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The Volokh Conspiracy

Federalism

My Review of an Important New Book on the Supreme Court's Impact on American Federalism

The book by political scientist Michael Dichio argues that the Court has done more to promote centralization than protect states, and is the most thorough analysis to date, of this longstanding issue..

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Publius: The Journal of Federalism recently published my review of political scientist Michael Dichio's important new book The US Supreme Court and the Centralization of Federal Authority. Although I have some disagreements (detailed in my review), this is an impressive work, and I highly recommend it to anyone interested in the subject. My review is available for free on SSRN. Here's the abstract:

Does the U.S. Supreme Court protect the states from the expansion of federal authority? In this important new book, political scientist Michael Dichio argues that the answer is "no." To the contrary, he contends that, throughout American history, "the Court …. has persistently acted as an important instrument of the broader central state, expanding federal authority over society." The theory that the Supreme Court expands federal power at the expense of the states is not a new idea, having been first raised by anti-Federalist critics of the Constitution over 200 years ago. But Dichio provides the most thorough and wide-ranging defense of it to date, drawing on an extensive database of notable Supreme Court decisions from 1789 through 1997. Among other things, he shows that the Court constrained the states in important ways even in historical periods that are often thought of as high points for "states' rights," such as the Jacksonian era and the late nineteenth century.

Dichio's analysis is, in many ways, compelling, and is a major contribution to the literature on federalism and judicial review. But some of his methodological choices overstate the centralizing tendencies of the Supreme Court. He also unduly downplays some key ways in which the Court promotes decentralization of power. While the Supreme Court has never been a consistent ally of state governments seeking to limit federal authority, it is also not quite as consistent a centralizing force as Dichio suggests.

The final published version is available here, albeit behind a gate (the final version differs very little from the SSRN version, except in format and pagination).

I previously wrote about this issue in a 2017 book chapter, published in Nicholas Aroney and John Kincaid, eds., Courts in Federal Countries: Federalists or Unitarists?,  (University of Toronto Press). My conclusions are similar to Dichio's on several key points. But Dichio covers a wider range of cases and historical periods than I did. There is some disagreement on such questions as how to assess federal judicial decisions that protect individual rights against state and local governments, and also whether it is appropriate to classify decisions where the Supreme Court upholds federal laws against constitutional challenges as cases where the Court promoted expansion of federal power (as opposed to merely refused to try to limit it). In my view, discussed in both the 2017 chapter and in my review of Dichio's book, many judicial decisions protecting individual rights against state and local authorities have a significant decentralizing aspect, because they empower individuals and civil society.

The debate over the relationship between federalism and judicial review will no doubt continue. But Dichio's book does much to increase our knowledge of this crucial subject.

It is perhaps worth noting that the book is endorsed by Volokh Conspiracy co-blogger Keith Whittington, who writes that "Dichio takes a fairly unique approach to thinking about the relationship between the US Supreme Court and the development of the American state. Scholars interested in American political development and historical work on the law and the courts should grapple with the evidence on offer here."You can't go wrong with a book backed by two different VC bloggers!

 

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  1. A central government institution favors the central government.

    I look forward to Mr. Dichio’s next book: “Water is Wet”

  2. Indeed. It would be shocking if the Court didn’t behave this way, give who controls its membership. Having the federal judiciary chosen by federal officeholders is perhaps the most profound structural flaw in the entire document, having as it does the power to render everything else moot.

    1. It is the judiciary’s Constitutional function to defend our rights from abuse. 9A explicitly guarantees rights which have never been listed, That is the court’s job. It was southern racists and the KKK who LIED that a “unelected federal judges” were violating states rights — originally to defend Jim Crow laws, later as Orval Faubus said in 1957, after Eisenhower sent federal troops to defend the rights of 9 school kids. NOT usurp states rights. DEFEND rights from abuse by state (or any) level of government.

      States don’t have rights. Only people do. SCOTUS defends our rights from abuse by any level of government, as an EQUAL branch, as a check against the other two. As we all learned in junior high.

      The Klan, like Ron Paul, is REALLY saying SCOTUS has NO power to defend individual rights, thus we are defenseless. Yes, that stupid. That is why God invented libertarians!

    2. Even if this is valid, what is the solution? How could the “flaw,” hardly the “most profound” one, have been avoided?

      Some one has to select the judges, after all, and by your logic they will favor whoever does the selection. You might prefer that the court favor state governments, of course, but that’s no more than your political preference.

      1. Yeah, that’s true: Somebody is going to pick the judges, and the judges will, inevitably, favor that someone. If you want centralization of power, pick them at the highest level. If you want to forestall centralization of power, have the states pick them.

        Or you could mix things up, have them nominated by a federal officer, and confirmed by a body chosen by state legislatures. THAT was the original scheme, which only failed because the state legislatures delegated the selection of Senators to the public, rendering the Senators purely federal level officers with every motive to enhance federal powers.

        Thus the answer I actually propose, that confirmation of federal appointees is a power which should be taken away from the Senate, and given to a body consisting of all the states’ governors. I’m sure they’d be able to find time in their schedules for it, and as they are first and foremost state officers, their motives will run contrary to the President’s, and counter him.

        Not going to happen without a Convention, of course. And people understanding why things went wrong in the first place.

  3. Well, duh. Has anyone ever thought otherwise? Of course, the Constitution does not reflect or enact some kind of Unified Theory of Federalism. Rather, it makes some things concerns of the federal government, some concerns of the states, some overlapping concerns, and some up for grabs. That a particular decision is or is not “federalist” under some general theory of federalism is neither here nor there. And, obviously, if the central government doesn’t act, there won’t be anything to sue over, so litigated cases will disproportionately involve claims of central government encroachment. It’s hard to lose cases that nobody brings.

    1. How can we ignore “encroachment” by states … of our unalienable rights? Or the 9A protection of “unenumerated” (never specified) rights?

      Our rights are superior to any and all powers of any and all levels of government. Fighting over powers is most often a diversion from the core principle of delegated powers. By those who seek to violate those rights, a practice tracing to Jim Crow and the KKK.

      1. There should be a new Godwin rule about the KKK. If you mention them as if they are relevant to anything in the modern age you immediately lose the argument.

        1. Spoken like a true racist — or ignorant of the substantive issue — and elementary history — which you’ll also whine about, like a pussy.

          In 1957, Arkansas governor Orval Faubus activated his state militia, armed force to stop 9 black kids from registering at Little Rock’s Central High School. President Eisenhower sent armed federal troops, authorized to use force if necessary, to defend the rights of nine kids. It was a landmark victory in civil rights but … you never heard of it!

          Faubus “justified” his action as defending his state from an overreaching SCOTUS .., EXACTLY as I said … .and EXACTLY the way racists and homophobes (like Ron Paul) have argued that the courts have NO POWER to defend Constitutional rights … which happens to be their primary function.

          Shame on you for defending Orval Faubus..

          1. I think you have a serious mental issue. Please get help.

            1. Gotcha!

              which you’ll also whine about, like a pussy.

              I think you have a serious mental issue. Please get help.

              CALLED OUT AS A LIAR … GOES FULL PSYCHO

              RACIST THUG DENIES THE 1957 EVENTS IN LITTLE ROCK , ARKANSAS, A MAJOR BREAKTHROUGH IN THE CIVIL RIGHTS ERA.

              https://www.history.com/topics/black-history/central-high-school-integration

              (Posted in self defense of multiple aggressions by a … BULLY/THUG)

  4. What is meant by “states rights??” All too often it’s the KKK version endorsed by Lester Maddox, Orval Faubus in his 1957 assault on individual liberty for Little Rock’s Central High, and — worst of all, by Ron Paul’s KKK-inspired fascism
    a) Brags of sponsoring a bill that would have forbidden SCOTUS from even considering any challenges to DOMA Gays would have been the first group denied the defense of constitutional rights since slavery.
    b) When THAT failed, his anti-liberty whining about “Rogue judges” is as obscene as the goobers who whine about judges “inventing rights.”
    c) That judges have NO power to defend our righst.n

    The 9th Amendment STRICTLY lImits the 10th.- And no, states cannot have powers never delegated.

    The Federalism bitching is all too often an attack on SCOTUS defending individual rights, which is their job. Three equal branches. Balance of power. Checks and balances.

    The 9th was once labeled “the libertarian amendment.” It incorporates the Declaration’s unalienable rights into the Constitution.

    The 10th deal with unenumerated POWERS, like traffic laws and the like. The 9th protects unenumerated RIGHTS. Umm, rights are superior to powers!

    9A
    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    We have rights, never listed, which no level of government may deny or disparage. WHAT ARE THEY?

    THAT is what only SCOTUS can do. Did the founders “forget” to list them? Or did they refuse to? EVERY recognized right was first “acknowledged” by a court or tribunal. Our fundamental rights include Life, an unspecified packaged called Liberty, and unspecified package called pursuit of happiness. They are not “invented.” The Founders, being more educated than we see now, KNEW that rights had always evolved, and always would, in response to government action. “Can government do that?”

    Only the Executive and Legislative branches can violate yet-unacknowledged rights. And THAT is the basis for Constitutional Review, established by Marbury v Madison.

    Those who disagree are saying, literally, that we are defenseless against abuses by state governments. And now you know, perhaps, WHY states had to ratify (accept) the entire Bill of Rights, .
    Let the screeching begin …

    1. “worst of all, by Ron Paul”

      [Wipes spit away.]

      Of course, Ron Paul is the worst person in US history. It is known.

      1. Ron Paul is not the worst person in American history. Not nearly.

        He is, however, someone justifiably dismissed as unhelpful and objectionable by most Americans in the context of politics, especially in the context of educated, reasonable, modern, tolerant Americans.

        Others at the fringe may have difficulty recognizing that Mr. Paul is viewed that why and why Mr. Paul is viewed in that manner.

        1. http://www.rawstory.com/2011/03/congressman-ron-paul-says-he-supports-defense-of-marriage-act/

          “I supported the Defense of Marriage Act, … I have also cosponsored the Marriage Protection Act, which would remove challenges to the Defense of Marriage Act from the jurisdiction of the federal courts”

          1. Listed as cosponsor
            https://www.congress.gov/bill/108th-congress/house-bill/3313/cosponsors

            (wipes vomit from mouth) SHAME ON YOU

  5. I’ll wager that the Federalist Society will invite Michael Dichio to discuss this book. I look forward to hearing it.

  6. Remember when some Republicans in the Senate threatened to “reform” the Supreme Court if they didn’t shape up and dismiss a case that had been granted cert? Yeah can you believe they did that? Don’t these Republicans believe in the rule of law? Don’t they understand that courts are independent and shouldn’t be threatened by the political branches? This is just Orange Man Bad fascism playing out!

    Oh wait, that was some Democrats that made this overt threat yet the media just decide not to cover it. Could you imagine what the CNN headlines would have been if the Trump administration had filed such a brief???

      1. Surely you’ll soon be deep enough in dementia that you’ll forget how to use a computer, and we’ll be rid of your screeds.

      2. And I am the crazy one…?

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??? + Zoolander

"I feel like I am taking crazy pills."

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From yesterday's dissenting opinion by Ninth Circuit Judge N.R. Smith in U.S. v. Begay:

MURDER in the second-degree is NOT a crime of violence??? Yet attempted first-degree murder, battery, assault, exhibiting a firearm, criminal threats (even attempted criminal threats), and mailing threatening communications are crimes of violence. How can this be? "I feel like I am taking crazy pills" [quoting Zoolander].

The underlying legal question—what qualifies as a "crime of violence" for purposes of the federal statute banning discharging a firearm during a "crime of violence"—is complicated (needlessly so, some say), because of the Supreme Court precedent on the subject; if you're interested, read the majority and dissenting opinions. Here I just wanted to pass along the dissent, which James Klugman (who alerted me to the opinion) speculates might be the first occurrence of "???" in a circuit court opinion. Regrettably, Westlaw and Lexis can't search for punctuation like that, so I can't confirm or deny that speculation ….

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  1. Interesting usage. I would have expected something like, “?!?” rather than ‘???.’ Use of an exclamation mark would express the writer’s bemusement AND his bewildered state more effectively (accurately??) than merely using multiple question marks.

    I take it that no one has yet used a smiley or frowny emoticon in a published opinion, yes? Only a matter of time, I fear.

    1. Flagged accidentally. They need an un-flag button.

  2. Did you try “escaping” the question marks like this: “\?\?\?”?

  3. But you can look on Lexis for the other citation to the movie:

    “In the words of Hansel, the fashion model played by Owen Wilson in the movie Zoolander, the files are “in the computer, it’s so simple.” Zoolander (Paramount Pictures 2001).” Phx. Entm’t Partners, LLC v. Milligan, Inc., No. 8:16-cv-3433-T-17JSS, 2017 U.S. Dist. LEXIS 216047, at *10 n.1 (M.D. Fla. Mar. 20, 2017).

    And honorable mention to Justice Kagan’s dissent in Lockhart v. United States, 136 S. Ct. 958, 969 (2016): “Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new Star Wars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander.”

  4. The “categorical approach” that ignores the crime’s particulars even when they’re known makes no sense…

    1. You get convicted of elements, not the specific conduct.

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  6. Seems to me that a murder might not be violent. I don’t think an incomplete conspiracy can be violent, but any of the others can be.

    I understand how the problem comes about. Each of the states has its own criminal code, with its own methodology for identifying and naming crimes, so they can’t just supply a definition that lists all the included crimes in the statute, and have to rely on some judgment calls down the line.

    Is jaywalking a violent crime? Well, it probably has at least a possibility of being so on a major highway at a blind corner.

  7. Once again, the 9th circuit takes the plain meaning, and twists it all out of order…

  8. ” But, Your Honor, it was a non-violent murder”.

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Criminal Law

Crime Victim Kills Attacker—Are the Other Attackers Guilty of Murder?

Yes, in many states, under the "proximate cause" theory of "felony murder."

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CNN (Susan Scutti) reports, "6 teens tried to rob a house, police say. After the homeowner shot and killed 1, the others were charged with murder." According to prosecutors,

[O]n Tuesday at 1:15 am, the six teens awakened a 75-year-old resident of Lake County. The resident saw the headlights of the stolen Lexus they were driving in the area of his driveway. Grabbing his firearm, he left the house and went to the outside of his property …. Facing "multiple strangers," he ordered them off his property, but they "continued to advance on him[.]"

One stranger had something in his hand, the resident later explained, and believing himself in danger, the resident fired his gun several times, striking one of the defendants with a single bullet, the prosecutor said…. "When Lake County authorities responded to the scene of the shooting, they located the offenders' hunting knife on the driveway[.]"

But while prosecutors are still deciding whether the shooting was justified, they are charging the remaining teens with murder of their confederate. How is that possible?

It's complicated, and the rules differ from state to state; but Illinois does indeed allow such prosecutions.

The basic legal principle is this: Many state murder laws provide that someone is guilty of so-called "felony murder" "when, in the commission of a felony, he causes the death of another human being."

And "causes" is a capacious term. Obviously, shooting someone so that he immediately dies counts as causing death. But so could, for instance (to quote a Georgia Supreme Court decision), "smash[ing] the victim's skull with a hatchet" even though "the victim die[s] nine months later from infection and gangrenous lung abscess." So could "throwing the drunken victim off a bridge into a river" if this causes the victim to drown. The criminal is generally guilty of felony murder so long as the "proximate cause" requirement is satisfied, which is to say that (1) the death wouldn't have happened but for the defendant's actions, and (2) the death was sufficiently foreseeable.

A. So say that robber Rob and his accomplice Alec are robbing victim Vic, and Vic pulls out a gun and shoots and kills Alec. A jury might be able to find that the death wouldn't have happened but for Rob's actions (since Alec might have been unwilling to commit the crime by himself). And the jury could find that there was a reasonably foreseeable possibility (not certainly or even probability, but just a foreseeable possibility) that Vic would use deadly force to defend himself against Alec. In states that follow the "proximate cause" approach to such scenarios, Rob would then be guilty of murder, because "in the commission of a felony [robbery], he cause[d] the death" of Alec. The same would happen if it is police officer Polly who kills Alec.

B. But that's the minority view.

Read More

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  1. If I were creating law on a blank slate I would not even require that A (the deceased)’s involvement was somehow necessary for B (the accomplice) to commit the offense. That may be fine for two-party conspiracies but becomes a mess for larger groups. I would simply say that so long as V (the victim)’s actions were justified (regardless of the standard required of self-defense) that all members of the conspiracy are guilty. As soon as your group invites a lethal response all members are guilty for any death, whether victim or accomplice. Needing the deceased to be necessary would necessitate inquiery into the group dynamics. If it’s Leader Louis that dies then all members are liable for his death while if it’s Minion Marvin who bites it none are simply doesn’t make sense to me.

    Now, my standard does require investigation into whether the self-defense actually meets whatever standard is in play, if the defense is not justified then any other conspirators should not face murder charges, they did not invite lethal force and so should not be liable that lethal force was used. But that seems like a far more tractable problem than determining who in a criminal conspiracy was calling the shots. Particularly because there would then be great incentive for the survivors to lie.

    1. To what extent does it have to be “justified”? The DA thinking that a crime has occurred in the excessive reaction? The DA thinking that he has PC to charge? The DA charging? The DA securing a conviction?

      1. Err, those examples are various levels of the “self defense” claim *not* being justified. My mistake.

      2. If it’s questionable enough to secure an indictment (even given the very low standard that usually requires) I would say that’s enough for the survivors to avoid criminal liability for the death. If the DA tries but fails even that much then felony murder is still on the table.

  2. We do not believe that the defendant should be relieved from liability for the homicide simply because of the decedent’s role in the offense.

    Nice reasoning. Isn’t this something the legislature should explicitely call out — other dead perps count as murder for the remaining perps, regardless of reason? Or reasons a, b, and c but not

    1. I read it (IANAL!) as the court merely expounding on what the legislature had legislated. Possibly the legislation and judicial terms (“agency” and “proximate cause”) differ.

  3. The whole point of felony murder is that you are responsible for any death that arises naturally out of the decision to commit a felony. Accomplice death is a very common fact pattern.

    1. One argument I see against an expansive interpretation is that it doesn’t apply elsewhere. Suppose Engelbert Expert invites Nancy Novice mountain climbing, and Nancy dies through no fault of Engelbert; in fact, he may even have warned her to do or not do something which she did not or did do. Wouldn’t this law, in that situation, imply Engelbert was at fault regardless?

      1. Diacritic Dude: In the situation you’re describing, there’s no felony, so no felony murder. Nor is there murder on some other theory: Engelbert didn’t intent that Nancy die, didn’t know that she almost cetainly would die, and wasn’t super-reckless about that (“super-reckless” is my shorthand for what the law often calls “depraved heart” murder). And there probably wouldn’t even be involuntary manslaughter or negligent homicide, which generally requires gross negligence (since you said that “Nancy dies through no fault of Engelbert”).

        But if you specify some facts that does show gross negligence on Engelbert’s part, or worse, then he might be guilty on some theory. (For instance, if Engelbert invites an untrained five-year-old to go with him to do something very dangerous, and the five-year-old dies while doing it, then perhaps Engelbert would indeed be guilty of negligent homicide or involuntary manslaughter, depending on how the state labels and defines such a crime.)

