the work in the equality arguments for abortion:  there would be little left to be done by the appeal to equality itself.

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Free Speech

"May Be The Most Helpful Brief I've Ever Read,"

said Judge Vince Chhabria (N.D. Cal.) about this amicus brief from Paul Alan Levy (Public Citizen).and Phillip R. Malone of the Juelsgaard I/P and Innovation Clinic (at Stanford).

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Now that is rare and high praise (quoted in Tuesday's article in The Recorder). The brief, which is about the standards for unmasking anonymous defendants who are being sued for their speech, is here. Here's the Introduction:

Public Citizen submits this amicus brief in support of neither party to address the proper way to assess the balance between the First Amendment right to speak anonymously and the right to enforce based on the anonymous speech. Public Citizen agrees with Twitter and its amici that platforms such as Twitter have standing to assert the First Amendment rights of their users. We also agree that the Dendrite balancing test, often applied in this District in cases such as Highfields Capital Management v. Doe, 385 F. Supp.2d 969 (N.D. Cal. 2005), rather than the test of Sony Music Entertainment v. Does 1-40, 326 F. Supp.2d 556 (S.D.N.Y. 2004), supplies the proper legal standard. But in important respects, Public Citizen disagrees with Twitter and its amici about how to apply final prong of the Dendrite standard, under which a court balances the rights of the prospective plaintiff and the First Amendment right to speak anonymously.

Twitter and its amici variously argue that, under the Dendrite balancing prong, either a party seeking discovery bears the burden of making a showing at the balancing stage, or the mere fact that disclosure would strip the Doe of her anonymity is enough to strike the balance against identification. Properly applied, however, that stage of the analysis—which is reached only after a party claiming that the anonymous speech was wrongful has submitted both legal argument and evidence sufficient to show that it has a tenable basis for claiming a violation of its rights—provides an opportunity for both the party seeking enforcement of a subpoena and the party seeking to preserve anonymity to point to any special considerations that might warrant enforcing or denying enforcement in that the particular facts differ from the standard subpoena case. In addition, this amicus brief explains how the Court should approach this case in light of the interests presented, but does not take any position about how the Court should strike that balance here.

Crime

Today in Supreme Court History: May 19, 1921

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5/19/1921: Chief Justice Edward Douglass White dies.

Chief Justice Edward Douglass White

 

Free Speech

Hermes Birkin Handbags, NFTs, Trademark Law, and Rothschild (but not Controlling the Weather)

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From Hermes Int'l v. Rothschild, an opinion issued today by Judge Jed Rakoff (S.D.N.Y.):

Around December 2021, defendant Mason Rothschild created digital images of faux-fur-covered versions of the luxury Birkin handbags of plaintiffs Hermes International and Hermes of Paris, Inc. (collectively, "Hermes"). Rothschild titled these images "MetaBirkins" and sold them using so-called "NFTs" (non-fungible tokens), explained further below. In response, Hermes filed a complaint, subsequently amended, claiming trademark infringement, trademark dilution, and cybersquatting….

Unless otherwise indicated, the following factual allegations are taken from the amended complaint. Hermes is a luxury fashion business known for, among other products, its unique Birkin handbag, which sells for anywhere from thousands of dollars to over one hundred thousand dollars. Hermes owns trademark rights in the Hermes and Birkin marks as well as trade dress rights in the Birkin handbag design.

NFTs, or "non-fungible tokens," are units of data stored on a blockchain that are created to transfer ownership of either physical things or digital media. When NFTs are created, or "minted," they are listed on an NFT marketplace where NFTs can be sold, traded, etc., in accordance with "smart contracts" that govern the transfers. Because NFTs can be easily sold and resold with a transaction history securely stored on the blockchain, NFTs can function as investments that can store value and increase value over time.

When an NFT is linked to digital media, the NFT and corresponding smart contract are stored on the blockchain and are linked to digital media files … to create a uniquely identifiable digital media file. {This means that an NFT could link to a digital media file that is just an image of a handbag or could link to a different kind of digital media file that is a virtual handbag that can be worn in a virtual world. Fashion companies are just starting to branch out into offering virtual fashion items that can be worn in virtual worlds online (most commonly, for now, in the context of videogames, but with potential to expand into other virtual worlds and platforms as those develop), and NFTs can be used to create and sell such virtual fashion items. However, while Hermes calls what Rothschild sells "digital handbags," they do not dispute that what Rothschild sells are digital images of (faux fur, not leather) Birkin bags, and not virtually wearable Birkin bags.} The NFTs and smart contracts are stored on the blockchain (so that they can be traced), but the digital media files to which the NFTs point are stored separately, usually on either a single central server or a decentralized network.