        1. “Diacritic Dude: In the situation you’re describing, there’s no felony”

          Wasn’t that the point? DD appears to be attempting to apply rule outside of the commission of a felony. Attempted paraphrase: “If a person is liable due to a decision to commit a felony, why not due to a decision to go mountain climbing?”

          1. I’m not sure I understand the question, then, as paraphrased. A decision to commit a felony is seen as highly culpable, because felonies are highly culpable; if your actions then cause a death, the law in states that recognize felony murder often doesn’t require extra culpability beyond that initial decision to commit a felony.

            A decision to go mountain climbing is not seen as highly culpable, so the law doesn’t punish you for deaths that occur as a result of the decision, unless there’s some other basis for finding you culpable.

      2. Where you get gray areas are proximate cause. If, say, a bank robber is run over by a citizen driving a car while running from the bank…then it’s a closer question.

        1. I would say even in that circumstance felony murder should apply. We want to discourage people from committing felonious acts.

  4. Yeah, this is not really surprising. Various US states have lots of insane criminal laws, and I was aware of some of the more “adventurous” approaches to felony murder out there.

    On the remote chance that you guys aren’t so far removed from sanity that you wouldn’t even recognise it with a telescope, let me refer you to R. v. Jogee (2016), where the UK Supreme Court basically rethought the law on Joint Criminal Enterprise (i.e. the UK equivalent of felony murder/conspiracy) from scratch:

    there are two questions that must be asked in order to ascertain the guilt of a defendant on the basis of joint enterprise:

    1. Did the defendant assist or encourage the commission of the crime?
    2. In this assistance or encouragement, did the defendant act with the requisite mental element of that offence?

    https://en.wikipedia.org/wiki/R_v_Jogee

    Needless to say, nothing in Jogee comes anywhere near making someone liable for the death of a co-conspirator through the victim’s self-defence.

    1. Felony murder is hardly an American invention. It is an old common law concept that goes back at least to early 18th Century England. If the Brits want to abolish it, bully for them, but a cite to a 2016 court decision doesn’t really make me question my sanity all that much.

  5. Look up “provocative act murder” and you’ll find no shortage of cases with similar fact patterns. Not new, and hardly unjust.

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colleges

The Partisan Split on Higher Ed

A Troubling Trend

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A new Pew survey reveals that the partisan split that became visible a couple of years ago in public perceptions of American higher education has continued. In the long term, this cannot be good for American colleges and universities.

A lot of American institutions have taken it on the chin in recent years as Americans have become less trusting of any of them. Some of those declines reflect a general eroding of public confidence, but some institutions tend to see a specifically partisan split with supporters of one political party continuing to like that institution as supporters of the other party express dislike. This is not terribly surprising for political institutions like the presidency, which tend to be seen through a partisan lens depending on who currently occupies the White House (though notably this stark partisanship about the presidency is itself a relatively recent development).

Colleges and universities are fairly distinctive in being non-political institutions that are nonetheless seen in increasingly partisan terms. There is an extensive conservative infrastructure now dedicated to publicizing the foibles of academia. Of course, the reality is that college professors and administrators lean heavily to the political left, though this has been true for decades. Republicans now perceive universities as politicized, partisan institutions.

Republicans continue to send their own kids to college. They continue to recognize the personal economic value of a college degree. But if Republicans continue to believe that on the whole universities are damaging American society, they are unlikely to try to defend them against misguided political interventions from the political left and are more likely to propose misguided political interventions of their own. There is probably a limit as to what universities themselves can do to improve the situation, but they would be wise to take a serious look in the mirror and consider how they could win back the confidence of conservative Americans.

Details here.

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  1. “Colleges and universities are fairly distinctive in being non-political institutions that are nonetheless seen in increasingly partisan terms.”

    I think it would be more accurate to say that colleges and universities are formerly non-political institutions which are increasingly choosing to become partisan players in our politics.

    Since they are playing for the Democratic party team, of course Democrats are not turned off by this, and Republicans are.

    1. Colleges have never been “nonpolitical”. They might have been “non partisan” in the past but they are complete partisans now.

  2. “how they could win back the confidence of conservative Americans”

    Gee, let me think. They could stop beating up professors (Stanger) and shouting down speakers (Mac Donald). They could stop punishing professors (Wax, Christakis) for their political beliefs. They could allow open inquiry and free speech (Zwier, Sheck). But they won’t do any of those things, and the Conspirators will continue to defend them.

    1. Or our strongest schools could begin to teach nonsense, impose old-timey speech and conduct codes, suppress science to promote superstition, engage in rigorous censorship, seek accreditation from sketchy sources, ban academic freedom, engage in viewpoint discrimination in everything from admissions to all hiring (including janitors and basketball coaches), arrange a third-tier (or worse) ranking, and collect loyalty oaths.

      In other words, they could begin to emulate the schools already operated and favored by conservatives.

      1. I think my plan is better.

        1. Please keep us posted on how your plan is working at Wheaton, Franciscan, Grove City, Hillsdale, and Ouachita Baptist — and on how your efforts to persuade strong institutions to take your advice are working.

          Good luck.

      2. Ze thinks they are already doing all of those things. Don’t ze think so?

  3. “Of course, the reality is that college professors and administrators lean heavily to the political left, though this has been true for decades.”

    This isn’t a binary thing. The faculty have “leaned” left for decades, in the last decade they’ve become enormously more biased. In some disciplines you won’t find even one non-left wing faculty member in entire universities.

    It appears a tipping point was reached some time in the 90’s.

    1. You seem surprised that old-timey intolerance, pining for good old days (that never existed), science-disdaining religion, generally backward thinking, and similar fundamental elements of conservative thought are not popular on strong, modern, reasoning campuses.

      There are plenty of right-wing campuses that flatter conservative thought. The problem for conservatives is that those schools suck.

  4. How often do people consider the possibility that the reason that so many academics (and other “experts”) think that many conservative ideas are bad… is because they are bad?

    1. Alternatively, their excellent salaries are heavily dependent on government (and now, government-guaranteed loans). As with any government program, each little discipline is justified with glowing self-reports of importance.

      They know the hand which feeds them, and behave accordingly: omniprovident government good.

      Which party is that?

      1. From Contact…

        Drumlin: “Since the people are footing the bill, I see no reason research should not directly benefit The People.”

        Scientist: “Not unlike my L-band globular clusters.”

      2. “Excellent salary” does not really describe graduate school or pre-tenure positions. It also only works as an explanation if competing “expert” institutions (industry, lobbying firms, think tanks, etc.) paid terribly.

        1. That is true – teaching and research assistants and ‘adjunct’ professors get screwed.
          However, tenured professors and administrators make out like bandits. In most states, the best paid government employee in the state is a school administrator.

          Plus, they have excellent benefits and job security everyone else can only dream of.

      3. I think it more likely that layabouts with an intellect have found they can invent bogus degrees and classes, and get paid for it.

        They are smart enough to know there is only one such employer on the scale necessary to employ them all.

    2. Give me an example of a bad conservative idea

      1. Okay, since I was a history and political science major, I will go with the idea that the current Democratic Party is essentially the same as the Democrats of the past in an effort to claim that they are still, “the real racists.”

        1. I was thinking along the lines of actual policy Rather than the “ you’re a racist/ no you’re more of a racist ” feud which is absurd and meaningless

          1. Well it’s meaningful in that racial views inevitably impact policy.

            But okay, I’ll go with “climate change doesn’t exist” or “governments should cut spending during a recession.”

            1. Yes, exactly! Political matters, where only the Democrats are correct!

              1. Neither of those is a “political matter.”

                Both are areas where the overwhelming majority of knowledgeable people agree.

                (Cue: “Experts are wrong. The wisdom of the common man is superior, even on technical questions.”)

                1. Both are areas where the overwhelming majority of knowledgeable people agree.

                  Or at least if this is repeated enough times, and if bona fide and respected experts who disagree are demonized with sufficient severity, it might be possible to forbid the expression of a contrary viewpoint.

                  1. Sorry, swood. It’s true.

                    We don’t need creationists in biology departments, “contrary viewpoint” or not.

                    If there are climate scientists – real ones, not TV weathermen – who have well-supported arguments that climate change isn’t happening I’m sure they would in fact be welcome to express their views.

                    As for dealing with recessions, academic economists are not in fact overwhelmingly “left-wing,” yet you will find few macroeconomists who think cutting spending in a recession is anything other than a terrible idea.

                    1. If there are climate scientists – real ones, not TV weathermen – who have well-supported arguments that climate change isn’t happening I’m sure they would in fact be welcome to express their views.

                      Go onto YouTube (or Google them) and look at some of the talks by Judith Curry or Richard Lindzen or Steven Koonin or William Happer or Freeman Dyson or Roger Pielke, Jr. or Fred Singer or Roy Spencer. Do you think that the response has been to welcome them to express their views? No, it’s been that they are in the pocket of the evil-doer oil companies and that their views should not be reported by reputable publications.

                      As for the 97% have you ever actually looked into that number? They included in the 97% scientists who agreed that climate is changing and that human activity has been a factor, but this is trivially true and even the skeptical scientists agree with it. Then this number is reported as 97% of scientists believing that climate change represents an existential threat to humanity – an entirely different proposition. It’s utterly bogus.

                    2. 1. “We don’t need creationists in biology departments, “contrary viewpoint” or not.”
                      Tell, me, how does this viewpoint differ from the Lysenkoism mandated by the Soviet Union? Besides an argument that “creationists are just wrong, and it’s not science”, because that was the same argument used against geneticists by the USSR.

          2. I’ll go with “Tax cuts pay for themselves.”

            1. Well, they do. But then spending never goes down either, so I’m not really disagreeing in practice.

              1. No. They don’t. The supply-side argument has nothing to do with spending.

                The fundamental claim is that they stimulate growth so much that revenues actually increase. Hasn’t happened. Ask Sam Brownback.

                Yes, you can oversimplify matters enough to claim that there is some tax rate which maximizes revenue, and that going higher reduces it, but it has yet to be identified, and exists mostly as a point on a paper napkin.

      2. Supply-side economics.

        1. Supply-side economics.

          The term “supply-side economics” is used in two different but related ways. Some use the term to refer to the fact that production (supply) underlies consumption and living standards. In the long run, our income levels reflect our ability to produce goods and services that people value. Higher income levels and living standards cannot be achieved without expansion in output. Virtually all economists accept this proposition and therefore are “supply siders.”

          “Supply-side economics” is also used to describe how changes in marginal tax rates influence economic activity. Supply-side economists believe that high marginal tax rates strongly discourage income, output, and the efficiency of resource use. https://www.econlib.org/library/Enc/SupplySideEconomics.html

          Who could believe such craziness?

          1. Neither of the two paragraphs you quote is actually describing what was unique to supply-side economics. The author is using the term “supply side economics” in an overly broad manner, to refer to virtually any factor that is related to supply.

            Supply-side economics was a much more specific set of ideas. First of all, it was specifically focused on taxes, and second, unlike the bland passage in the second paragraph you quote, it was a macroeconomic proposition.

            A simple, one-sentence summation of supply-side economics would be that it asserts that you can, by means of tax cuts, bring about an increase in the long-term real GDP growth rate, via a shift in Aggregate Supply. Note that it is not simply claiming that you can give the economy an immediate boost with tax cuts–which of course you can, via a Keynesian demand stimulus–but that you can raise the rate of growth in the long term.

            And that specific idea, the core of supply-side economics, is empirically wrong. Supply side tax cuts in the 1980s did not raise the long term growth rate in comparison with preceding decades.

            1. Neither of the two paragraphs you quote is actually describing what was unique to supply-side economics.

              Going beyond the first two paragraphs do you fundamentally disagree with the definition of supply side economics given by the reference I supplied?

              1. I do disagree. The first definition is a truism, taught in Econ 101. It has nothing to do with those who specifically call themselves “supply-siders.” You might as well claim that supply-side economics believes the Earth is a globe.

                The second is vague and incomplete to the point of incoherence.

                Supply-side economists believe that high marginal tax rates strongly discourage income, output, and the efficiency of resource use.

                If you want to claim that very high taxes may discourage some types of economic activity you are again not saying much. But those who actually call themselves “supply-siders” are closer to MarkW201’s definition, and a fair number believe in self-financing tax cuts.

                1. Luckily, we have economists who actually look at the effect of tax rates on GDP growth. https://www.nber.org/papers/w13264

                  Wouldn’t you know. An increase of the tax rate by 1% drops GDP by 2% to 3%. Hmm..

      3. Anything Josh Hawley proposes.

        1. Anything any politician says about Section 230.

    3. If we were just talking about “many” ideas being bad, that’d be a bit understandable. You’d have people who vote for democrats, but would at least understand alternate views or how people could come out on the other side of social issues.

      The problem is that much of academia is perceived as viewing (and likely does view) all conservative ideas as bad. Worse yet, they come to view people with conservative views as bad people who cannot be trusted and must be stopped. Thus, a student merely wearing a MAGA hat to class is seen as a personal attack on the professor, making his “blood boil” and prompting him to write an ABA Journal article on the event (as just one example).

      If academia is upset it’s being perceived as partisan, seems the first step would be to stop being so partisan.

      1. “Worse yet, they come to view people with conservative views as bad people who cannot be trusted and must be stopped.”

        I sense that this is precipitated, at least among young people, by the bigotry. Among educated young people in modern communities, old-timey intolerance tends not to be an issue — unless someone makes it an issue, at which point not only is the intolerance derided but, also, everything the bigot says or believes is dismissed, intensely.

        The problem, for conservatives, is that modern young people have had gay classmates, Muslim friends, Jewish co-workers, black roommates, Asian teachers, Iranian teammates, etc. These young people just aren’t open to the insularity, backwardness, and cruelty exhibited by many conservatives and by the Republican Party. (They also have studied, at school, the successive waves of bigotry that America has encountered and overcome over the decades.) They view old-school intolerance as an attack on their friends and a sign of ugly character.

        They also do not attend church and do not believe superstition trumps reason, science, or history – – which, again, makes them unreceptive to much of the current conservative platform.

  5. If a conservative politician is voting for funding a public university, he is funding ideological opposition to his constituents’ positions with taxpayer dollars. This is why, for example, conservatives in Hungary have de-funded and banned Women’s Studies departments.

    Because American tax dollars as currently given to colleges and universities are fungible, there is no way to ensure that the university is using the dollars to produce competent engineers, accountants, or nurses instead of “(fill-in-the-blank)-studies”.

    What I don’t know, though, is which direction goes the causality. Most people graduate college and don’t become leftists, but PC culture has certainly migrated from the universities as something universally mocked (PCU the movie came out in 1994) to become mainstream since 2013 or so in the “Great Awokening” currently under way.

    1. The legislature in Missouri sanctioned its university over its leftist behavior a couple of years back, expect more of that.

      I see no 1A objection to banning certain “studies” programs” as ineffectual and faux academic.

      1. Hypothetical: Assume the conclusions of one of your maligned “studies” programs are broadly correct. Would that require you as a rational and moral actor to change your day to day behavior in any way? Or political behavior? Anything at all?

        1. I think the whole point is the “studies” programs are worthless so he’s challenging your hypothesis

          1. I understand he thinks their worthless. I would like to know if it’s more because he has specific disputes over methodologies or conclusions or because he’s worried that the answers will force him (or others) to act differently. When you want to ban a field of study, it sounds more like you’re worried about the answer. (Isn’t this what all the “race and IQ people” complaint about?) What if the field of women’s studies is that society treats women worse in a lot of aspects? Wouldn’t that mean someone might want to do something about it?

            1. Last I checked, you can’t get an “ought” from an “is.”

              1. Well sure. I suppose no one has to do anything when presented with a certain set of facts or circumstances. But rational moral actors will generally feel compelled to act in some way (even if it is limited to something as simple as voting) when presented with a sufficient injustice.

                1. These programs are rarely based on true facts, more on a specific ideology that selectively finds “facts” to reinforce the ideology but especially to propagate it. There is no real reason to provide specific isolated programs for these studies except prorogation of theses ideas. A truly open academic environment would encourage investigation of these viewpoints as well as others. An endowed Professor of Women’s Studies in the larger Sociology Department or a Professorship of Black History in the History Department would allow dissemination to a wider audience and open scholarly debate on critical issues and ideas.

            2. “methodologies”

              LOL

              They don’t use any science, its just feelings. They are political inventions, no rigor at all.

              1. Yup. See Pluckrose, et al. (Sokal Squared)

            3. The various “XXXX-studies” fields generally use little, if not any, scientific methodology, and are already limited due to the fact that they are soft sciences. That’s why they are able to be hoaxed so easily, and repeatedly. Economics, or even sociology of all God forsaken fields, doesn’t get suckered like they do, or put out such worth of mocking dreck one finds at New Real Peer Review.

              I understand your hypothetical, but it presupposes an objective answer, which there isn’t to compare it with. It’s like trying to prove a negative.

              Anyway, even if all the conclusions coming from the women’s studies departments WERE true (a laughable hypothetical as they are regularly disproved by Economics, see wage gap myth) then it still doesn’t change that fact that a conservative legislator who votes to fund a college is using his constituents’ taxpayer funds to support his ideological opposition, which they are presumably against because they sent a conservative to office.

              Imagine if Nancy Pelosi voted to give $ to the NRA for education and outreach. Same thing.

              1. Yes, these “studies” programs are less scientific than already only quasi-scientific departments like sociology.

                They were created to satisfy political demands from political activists and declined from there.

        2. Hypothetical: Assume Santa Clause does exist. Would that require you as a rational and moral actor to change your day to day behavior?

          1. An old trope. As men wiser than me have said, that it is better to act as if God exists, even if you believe he doesn’t.

            As for specifically Santa Clause, that’s a dumb hypothetical. As a child it’s best to act act as if he exists, but a child is not a rational and moral actor. As a adult, it doesn’t matter if Santa Clause exists or not, as he gives you no presents as an adult. So a rational adult doesn’t behave one way or another, unless the intention is to control the behavior of non-rational actors like children to make them *think* he exists.

            1. Believing in Santa Claus is relatively harmless.

              Believing in a climate change crisis which requires spending trillions of dollars and transforming market economies to dictatorships and impoverishing the entire world population — not quite as harmless. Especially when those who insist this crisis must be solved in 12 years 18 months reject clean, efficient, stable, reliable, proven nuclear power in favor of expensive, unreliable, unsteady, dirty solar and wind power.

              1. Agreed on both points.

          2. Well, let’s see. I would have to question my current beliefs about God and religion and probably accept that some sort of version of Christianity is correct since Santa is a major figure in a Christa holiday. I would have to accept that magic is real. I would have to instill in children that notion that they should behave for the purposes of receiving presents. More darkly, I would have to attempt to convert people because if Santa’s existence implies the existence of Christianity I would need to prevent people from damnation.

            As for other earthly concerns, I would undoubtedly have to advocate for Elfish welfare depending on their working arrangement. I would have to advocate and support forcing Santa to take a less unjust stance to present distribution, and to see if there is a way to adapt his magical powers to addressing more immediate concerns: such as disease, poverty, and hunger.

            In effect, I would have to change a great deal about how I behave if Santa was real. That’s why it’s far easier to believe he doesn’t exist.

            1. And your reasons for believing that we only have 12 years 18 months to prevent the climate change crisis with the Green New Deal and bankrupting the entire planet? That doesn’t require magic? New Monetary Theory? Dictatorship for all? Impoverishing the world?

            2. “I would have to advocate and support forcing Santa to take a less unjust stance to present distribution”

              He gives to the nice, and not to the naughty. This is, definitionally, just.

              1. No I mean like Christian vs. Non-christian children. Also what’s his basis for nice vs naughty?

        3. You probably can’t ban it, but maybe could tie the economic benefit to the funding it gets.

          1. The departments would have to pay the general fund then.

  6. Progressives “own” the overwhelming majority of the media and schools, but for the fact they are obviously “wrong” on most issues the game would be over.

    1. God it must suck to be youse guys.

      1. I know, right? Us deplorables are hanging by our fingernails here, being demographically replaced by our betters from below the Rio Grande or Africa, clinging to our Bible and guns, lashing out ineffectually by voting in an orange skinned cad from NY who conspired with Russia, left behind in rural backwaters, the only places of higher education available to us being someplace like Hillsdale.

        Am I missing anything?

        1. Yeah havevnot seen that happening for some reason.
          What is it? Oh wait Africa and Central America have such a great culture that if we just get past our racism they’ll succeed far more than you privileged white folks.
          You’ll see

        2. The mouth breathing giving us halitosis?

        3. Weird how white oppression came up of it’s own accord as you were trying to satirize the left.

          Almost as though it’s a core part of your identity nowadays.

    2. “Am I so out of touch..?”

      “No, it’s the people who study and report on the things I have strongly held but cursorily informed opinions about that are wrong.”

  7. I agree with the preceding comments. I will add this observation: There isn’t anything sacred about colleges and universities. Free inquiry (which most of them no longer support) can go on without them. Advances in theoretical and applied science can go on without them, as long as there are free markets that support the development and application of scientific knowledge. In fact, colleges and universities have (on the whole) become so inimical to free markets that Americans would be better off with far fewer colleges and universities. Sending kids to college has become conspicuous consumption. The practical value of colleges and universities is realized through courses that could be replicated by for-profit institutions. The rest — including the bloated, mostly leftist administrative apparatus — is waste.

    1. Indeed, we should note that during the period (say 1660 to 1871) when Oxford and Cambridge were closed to non-Anglicans, they became intellectual backwaters, and the real intellectual action occurred in dissenting academies, Scottish universities, and sundry other places.

    2. This sounds great and all, but the reality is that colleges now serve as an initial hurdle to get hired for jobs, get promotions, or even hold certain positions.

      Want to be a lawyer? Well, you can go to all the for-profit schooling you want, but it isn’t going to matter. Want to work as a chemist? Good luck finding a for-profit school–unless you’re aware of a for-profit school that maintains a multi-million dollar chem lab.

    3. as long as there are free markets that support the development and application of scientific knowledge.

      Some applications, yes. But the notion that the market is going to support the development of scientific knowledge in general is nonsense.

      Private investors fund activities from which they can capture the gains. Lots of basic research doesn’t generate immediate gains, and those it does generate are often diffuse, not amenable to capture by private business.

      And of course some social science research is policy-oriented, which means it’s not of much value to private business at all.

      Yeah, yeah, go ahead and sneer. I know what you think.

      1. “But the notion that the market is going to support the development of scientific knowledge in general is nonsense.”

        Well, sure. The market is only going to support the development of potentially useful scientific knowledge. But what’s the problem with treating the accumulation of useless knowledge as exactly what it is: A luxury good?

  8. The trend these days is to denigrate higher education and lionize trade schools. My guess is the student debt crisis is a primary driver of this, but other factors like the rise of anti-intellectualism play into it, too.

    Trade schools have long received short shrift — in my youth, alternatives to high school were usually considered refuges for the “bad kids” — and should be funded and promoted similarly to other forms of education. The wide swing of the pendulum that has us questioning whether higher ed has any value whatsoever is dangerous in at least two ways. The move away from education, even education for its own sake, will make us a dumber and weaker society. And adding tens or hundreds of thousands of new tradesmen every year will result in far far too many tradesmen for the available work.

    The trades are an alternative to higher education, not a replacement. They deserve respect, but like higher ed, are not for everybody.

    1. The only quibble I have, is that of the label of anti-intellectualism. I would more appropriately label the slow burn of rebellion against higher education going on as anti-credentialism or being against self-styled “experts.”

      1. After someone has earned an expert’s credential, what thought process justifies, “self-styled?”

        From discussions which attend originalism threads, I know that many on the political right reflexively debunk graduate degrees in history. Only two explanations readily account for that: anti-intellectualism, or ideology taking reflexive offense against non-ideological thought. Neither is a likely characteristic of a thoughtful person.

        There is almost zero chance of anyone successfully faking “self-styled” history expertise. Likewise for political science, philosophy, foreign relations, English or American literature, art history, any foreign literature, economics, or even (gasp) American studies.

        There are other fields which mix cranks with genuine experts, sociology being one of those. In such cases, a thoughtful person would look for the experts, and avoid the cranks, not write off the entire field. Anyone stupid enough to write off W.E.B. Du Bois because he was a sociologist would be stupid indeed.

        Note that I have covered a fair swath of liberal arts, without mentioning any sciences, which right-wingers appear to tolerate better. Prejudice against liberal arts more accurately pinpoints right wing anti-intellectualism, while highlighting one of its worst features. Few of the problems which beset this nation now will yield to STEM expertise. Most will demand thoughtful, reasoned insight of the kind liberal arts education can develop. Understanding that makes singling out liberal arts for intolerant criticism seem particularly perverse.

        1. What do you mean “faking”? Lots of people (e.g., Garry Wills) write history books who don’t have degrees in history. Are they “faking”? When Christopher Hitchens or Richard Dawkins write about religion, are they “faking”? I really don’t know what you mean.

          1. FWIW Gary Wills has a PhD in classics which crosses over into “history” a great deal (several of my history courses were cross-listed with the classics department).

            But more to the point, I would say that “faking” means producing something that isn’t done using the most common methods.

            For instance, if you’re producing a work of history and don’t do any archival research or at the very least extensive review of every relevant published primary source you might be faking it. Or if you only look at translations rather than learning the language of the source. Not reading and understanding the work of historians of the subject you’re working on is also a warning sign of fakery. What has been written previously will help the author put what they’re looking at into context. Naomi Wolf ran into big trouble recently when she did not engage with what was written on English legal history and as a result, completely misunderstood the documents that were supposed to support her thesis.
            Reading and understanding other historians does not mean agreeing with, by the way. Academic historians often make their name disagreeing with each other. But they also endeavor to understand and learn from each other. It also allows them not to rehash what is widely accepted and to focus their ideas and critiques.

            In essence, faking occurs when you don’t do what historians are trained to do. You don’t necessarily need the full six years of grad school to do these things, but you do need a commitment to do the things in the manner they do them for your specific project to avoid faking it.

          2. Good point about the polymath Garry Wills. But do you really suppose there are “lots of people,” like him? Wills, of course, was trained as a classicist, a discipline which shares points in common with the practice of history.

            As for “faking,” maybe you ought to take that up with mad_kalak. I thought that was a fair descriptor within the scope of his objection to “self-styled,” expertise—expertise which is self-styled presumably being a recognizably inferior grade (and thus “fake”) compared to expertise which is genuine.

            With regard to Hitchens and Dawkins, their cases are too complicated for me. If either of them has ever been taken as a professional writer on religion, I am not aware of it. I thought their subject matter had more to do with the methods and uses of reason, with religion critiqued as an example of bad reason. But I don’t know their work well, and would welcome correction.

            What I really mean is that many academic fields, including fields among the liberal arts, have genuine expertise to offer. Right wingers who insist otherwise risk being taken for fools.

            1. Most professional philosophers heaped scorn on Hitchens and Dawkins.

        2. Most will demand thoughtful, reasoned insight of the kind liberal arts education can develop. Understanding that makes singling out liberal arts for intolerant criticism seem particularly perverse.

          But your defense of liberal arts in the abstract is beside the point since the charge is that liberal arts at many universities is not non-ideological, but rather has a leftist slant. Your point is apparently to deny this and to claim that such a charge can only come from some right-wing person lacking in thoughtfulness.

        3. My disagreement with you is a matter of degree. Pun intended. First, a bachelor’s degree, or an advanced degree, gives no one an expert status in any field, as just about anything learned at that level can be learned through on the job through experience or just reading a lot of books. Even lawyering. Not to mention that law school does not actually train one to be a lawyer. People who come out of school with an MA or an MS are still, to put it in Gen Z speak, are Newbs, and are only “expert” in that we have a wide range of specialization of labor. They are easily surpassed by those with deep knowledge of the field but no degree.

          To your specific point about history, expert status is certainly conferred on those w/o an advanced degree, the most famous examples being David McCullough and Jane Jacobs. Expert knowledge in a field happens all the time if one devotes themselves to the subject, look at computer programming, where results matter more than degrees.

          My problem with “experts” mostly comes about when they think their specialized knowledge in one field grants them wide berth to speak to policy in another. Medical doctors are perhaps the best (infamous?) example of this phenomena.

          1. I’d say lawyers are the best example of an expert who believes they are competent to speak with authority in any field.

            1. I stand corrected.

              1. Although I guess it depends on whether lawyers are actually experts in anything in the first place.

                1. Good lawyers are like good plumbers. They are experts in using unearthed arcana rather than tubes and water pressure towards a client’s desired result.

          2. To your specific point about history, expert status is certainly conferred on those w/o an advanced degree, the most famous examples being David McCullough and Jane Jacobs.

            Jane Jacobs the urbanist? Is there someone else by that name, who wrote history?

            As for McCullough, no. Just no. McCullough is an excellent example of an esteemed popularizer of history. I have bought several of his books, and liked them. I am reading his latest now. He is very good at what he does. What he does is greatly and justly praised. Here and there, he has added a bit of new historical insight. His book on the Panama Canal is said to have done that.

            But McCulloch practices the activity of being a writer, not the activity of being a historian. For that, McCulloch has been properly celebrated. Probably more celebrated than any American historian, ever. To bystanders, that makes the case confusing. Because McCulloch writes about history, it is easy to take away the impression that McCulloch is celebrated for his contributions to history.

            That is a mistaken impression. McCulloch is too present-minded to be accounted a proper historian of all he surveyed. About the vast range of topics, places, and eras with which he deals, nobody could read enough historical sources in a lifetime to become historically proficient in all of it. Given that, it is not really a critique of his great body of work to point out that it isn’t really history. It is something different, and praiseworthy on its own terms. It is literature, written in a historical context, and so gracefully and proficiently done that any good reader can enjoy it, and profit by exposure to some facts of history in the process.

            But for actual history you will still have to turn to a historian— someone who has so thoroughly pickled himself in the historical record of a particular place and time that he has become immune to present-minded interpretation. A historian trained that way stands out as if he were an actual denizen of the past, projected forward by a time machine. Such a person is readily distinguished as someone completely ignorant of everything which occurred during the interval between his departure from the past, and his arrival in the present. Encountering someone like that should always feel at least a bit strange—and perhaps more strange in proportion to the magnitude of removal in time and place. Encountering McCulloch never feels anything but easy and familiar.

            Strangeness is what McCulloch does not achieve. In that, he is in nearly universal company. With very rare, self-taught exceptions, only professional historians achieve sufficient reading of source materials, and mental discipline, to honor accurately the strangeness of the past. Typically, a historian becomes a specialist in only one place and one era—such as the American Civil War, or the French Revolution. A few of the greatest historians master more, but none has ever encompassed anything like McCulloch’s repertoire.

            Unlike a historian, McCulloch sacrifices depth of historical insight, and takes his payoff in breadth instead. Nothing wrong with that. But the easy familiarity McCulloch imparts to his narratives is the reader’s tip-off that they are not history. They are grand literature about the past, and rightly enjoyed on that account.

        4. There seem to be quite a few graduate programs whose only purpose is to churn out the next generation of graduate school professors.

          How many people earn a living outside academia, or think tanks, or other political positions, using their gender study or butt hurt degrees?

          1. Such data was posted on another thread on a similar topic by a regular commentator. If I recall, it wasn’t that high.

    2. “but other factors like the rise of anti-intellectualism play into it, too.”

      In some ways, what is going on on campus is probably what should be characterized as “anti-intellectualism”. As being opposed to intellect.

      1. Just as being racist against whites is acceptable and not really racist, or hating and denigrating males is not really sexist (genderist?), or shouting down speakers you don’t like is increasing freedom, or eliminating market choices in deodorants is pro-consumer, or ….

  9. “[I]f Republicans continue to believe that on the whole universities are damaging American society, they are unlikely to try to defend them against misguided political interventions from the political left and are more likely to propose misguided political interventions of their own.”
    How about we just defund them? Eliminate all public funding of higher education. Who’s onboard?

    1. Yes, because what we really need is a way for the upper-middle-class to further insulate themselves (or, more precisely, their children) from competition from the poor.

    2. This idea deserves a spot in the VC Hall of Great Stupidities.

  10. Certainly the bar has been lowered for academia in general. When college professors are arrested for attacking rally attendants with bicycle locks because “politics” and students attacking professors who aren’t sufficiently far enough left it says something. It says something else when universities don’t require a modicum of diplomacy from their students, coddle those with extreme views, and even promote divisiveness within their own halls even extending to their own faculty based on political agendas and who has a right to “safe spaces” or other simple dignities. For all their talk of fairness and inclusiveness they fall far short of their words and march swiftly in the opposite direction.

  11. I came to see the Rev. Arthur L. Kirkland’s take on the Right’s anti-education fetish, but guess I’m too early. I’ll come back later….

    1. It’s the same sh*t. Expect something about how the Ivy League is awesome and liberal and Oral Roberts U. or Liberty U. is a 4th tier dump for stupid people. Never mind that someplace like Evergreen U.is a liberal dump.

      1. Carry on, clinger. And do try to keep a sense of humor.

        Also : Is the Anti-Higher Education Party really what you want to belong to? Given any thought how that appears? Can you find even a thimbleful of meaning in all the Right’s cottage industry of snowflake whining re pretentious undergrads & professorial longhairs ?!?

        Look, we all know today’s conservatism is about nurturing Vicitimhood and Grievance, but I gotta say : This university shtick just seems so damn pathetic.

  12. but they would be wise to take a serious look in the mirror and consider how they could win back the confidence of conservative Americans.

    The credo among the progressive elite in good standing today seems to be that conservatives are fundamentally motivated by racism and other base, self-serving and indefensible forms of hatred and prejudice. Why would they want to win back the confidence of such people, as opposed to elimination of such attitudes through demonization? To even express such a wish is to open one’s progressive bona fides up to question, and in any event even if funds are withdrawn from the university, academic tenure assures that it will be some time before any of them is at risk individually. Since new faculty are hired by existing faculty what reason is there to suppose that there will be any change in the near future?

  13. What would a conservative version of a liberal arts university education look like?

    1. Homeschoolin’ so’s he can larn him to read the Bible, Sunday school to make sure he larns him how the Bible fits in with Baptist teaching, plus Biola so he larns him that the Bible tells him to vote Republican.

      All other fancy book larnin’ is of the devil.

      1. And whippin’. Lots of whippin’ to beat the sinnin’ out of him.

        (I say “him” because all the wimmen need to larn is ironin’ their husbands’ shirts, plus cookin’)

    2. Probably the old standbys — literature, history, art.

      Just drop all that social justice dreck and butt-hurt studies.

      1. Or perhaps even more to the point — get rid of the student loan scam, get rid of federal interference in college (Title IX etc).

        Stop stealing taxes to fund professors and students and especially the over-paid parasite admins who earn their living making up nonsense about racist genderist rubes who pay those taxes.

      2. Yes, because literature, art, and history have never concerned themselves with social justice issues.

        1. They are at least real, studying real facts, and employing real people in the private sector.

      3. Wouldn’t butt-hurt studies just cause more pain? Well maybe with appropriate lube and gradual stretching exercises over time – I could see it being at least a four year degree since I’ve got to think going from zero to goatse.cx isn’t for beginners.

    3. What would a conservative version of a liberal arts university education look like?

      How about an education without any slant, liberal or conservative? This would be one, for example, in which if someone suggests that we talk about the effect of inner city culture on inner city poverty, and what changes might be possible and helpful, such a proposal is not met with shrieks of racism and demands that such a talk be forbidden on campus.

      1. Or at least that such a response does not come from the faculty and is not acceded to by the administration.

      2. Would it also be one where a history professor talks about how slavery sucked without being accused of leftist anti-American bias?

        1. History is not a morality play, and there is no need to bring moral judgments into it. The people in the past are beyond our power to punish or reward, and sitting in moral judgment of them is just an excuse to adopt an air of unearned moral superiority.

        2. Would it also be one where a history professor talks about how slavery sucked without being accused of leftist anti-American bias?

          Yes, if you can find such a case, as opposed to a history professor announcing in class as an historical fact that the United States was founded in ignominy and is today racist to its core.

        3. Would it also be one where a history professor talks about how slavery sucked without being accused of leftist anti-American bias

          Ah, another white prog who thinks he’s the first person to discover that slavery sucks …

    4. Classics to the level where you can read Plato and Virgil in the original, math through multi-variable integration and differential equations, English Chaucer to Eliot, economics through CAPM, four semesters Western history Plato to Nato, enough other courses to bring you to 120 semester-hours.

    5. I don’t think conservatives are asking for a conservative version of a liberal-arts education (and to the extent they are, they can usually find them in certain sectarian schools – Bethel University and Northwestern University here in the Twin Cities being examples I can think of).

      What they are asking for is a non-partisan education. And for that, it would be one that encourages debate and engagement, not activisim.

      For example, in law school, I had an international-law professor who at the start of class volunteered that he leaned right, but found himself disagreeing with current republicans. He ran a very non-partisan class that did a good job of presenting competing arguments. Conversely, I signed up for a local government class taught by an activist professor who, as part of the class, required students basically petition local governments to expand affordable housing (e.g., make proposals to city councils, advocate for more affordable housing or viewer zoning restrictions at meetings, etc.). It had little to do with how government operated and lots to do with advocating a particular outcome the professor wanted. I immediately dropped the class because I was there to learn about and discuss a problem, not take a specific partisan view on the issue.

  14. West Point, Annapolis, Hillsdale College.

  15. The simplest proof that most of academia today is wildly misguided is their near universal support for socialism, an idea that empirical evidence shows produces human misery and leads to tyranny. That someone might support socialsim in, say, 1920, might be forgiven. That they do so 100 years later, after the experience of a century, betrays a complete lack of intellectual foundation.

    1. “The simplest proof that most of academia today is wildly misguided is their near universal support for socialism…”

      Yup. Academics and free markets hate each other.