Fashion brands are beginning to create and offer digital replicas of their real-life products to put in digital fashion shows or otherwise use in the metaverse. NFTs can link to any kind of digital media, including virtual fashion items that can be worn in virtual worlds online. Brands sometimes partner with collaborators in offering co-branded virtual fashion products.

Defendant Mason Rothschild is a "marketing strategist" and "Entrepreneur" who "come[s] from the fashion industry." In or around May 2021, Rothschild created a digital image entitled "Baby Birkin," which depicted a 40-week-old fetus gestating inside of a transparent Birkin handbag. Rothschild sold the NFT linked to the "Baby Birkin" digital image for $23,500; it later resold for $47,000.

In or around December 2021, Rothschild created a collection of digital images titled "MetaBirkins," each of which depicted an image of a blurry faux-fur-covered Birkin handbag. Rothschild used NFTs to sell these "MetaBirkins" digital images. Each NFT in the "MetaBirkins" collection is titled with a number from 0 to 99 and not the "MetaBirkins" name. The NFTs have sold for prices comparable to real-world Birkin handbags.

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Law & Government

Bad Day in Court for the Administrative State

Fifth Circuit panel finds several constitutional problems with the Securities and Exchange Commission

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In Jarkesy v. Securities and Exchange Commission, a divided three-judge panel of the Fifth Circuit put a shot across the bow of the administrative state. In an opinion written by Judge Jennifer Walker Elrod, the court ruled against the SEC in a securities fraud enforcement case on several constitutional claims. The full opinion can be found here.

Petitioners raise several constitutional challenges to the SEC enforcement proceedings.1 We agree with Petitioners that the proceedings suffered from three independent constitutional defects: (1) Petitioners were deprived of their constitutional right to a jury trial; (2) Congress unconstitutionally delegated legislative power to the SEC by failing to provide it with an intelligible principle by which to exercise the delegated power; and (3) statutory removal restrictions on SEC ALJs violate Article II.

A nondelegation ruling against the SEC is a big deal, but the actual argument is somewhat more modest.  The claim is that Congress did not articulate an intelligible principle to guide the SEC on whether to bring enforcement actions in Article III courts or through administrative decision-making. Significant, but pretty fixable.

The third constitutional claim is potentially wide-ranging, though also fixable. The court concludes that administrative law judges are officers exercising substantial policy discretion, and thus cannot be regarded as mere inferior officers doubly insulated from presidential removal.

Judge W. Eugene Davis dissented from all three constitutional conclusions.

Democracy

Bryan Caplan on "Misinformation About Misinformation"

One of the world's leading experts on public knowledge and ignorance explains why consumers of misinformation are often as much to blame as producers.

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Economist Bryan Caplan is one of the world's leading experts on political ignorance and irrationality, author of the much-cited book, The Myth of the Rational Voter. In that work, he argues that misinformed voters are likely to be far worse than ones that are merely ignorant. Caplan takes the problem of political misinformation very seriously. But, in a recent post at his new substack blog, "Bet on It," he explains that the root of the problem is often misunderstood. The real danger is not the spread of misinformation by politicians and other unscrupulous elites, but the willingness of irrational voters to believe it:

"Nazis run Ukraine." "Biden stole the election." "You can cure Covid by injecting bleach." "Lizardmen run the world." These statements aren't merely false; they are "misinformation" that endangers democracy and the world.

Or so I keep hearing. My question: What exactly is the mechanism of misinformation supposed to be? For the critics, the story seems to be roughly:

  1. Self-conscious liars make up absurd lies to advance their agendas.
  2. Some listeners believe whatever they say.
  3. Some of these listeners repeat what they hear, sparking a cognitive contagion effect.
  4. Other listeners ignore the liars, but this sparks no contagion effect.
  5. The net effect, therefore, is to push public opinion in the desired direction. With strong contagion, the net effect is large.

One obvious follow-up question is: "Can anyone do this?" If this is how the world of ideas really works, why does anyone bother with facts or logic? Or does misinformation require some unmentioned silent partner to succeed?…..

The natural pushback is to say, "You're exaggerating. Facts and logic matter with some of the people some of the time. People have common sense, after all. If they choose, they can not only reject absurd lies, but heavily discount the words of habitual liars."

Fair enough. But this response reveals the severe misinformation at the heart of the standard misinformation story.

How so? The story focuses exclusively on the flaws of speakers, without acknowledging the flaws of the listeners. Misinformation won't work unless the listeners are themselves naive, dogmatic, emotional, or otherwise intellectually defective. In economic jargon, the problem is that the story mistakes an information problem for a rationality problem.

The motivation for this crucial omission is fairly obvious. Blaming listeners for their epistemic vices sounds bad. It makes the accuser sound elitist, if not arrogant…..

Once you acknowledge these ugly truths, however, you have to rethink how much misinformation even matters. Sure, lies can sway fools. But even unguided fools can do enormous social harm. If people are irrational enough to fall for "Nazis rule Ukraine" propaganda, maybe they're irrational enough to independently conclude that "Warmongers rule Ukraine."

If this seems implausible, remember the vast empirical literature on biased thinking. To take one of my favorite examples, people who have never studied economics are almost invariably protectionists. The reason can't be "misinformation," because people who have never studied economics spend near-zero time thinking about the subject. The story almost has to be, rather, that we're predisposed to error. Protectionism is much more emotionally satisfying for psychologically normal humans. The study of economics is necessary to move away from this default….

[T]he fundamental problem with the war on misinformation is that it scapegoats misinformation for the sins of irrationality. If human being were rational, misinformation would be basically harmless. Thomas Jefferson famously said, "Were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter." Similarly, I say, "Were it left to me to decide whether we should have irrationality without misinformation or rationality with misinformation, I should not hesitate a moment to prefer the latter."

I largely agree with Bryan's point, and have made similar ones here, here, and here. Effective political misinformation works in large part because it finds willing audiences predisposed to believe it because of their own preexisting biases, which are in turn accentuated by voters' incentives to act as "political fans" rather than truth-seekers:

[T]he low odds that any one vote will make a difference to the outcome of an election ensure that many consumers of political information are acting not as truth-seekers, but as "political fans" eager to endorse anything that supports their position or casts the opposing party and its supporters in a bad light. These biases affect not only ordinary voters, but also otherwise highly knowledgeable ones, and even policymakers and politicians.

This demand for misinformation is the real root of the problem. If it were lower, the supply would not be much of a danger, and at the very least would not affect many voters' political decision-making.

In recent years, right-wingers' susceptibility to disinformation that confirms their priors has been especially notable, as in the case of Donald Trump's lies about how the 2020 election was supposedly "stolen" from him. But…. [s]ocial science evidence indicates that bias in evaluation of political information is roughly equal across the political spectrum. Each side is relatively more susceptible to misinformation that confirms their priors. Examples that appeal disproportionately to the left include 9/11 "trutherism…" and claims that GMO foods should be banned or tightly restricted because they are supposedly more dangerous than "natural" ones.

One can easily extend this list of examples for both left and right. On the left, we have the popular conspiracy theory that inflation is caused by the "greed" of corporations plotting to raise prices; this belief  leads many to support harmful policies in response, while ignoring ones that are actually likely to work. On the right, there is the growing popularity of "great replacement theory."

These crackpot ideas and others like them would get little traction in an electorate that carefully and objectively assesses arguments and evidence. But they get a lot more buy-in thanks to the existence of huge numbers of "political fans" who care more about cheering on their team and validating preexisting views.

I do have a few disagreements with Bryan's analysis. Most notably, I think that people who are ignorant, but objective in their evaluation of evidence, are likely to be more susceptible to misinformation and other kinds of error than he lets on. I outline the basis for this difference in Chapter 3 of my book Democracy and Public Ignorance. Thus, I believe political ignorance would be a serious problem even in a world where most voters were careful to avoid bias in their assessment of the information they do know.

I also think misinformation carefully targeted to exploit voter ignorance and bias may sometimes have worse effects than the mere "spontaneous" misunderstandings of Bryan's "unguided fools." I am not sure to what extent we differ on this point, whose significance may well vary from case to case.

Despite these reservations, Bryan's central insight is well-taken. The root of the problem lies far more in voters' demand for misinformation than in the supply provided by unscrupulous elites (even though the latter certainly deserve great blame for their activities). So long as that demand remains high, we can expect supply to keep up. We have met the misinformation enemy, and he is us.