    2. their near universal support for socialism,

      Care to back that up?

  16. Many on the left are doing this. Left-wing academics recently perpetrated the Sokal Squared hoax, where they succeed in getting several academic journals to publish fake papers drawing ridiculous conclusions using SJ jargon. They even got the feminist journal Affilia to publish “Our Struggle Is My Struggle: Solidarity Feminism as an Intersectional Reply to Neoliberal and Choice Feminism”, which was a chapter from “Mein Kampf” re-written as feminist pastiche.

    1. And they were disciplined for doing so. The academy does not look kindly on such criticism.

  17. There is probably a limit as to what universities themselves can do to improve the situation, but they would be wise to take a serious look in the mirror and consider how they could win back the confidence of conservative Americans.

    If not the universities, who do you think has the ability to improve the relationship between universities and conservatives?

    Even assuming the fault lies strictly with some nebulous group of “conservatives,” there is no way of correcting the thoughts of a significant portion of the country.

    The reality is that left-wing elements in universities have been allowed to run rampant within the institutions and created (at least) the impression that conservatives (previously conservative ideas, but now it looks like the bigotry has expanded to anyone who ever even entertained a conservative thought) are not to be tolerated at universities.

  18. Conservatives claim to have identified an important market failure generated by the point that our strongest schools are uniformly operated by in the liberal-libertarian mainstream — if only there were strong schools that were conservative-controlled, strong schools that flattered right-wing positions and hired conservative faculties. Such a strong, conservative school would, if conservatives are correct, attract more students than could be enrolled and generate enormous revenue from myriad sources.

    Yet right-wingers do not create strong conservative-controlled schools. Instead, the hundreds of conservative-controlled campuses are typically third- and fourth-tier, if not unranked, slack-jaw factories with sketchy accreditation and shambling students.

    Why are conservative schools so bad? Schools that lean conservative tend to teach nonsense. They are shackled by censorship. They suppress science and warp history to flatter superstition. They mock academic freedom. They enforce speech and conduct codes, collecting signed loyalty oaths. Most important, conservative-operated schools teach nonsense, with predictable effect on the student body, prospective employers, student achievement, and institutional reputation.

    Conservatives have attempted to create strong right-wing schools for decades, with nothing more to show for it than the Franciscans, Biolas, Wheatons, Libertys, Hillsdales, Ouachita Baptists, and Ave Marias — and the Oral Roberts-Bob Jones twins.

    Evidence indicates that conservatives are incapable of developing or operating strong colleges and universities. Others, however, have developed and operate many strong educational institutions. Just not conservatives.

    The market has spoken, vividly and repeatedly, but conservatives don’t like the result, so they ignore the evidence and its natural conclusions. They also continue to whine about how the strong schools refuse to emulate the weak by pushing conservative positions and hiring more conservative faculty members.

    Carry on, clingers. So far as a Liberty, Ozarks, or Ouachita Baptist education could carry anyone in modern America, I suppose.

    1. Damn, did you read the comment thread before you showed up? Your shtick was predicted and you responded right on cue too. You’re as regular as a old man with a bag full of prunes, and produce the same product.

      1. Conservatives will continue to operate and attend the right-leaning schools I mentioned — Wheaton to Regent, Dallas to Ave Maria — and dozens or hundreds like them.

        Liberals, moderates, and libertarians will continue to operate and attend the Berkeleys and Brandeises, Haverfords and Harvards, Princetons and Pittsburghs, Williamses and Wellesleys, Michigans and Minnesotas.

        The results will be predictable. And deserved.

        Clingers, as is always true, hardest hit — as can be noticed from the whimpering, complaining, and silly bluster.

        1. LOL, I didn’t go to Ave Maria.

          1. The issue isn’t which particular school one attended.

            The issue is which side of the important divide one is on.

            That divide is education vs. ignorance.
            Tolerance vs. bigotry.
            Reason vs. superstition.
            Modernity vs. backwardness.
            Science vs. dogma.
            Inclusivity vs. insularity.
            Strong liberal-libertarian and public schools vs. backwater religious schools and homeschooling.
            Modern, successful, improving communities vs. emptying, can’t-keep-up rural and southern stretches.
            Progress and optimism vs. pining for good old days that never existed and muttering about ‘all of this damnable progress.’

        2. You love to cherry pick marginal schools, then compare them to old universities with significant endowments, name recognition, and alumni networks.

          Let’s see… Ave Maria – founded in 1998. Harvard – founded in 1636 and a $40 billion endowment. Yep, it was the marketplace of ideas holding Ave Maria back.

          Funny how schools like Notre Dame, DePaul, and BYU never make your list. Even University of Chicago, which was known for conservative thinkers, manages to evade your mentions.

          1. You figure a list of top 5 right-wing schools could hang with a list of top 5 liberal-libertarian schools?

            Top 10 vs. top 10?

            Top 20 vs. top 20?

            Top 50 vs. top 50?

            Top 100 vs. top 100?

            To test this, I would welcome your top 10 or top 20 conservative schools.

            I would also be willing to spot you five strong liberal-libertarian schools that we could disregard, although that still would not make this a sporting proposition. There are plenty of longstanding conservative-run schools . . . the problem for conservatives is those schools nearly uniformly suck. Mostly because they are conservative-run schools.

            1. Here are five liberal-libertarian schools I am prepared to spot conservatives (they would not be considered in a comparison): Harvard, Yale, Princeton, Williams, Reed.

              1. You just found out how the clingers were responsible for establishing Princeton?

                Sorry, you put Princeton on your list, and it stays.

                1. Maybe you can enlighten us on when Princeton stopped being fundamentalist and retrograde, and when it started being truly excellent.

        3. Wellesley, you say?

          Here’s what one of St. Hillary Clinton’s biographers says about Wellesley at the time Hillary was there:

          “In 1965, when Rodham arrived, Wellesley students followed a strict code of conduct. They had to wear skirts to dinner. They had to obey a curfew (be in their dorm rooms by a certain hour). Young men weren’t allowed to visit them in their rooms except on Sunday afternoons.” (JoAnn Bren Guernsey, Hillary Rodham Clinton: Secretary of State, Lerner Publishing Group, 2010, 18-19).

          So was Wellesley still great when it had those old-timey conduct codes? If it *was* great, then maybe old-timey conduct codes don’t reflect on the greatness of an institution. It if *wasn’t* great, then maybe Hillary went to an inferior institution. Or at least all her unenlightened predecessors, before Hillary’s generation, were ruined by all the conservatism.

          1. Let’s do Princeton…

            …was it great when it was established in the wake of the Great Awakening by pious Presbyterians who then taught a whole generation of Founding Fathers?

            Was it great under the Presidency of Woody Wilson? Of course, Wilson is unambiguously one of yours, but I don’t think you’ll want to acknowledge him, given his racism *as expressed in his academic work.*

  19. The interesting part of this, is how often people who haven’t set foot on a campus in years, decades, or even ever are just so sure they know what is happening there.

    1. All I know is that the bitter clinger sky-fairy fundamentalists who founded Princeton (f/k/a College of New Jersey) and taught many Founders were not woke and enlightened enough to include classes like this in their curriculum:

      “COM 401 / GSS 401 / ENG 419

      “Seminar. Types of Ideology and Literary Form – Pornography, Gender and the Rise of the Novel in Europe

      “April Alliston, W 7:30 PM – 10:20 PM

      “Open to graduate and undergraduate students interested in understanding the origins of the modern novel, this seminar examines the profound historical, theoretical and formal connections between the development of pornography as a distinct category of representation and the development of the novel as a literary genre during the Enlightenment. We will also explore the continuing resonances of those connections today. Readings in current criticism, history and theory of the novel and pornography will accompany primary readings.”

      https://gss.princeton.edu/seminar-types-ideology-and-literary-form-pornography-gender-and-rise-novel-europe

  20. My libertarian side doesn’t like it, but a solution would be an affirmative action program for political views applied to anyone who uses government money to finance hiring employees.

    That would apply to universities, but also to organizations like NPR.

    Only when every job within an organization is filled by a politically diverse spectrum of employees can we be saved.

    Uhg. I hate it. But it is logical.

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Free Speech

"Right to Be Forgotten" as to Court Opinions Rejected …

... by a federal district court decision yesterday, in a case brought by a pro se litigant in New Jersey.

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A. In 2017, Bonner lost a case in New Jersey state appellate court, Bonner v. Cumberland Reg'l High Sch. Dist. Justia.com, a site that (among other things) publishes online copies of state and federal court opinions, included that nonprecedential New Jersey decision; Bonner then sued in federal court, asking the federal court to order Justia to remove the opinion. Yesterday federal District Judge Peter G. Sheridan granted Justia's motion to dismiss (Bonner v. Justia, Inc., 2019 WL 3892858):

Plaintiff seems to believe the New Jersey [appellate] opinion is his personal property…. Plaintiff seeks to prevent the [opinion] from being "reported, copied, distributed, shared, or by any other means used by anyone or any website." "[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." …

Plaintiff is proceeding pro se, and the Court should read Plaintiff's complaint [here, amended] generously and hold it "to less stringent standards than formal pleadings drafted by lawyers." … [But t]he amended complaint is substantively meritless, as was the original complaint.

Plaintiff is essentially attempting to seal the Appellate Division's Opinion, which—like federal court documents—[is] open to the public. There is a heightened public interest in disclosure of materials that are filed within the Courts, which outweighs private interests in confidentiality, as the Courts are funded by the public and in general judicial proceedings are not done in secret….

Because Plaintiff has had two opportunities to set forth a cause of action, and failed to do so, to allow another amendment to the complaint would be futile. As such, there appears to be no cause of action for the conduct the amended complaint is dismissed with prejudice.

This is clearly the right result, but, to my shock, I've seen one case in which a trial court did order a different online repository (leagle.com) to remove a person's name from a published court opinion archived at that repository (more on that in a later post). And, as I've noted before, I've seen cases in which trial courts wrongly ordered Google to deindex a photo in a newspaper (Malandrucco), or wrongly ordered media outlets to remove stories (Thorworth and Barone).

Trial courts sometimes do the darndest things, including in cases brought by pro se plaintiffs. While litigating pro se is often a handicap, it's sometimes an advantage: pro se litigants often don't know what's impossible, so they ask for it—and sometimes get it. But not this time.

B. Bonner also asked—beyond his request that the New Jersey state court opinion be removed—that any order issued by the federal court resolving Justia's motion to dismiss Bonner's complaint "not 'be reported, copied, distributed shared, or by any other means used by anyone or any website.'" (Bonner's request also stated, "Confidential Notice: This letter and the things contained herein are confidential information and are not to be copied, shared, or distributed by any source"; but motions are generally public documents, just as opinions are.)

I had been tracking the case on Bloomberg Law, because I have been writing about attempts to get court opinions hidden. I thus noticed that request to seal, and filed a motion to intervene and oppose the request. The federal court granted my motion to intervene, and denied Bonner's request to issue the order under seal. Again, that strikes me as clearly right.

There is more to this litigation, but I will save that for one or two upcoming posts.

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  1. In the federal district decision, “Volokh” is mentioned more than times than “Bonner” (10 to 3)! 🙂

  2. What if the plaintiff was an EU citizen demanding takedown under the GDPR law. GDPR is said to apply to US private parties. What about US courts? Can one argue GDPR in a US federal court?

    1. I presume the GDPR (I always read that as the “German Democratic Peoples Republic”) doesn’t apply to US private parties if they don’t do business in the EU or visit there.. I hope that’s what you mean.

    2. IIUC the General Data Protection Regulation purports to apply outside the EU. I don’t know if it would be enforcable in US courts.

      I’ve suggested before that the US should make it a crime for any foreign legislator, law enforcement officer, or judge to deprive a US person or business of their freedom of speech.

      1. How about disclaimers on Hollywood movies, “Warning: This movie was crafted to view the Chinese government positively so it, and other products by this studio, may be sold in China.”

        We should not allow foreign dictatorial speech in this country without a notice to US citizens at a minimum.

      2. GDPR applies in the EU, but also to things put on the worldwide (!) web by people located outside the EU. Specifically:

        1. [The GDPR] applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.
        2. [The GDPR] applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to:
        (a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or
        (b) the monitoring of their behaviour as far as their behaviour takes place within the Union.

        So it doesn’t apply to data processing outside the EU of data belonging to people equally not located in the EU. Hope that clears things up.

        1. Martinned: What if a European citizen (a person who is indeed “located in the EU”) demands that Justia (or I) take down a copy of an opinion (or excerpts from the opinion posted on my blog) in an American case in which he was involved? (I assume that’s the sort of thing that anorlunda was asking about.)

          1. I’m not sure if having a court opinion on the web counts as “processing” for GDPR purposes. Google’s indexing might, and (like I said below) general fundamental rights principles might apply as well.

            In principle, I don’t see the jurisdictional objection to a European court deciding on an application by an EU citizen resident in the EU about what can be lawfully published in the EU.

            (As for what I think the merits decision should be on something like that, I think it’s right that art. 6 GDPR and Google Spain both require a balancing test, where there is ample room for recognising the public interest in publishing certain data. For criminal convictions, I’d say it depends on what the crime was and how old the conviction is.)

          2. The EU has ordered Google to take down links to court cases involving EU citizens. They don’t order the court to erase the conviction record, but order Google to not publicize it. Google is private.

            In the US, we often depend on private services to publish court decisions online. Courts are not prepared to do physical or online publishing and indexing. Applying the same logic, could an EU citizen use GDPR to demand that someone like LexisNexis erase entries documenting US court decisions? LexisNexis is private.

            Hypothetically, could the EU citizen demand that oyez.org redact his name, from SCOTUS briefs and decisions that Oyez publishes?

            The US has tried using extraterritorial reach to inhibit abortion information.

            Extraterritorial reach of laws is scary, but the Internet is making a mockery of national laws restricting information.

  3. Your right to be forgotten ends where the other guy’s right to remember begins.

    1. The issue isn’t with anyone’s right to remember, but with people’s right to look stuff up.

      1. Martinned: Well, literally, the issue isn’t with anyone’s right to be forgotten, either (no court can actually order someone to forget, at least with current technology); it’s with people’s right to require others to take down material (and not repost it). I assume TwelveInchPianist was working with the figurative “right to be forgotten” usage, and coming up with a figurative “right to remember” usage on the other side, no?

        1. “At least not with current technology.” Hmm, do you know something we don’t? That seems kinda ominous.

          1. Sorry, quote was a bit wrong, but the gist was correct…. MY bad.

        2. This is correct, thank you.

        3. And my point was that right to be forgotten cases like Google Spain are usually about search engines, not about taking things down from websites.

  4. This is clearly the right result as a matter of US law, since there is no right to privacy under US law.

    Since various people have mentioned the GDPR, it might be worth clarifying that the right to be forgotten is not something legislated for in the GDPR. It was recognised by the ECJ in its Google Spain case (Case C-131/12), interpreting the old Data Protection Directive in light of art. 7 and 8 of the Charter of Fundamental Rights.

    You’d think that a website full of libertarians would sympathise with the desire not to live in a totalitarian surveillance state…

    1. ?? Sure, nothing totalitarian about the government telling websites what they can and cannot publish. Especially outside the territory.

      1. Sure, your version of Ayn Rand is totally a better basis for policy than a century of actual experience with totalitarianism.

  5. The weird thing about this situation is that there’s nothing in the underlying opinion that he’s seeking to have “sealed”¹ that’s actually interesting. You can usually read an opinion in a case like this and say, “Well, he’s not entitled to that relief, but I can see why he wants it.” Here it’s not just clear why he feels the desire to suppress an innocuous opinion.

    ¹I put that in quotes because suing Justia, which is what he’s currently doing, is not actually about sealing.

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Torts

Lawsuit Against Rappers for Attack by Their Employees in Sneaker Store

The defendants are "Stunna 4 Vegas" and "Dababy"-run company Billion Dollar Baby Entertainment, LLC.

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In Thompson v. Caldwell (S.D.N.Y.), filed Saturday, Courtney Thompson is claiming that Stunna's (Khalick Antonio Caldwell's) and Billion Dollar Baby Entertainment's employees—Michael Awute and an unknown John Doe—beat up Thompson at Flight Club, a Manhattan sneaker store. Thompson is claiming he was hit in the face and kicked in the head, and is suing for at least $400,000 plus punitive damages.

Now if I beat you up in a sneaker store (not that I would!), you couldn't get a recovery against UCLA (or against my dean), unless I was somehow on the job. So what is the plaintiff's theory?

19. Defendant Billion Dollar Baby Entertainment, LLC is a music company that promotes itself as violent and murderous group.

20. Both the principals and agents of Defendant Billion Dollar Baby Entertainment, LLC, including Defendant Caldwell, frequently encourage violence by their employees and agents, through their music and actions.

21. The principals and agents of Defendant Billion Dollar Baby Entertainment, LLC, including Defendant Caldwell, regularly boast publicly about paying others to commit acts of violence on their behalf.

22. At all relevant times, Defendants Awute and Doe were acting as employees and agents of Defendants Caldwell and Billion Dollar Baby Entertainment, LLC. Their acts of violence toward Plaintiff were instigated, condoned, and/or authorized by Defendants Caldwell and Billion Dollar Baby Entertainment, LLC.

Time will tell whether this claim is going anywhere (and I should stress that I can't speak to the factual allegations, which are just part of the plaintiff's Complaint, not of any court finding). But I'm skeptical, unless there are some specific facts—beyond just loose claims of "encourag[ing] violence" or even of public boasts with regard to violence by others—that show that Awute and Doe did indeed attack Caldwell as a part of their jobs.

Topically related, though not necessarily legally relevant: DaBaby Fires Warning Shot to Hecklers After Fan Beatdown in Mall; Da Baby Posts Video of Him Beating Up Rival Rapper; DaBaby Sued; DaBaby's Alleged Assault Victim Says He Beat Up Stunna 4 Vegas.

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  1. I suspect there may be enough smoke here to entitle plaintiffs to discovery to see if there is any fire.

    Plaintiffs are alleging that defendants are actually running a gang and mean what they say, not merely using gang symbolism and rhetoric as hyperbolic marketing fluff. That sounds like a coherent enough allegation to survive dismissal. It of course remains to be seen if the plaintiffs can prove it.

    1. I tend to agree; On the face of it, there does seem to be a basis for proceeding, though they’d have to prove a lot to prevail.

  2. It’s disgusting and sad when people act like this.

  3. Point 17 appears to be a legal conclusion, stated as a fact. Isn’t this frowned upon in pleadings?

      1. Legal conclusions in pleadings are commonplace and not frowned upon per se, but are also not legally sufficient in federal court to state a cause of action.

        (Weirdly, Prof. Volokh’s numbering of those allegations above does not match the numbering in the complaint.)

        1. That caught me too, since the Paragraph 17 in the linked document is a statement of fact.

          When you’re answering a legal conclusion paragraph, what do you say in federal court? Are you in the “no need to respond” camp or do you attempt to deny, or what?

          1. “Paragraph 493 states a legal conclusion to which no response is required. To the extent a response is required, defendant denies the allegations in paragraph 493.”