Efforts to combat the harmful effects of misinformation must take account of this unpleasant reality. I summarize some ways in which we can do that here and here.

Deep State Constitutionalism

My review of Adrian Vermeule's book, "Common Good Constitutionalism"

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My review of Adrian Vermeule's new book Common Good Constitutionalism in the Claremont Review of Books is now posted. You can download it here. There was more in the book with which I agreed than I expected. But ultimately, I think it fails as either a critique of originalism or as a presentation of a viable alternative to it. Here is the abstract:

In this review, I explain how "Common Good Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his own conception of the common good, preferring instead merely to assert it without considering other serious alternatives.

To make his case against originalism, Vermeule adopts the approach of Ronald Dworkin, which Dworkin formulated before the development of modern originalist theory. This leads Vermeule to seriously mischaracterize modern originalism, which enables him to dismiss a straw man version of it. And yet, in defending himself from the charge that his is just a version of living constitutionalism, Vermeule adopts the fundamental tenets of modern originalism: fixation and constraint. Like living constitutionalists who are "arm chair originalists," however, Vermeule then asserts without showing that the fixed original meaning of the text of the Constitution is so abstract and thin that it permits the direct pursuit of the common good by the government actors unconstrained by the text of the Constitution.

Surprisingly, the government actors Vermeule thinks are most well suited to pursue the common good and implement the natural law are those who work in the federal administrative state. To these bureaucrats he would have the judiciary largely defer--oddly except for environmental regulations where he would allow "public interest" lawsuits to protect the environment. Vermeule provides absolutely no reason to believe that his version of the public good--assuming it is correct--will actually be adopted and served by the administrative state.

Throughout Common Good Constitutionalism, Vermeule fails to confront the strongest versions of the positions he opposes, especially when it comes to originalism. But this book is not really a scholarly project. In my review, I situate it in the current political context to show how Common Good Constitutionalism is largely a work of constitutional polemics, which some social conservatives are finding appealing. But there is very little that is conservative--socially or otherwise--about Adrian Vermeule's commitment to the unfettered regulation of Americans by the deep state.

Supreme Court

Isaac Chotiner Interviews Professor Laurence Tribe

A revealing interview on the Supreme Court, Chief Justice Roberts, climate change, and Tribe's tweeting habits.

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The New Yorker's Isaac Chotiner interviews noted Harvard law professor Laurence Tribe for the latest issue. The brief-yet-broad interview covers a range of topics, and includes some of the "gotcha" questions for which Chotiner is known.

In the interview, Professor Tribe describes how he embraced the Supreme Court's ideological direction during the Warren and Burger Courts, but became disillusioned as the Court became less progressive. This disillusionment ultimately led to Professor Tribe's decision not to finish the much-awaited third edition of his constitutional law treatise.

I think there's always been a powerful ideological stream, but the ascendant ideology in the nineteen-sixties and seventies was one that I could easily identify with. It was the ideology that said the relatively powerless deserve protection, by an independent branch of government, from those who would trample on them. . . .

. . . Justice Brennan had a project whose architecture was really driven by his sense of the purposes of the law, and those purposes were moral and political. No question about it. I'm not saying that somehow the liberal take on constitutional law is free of ideology. There was, however, an intellectually coherent effort to connect the ideology with the whole theory of what the Constitution was for and what the Court was for. Mainly, the Court is an anti-majoritarian branch, and it's there to protect minorities and make sure that people are fairly represented. I could identify with that ideology. It made sense to me, and I could see elements of it in various areas of doctrine. But as that fell apart, and as the Court reverted to a very different ideology, one in which the Court was essentially there to protect propertied interests and to protect corporations and to keep the masses at bay—that's an ideology, too, but it was not being elaborated in doctrine in a way that I found even coherent, let alone attractive.

Maybe I'm wrong about this, but I see more internal contradiction and inconsistency in the strands of doctrine of the people who came back into power with the Reagan Administration and the Federalist Society. I'm not the person to make sense of what they're doing, because it doesn't hang together for me. Even if I could play the role that I think I did play with a version that I find more morally attractive, it's a project that I would regard as somewhat evil and wouldn't want to take part in.

While Professor Tribe is no fan of the current Court, he agrees with those who have condemned the leak of Justice Alito's draft Dobbs opinion. Notes Tribe, "no governmental institution can function very effectively if it can't have at least some internal confidentiality when half-baked ideas are circulated."

At one point in the interview, Professor Tribe suggests he was not surprised by Chief Justice John Roberts' decision in NFIB v. Sebelius because, as a law student at Harvard, a young Roberts appreciated that the taxing power was much broader than the power to regulate interstate commerce.

At one point, Chotiner challenges Tribe about his controversial work for coal companies challenging the Environmental Protection Agency's authority to adopt the Clean Power Plan.  At the time, Professor Tribe argued that the Obama Administration's plans were unlawful under the Clean Air Act and unconstitutional. Now that the EPA's authority to adopt the Clean Power Plan is before the Court, he sings a slightly different tune,.

Well, right now I'm very much opposed to what the Supreme Court looks like it's going to do in the case of West Virginia against the E.P.A., where it's going to strip the E.P.A. of the power to control greenhouse gases under Section 112. Maybe I was wrong, but I thought that the Obama Administration's E.P.A. was using the wrong provision of the Clean Air Act. I didn't think, and I still don't think, that Section 112 of the Clean Air Act provided the authority that the E.P.A. was using. But I'm very much in favor of regulating the fossil-fuel industry to deal with the problem of global warming. And I'm working with various people that encourage the use of a different section, Section 115 of the Clean Air Act. And I wouldn't, for all the money in the world, oppose the use of Section 115. So that was a case where it was kind of unfortunate. I taught the first environmental-law class in the history of the country.

Professor Tribe says he opposes what the Supreme Court might do in West Virginia v. EPA, but what precisely does he object to? In the West Virginia case the Court might conclude that the EPA lacks the authority to adopt something like the Clean Power Plan. Yet that is also what Tribe argued, albeit on slightly different (and more expansive) grounds. In West Virginia it looks as if the Court might hold that the Clean Air Act does not authorize something like the Clean Power Plan. Tribe likewise argued that the EPA lacked such authority, but also argued that the Clean Power Plan was unconstitutonal! He also supported an effort to enjoin the EPA's rulemaking process. Now, however, Tribe has second thoughts:

it was unfortunate that I found myself in a situation where I was convinced that the law and the Constitution pointed in one way, and the problem of global warming pointed the other way. The Administration was stretching a provision of the Clean Air Act that simply didn't apply. It's a kind of technical thing, but in hindsight, because of all the criticism I took . . . I mean, I don't mind the criticism I took for testifying against Robert Bork in 1987. I would do that again in a heartbeat. This one I wish I really hadn't done. Not because I think I was wrong, but because it created a distraction from something I deeply care about, and that is finding a good solution to the problem of global warming.

Tribe also makes some errors in the above passage. At issue is not the scope of EPA's authority under Section 112 of the Clean Air Act, but Section 111. It is also not true that Tribe taught the first environmental law class in the country. He did not even teach the first environmental law class at Harvard. (Though I'm proud to note that CWRU appears to have been the first school to have a professor, Arnold Reitze, teaching environmental law full time.)

It would not be a Chotiner interview without some "gotcha" quesitons, and this one does not disappoint. At the close, Chotiner asks Tribe about his twitter habits, including his intemperate language and retweeting inaccurate or conspiratorial information. .

More recently, you tweeted that "the GOP's Trump wing appears to be throwing its weight behind Putin. If Putin opts to wage war on our ally, Ukraine, such 'aid and comfort' to an 'enemy' would appear to become 'treason' as defined by Article III of the U.S. Constitution."

I don't think I ever said they'd be committing treason. I've always been careful under Article III—

You said that it "would appear to become 'treason' as defined by Article III."

Well, it was a stupid thing to say. And I withdrew it almost immediately. I try to be careful about the word "treason." I'm not as cautious, because I don't want to spend a lot of time on Twitter. I just do that while I'm doing other things. I'm probably less cautious than I wish I were, and I sometimes use words that are not as carefully considered, and sometimes when it's pointed out—certainly if it's pointed out—I withdraw it.

The whole interview is worth a read.

My Published Inaugural Edwin Meese III Originalism Lecture

"Originalism and Stare Decisis in the Lower Courts"

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On March 24, 2022, I delivered the inaugural Edwin Meese III Originalism Lecture at the Heritage Foundation. The primary topic of my remarks was "Originalism and Stare Decisis in the Lower Courts."