            1. Which is why nobody ever bothers reading an Answer. By the time the lawyers get to it, it says nothing.

              (No less than Michael Mukasey, then Chief Judge of the SDNY, said that to the parties in a civil case I was involved in. “Why are you so concerned about them filing an Answer? No one ever reads it anyway.)

              1. Yeah. I love when clients breathlessly ask, “Did they file an Answer yet? What does it say?” And of course I say, “Dude. They denied everything, including their own name.” And then the client gets indignant, and I have to explain to them that this is routine and nobody cares what an Answer says.

                (My colleague has a standard response when defense attorneys call up and ask for an extra month to file their answer: “Come on.
                How long does it take you to type, “Denied, denied, denied?”)

              2. Wouldn’t an extensive Answer to the allegations in a Complaint be a clue to the defense strategy? Analogous, showing your whole and in poker before raising the ante?

            2. I guess that makes sense, so long as the denial is unrelated to the fact that it’s a legal conclusion (2012 WL 395707).

        2. Sorry, fixed the paragraph numbering.

          1. Now they’re all over 18.

    1. Not clear to me this is a pure legal conclusion. That the two persons beat him up in the store is certainly a factual allegation. Were they doing that as part of their job, or just did it on a lark? That seems to me to implicate what they were thinking, whether anyone instructed them to act that way, and what the general expectations of their job are. (Q: Were they ever asked to assault someone by their boss?)

      Given that this is notice pleading, I think that federal courts would generally allow it. At least at the pleading stage.

  4. “16. The principals and agents of Defendant Billion Dollar Baby Entertainment, LLC, including Defendant Caldwell, regularly boast publicly about paying others to commit acts of violence on their behalf.”

    This sounds like an allegation the court may wish to investigate further.

  5. I read the complaint; it’s going to get tossed as against the company and Caldwell if their lawyers are competent. The allegations about their involvement/responsibility are purely conclusory.

  6. It seems a pretty steep hill to climb, unless the plaintiff can show this was a business strategy of the company to, for example, bolster their reputation and credibility with a segment of their public.

    It also strikes me as eerily similar to various proposals to penalize “white nationalists” for being “white nationalists” with no other showing of at least a plan to break the law.

  7. I mean, if “this company pays people commit assault” is true, then suing the company isn’t that strange.

    The only question as far as I can see is if the claim of violence-for-pay is true.

  8. It’s not as if they said:

    I say it’s time to do some shit
    So let’s go over to the store at 123 Main Street
    at 10:35 Central time
    And commit vandalism, shoplifting and other crimes
    For everyone who obeys
    I’ll give $100 each, see?

    1. I may be wrong, but it may be a little more subtle that that. Something like, “We don’t take no shit from nobody. If somebody gets in your face or disrespects you, thump ’em”.

    2. And when someone is walking around saying “this a real nice place you got here. Shame if something were to happen to it, eh?” is just making idle chatter about the hassles of dealing with insurance claims.

    3. Purely a hypothetical – I don’t know any more about the details of the *real* case than most people.

  9. It’s sad to see my employees raging
    But they were not acting as my agents
    Property was damaged, things were thrown
    But the perps were off on a frolic of their own
    I admit the bad stuff that met your eyes
    But none of it was authorized

    1. No, your legal position is very precarious
      Your liability is very vicarious
      Before my employee met up with your crew
      He had a fine face and a nice head, too
      Here is the church, and here is the steeple
      Where you should have learned to control your people
      But judgment day for you is coming nigh
      The damages, like you, will be high

      1. Oh, stop preaching at me from your pulpit
        You’re blaming everyone except the culprit
        Your maneuvering is obvious, I’m going to call it
        You don’t want justice, you just want my wallet

        1. Your wallet paid the people who beat up my employee
          Your disavowal of responsibility is very annoying
          This lawsuit will test your mettle
          I’ll beat you badly, unless you settle

          1. I was very impressed until this last; “Employee” and “annoying” don’t rhyme.

            1. Stretch the pronunciation of “annoy-ing” it might slip by.

              It would be something if the case was handled in court like a rap face-off competition.

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Rachel Maddow's Racist Smear of Second Circuit Nominee Steve Menashi

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Rachel Maddow launched a disgusting smear of my Scalia Law School colleague (on leave) and Second Circuit nominee Steve Menashi. Ed Whelan has the details:

In a 2010 law-review article titled "Ethnonationalism and Liberal Democracy," Second Circuit nominee Steven Menashi argues that "ethnonationalism remains a common and accepted feature of liberal democracy that is consistent with current state practice and international law."

Menashi's specific purpose in the article is to refute claims that "Israel's particularistic identity—its desire to serve as a homeland for the Jewish people—contradicts principles of universalism and equality upon which liberal democracy supposedly rests." In fact, argues Menashi, "[p]articularistic nationalism and liberal democracy … emerged together at the same historical moment and persisted in symbiosis." Further, the "idea that a sovereign democratic government represents a particular ethnonational community has its root in the principle of 'self-determination of peoples' espoused at the foundation of the League of Nations and the United Nations." Surveying the laws of European nations, he further explains that Israel's Law of Return, which guarantees citizenship to Jews worldwide, is similar to kin-repatriation policies that are widespread throughout Europe. In sum, "[f]ar from being unique, the experience of Israel exemplifies the character of liberal democracy by highlighting its dependence on particularistic nation-states."

In a lengthy segment on MSNBC last night, Rachel Maddow grossly distorts Menashi's argument and tries to twist it into "a high-brow argument for racial purity." (Video at 9:00-9:36.) She falsely claims that Menashi argues "how definitely democracy can't work unless the country is defined by a unifying race." (Video at 6:57-7:10.)

But Menashi's argument about national identity is clearly not about "racial purity" or a "unifying race." Indeed, the fact that Israelis from Ethiopia are black makes it impossible to take seriously the claim that Menashi is making a case for "racial purity." Menashi further states that it "is not even clear … that Israel's national identity can even be described as 'ethnic'" (in a narrow sense ofthat concept), as Israeli Jews come from "Argentina, Ethiopia, Germany, Morocco, Russia, and Yemen."

OK, it's a smear. But why racist? Well, Maddow and her fellow-travelers are inclined to call any criticism of Rashdia Tlaib they deem unfair "racist" because Tlaib is a "woman of color" based on her parents' Middle Eastern origin. Steve's parents were victims of state antisemitism, his paternal grandparents like my wife's family refugees from Iraq, where his family had likely lived for 2,500 years (and how dare he think that there might be good reason for a nation-state for Jews to ensure they don't suffer the fate of his family in the future?) So by the logic that Maddow herself has adopted, Steve is a "person of color" and her smear "racist." But it's a despicable smear regardless.

UPDATE: An earlier version of this post suggested that both of Steve's parents were of Iraqi origin. His mom's family were rather refugees from the USSR. Regrets for the error.

FURTHER UPDATE: I have a busy schedule today, but found a few free moments to add this: Menashi's argument is a counter to those who argue that nationalism is inherently illiberal. He argues that multi-ethnic societies without a sense of shared national identity are prone to inter-ethnic conflict and a lack of social trust. The way to overcome this, he argues, is with liberal nationalism. This form of government will not just ensure everyone legal rights, but will provide a sense of national identity that will allow people to recognize that while their fellow citizens may be "different", they are part of the same national project/polity and thus can overcome those differences for the broader national good.

Is this right? It's highly debatable whether liberal nationalism "works" in this way. But there is nothing the least bit racist about arguing that nationalism, rather than being seen as inherently illiberal, can further liberal goals by creating a sense of national solidarity that would overcome particularist (racist, ethnocentric, chauvinistic) instincts.

I should also reiterate that this was published in 2010, well before the current Trump  related controversies over nationalism, and given the date, was not an related to the recent rise of Bannon-style conservatism, but was rather an explanation why Israeli nationalism doesn't render it illiberal.

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  1. > Well, Maddow and her compatriots call any criticism of Rashdia Tlaib they deem unfair “racist”

    Speaking of gross smears, that’s just cranky horse shit.

    Bernstein used to be a bit better than this.

    1. You’d have a better case if Tlaib herself didn’t encourage this:
      Rashida Tlaib
      @RashidaTlaib
      The hardest part of serving in Congress as a WOC & as a “first” is how people hear you differently. No matter how much we take on the hate & stay true to who we are through our experiences, our voices are shushed and reduced. We aren’t perfect, but neither is this institution.

        1. Or you’ll go away forever?

          It’s not even controversial that Bernstein is right that the squad and their supporters pull out the race card gratuitously, remember when they called Pelosi a racist?

          1. How DARE you assume I took EITHER side?
            Libertarians don’t take sides, from blind tribal loyalty.
            Because Left – Right = Zero.

            You cannot refute my linked comment.
            And FAILED to show why his quote was NOT lame.

            Or you’ll go away forever?

            whooooooooooosh

      1. I’m not reading that quote the way you do.

        Tlaib and the others are in fact part of a small minority in Congress, and one which, in the case of her and Omar, has not previously held Congressional seats.

        They are also, whether you care to admit it or not, the objects of an unusually high level of attack, some of which is certainly racially or religiously based, and some of which is coming from Trump and others on the right – your allies.

        Why is it wrong to say that in their view they are heard differently, and have to deal with a certain amount of hate? Are those statements obviously false?

        1. While there are certainly some racists who criticize Omar & Tlaib, Omar & Tlaib certainly label ALL criticism of themselves “racist” . . . . they do not treat ANY criticism of them as “worthy” of a straight answer.

          If you have any examples of Maddow saying a discouraging word about Omar or Tlaib, I’d love to hear about it – this business in Israel was clearly a stunt intended to be provocative, and yet, Rachel & her crew are backing them to the hilt.

          1. Netanyahu was following Trump’s demand/request, then reversed from worldwide outrage.

          2. Omar & Tlaib certainly label ALL criticism of themselves “racist” . . . . they do not treat ANY criticism of them as “worthy” of a straight answer.

            Maybe you could prove this rather than just asserting it.

            If you have any examples of Maddow saying a discouraging word about Omar or Tlaib, I’d love to hear about it

            No you wouldn’t. And why does it matter?

            – this business in Israel was clearly a stunt intended to be provocative, and yet, Rachel & her crew are backing them to the hilt.

            Yes, Trump’s actions were clearly a stunt meant to be provocative, meant to stir up his base with some more hatred – racial or other – directed against these women.

            1. Claiming that she was just going there to visit her grandmom, and that meeting with the terrorist backers was just a side trip? Then refusing to visit her grandmom if she wasn’t allowed to meet with the terrorist backers?

              Yeah, that was a political stunt. No question about it.

              1. So you don’t deny Trump’s action was a political stunt, but that was OK because your hero did it.

                1. Seriously, are you demented or something?

                  If I was going to visit my elderly grandmom, and thought I’d make a side trip along the way, no way would I cancel the trip just because I couldn’t make the side strip.

                  By canceling when she couldn’t see the terrorist backers, she revealed that to be the primary, indeed overriding, purpose of the trip.

              2. Brett = Liar = again

        2. They are also, whether you care to admit it or not, the objects of an unusually high level of attack, some of which is certainly racially or religiously based, and some of which is coming from Trump and others on the right – your allies.

          These people make their race, their religion, and their gender front and center of the objectives and justifications of their policies; necessarily, any objection to their policies involves arguments about their race, their religion, and their gender. Claiming “racism” is their way to kill off rational objections to their policies.

          And these people receive “unusually high levels of attack” because they are unusually awful. AOC, Omar, Tlaib, and Pressley are socialists, racists, bigots, and utterly ignorant. They were put in by a progressive machinery for their PR value. They are some of the worst representatives in my lifetime. I’m glad people are attacking them, and I hope they will be booted out of Congress and go back to bar tending.

          1. Stop frothing at the mouth.

            These people have been in Congress for all of about eight months, yet you’re ready to declare them “some of the worst representatives in my lifetime. ”

            That’s idiotic, as is the rest of your comment. How closely have you followed them, aside from listening to rants by Trump and Fox News scumbags?

            1. These people have been in Congress for all of about eight months, yet you’re ready to declare them “some of the worst representatives in my lifetime. ”

              I’m going by the policies they advocate and the justifications they give. I sincerely hope that the rest of Congress can keep them in check and prevent them from putting their policies into practice.

              How closely have you followed them, aside from listening to rants by Trump and Fox News scumbags?

              I don’t listen either to Trump or Fox News. I do follow these four representatives on Twitter and have listened to them on YouTube so I have an excellent idea of what they stand for.

              1. As dangerous as Trump?

              2. I’m going by the policies they advocate and the justifications they give. I sincerely hope that the rest of Congress can keep them in check and prevent them from putting their policies into practice.

                In your lifetime, you’ve seen socialists galore in Congress. You’ve seen rabid anti-semites like Cynthia McKinney. Supporters of terrorism like Peter King. White supremacists like Steve King. What makes the so-called Squad any worse than these others?

              3. I don’t listen either to Trump or Fox News.

                Doubtful.

        3. She literally calls herself a woman of color in that quote.

          If she can consider herself one, it’s not inconsistent to consider Manashi one as well. And I believe that was David’s point.

    2. Nope, this is straight-up David at his usual hijinks. I suppose that, before, he used the VC more often to promote his “academic” work. I don’t think I’ve seen him do much of that since the move from WP.

  2. Maddow and her compatriots call any criticism of Rashdia Tlaib they deem unfair “racist” because Tlaib is a “woman of color” based on her parents’ Middle Eastern origin.

    Bullshit.

    Oh, and you might look up the word “compatriot.”

    Sample usage: David Bernstein is critical of his compatriot, Rachel Maddow.

    1. (laughing)
      (cheering)

      Haters be … haters.

  3. Funny how your racism detector is a lot more attuned when the victim is a fellow conservative.

    1. Your reading comprehension has failed you in this instance.

      1. Well, aren’t you precious?
        A disgrace to Volokh.

        Israel was not racist. But Trump’s demands are. Which is why Israel caved, Netanyahu having humiliated himself on the world stage..

        1. Trump recommended Israel refuse admitting two anti-semites. Good idea.

          1. Is that why Netanyahu jammed it up Trump’s butt, by reversing himself in response to worldwide outrage?

            1. Hiln, your sock puppets are so transparent. You’re like an incurable disease that won’t go away.

      2. It is totally inoperative otherwise,

    2. Well, derpy, I’m guessing* he’s pointing out the inconsistency of Maddows’ bullshit, rather than saying he agrees with criticism of either person being ‘racism’. Kinda subtle, I know, against the backdrop of shameless double standards adopted by the progtards for, lo, these many years.

      *-trans: “100% sure”

      1. Behold the raging conservatard.

        Left – Right = Zero
        Two sides of the same authorian coin.
        As libertarians have known for over 50 years.

  4. There once were 150,000 Jews in Iraq. Now there are almost ten.

    1. Self-defense. Educate yourself. After providing a link.

      1. Who knew that Hihn is also a raging anti-Semite! The truth comes out.

        1. Tell me which fact you challenge, so I can publicly humiliate you.

      2. Self defense by whom?

        1. (laughing) The Muslims, oh ignorant one,
          Jews NEVER had any right to that land, which they obtained by the ONLY mass genocide in human history, the Canaanites. Source:
          Genesis.

          Then they ruled it for fewer than 300 years, over 2000 years ago. Lost it ON THEIR OWN FAULT. Solomon had sold his on people into slavery, to build his temple. This caused a civil war at his death, creating two Jewish Kingdoms, Israel and Judea. When Israel was invaded by the Assyrians, THEIR FELLOW JEWS REFUSED tO HELP THEM. (This entire paragraph from Jewish Virtual Library: https://www.jewishvirtuallibrary.org/the-two-kingdoms-of-israel

          Now google the First Holocaust … committed by CHRISTIAN Crusaders, slaughtering thousands of “Christ Killers” in France and mostly Germany … on their way to slaughtering MORE Jews, and evicting them from Jerusalem.

          So ,… how did the Jews get back into Jerusalem? THE MUSLIMS ALLOWED THEM BACK … for which they were later FUCKED.

          You may also be ignorant that Israel STILL maintains a military blockade against Gaza — an act of war … plus ILLEGAL settlements maintained by military conquest …. after 20+ years of military occupation.

          Self-defense. ISIS and Al Qaeda recruit by claiming “a Judeo-Christian War on Islam” … which is FACT. And you are just another victim of religious bigotry.

          Any questions?

          1. There is so much wrong with your comment it is hard to start.

            First of all, actual archaeology shows the Hebrews didn’t actually commit genocide, it was just bluster. In fact, Hebrews ARE Canaanites, who started following a different religion from a variety of influences.

            The Assyrian Empire was much more powerful than the combined strength of all Hebrew states, and would have conquered them regardless of any civil conflict between the proto-Jews.

            Yes, Christians have been killing Jews for a long time. The relevance of that to this discussion is nothing.

            Actually, the Jewish population of Jerusalem in the centuries after Muslims conquered it was never particularly big. The reality is that nearly all modern Israelis who aren’t descended from post-WW2 immigration are the progeny of those who were encouraged to immigrate by the British during the time of WW1. It is a famous thing, look up the Balfour Declaration.

            Settling in areas acquired by military conquest is not illegal; it has been the policy of essentially every human civilization in recorded history. The country you are in right now has done it. Should they give up the land they stole? Who decides? Why is Israel’s policy uniquely unjustified? (Hint: It isn’t.)
            Also, I am pretty sure that Palestinians firing rockets at Israeli citizens just MIGHT count as an act of war.

            If there was a Judeo-Christian war on Islam, why would one of the closest allies of the U.S. be Saudi Arabia, the literal home of Islam itself?

  5. You’re both wrong. (All three?)

    The issue is not an ethno-centric nation, but how that nation treats other people. And that is where Israel fails, Massively. And where Americans are the worst informed in the world. And why ISIS style attacks will continue, as self defense.

    Google the “Rhineland Massacre,” aka the First Holocaust, where thousands of Jews were slaughtered by … Christian Crusaders, on their way to Jerusalem, mostly in Germany, some in France’ as “Christ killers.” The Crusaders continued to the Holy Land, where they killed and expelled more Jews.

    So how did the Jews get back in? Ummm, the Muslims allowed them back in. For this, they were rewarded … how? The Jews want MUSLIMS expelled from Jerusalem, have forced settlements on Muslim land, and have long maintained a military blockade of Gaza. A blockade is an act of war.

    That is why some Muslims reject Israel, on stolen land, by western nations seeking atonement for allowing the second holocaust … BUT mainstream Islam does support a two-state solution. You need not agree, but cannot deny the argument is legitimate. Israel ruled that land for fewer than 300 years, over 2,000 years ago, They lost it on their own. A civil war had created TWO Jewish Kingdoms, north and south, Israel and Judah. When Israel was invaded, Judah refused to assist their fellow Jews.

    Further history is found in the Old Testament. Jews acquired that land by committing mass genocide … against the Canaanites. So they never had any right to that land, even in antiquity.