The Heritage Foundation has now published my remarks. Here is a summary:

Lower-court judges can expand their use of constitutional originalism, and judges who adopt this framework will influence the bench and the bar to become more familiar with originalism. Law firms that want to persuade originalist judges will rationally incorporate originalist arguments into their briefs—whether voluntarily or in response to a court order. Public defenders in particular would be well-served to think in terms of originalism: Conservative jurists may be personally opposed to the plight of the accused but still favor the rights of the accused as originally understood. As the bench and bar are acculturated to originalism, it will become far more normal for the Supreme Court to base its decisions on originalism.

I am honored to have been selected for this distinguished award.

Free Speech

Does the First Amendment Bar Public Schools from Removing Library Books Based on Their Viewpoints?

The Supreme Court split on this 4-4 in 1982, and the matter remains unsettled.

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The question came before the Court in Bd. of Ed. v. Pico, and four Justices (led by Justice Brennan) took the view that "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books." Four other Justices (led by Chief Justice Burger) expressly rejected this view (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans). And the swing vote, Justice White, expressly refused to opine on this issue:

The plurality … issue[s] a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point….

[This case] poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here.

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Crime

Today in Supreme Court History: May 18, 1896

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5/18/1896: Plessy v. Ferguson decided.

Elections

Electronic Signatures Not Good Enough for Montana Candidate Nomination Petitions

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From today's Montana Supreme Court opinion in Meyer v. Jacobson, written by Justice Beth Baker and joined by Justices Mike McGrath, James Jeremiah Shea, Dirk Sandefur, and Jim Rice:

John Meyer sought to run as an Independent candidate for Montana Attorney General in the 2020 general election, but the Gallatin County Election Administrator (Administrator) denied his petition for nomination forms because they contained only electronic signatures….

That rejection was correct under Montana election law, the majority held:

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Free Speech

Special Signage Requirement for "Trans-Inclusive" Restrooms Unconstitutionally Compels Business's Speech

So holds a federal district court today; striking down a Tennessee statute.

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The result may be loosely labeled "pro-trans," but the reasoning may also support a First Amendment right of businesses or some others to decline to use pronouns that they don't wish to endorse.

The opinion is by Judge Aleta Trauger (M.D. Tenn.), in Bongo Productions, LLC v. Lawrence:

[C]ompelled speech is [not] always unconstitutional. Rather, courts have closely looked at the various situations in which compelled speech issues arise—from product labeling to compulsory displays of patriotism—and have concluded that some types of compelled speech are more constitutionally suspect than others. Although a complex range of factors may come into play, the type of forced-speech policy most likely to run afoul of the First Amendment is, generally speaking, one in which "individuals are coerced into betraying their convictions" by "involuntar[ily] affirm[ing]" the government's position on a "controversial" topic. That is particularly true when the controversial speech being compelled is not "purely factual" in nature.

The Supreme Court has expressly recognized that "sexual orientation and gender identity" are among the "controversial subjects" capable of raising such constitutional concerns. In 2021, however, the Tennessee General Assembly passed a law mandating that private parties voice a specific message on precisely that issue. The newly-enacted law requires any qualifying business with what the court will, for efficiency's sake, refer to as a "trans-inclusive" restroom policy—that is, a formal or informal policy of allowing transgender and nonbinary patrons to use the restrooms that they earnestly believe to be appropriate for them—to post a garish warning sign announcing that policy in specific language of the government's, not their, choice…. Because that kind of forced affirmance of a contestable message violates the Constitution, the plaintiffs argue, the enforcement of the Act should be enjoined….

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Immigration

"Great Replacement Theory" and the Perils of Zero-Sum World Views

The racist Buffalo mass murderer's ideology drew on dangerous ideas common on both the ethnonationalist right and the far left.

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The racist murderer who killed ten people in Buffalo on Sunday was a devotee of "great replacement theory": the idea that there is a plot to "replace" white Americans with immigrants from poor, nonwhite nations, and thereby seize the resources of the former for the benefit of the latter and of various nefarious elites. GRT advocates often also attribute the plot to the Jews, adding an anti-Semitic twist to their racism. The Buffalo shooter targeted blacks because he hoped reducing their numbers would bolster white interests.