    ISIS recruits, as Al Qaeda did, to defend against a “Judeo-Christian War Against Islam.” And point to news reports in the west, and Trump’s shameful actions re Jerusalem.

    We stuck our nose into a war that did not concern us, between China and Japan. Our famed “Flying Tigers” were shooting down Japanese war planes over China. And we suffered Pearl Harbor. (FDR had just moved our Pacific Fleet from San Diego to Pearl, much close to Japan.)

    Then we stuck our nose into another war which was none of our business, a 2,000 year war in the mideast. And we suffered 9/11.

    Yes, liberals falsely equate race with ethnicity. But that’s not even close to the moral atrocities, which can be easily confirmed, by those seeking truth and justice

    Why punish Islam for the sins of Germany? Instead of a desert, I’d have give them land in Germany. But it was Israel who demanded a return to their “homeland” — which they never had any right to. Jewish settlements in Gaza, maintained by force, and their military blockade, are condemned by virtually every other nation on earth, justifiably.

    So, how many will screech anti-semitic below this, in raging hatred … thereby proving my point. Make my day.

    1. I see The Daily Stormer is leaking again.

      Take a good look, folks. This is what modern “not anti-Semitic” looks like. Are you impressed by the victim blaming, the whataboutism, and preemptive “just proves my point” persecution complex?

      1. Called it! Canaanites were victims!

        Hate the message? But FAIL to refute a single word?
        Shoot the messenger.

        1. I wasn’t actually talking to you, but pointing out your post as an example of an anti-Semites that have infested libertarianism for so long. But in case you actually think you are capable of participating in a discussion:
          You didn’t present an actual argument in that rambling mess of lies and distractions. Try again.

          Oh, yes – if you disagree with me, you just prove your racist bigoted anti-Semitic attitudes.

          1. Hihn isn’t a libertarian. He’s an escapee from a senility care center.

          2. I wasn’t actually talking to you

            Noe me TO you. My ridicule, documented, was for all readers.

            Typical psycho blowhard.

        2. It was actually the Amalekites, not the Canaanites, that were genocided; men, women, and children.

          1. SOURCE FOR JEWISH HISTORY DENIED BY ASSHOLE-BIGOTS:
            THE JEWISH VIRTUAL LIBRARY
            https://www.jewishvirtuallibrary.org/the-two-kingdoms-of-israel

    2. I do not concede that the creation of Israel was unjust, but let’s assume that for a moment.

      In the 70-some years since its creation, Israel has built a first-world economy and a representative democracy. Even Arabs vote and serve in the Knesset. Israel is a positive contribution to the world community.

      In the same time, what have the so-called Palestinians done? They’ve built a death cult. Rewarding them for that makes no sense.

      If you want to set aside historical wrongs, why not start with the Norman Conquest or Ceasar’s conquest of Gaul?

      1. Why not the extermination of Neanderthal man by Homo Sapiens? We are all guilty of that!

        1. Speak for yourself, Homo.

        2. Why not the extermination of Neanderthal man by Homo Sapiens? We are all guilty of that!

          Only the Biblical God would punish innocents “unto the third and fourth generation, counselor. Or command “kill the infidels” — despite the psychotic lie, by bigots, that Muhammad said it. Deuteronomy 13

          Anything else?

      2. In the 70-some years since its creation, Israel has built a first-world economy and a representative democracy.

        Evasion,
        “I raped the 12-year old girl, butt do volunteer work at a homeless shelter

        In the same time, what have the so-called Palestinians done? They’ve built a death cult. Rewarding them for that makes no sense.

        Evasion, self-defense
        Tell me again, who allowed the Jews back into Israel.

        .

        If you want to set aside historical wrongs, why not start with the Norman Conquest or Ceasar’s conquest of Gaul?

        Two reasons.
        1) Only cowards and losers apply so many evasions and diversions,
        2) Not what this page is about. (lol)

        1. Correctes indents. Let there be no confusion on Pettifogger.

          In the 70-some years since its creation, Israel has built a first-world economy and a representative democracy.

          Cowardly evasion.
          “I raped the 12-year old girl, but do volunteer work at a homeless shelter.”

          In the same time, what have the so-called Palestinians done? They’ve built a death cult. Rewarding them for that makes no sense.

          Cowardly diversion. Irrational.
          Self defense . Tell me again, who allowed the Jews back into Israel. But w
          Wait until I stop laughing, which could take a week or more.

          <blockquote.If you want to set aside historical wrongs, why not start with< the Norman Conquest or Ceasar’s conquest of Gaul?

          Two reasons.
          1) Only cowards and losers apply so many evasions and diversions,
          2) Not what this page is about. (lol)

          And I’m onto your games, being literate

          pettifoggery
          [ˈˌpedēˈˌfôɡərē]
          DEFINITION
          VERB
          quibble about petty point.

          practice legal deception or trickery.

          You’re not very sliied a

        2. “Tell me again, who allowed the Jews back into Israel.”
          The UN, in 1948.

          1. longtobeslave LIES about when Jews were allowed back, after Christian Crusaders committed the First Holocaust in Germany, then slaughtered and evicted Jews from Jerusalem.

            “Tell me again, who allowed the Jews back into Israel.”

            The UN, in 1948.

            Muslims in 1210,
            https://www.simpletoremember.com/articles/a/return_to_the_land_of_israel/
            For which they were FUCKED by the UN, over land Israel NEVER had any right to, had obtained by committing the ONLY mass genocide of an entire culture (Canaanites) … the ruled for fewer than 300 years, over 2000 years ago … then lost after their own civil war.

            Does he also believe the QURAN says kill all the infidels? It was Deuteronomy 13, Jews,

    3. For the sake of argument let’s just grant your criticisms of Israel are totally valid (I’m not weighing in on this here) and Menashi’s response totally wrong and invalid. It still doesn’t make his remarks racist or make him a defender of racial purity.

      Even people who are deeply wrong in their policies and views (and even those who are wrong about who is racist) don’t deserve to be accused of racism unless they themselves are racist so either way Maddow is totally out of line here.

      Maybe Menashi is an idiot but Maddow’s behavior is morally wrong and she owes Menashi an apology.

      1. To be clear when I say “defender of racial purity” I mean the sense that term has in the US today. In a certain sense anyone who defends the rights of native americans to offer tribal membership to individuals of tribal descent (and require that descent meet a minimum fraction) is a defender of racial purity but not in the sense that this term has in the United States today.

  6. Misusing a word in a headline just because you think your opponent misuses the word debases the language.
    It even debases *me* (which is no small feat): Henceforth, when you use “racist”, I have to spend time deciding whether you mean it in the standard sense or in the expanded, Maddow-Berstein sense.
    I think to save time I’ll just blanket assume the latter. Heck, maybe I’ll occasionally use the word in that sense myself (but *responsibly*, always appending a superscript “M-B” to flag the nonstandard usage – and because I kind of like the juxtaposition).

    1. Berstein -> Bernstein, sorry

  7. She’s called “mad cow” for a reason…

    1. So is Trump. And no worse than Carlson, Ingraham, Hannity Perino and Doobs
      .
      Plus you (by your own words)

  8. After his experience with Mexican judges, why would Pres. Trump try to put an Iraqi judge on an American court?

    This guy must be a clinger, young and politically reliable.

    1. This guy wouldn’t be just an Iraqi judge . . . he’d also be a Russian judge.

      That explains the Trump love.

      Carry on, clingers. For about another 18 months.

    2. Trump has never faces a Mexican judge in US court and no Iraqi judges have been nominated or even mentioned, All the judges under discussion are a Americans at leas to people that are not bigoted scum.

      1. Cherokees?

      2. Unless you consider Pres. Trump (author of the “Mexican judges” slur) to be bigoted scum, Nelson Kerr, your comment is inexplicable.

  9. “Menashi’s argument is a counter to those who argue that nationalism is inherently illiberal.”

    This is such a stupid fucking argument. Who cares whether nationalism is inherently illiberal, or not. The concept of “illiberal” is too vague to inform the discussion either way. And if nationalism is good but inconsistent with liberalism, then so be it. And if nationalism is consistent with liberalism, but still bad, so be it.

    Why do people talk in code? Whether Israel’s not-really “ethnonationalism” is a good or bad idea doesn’t have anything to do with rating it on a scale of liberal/illiberal.

    1. Or denying it was entirely racist. Demanded by Trump.

      That’s why Netanyahu caved under worldwide pressure, and reversed the denial.

  10. Zionism started in the 19th century when ethnonationalism was hip and progressive. This is when Americans cheered Hungarian ethnonationalist rebels, and the up-to-date liberals praised the Risorgimento (sp?) in Italy and even the unification of Germany.

    Sure, every ethnic German should be in the same state, just as every ethnic Italian should be in the same state. If it took a bit of international aggression to achieve these dreams, well, only the clingers and left-behinders would whine about it.

    Even after WWI, when maybe they had some reservations about the Germany thing, Woody Wilson and his supporters cheered (at least in theory) new ethno-states.

    Finally, the idea of *European* nationalism got Godwinned after WWII, but ethno-nationalism in the 3rd world was still cool and hip. Like for the Palestinians. But maybe not so much for the Jews any more…

  11. I just don’t play attention to anything anyone says is “racist” anymore. We used to have a common understanding of at least some kind of idea of what actual “racism” constituted. But, now looking at a colored person the wrong way, and them not liking it, is “racism”.

    1. Spoken like a man who does not see what is shown in his mirror.

      1. You sound like a racist to me.

        1. Is this how you want to spend the time remaining before you are replaced, Jimmy?

          1. I thought the whole replacement theory was “racist”…? Are you saying that is actually the plan?

            1. It is not so much a plan as the natural, desirable order.

              Cranky old conservatives and Republicans take their stale, bigoted, reason-rejecting thinking to the grave and are replaced in our electorate by younger, better Americans.

              Among the consequences will be less intolerance; continuing diminution and putrification of our rural population; fewer catheter, gold coin, and Life Lock commercials; collapse of the Republican Party outside the most desolate backwaters; and a better America.

              1. So replacement was the plan all along. Gotcha. Thanks for verifying.

                1. And thank you for improving America by being replaced.

        2. Jimmy DOES what he SAYS he opposes.
          And Trump does a LOT worse than “look” at black persons,

          1. Oh please do let us in on your little secret about what Trump does with black people…

            1. it’s no secret. And you’re about to lose, BIGLY

              Now Trump’s totally shameless lie about Charlottesville, sucking up to white supremacists and neo-nazies. Bad enough that he said both sides were to blame. But he also went full psycho, saying the counter-protesters charged the nazis, swinging clubs. UNDENIABLE proof of shameful President.

              The initial assault, Charlottesville– Nazis and white supremacists attacking peaceful protesters with clubs
              “Alt-Left” standing peacefully, no visible clubs or bats.
              Alt-Right Fascists/Racists crash into them en masse, swinging clubs.
              Fascists are carrying the same shields as cops in riot gear. The bastards CAME for violence.

              Shame on Trump and ANYONE who defends lies, hatred and bigotry.

              These are Racists and Jew-Haters.
              Ivanka and Jerod are Jewish.
              Trump threw his own daughter under a bus. SHAMEFUL.

              Left – Right = Zero
              Libertarians have said that for 50 years. A growing majority of Americans now agree.
              As the “traditional” left and right shrink toward extinction, roaring like dinosaurs, chirping like dodo birds.

              ==========
              Anything else?

              1. You mad dude?

                1. I’m celebrating my victory!
                  And your loss. (Shoulda watched the video)
                  Dude.

                  1. A carefully edited video by one of the participants that actually includes clips from other times and places and does’t actually show what you claim, is your victory?

                    1. (snort) The video is not edited, and undeniable.
                      Any one why watched it saw proof of what Trump is, and what you are.

    2. “I just don’t play attention to anything anyone says is “racist” anymore.”

      Trump supporters will spend the rest of their lives attempting to persuade others they are bigots, seething because they are perceived as bigots, claiming that “racist” and “bigot” have lost their bite, asserting that they are “color-blind” or “traditional values” fans, being dismissed consequent to their views, etc.

      The wages of appeasing bigotry should be severe.

  12. Man, what a whore Bernstein has become.

    I think this is his argument.
    1. Liberals (improperly!!!) call conservative people racist when those people do X, and this is wrong and unacceptable. I, of course, happily defend those people against accusations i think are wrong.
    2. Rachael Maddow just did X.
    3. So, by the standards of liberals, Maddow is a racist. And I’ll call her a racist and make it the main thrust of my post’s headline.

    What someone with actual integrity would have argued is:
    a. Liberals improperly call action X racist. I complain about this and defend those conservatives when this happens.
    b. Maddow just did X.
    c. Since I am not a whore, I will now defend Maddow just as much as I defend those conservatives, since it’s just as unfair to label her a racist as it was for the people on my side of the ideological spectrum.

    What is most disappointing about Bernstein’s actions is that he is a law professor. What everyone but he learned in law school is that each side of a dispute is equally entitled to a defense. His utter hypocrisy here makes me wonder if he skipped class each time this issue came up. Or, if–each time it was brought up when he was in class–he stuffed fingers into both ears and loudly hummed, “LA-LA-LA-LA” so that none of that wisdom could penetrate his brain pan.

    Just appalling

    1. Well thought and well-crafted. Left – Right does indeed = Zero.

    2. But consistent with Bernstein’s larger theme that liberals (aka radical left aka far left aka ultra left) victimize (a) those on the right, (b) Jews, and especially (c) Jews on the right. It’s not intellectual work so much as therapeutic work. It’s not difficult to read his posts about liberals as wanting a reassurance hug and/or someone to punch those meanies in the nose.

    3. The actions of certain law professors on this site inform my evaluation of students from their institutions, when I assist with the hiring process at my institution.

      Or, at least, they would. For whatever reason, GMU students never make the initial cut.

    4. We should exhibit some sympathy for Prof. Bernstein in this regard.

      How tough it must be to defend American conservatism and Israel’s right-wing belligerence these days, especially for one bright and informed enough to recognize the tide of American progress and the likely course and consequences of progress.

      1. Israel’s right wing belligerence:

        Military: 3 rockets fired from Gaza toward Israel
        ByTHE ASSOCIATED PRESS
        JERUSALEM — Aug 17, 2019, 2:52 PM ET
        The Israeli military says three rockets have been fired from the Hamas-controlled Gaza Strip into southern Israel.
        Israeli aerial defense batteries intercepted two of the missiles Saturday, the military said.
        Israeli media reported that shrapnel from the Iron Dome defense system landed on the patio of a house. There were no immediate reports of injuries.
        It was the second incident of rocket fire from Gaza in the past 24 hours.
        https://tinyurl.com/yys8cwfp

        1. Argument by cherry-picked anecdote is a Volokh Conspiracy staple.

          No wonder conservatives can’t compete in the culture war.

          1. It is only one of thousands of such anecdotes. At some point anecdotes become ‘normalized behavior.’ This is certainly such a situation.

    5. To be fair to Bernstein the actual argument he is making isn’t that Maddow is racist but that she is a hypocrite because she would be racist by the standard that he imputes she uses.

      I think this is both awful as a rhetorical tactic and simply wrong as to the standard Maddow is applying but I don’t think he is saying he thinks she is racist…merely accusing her of being racist on her own standard.

      I agree Bernstein also deserves criticism here just trying to clarify what for.

      1. To be fair in this day and age everyone is “racist”.

  13. An article describing a smear that refers to the supposed smearer as “Maddow and her fellow travelers” seems to lack a certain sense of irony. I enjoy reading The Volokh Conspiracy articles, regardless of which perspective they take (getting different perspectives is what I enjoy), but this one does not seem to meet the normal standards for the articles included.

    1. ^^This

  14. I’m willing to allow that Maddow’s charge that Menashi’s argument is for a kind of “racial purity” in Israel is simplistic, at best. It is true that Israel’s founding principles apparently open the door to all of the world’s Jews, regardless of race. (Setting aside for now, of course, the very disturbing issues with race that modern Israel is now grappling with, as with the Ethiopian Jews, whose difficulties in Israel you (for some reason!) gloss over.)

    That said, Maddow is certainly not wrong in pointing out that Israel’s version of ethnonationalism is incompatible with modern liberal democracies and their pluralistic ideals, and has more in common with modern regimes we would typically describe as “illiberal.” Menashi may make an interesting historical point about ethnonationalism, but it is not really an “argument” in favor of it in modern times – to cast it as such is to commit the genetic fallacy (which is, to be fair, one of your favorite fallacies, David).

    Personally, I do not really understand why Israel can’t be a special homeland for the Jews while abandoning the “sine qua non” of Jewish supremacy within Israel. It seems to me that this principle – that Israeli Jews can never be permitted to lose control of Israeli politics – is the ultimate source for all of Israel’s most illiberal tendencies (and the underlying cause of its long-simmering disputes with Israeli and Palestinian Arabs).

    1. I can’t imagine why Jews wouldn’t wanna lose political control of their safe house on the planet Earth, either.

      I hate that! Someone should do something about them!

      1. I do not buy into the common perception that the Jews are uniquely and magically pursued by a boundless anti-Semitism that transcends time and religious belief. Accordingly, I do not believe that an illiberal, supremacist Jewish state is necessary for their safety and survival. I believe that they require only a strong constitutional and legal system that protects the rights and equality of religious minorities – like what we have here in the U.S. (and I am happy to admit that many countries, including Western European countries, simply do not have this yet).

        1. In other words, I do not believe in history.

          1. I’m familiar with the history. I just recognize that persecution of the Jews, when and where it has occurred, has features in common with systematic persecution of ethnic and religious minorities across the globe, throughout history. For virtually any other religious/ethnic minority, the solution has always been limiting state power, bolstering the rule of law, etc. – all absolutely in line with typical conservative/libertarian theories of the appropriate limits of state power.

            It is only a collective trauma and typical western myopia that has convinced us that the Jews are somehow unique in this regard, and it has led us to implicitly and explicitly support an ethno-nationalist state that can only continue to exist so long as Palestinian Arabs remain penned into the OT and refused entry into Israeli civic society. So, while a free and democratic Israel continues to tear itself apart under the pressure of this fundamental tension, partisans like David and simpletons like yourself will just continue to pretend that the Jews are somehow unique, spinning history to fit your narrative.

            1. One of the big complaints on this web site about the political attacks on Israel is that similar (and worse) situations than the Palestinians are ignored by those same people.

              So…of course Israel has no reason to feel attacked and singled out as special in a bad way, do they?

        2. I believe that they require only a strong constitutional and legal system that protects the rights and equality of religious minorities – like what we have here in the U.S. (and I am happy to admit that many countries, including Western European countries, simply do not have this yet).

          In other words, Jews don’t need Israel because something that doesn’t exist would be just as good.

        3. Try getting expelled from 100+ countries, having our entire history be a story of tragedy and loss, and telling me that the death of almost half our population doesn’t serve as motivation for saying ‘fuck the world, we’re in charge of our own destiny now.’

          As we always say, never again. No more platitudes. Anyone who tries to hurt us again will be met with extreme force. If there were a billion of us I wouldn’t worry so much, but it’s ~16 million of us against several billion hateful Muslims and Christians. There are very few places left in the world where we haven’t tried to exist and only a shortsighted goyim could possibly believe we have no reason to doubt the long term safety of America. I used to be naive too, but the unholy trinity of the alt-right, mass migration, and leftist anti-semitism are extremely scary. It’s entirely plausible this country will be flooded with tens of millions of people from deplorable countries who perpetrate the sort of violence against Jews we usually see in France or other Arab nations.

          1. And you think Jews will be safer in Israel, surrounded by Arabs who literally want to drive you into the sea, than in the United States, which has been friendlier to Jews than any nation not named “Israel”?

            1. Yes because in Israel, we will decide for ourselves whether we are worth defending. In America, we will never have such liberties. Also, with the increasing refugee flow from places like Somalia, the risk of us facing increased violence like the remaining European Jews currently do increases significantly.

              1. To reiterate, we’re not going to be sacrificial lambs on the altar of political correctness. If the majority of Americans are going to sacrifice us because the people with reprehensible and un-American values are black and brown, we will leave this country and you’ll all be worse off for it.

                1. You LIE about Jewish history, or are a victim of lies. Israel NEVER had a right to that land
                  1)Obtained by committing the ONLY mass genocide of an entire culture, Canaanites. See Genesis.

                  2) Ruled for fewer than 300 years, over 2000 years ago … lost by your own fault. 3) Solomon had sold his own people into slavery, to build a temple. Caused civil war at his death, two Jewish Kingdoms, Israel and Judea. 4) When Israel was invaded by Assyrians, Judea REFUSED to defend their fellow Jews. Source: Jewish Virtual Library.

                  3) Christian Crusaders slaughtered thousands of Jews in Germany — Rhineland Massacre, aka First Holocaust — on their way to slaughtered and evicting “Christ Killers” from Jerusalem.

                  4) Who did Jews get back into Jerusalem? MUSLIMS ALLOWED THEM IN ,., for which they were FUCKED, 700 years later,

                  5) Israel still maintains a military blockade, denying Gaza sea access … blockades are an act of war — after 20 years of TOTAL military occupation … now PARTIAL military occupation in ILLEGAL settlements..

                  6) ISIS and Al Qaeda recruit to defend against “Judeo-Christian War on Islam” — FACT.

                  You cannot fool all of the people, all of the time.

                  1. Nobody has ever denied that we killed the Canaanites. But they’re gone now and none of your stormfront tier opining will change that.

                    Israel didn’t rule for “fewer” than 300 years. It ruled for over 1000 years. You’re conflating the singular, united kingdom of Israel with the various kingdoms ruled by Hebrews.

                    Just fuck off with this /pol/ tier disinfo. Can’t believe you would actually try to cite Jewish sources as a means to turn us against one another. How dare you call into question our historical presence in the land.

                2. With all due respect, American liberal “Jews” are among the worst offenders.

    2. Ethiopians in Israel do not face racial issues. They face a variety of issues with cultural adaptation, namely that they speak very little Hebrew (Beta Israel texts are in Ge’ez), they came to the country 50 years after its founding, they’re coming from a generally lower socioeconomic status due to Ethiopia being awful, and on top of all that, their religious practices are very different from the majority of Jews.

      They’re most certainly Jews and I’m glad we were able to save them because they’re literally a time capsule of Judaism, but they face an uphill battle. That’s not because of racial animus. It’s just the nature of assimilation. This is why Israel is so important; the diaspora has transformed us to the point that even among our own blood brothers, Jews must assimilate to one another.

      1. It’s not that simple (I was going to say “not that black and white,” but, well…).

        The conditions you describe are accurate, but they aren’t mutually exclusive with racial bigotry, another real headwind faced by Ethiopian Jews.

  15. I can’t imagine why Jews wouldn’t wanna lose political control of their safe house on the planet Earth, either.

    I hate that! Someone should do something about them!

  16. We all understand the implications of the term “Cry wolf.”

    You can only wonder when “Cry racist” will be similarly understood.

    1. Wolves did not invent an excuse for denying themselves.

  17. Menashi’s article is not particularly impressive. It’s sort of confusing as to whether he thinks “ethno-nationalism” is OK or not, or whether Israel is or is not ethno-national.

    Regardless, just pointing out that European countries in general have ethno-national origins and some such policies doesn’t prove much. The issue is how non-members of the dominant group are treated, economically, politically, and socially, and other such countries vary greatly in how they behave in this regard.

    IOW, “ethno-nationalist states” is a broad category that allows fro lots of variations in how much privilege the dominant group enjoys. In some cases it may be compatible with liberal democracy, in others not. It’s the details that matter.

    1. IOW, “ethno-nationalist states” is a broad category that allows fro lots of variations in how much privilege the dominant group enjoys. In some cases it may be compatible with liberal democracy, in others not. It’s the details that matter.

      Pretty sure that was the point.

      1. Maybe, though it would have been clearer if he hadn’t taken 66 pages to make it.

        1. Have you ever met a lawyer?

  18. What I love about this comment thread is that in one vein liberals talk about how the “replacement theory” is just “racism” but then express glee at the fact that white people are going to be replaced.

    “Racism” is really just code for “don’t want to talk about this inconvenient truth…”

    Black crime….racism!
    Islamist terrorism…racism!
    African migrant invasion…racism!

    1. Your low IQ has crippled you. And replacement is bullshit.
      Nobody says white people will be replaced, which is kinda crazy.
      Greater birth rates and/or immigration … add people. PERIOD.
      Your notion that ANYONE is “replaced” is hysteria for rednecks..
      So … obviously … it’s not replacement you fight for but …. white supremacy (in percentage of population) ,… which is TOTALLY racist. No different than Republicans forbidding new voter registration by Democrats.

      That was your fifth loss on the page, and the worst.

      1. So is replacement BS or, as you readily concede, happening right now? Which one is it? Or keep on posting and keep on losing. Either one works for me.

        1. A few weeks ago, one of my nieces gave birth to a beautiful bi-racial child. Is this “replacement” or just the future?

  19. I might be coming around partially to the left’s point of view that a lot of speech these days is tantamount a call for violence, even when not expressly so (the nutty leftists go even further and say soeech is violence). Unlike the left, though, I still don’t think such speech should be regulated (or suppressed by private cos with monopoly power). But the left routinely dishonestly smears others as Nazis, etc which really, if you think about it, would be a justification for violent uprising. So predictably, we have seen that very thing happen with ICE being attacked 3 times in the last 2 months, multiple mass shootings of police officers in the last couple years, and Republicans being shot up at a baseball game.

  20. The moral justification for Israel is simple; we were expelled 2,000 years ago and never stopped trying to get in. There are no Canaanites left with a prior claim. Arabs are not Canaanites. Jews have returned peacefully throughout the years. We sought a legitimate political remedy to nationhood. When that political remedy was met with armed resistance, we fought back. Never forget the collective sin of the Arabs via the Arab League/PLO.

    1. Your BULLSHIT is debunked here.
      https://reason.com/2019/08/17/rachel-maddows-racist-smear-of-second-circuit-nominee-steve-menashi/#comment-7902142
      Sources: Genesis, Jewish Virtual Library and elementary history.

      There are no Canaanites left with a prior claim.

      You SLAUGHTERED THEM to steal their land. So TOTAL mass genocide makes you … innocent … (OMFG) … of the ONLY mass genocide in human history,

      Arabs are not Canaanites.

      SHAME ON YOU … Is that why you BURIED your “comment” here, away from the facts? It was Muslims who allowed you back into Jerusalem after CHRISTIAN Crusaders killed and evicted you (and committed the FIRST Holocaust … for which you FUCKED them, stole theirs land and …. NOW WANT THEM OUT OF THE JERUSALEM THEY WELCOMED YOU BACK TO

      Never forget the collective sin of the Arabs via the Arab League/PLO.

      LIAR .. that was AFTER your moral hypocrisy … it was 1210 when THEY allowed YOU back.

      And MOSAIC LAW that COMMANDS YOU TO KILL EVERY INFIDEL (including MUSLIMS) EVEN ONE’S OWN BROTHER, SPOUSE, CHILD OR FRIEND. Deuteronomy 13.

      NEVER bullshit an educated man/woman/boy/girl.

      We suffered 9/11 for this. ENOUGH IS ENOUGH

      1. Back to stormfront with you.

  21. The whole idea that Maddow’s criticism there is racist is absolutely ridiculous. Her tendency to find racism where it doesn’t exist is no excuse for you to be as dumb as she is. “She did it first” doesn’t work when children say it; it should work even less for law professors.

    1. I think it is arguably “racist.” These folks are deliberately lying for the purpose of inciting racial animosity and division for personal political gain. They are racism mongers.

      1. That’s as divorced from the commonly understood meaning of the term as the progressive “prejudice plus power” meaning is. It’s not assigning moral worth to a person based on race; it’s finding racism where there is none. It’s a bad thing to do, but it’s not racist. If reasonable people want to keep the public discussion as reality-focused as possible, this is the exact opposite way to do it. People who make these kinds of accusations of racism just make it harder to even know what someone means when they say that something is racist, let alone to have a productive conversation.

    2. The whole idea that Maddow’s criticism there is racist is absolutely ridiculous.

      TRUMP was the racist, by demanding it of Netanyahu, which this conservative lied about,
      That’s why Netanyahu caved, after his bigotry triggered worldwide rage.

  22. Do we even have the vocabulary anymore to say that someone is wrong but not racist?

  23. I cannot figure out which is sadder; Reason bothering to publish about Maddow, or the massive waste of data storage that follows in the comments.

Please to post comments

Free Speech

Calling Informants "Snitches" May Be a Federal Felony

That's so regardless of whether the statement is seen as a true threat or incitement—and it applies to any "harmful" speech "inten[ded] to retaliate" against anyone giving law enforcement "any truthful information" related to a federal crime.

|

Title 18 U.S.C. § 1513(e) of the witness retaliation statute provides,

  • "Whoever knowingly,
  • "with the intent to retaliate,
  • "takes any action harmful to any person, including interference with the lawful employment or livelihood of any person,
  • "for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense,
  • "shall be fined under this title or imprisoned not more than 10 years, or both."

This doesn't require any proof that the speech was a constitutionally unprotected "true threat" of violence or vandalism, or unprotected speech intended to and likely to incite imminent criminal conduct. It's enough if sharp criticism is intended to retaliate (i.e., is motivated by testimony or a report to the government), and if it "harms" people in a broad sense, including by making people not want to do business with them. Publicly condemning a local businessman for calling the police about someone's being an illegal alien—or for reporting on a person's technical violation of a federal gun law—could thus be a felony, if one intends that people shun him as a result.

And U.S. v. Edwards, a nonprecedential decision handed down Thursday by the Sixth Circuit, read it precisely this way:

Joy Edwards made numerous derogatory posts on Facebook about a confidential informant who testified against her brothers during their criminal trial. The Facebook posts revealed the informant's identity and called him—among other things—a "snitch." Edwards was indicted on a single count of retaliating against a witness in violation of 18 U.S.C § 1513(e). At a bench trial, the district court found that the informant suffered harm as a result of these Facebook posts and that the posts were intended to retaliate against the informant. Edwards was convicted and sentenced to short terms of prison and lesser forms of confinement….

In 2015, D.B. agreed to work with law enforcement as a confidential informant against two brothers in the town of Steubenville, Ohio. These two brothers, Fred and David McShan, were suspected of running a drug-trafficking operation. D.B. wore audio and video surveillance equipment while performing controlled buys from the McShan brothers. As a result of D.B.'s assistance, law enforcement indicted the McShan brothers on multiple charges, including conspiracy to possess with intent to distribute heroin. D.B. also testified at the McShan brothers' trial.

The trial took place in Columbus, Ohio, 150 miles from Steubenville. D.B. testified in an open, public courtroom. A number of Steubenville residents attended the trial. During the trial, United States Marshals had to remove several of the McShan brothers' relatives and friends from the courtroom for recording witness testimony and taking pictures of witnesses, including D.B., on the stand. A jury found both brothers guilty and the district court sentenced Fred to 288 months in prison and David to 74 months in prison.

Several months after the trial, Steubenville residents began posting on the social-media website Facebook pictures of D.B. testifying at the trial. Among the people to do so was Joy Edwards, a sister of the McShan brothers. Over the course of several days, some of her online activity included:

  • Re-posting another user's photo of D.B. on the witness stand and calling him a "snitch" in the comments section
  • Commenting on her own post saying "f*** him," "Look at that bitch ass snitch lips! They are crack up and ashey white from running it so much! His bitch ass needs some WD40!"
  • Re-posting another user's doctored photo of D.B. holding a t-shirt with a police badge on it
  • Re-posting another user's photo of D.B. with the caption "stop snitching" over it, to which Edwards added, "Snitch ass bitch"
  • Commenting on her own post in response to another user's question about the identity of D.B., saying, "This guy is snitching! He snitched on my brothers! And lied about everything!"
  • Re-posting another user's photo of D.B. with the caption "Snitching like a bitch"
  • Re-posting another user's picture featuring hands in police handcuffs with the caption "Man up … Shut your mouth. Take the charge and don't snitch."
  • "Liked" numerous other users' posts of similar material

Read More

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Laws like that are a perversion; you can’t change people’s instincts that easily, and snitches are almost universally disliked and untrusted, even by those for whom they snitch. Even snitches don’t like what they do; why else would cops have to offer so much immunity and favors to get even the lowest of thugs to snitch?

    1. why else would cops have to offer so much immunity and favors to get even the lowest of thugs to snitch?

      Because the lowest of thugs is generally not motivated by anything other than self-interest?

  2. But he is a snitch. Isn’t truth an absolute defense in free speech?

    1. Unfortunately, according to the Sixth Circuit, “Edwards abandoned her First Amendment overbreadth claim on appeal.” As a result, the court declined to consider the First Amendment issue

    2. My understanding is that truth only matters in libel, slander, defamation, and so on. Ask Chelsea Manning how much truth matters when the powers that be pull the national security chain, and ponder how much state power is invested in 50 years of the War on (Some) Drug (Users). I suspect that interfering with state thugs, no matter how truthful, runs into judges who believe first and foremost in preserving state authority.

    3. +100

      This is what happens when you let lawyers run this country.

    4. ” Isn’t truth an absolute defense in free speech?”

      No, you can be punished in both civil and criminal courts for saying something that is true.

      On the criminal side, publish some national secrets, and you can only be punished if they ARE true. Then, over in civil court, there’s publication of misappropriated trade secrets, or publication of private information. You can be punished in both civil AND criminal courts for publishing actual nude photos of 12-year-olds.

  3. Who says that Congress is dysfunctional? The people‘s representatives are always prepared to put partisanship aside and work together to enact laws like this one, which I had never heard of before, to strengthen the hand of law enforcement vis-a-vis the citizenry.

  4. One has to wonder why Edwards abandoned the First Amendment claim on appeal. The trial court rejected it

    The statute, consistent with [Virginia v. Black], criminalizes speech only upon proof that the defendant intended to retaliate against a witness. It is the scienter requirement of the statute that renders it constitutional.

    But Virginia was about cross-burning, threatening conduct with an expressive component, and held that

    Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.

    and

    The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation.

    That would seem to be readily distinguishable from the retaliatory but non-threatening speech at issue here.

    1. Yes. If the statue from the OP required that the speech be intended as a threat to the witness, then it would be constitutional, just as cross-burning intended to convey a threat is.

  5. While Eugene Volokh struggles to strengthen a nearly non-existent distinction between “retaliation,” and “incitement,” I suggest he is turning a blind eye to weaponized publications on the internet. It could not be more obvious—as in this case—that many instances of weaponized internet publications—by which I mean publications which single out a particular named target, and encourage a targeted mass reaction—intend harm to the target. To anyone alarmed by that, Volokh’s habitual 1A fundamentalism leads him to reply, in effect, “So what, there has always been speech which intended harm, and that has been rightly protected by law.”

    At times, Volokh suggests that harsh criticism of public figures, for instance, is an example to prove the point. Such criticism has been intended to cost such people their jobs, their reputations, and the esteem of the public, amounting to great harm. And yet that criticism has been fully protected. So why not like protection for weaponized speech published on the internet?

    Two reasons why not:

    1. Before the internet, the targets of weaponized speech had to be at least noteworthy enough to warrant expensive ink-on-paper publication of charges against them. The issues particular to the target had to command attention among a public segment habituated to paying for publications, and judging their contents. The publisher had little chance of achieving lasting anonymity, and knew it.

    Today’s world-wide publication of weaponized speech is nothing like that. World-wide publication is available for free to anyone with a grudge, and access to a library keyboard. The intended audience can be homogeneous, and thanks to internet software, may be selectively assembled among individuals who are gullible, uncritical, and emotionally unstable. Practical anonymity for publishers is within reach. Weaponized publishing targets can be anyone, not typically just public figures, as in the past. Targets can be people with no connection at all to public life. They can be, by happenstance, the aggrieved publisher’s neighbors, his neighbor’s children, specific members of disfavored groups or races, or economic competitors of the weaponizer.

    2. The publishing era to which Volokh reaches for many of his precedents was an era of edited publications. Legal responsibility for defamation required private editors to know their contributors, and to guard against irresponsibility. Editors had to read every syllable prior to publishing. Publishing was expensive, and publishers typically had a reputation to defend, and money at stake. Almost everything which today leads to weaponized internet publication would, under that former regime, have been excluded from publication. Advocates who favor weaponized speech may see the change toward less practical restriction as a good one. They reckon without considering a growing public backlash.

    Whatever may be published under its auspices, with trivial exceptions, Facebook has nothing at stake, edits nothing, and publishes everything without ever reading it. That means every falsehood, deception, defamation, and scurrilous attack on a non-public person always gets published. Any correctives (which are rare) have to be applied after publication, after the damage is done, and, mostly, after correction will do any good.

    Volokh, along with a great many internet commenters, has not thought through the implications which new technology and changed business models have brought to the world of publishing. Customs and legal precedents tailored to fit bygone practices do not apply usefully to a new-made world which operates differently.

    Either the new-made publishing world must be remade to match previous customs and precedents, or the customs and precedents must be updated to match the new publishing reality—including the reality of abusively weaponized published speech.

    In a changed world, 1A fundamentalism, built to match a previous need, no longer matches today’s need. The profusion of cases Volokh cites in succession ought to suggest that to everyone.

    Make it a point to notice: few if any of those cases features a fact pattern which was even realistically possible in the world from which Volokh’s precedents derive. That suggests something about the relevance (or irrelevance) of the legal analyses and precedents Volokh urges.

    Without ongoing public support, a free press is a practical impossibility. Re-assertions of pro-free-press ideology—even ideology codified as law—cannot provide a practical substitute for the people’s needed organic support for press freedom.

    The internet has brought the question of press freedom near to a tipping point, which should not go ignored. Open calls for government censorship of the internet are common abroad, and increasingly common in America, including in congress, and on this blog. Indeed, most of the cases Volokh cites here provoke an array of comments, arguing pros and cons among rival schemes of government censorship, with little else suggested except to do nothing. So far, Volokh’s advocacy shows little sign that he understands the problem, or notices the danger such responses imply.