Sadly, this is not the first time GRT has inspired mass murder. Similar ideas were espoused by perpetrators of mass murders targeting  Muslim immigrants in New Zealand and Hispanics in El Paso, Texas, both in 2019. The Buffalo killer praised both of these earlier atrocities in his manifesto.

While GRT originated among marginal extremists, its precepts have  been embraced by a good many mainstream right-wing politicians and political commentators, including Tucker Carlson. This helps underscore the right-wing pedigree of the theory. But devotees, including the various mass killers, also espouse ideas traditionally associated with the political left, including hatred of major corporations, and concerns about the degradation of the environment (which they attribute in large part to immigration). The Buffalo killer, for example, describes himself as an "eco-fascist," and opposes non-white immigration in part because he thinks it destroys the environment (along with "uncontrolled urbanization" promoted by corporate elites).

What unites the racist, nationalist, and seemingly left-wing elements of these peoples' world views is the assumption that the world is a zero-sum game: immigrants can only gain at the expense of natives, the rich at the expense of the poor. Whites can only thrive and prosper by excluding blacks and other groups, and so on.

Unfortunately, this kind of zero-sum thinking goes far beyond a few extremists, and is not solely confined to the nationalist right, though the latter is a particularly egregious and dangerous manifestation. What I wrote in the aftermath of the New Zealand and El Paso killings remains relevant:

Some may find it surprising that the perpetrator of the recent horrific New Zealand terrorist attack that killed fifty Muslim worshipers in two mosques, combined seemingly right-wing nationalism with seemingly left-wing socialism and environmentalism….

But in this case, the terrorist's worldview is less unusual than it might seem. A similar combination of views is evident in many xenophobic nationalist movements, both past and present. Socialists and nationalists have their differences. But they also have much in common, including a zero-sum view of the world.

Anti-immigrant nationalist parties in Europe often combine hostility to nonwhite immigration with support for extensive government control of the economy. That's true of such cases as the National Front in France (now renamed as the "National Rally") and the AfD in Germany. Such parties often also often blame immigrants for real and imagined environmental degradation, just as the perpetrator of the New Zealand attack does….

Similarly, the perpetrator of the New Zealand attack argues that environmentalism and immigration restriction "are the same issue [because] the environment is being destroyed by over population,…" Some influential far-left environmentalists have also advocated coercive population control, including defending China's cruel "one child" policy….[note: the El Paso killer also uses the supposed need for population control as a justification for keeping out immigrants].

Racial nationalists and socialist far leftists share a common zero-sum view of the world under which some groups can succeed and prosper only at the expense of others. It is easy to see how that sort of world view often leads adherents to believe that drastic action—including violence—is essential to ensure that the "right" people end up as winners in this cruel zero-sum world. I discussed this crucial commonality in greater detail here

Zero-sum thinking need not always lead to racial and ethnic hostility, or xenophobia. It is also often channeled in other directions, such as hostility to the wealthier members of one's own ethnic group or society. In some cases, it leads to a combination of both fear of foreigners and fear of the wealthy.

For example, unexpectedly popular Democratic presidential candidate Bernie Sanders echoes Donald Trump's hostility to international trade, while simultaneously arguing that ordinary Americans can only be economically successful by redistributing vast wealth from "the 1 percent." Until recently, he also expressed considerable hostility towards immigration, denouncing the idea of free migration of labor as a plot by "the Koch brothers" and other malevolent billionaires, which would impoverish the working class and end up "doing away with the concept of a nation state…."

Fortunately, most nationalists and socialists aren't willing to go so far as to personally commit acts of terrorism. But all too many are willing to advocate large-scale coercion that inflicts great harm on large numbers of people, in order to ensure that they and their preferred causes don't end up as losers in a zero-sum world. Everything from barring migrants fleeing horrible oppression, to separating immigrant children from parents in order to deter them from entering, to coercive population control, to massive expropriation of property, and repression of "capitalists" in order to transfer the nation's wealth to "the people." The list can easily be extended….

There is no easy antidote to the spread of dangerous zero-sum ideas. But perhaps the beginning of wisdom is to recognize the danger they pose, and understand why they are wrong…

Far from enriching natives, immigration restrictions often end up undermining their freedom and prosperity as well as that of potential immigrants. Standard economic estimates indicate that free migration throughout the world would double world GDP, with many of the gains going to natives, not just migrants. Natives lose the gains from trade with immigrants, and also suffer from the civil liberties violations inherent in efforts to keep out and deport migrants. Rich and poor are not locked in a zero-sum game either. To the contrary, they can prosper together through mutual exchange, and historically often have.

Pollution and global warming are genuinely serious problems. But addressing them does not require massive coercion or keeping millions of people in poverty. Historically, increasing wealth has actually led to reductions in pollution (after an initial increase early in the process of industrialization), as wealthy societies can more easily afford to invest in reducing pollution. Even when it comes to the particularly difficult challenge of climate change, there are ways to combat that simultaneously increase prosperity rather than stifle it. They include reducing regulatory obstacles to using nuclear power, cutting back on zoning restrictions that make it hard to build denser housing, and offering prizes for the development of new "clean" energy technologies. Where regulation is needed to cut back on carbon dioxide emissions, it should take the the scalpel form of a revenue-neutral carbon tax, rather than the meat cleaver of coercive population control and government takeovers of huge portions of the economy.

I would add that some forms of left-wing identity politics also promote the idea that relations between ethnic and racial groups are a zero-sum game. For example, prominent "anti-racism" advocate Ibram X. Kendi famously wrote that "[t]he only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination." On this theory, black progress is dependent on discrimination against whites. White nationalists and GRT advocates hold much the same view - differing primarily in their evaluation of which groups they want to win out.

The zero-sum ethnic nationalism of racial majorities is much more dangerous than the espousal of comparable ideas for minorities by the likes of Kendi. Among other things, majority groups generally wield more power (especially in democratic societies) and thus can inflict greater injustices as a result of adopting misguided ideas. But the two types of zero-sum identity politics can be mutually reinforcing, with one helping to promote the other.

Recent events provide yet more evidence that the interests of immigrants and natives - and those of different racial and ethnic groups - are, mostly mutually reinforcing, rather than mutually exclusive. Immigration restrictions harm natives in a wide variety of ways, including by reducing scientific innovation of the kind that led to the development of first two successful Covid vaccines. I discuss more such synergies of interests (as well as ways to alleviate potential negative side effects of migration by means other than exclusion) i my book Free to Move: Foot Voting, Migration, and Political Freedom.

Minorities and whites could massively benefit from reforms that expand freedom and opportunity for both, such as breaking down exclusionary zoning, thereby making it easier for both to move to areas with greater opportunity, thereby making our entire society more innovative and productive.

Most fundamentally,  immigrants, natives, and people of all racial and ethnic backgrounds could benefit from a society that rejects zero-sum thinking and deemphasizes racial and ethnic identity. We should instead promote universal liberal principles, of the kind that inspired the American Revolution and the abolition of slavery. These ideas have led to enormous progress, even if the nation has never fully lived up to them. And they can achieve still more, if we give them more of a chance.

NOTE: Because perpetrators of terrorist attacks often undertake them in large part to gain fame and media attention for themselves and their ideas, I have refrained from mentioning the names of the men who committed the New Zealand,  El Paso, and Buffalo attacks, or linking to their "manifestos." I have instead linked to others' summaries of their ideas. But both the names and the manifestos are easily found online, for those who wish to see them.

 

Harassment

Lawyer's Asking School Employee Whether She Had Ever Kissed a Woman Not Workplace Harassment,

when the lawyers are investigating allegations that the employee "had romantic or sexual feelings for one of the students she coached."

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An excerpt from Rys v. Clinton Central School Dist., decided yesterday by Frederick J. Scullin, Jr. (N.D.N.Y.) (there are also other things going on in this case, but I focus on the lawyer questions):

Plaintiff, a former middle school teacher and high school coach at Defendant Clinton Central School District …, commenced this action in October 2019, alleging, among other things, that she was discriminated against, suffered a hostile work environment, and was terminated after false allegations surfaced that she had romantic or sexual feelings for one of the students she coached, "K.S." … In addition to suing Defendant CCSD, Plaintiff also named various members of Defendant CCSD's faculty, … and two attorneys for Defendant CCSD ….

Plaintiff … alleges[, among other things,] that, on April 16, 2018, she met with the Attorney Defendants who "asked whether she had ever been in a relationship with a woman or had ever kissed a woman." According to Plaintiff, the Attorney Defendants questioned her "about her sexual orientation and her intimate relationships," focusing primarily on Plaintiff's relationships with women.

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