    1. So how is the Internet in that regard any different from, in their times, the telegraph, the radio, motion pictures, and television? Each in its turn Was perceived as something unique and dangerous because it was unprecedented. The supreme court in the 1910s held at motion pictures did not warrant First Amendment protection because moving pictures had an effect on the human brain that mirror words allegedly did not. All new technology evolves and adjustmen was perceived as something unique and dangerous because it was unprecedented. The supreme court in the 1910s held that motion pictures did not warrant First Amendment protection because moving pictures had an effect on the human brain that we are words allegedly did not. The Internet is just the latest in a long line of technological innovations that ultimately people accepted within the rubric of free speech and Free Press.

      1. Number 2, in that long line of innovation you mention, there were also innovations in publishing—radio and television, for instance, which you mentioned yourself. Contrary to what you seem to suggest, publishing companies which exploited newer media were treated alike with other means of publishing which preceded them, such as books, newspapers, magazines, pamphlets, etc. Especially with regard to the key question of liability for defamation, all publishers were treated generally alike—television news, alike with newspapers, enjoyed no freedom to defame.

        What is historically noteworthy about internet publishing companies, is that they have not been treated uniformly with their legacy predecessors. Instead, internet publishing companies have been specially privileged by government, notably with regard to immunity from defamation. That was an unwise government decision, and has had troublesome consequences.

        Three such consequences stand out:

        1. Giantism. Internet publishers, because they are free to publish contributions without reading them, are free from one of the principle constraints on growth which restrict legacy competitors. Editing is expensive and difficult. No-editing means less expense and difficulty. It frees an internet publishing company to grow without limit, buy up potential competitors, and eventually exploit network effects to occupy nearly the whole of the national business space for publishing. Thus has our society transitioned from a thriving market for a vast diversity of publications, to a distorted market comprising an ever-shrinking number of legacy publishers, struggling against internet giants numbering, at most, in the low double digits. Never since the printing press was invented has there been such a concentration of publishing power in so few hands.

        2. Quality of content. The need to read everything to prevent being sued for libel had a salutary extra effect on legacy media. It made it practical to compete on the basis of content quality, because doing so would not expose a publisher to an expense which his rivals would not also incur. The rivals, too, had to read everything. The notion of quality became diversified, and publications tailored for particular markets developed specialized expertise to serve unique audiences. Overall, the result came to be regarded as one of the principal ornaments of civilization. By contrast, internet publishers, who read little or none of their content, compete for advertising dollars on the basis of giant audiences, and software algorithms to segment the audiences, and little else. Internet publishers lack even the will to compete on the basis of quality. But the internet publishers’ outsized power in the advertising market does undermine revenue sources for legacy publishers who do strive for quality. Thus, the number of the latter dwindles continuously, and takes with it the special values they brought to publishing.

        3. Press freedom. Because they can defame without consequence, and because of monopolistic-seeming control of access to publication, internet publishers have come under assault like no previous publishers ever have. Their detractors have various complaints, but seem to agree that whatever should be done, it should be done by means of government controls on publishing. This nation has never seen as broad-based a demand that publishers be censored by government as the currently growing pro-censorship wave is poised to deliver against internet publishing.

        1. ” Instead, internet publishing companies have been specially privileged by government, notably with regard to immunity from defamation.”

          Dimwit, internet publishing companies aren’t specially privileged with immunity from defamation. Like any other company, they can be sued for defamation if they defame someone. What they can’t be sued for is if SOMEONE ELSE defames someone. Which, come to think about it, is also true of all the other companies.

          1. Which, come to think about it, is also true of all the other companies.

            Pollock, I believe you claim to be a lawyer (please correct me if I am mistaken). Either your argument is not forthright, or you, the lawyer, is the lawyer dimwit. I’m guessing it’s the former.

            Presumably, as a lawyer, you were taught about joint liability, shared by publishers and contributors alike. That doctrine still applies to ink-on-paper publishers, to broadcasters, and in fact to every kind of publisher except internet publishers, which were absolved from it by congress with the unwise passage of Section 230.

            1. “Pollock, I believe you claim to be a lawyer (please correct me if I am mistaken).”

              Number of times I have claimed to be a lawyer: 0.
              (Hint: I am an IT professional. I am not, and have never claimed to be, licensed to practice law).

              This is typical of the level of your analytical skills, which coincidentally also appears to be 0.

            2. The distinction between traditional publishers like newspapers and Internet services should easily be distinguishable.

              The newspaper selects and edits the items it publishes. Most news papers even edit letters to the editor before publishing them.

              The Internet service provider offers an open forum for individuals to make comments on their own, without the service providers intervention.

              1. If the publisher (Internet or otherwise) adopts the statement as its own, they can be held liable.
                What section 230 does is allow an Internet publisher to remove or edit some comments, without thereby creating an assumption that it has adopted the ones NOT edited or removed. That’s all it does.

              2. Yep. I don’t think we get to sue a newspaper for false advertising if it publishes an advertisement that isn’t correct.

                1. Junkie, better check with some lawyers. It can be a complicated issue, but that’s not right.

              3. Without the service provider’s intervention, rsteinmetz? You mean, no intervention except for providing every essential tool of online publishing, from software, to servers, to a pre-assembled world-wide audience—which the publisher recruits and then monetizes by sale of advertising? That kind of non-intervention? It is not happenstance that Section 230 was a response to a court ruling that conduct of that sort made one a publisher.

                The argument that congress somehow created a non-publishing class of enterprises which behave exactly like publishing enterprises, is of course ridiculous on its face. What congress did in fact was single out for special exemption from liability a particular mode of publishing, while leaving all other publishing modes burdened as before.

    2. So your solution to the government prosecuting people for seemingly protected speech is to have the government prosecute Facebook too?

      1. No, it’s just his usual dumb pro-censorship screed based on his complete misunderstanding of the law, past and present,¹ his failure to grasp the concept of censorship, as well as his staggeringly stupid idea that Facebook should be broken up so that millions of newspaper editors (of which he used to be one) can have jobs. Combined with his weird idea that his pro-censorship position is some growing movement.

        ¹There’s only so many times one can explain to someone the difference between distribution and publishing before concluding that the ignorance is deliberate and willful.

        1. Once again, Nieporent is a guy who insists, straight faced, that private editing is censorship. If I am a publisher, and you offer me something to publish, and I decline to to publish it, Nieporent says I censored you.

          1. Uh, yeah. He says that because it’s true.

            1. Pollock, so by not doing what you demand, I become a censor? This issue looks to become the death of the republic. It has already become the death of reason.

              1. No, Stephen, by censoring you become a censor.

                By introducing straw men into an argument, you become a poor debater.

                By refusing you admit when you’re wrong, you become an American.

          2. Even if you were right about what you just said, that’s not what you have been proposing. You have been proposing that the government punish publishers who don’t decline to publish things.

            You have repeatedly lauded a legal regime which in your view did just that, and have whined incessantly that this should be the way it works online.

            1. Notice how he doesn’t reply to that.

              1. I did not reply because your second sentence reads like gibberish. Couldn’t understand what you were trying to say. Couldn’t relate what you did say to anything I advocate.

                1. ” Couldn’t relate what you did say to anything I advocate.”

                  Your own admission that you are extremely poor at analysis supports my earlier claim that you are extremely poor at analysis.

                  You don’t understand what section 230 does nor how it works, and you insist on repeatedly broadcasting your lack of understanding.

                  1. Okay, Pollock, smart guy. You tell me what Nieporent’s second sentence means, and how it relates to anything I advocated. Here it is. Have at it:

                    You have been proposing that the government punish publishers who don’t decline to publish things.

                    If you can even untangle it, I will be especially interested in whatever you can reference from my comments about, “the government punish publishers.” That is exactly the opposite of what I have repeatedly said, which has been, right along, that Section 230 is leading the public to demand government censorship. That, I always oppose, and say so.

                    I get that you, and Nieporent, think private editing is somehow government censorship. I mostly pass that by without comment. It is self-discrediting, without need of help from me. But if you want to go ahead and repeat it a few more times, by way of explaining what’s bugging you, be my guest.

                    Something about this exchange has put me in mind of a previous dust-up, involving Loki and some ankle biter. Loki finished it perfectly, with, “You will always be you.” Step right up, if you want to.

                    1. ” You tell me what Nieporent’s second sentence means, and how it relates to anything I advocated. Here it is. Have at it:”

                      What would be the point of that. You’ve had things explained to you, multiple times, and nothing changes in your misinformation.

                      “I get that you, and Nieporent, think private editing is somehow government censorship.”

                      See? MORE very poor analysis on your part. You just aren’t capable.

  6. This strikes me as similar to the hostile environment theory of discrimination. Just like otherwise protected speech can be illegal if it creates a hostile work environment and forms the act of discrimination, protected speech can become illegal if it intended to retaliate against a witness.

    Presumably, if your wife testifies against you and you sleep with, or flirt with, another woman with intent to retaliate against there, the sex or flirtation is a crime.

    And if your priest testifies against you, and you retaliate against him by changing religions, your religious conversion becomes a crime. It really make you wonder how dumb you have to be to be a judge.

  7. At a bench trial, the district court found that the informant suffered harm as a result of these Facebook posts and that the posts were intended to retaliate against the informant.

    Why would anyone choose a Bench Trial? Judges tend to be corrupt assholes who are not going to show you mercy WHEN they do convict you.

    At least with a jury, your lawyer can explain how people have a 1st Amendment right to say whatever they want if they dont threaten others with violence or injury their character.

    The truth is an absolute defense to Defamation and this “victim” was a snitch.

    1. Why would anyone choose a Bench Trial? Judges tend to be corrupt assholes who are not going to show you mercy WHEN they do convict you.

      It looks like this defendant raised a somewhat technical defense, challenging whether the government could prove any marginal increase in “harm” to the informant based on the defendant’s actions. I could understand why the defense might have thought a judge would be more likely to ignore the defendant’s unsympathetic actions and focus closely on the elements of the statute.

      At least with a jury, your lawyer can explain how people have a 1st Amendment right to say whatever they want if they dont threaten others with violence or injury their character.

      There is absolutely no possibility that a federal judge would allow a defense attorney to make this argument to the jury.

    2. The truth is an absolute defense to Defamation

      The prosecution wasn’t for defamation, so this is irrelevant.

  8. Do snitches on bitches have stars upon thars?

  9. “Now it seems to me that, read as broadly as it is written, the statute violates the First Amendment.”

    But is it applied that way? Seems to me that if it requires a finding of actual harm, and not just a theoretical one, that’s what takes it out of the protection of the First Amendment. (the old challenge of dividing speech into “speech” and “action”… which leads to a great deal of debate without much resolution, in most cases.)

  10. This is a terrible anti-free-speech opinion. Its odd logic could easily be used to prosecute any person, including a news commentator, who criticizes any informant even a little, if the informant as a result gets shunned by others.

    The only good thing here is that this is an unpublished opinion, so it won’t be used as binding precedent to suppress future speech.

    1. “Its odd logic could easily be used to prosecute any person, including a news commentator, who criticizes any informant even a little, if the informant as a result gets shunned by others.”

      In your hypothetical, the defendant is not guilty. The scienter element wasn’t met.

  11. The law says “any action”, which could be read to apply to speaking. (In addition to all sorts of things like declining to hire such person, or firing them, or other such things.) But once you read it to apply to speaking, then you get the overbreadth concern. (Yes, I saw defendant waived it on appeal.) Which seems severe.

    So shouldn’t the appropriate thing to do be to, as a matter of constitutional avoidance, read the statute to not apply to retaliation that is speech? Anyone care to explain to me why this reading wouldn’t be permitted or would otherwise be wrong?

Please to post comments

Immigration

Two Cheers for Pete Buttigieg's Proposal for "Place-Based Visas" for Immigrant Workers

The idea has some flaws, but would be a major improvement over the status quo. It also has much in common with a proposal for state-issued visas promoted by two Republican members of Congress in 2017.

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Pete Buttigieg (Jeremy Hogan/Polaris/Newscom).

South Bend, Indiana Mayor and Democratic presidential candidate Pete Buttigieg recently put forward a proposal for "placed based visas" for immigrant workers, based in large part on a similar idea advanced by economists Adam Ozimek, Keenan  Fikri, and John Lettieri (Buttigieg refers to them as "community renewal visas"). Matthew Yglesias of Vox has a helpful summary of the plan, and some of its potential advantages:

Many struggling American communities are, among other things, losing people. Meanwhile, many millions more people would like to move to the United States of America than the country is prepared to allow in.

Three economists have called for leveraging the latter into a solution for the former, allowing both communities and immigrants to opt into a special program that would allow communities experiencing population loss to issue temporary visas to skilled foreigners that would allow them to live and work in places that want more workers.

The economists, John Lettieri, Kenan Fikri, and Adam Ozimek, call them "heartland visas" or "place-based visas" in their original policy proposal for the Economic Innovation Group think tank. The idea has spread: South Bend, Indiana, mayor and presidential candidate Pete Buttigieg's larger plan for rural America included them under the name Community Renewal Visas, and the US Conference of Mayors endorsed the concept in a resolution passed on a bipartisan basis earlier this summer….

Part of the tragedy of the situation is that in global terms, Akron is one of the very best places in the whole world to live. Declining Midwestern cities tend to have bad weather, but so do thriving Northeastern ones. And while the city's median household income of $36,000 is on the low side for the United States, it compares favorably to what you'd find in Poland, Hungary, Greece, Croatia, or Chile — to say nothing of India, Bangladesh, or Vietnam.

Lots of people, in other words, might jump at the chance to move to Akron if they were given the opportunity. And we know from the lottery for H1-B visas that American companies would like to import many more foreign-born workers with technical skills than they are currently allowed to hire.

Instead of giving work permits to skilled workers that tie them to a specific company, as the US does now, a new category of visas would tie them to a specific place.

A certain number of place-based visas would be allocated to a city — Akron, say — that wants to opt into the program. And then foreigners with skills who want to take a chance on Akron can apply for an Akron Visa. If you live in the specified city for a certain period of time — Buttigieg's implementation sets it at three years — you can convert to a regular green card. The lure of the permanent green card, among other things, is supposed to create a strong incentive to comply with the terms of the program.

The theory is that the presence of a pool of skilled workers in a given city would be a lure for companies to start investing there to hire them. This in turn would have a series of related benefits…

A reasonably large share of Akron visa holders would end up moving elsewhere after their initial three-year stint, especially at first. But it's also the case that people have a tendency to stick around a place once they've put some roots down there. And once an immigrant community is established somewhere, its very existence becomes a draw for other people with similar cultural roots.

Place-based visas would be a significant improvement over the current system of H-1B visas that tie immigrant workers to a specific employer.  They would enable workers to switch jobs (so long as they stayed in the same locality). That is good for both economic efficiency (enabling workers to go where they are likely to be more productive) and for avoiding mistreatment of workers by employers. In the H-1B system, workers who leave an abusive employer risk deportation. I also agree with many of the other points Yglesias makes in favor of this proposal.

The main shortcoming of the idea is that, by confining eligible workers to a single community, it severely limits their options. That's a flaw from the standpoint of both liberty and efficiency. In some smaller communities, they might even be limited to just one or a small handful of employers (depending on how many local businesses employ workers with their particular skills). Another limitation of Buttigieg's version of the plan is that it would be restricted to "counties that have lost prime-working-age population over the last 10 years, and smaller cities that are struggling to keep pace economically with larger cities." Other communities should also be allowed to participate.

These are the main reason why the plan deserves only two cheers, instead of three. On the other hand, the prospect of getting a green card within 3 years significantly mitigates these problems, as it makes the location restriction temporary and gives employers some incentive to avoid abusive behavior (lest the most productive workers leave as soon as their three year term is up).

The Buttigieg proposal for place-based visas has much in common with a proposal for state-based visas offered by Republican members of Congress Senator Ron Johnson and Rep. Ken Buck in 2017, which I analyzed here. The big advantage of the Johnson-Buck proposal over Buttigieg's is that a state-based visa gives immigrants far more options than one confined to a single city. On the other hand, their plan—unlike Buttigieg's—would not grant a green card after  three years. So the locational constraint would continue indefinitely. The Johnson-Buck plan provides for three year visas, which can be extended at the option of the state government in question.

There is, potentially, some conflict between giving immigrants a choice and promoting development of depressed communities, as many would prefer to move to areas with more vibrant economies, if given  the option. But immigrants have diverse preferences, and many might well be willing to move to less successful areas, so long as there are jobs available, and the cost of living is relatively low compared to the big cities of the East and West Coast. Even today, a good many immigrants do in fact move to less-affluent parts of the United States, as shown by such examples as the fact that immigrant doctors service many poor rural areas.

Many of the points I made in my assessment of the Johnson-Buck proposal apply to this one, as well:

For the last century or more, immigration policy has been dominated by the federal government. That's an inversion of what most of the Founding Fathers expected. James Madison and Thomas Jefferson, among many others, objected to the Alien Acts of 1798 in large part because the original meaning of the Constitution did not give Congress any general power to restrict immigration, but rather largely left the issue to the states.

We are unlikely to fully restore the original meaning of the Constitution. But [the Johnson-Buck proposal would move us some degree in that direction]….

If the bill passes, the guest workers admitted by the states would be among the biggest beneficiaries. Many thousands would get freedom and economic opportunity, and escape having to languish in poverty and oppression….  But American citizens also stand to gain, because immigrant workers make major contributions to the American economy. By channeling immigrants into legal employment, this program could also diminish deportations, which come at a high cost to taxpayers….

As with political decentralization on other issues, it could also help mitigate the poisonous partisan conflict created by federal control, where a single, one-size-fits all approach is imposed the entire country. Regional visa programs have worked well in Canada and Australia, two diverse federal democracies with histories and political traditions similar to our own….

Ultimately, decentralization of immigration policy to the state level is not as good as the even more complete decentralization that would occur if these decisions were made by individual workers and employers. Among other things, the latter are in an even better position to judge relevant economic needs than state officials are. But a state-based worker visa program would still be a major improvement over the status quo.

It is worth noting that Jason Kenney, the new United Conservative Party premier of Alberta (Canada's most conservative province) has recently proposed a plan somewhat similar to Buttigieg's in an attempt to attract immigrant workers to rural parts of his province, which currently suffer from declining population.

The above analysis assumes that the Buttigieg plan or the Johnson-Buck proposal would expand the total number of immigrants allowed in the US, without diminishing numbers admitted under other categories. The proposals are in fact currently structured that way. If they are altered to cut immigrant admissions elsewhere, that greatly reduces the good they might do (though it might still be net beneficial if community or state-based visas replace H-1B visas).

My post on the Johnson-Buck plan  describes some of the political obstacles it faces, many of which would also apply to the Buttigieg proposal. Those obstacles likely help account for its failure to get much traction in Congress. But the endorsement of  similar ideas by prominent liberal Democrats might increase the chance of building a bipartisan coalition over time.

It may well be too much to hope for. But perhaps at some point in the future, we could get a bipartisan proposal that combines the best features of both plans, while mitigating their respective downsides.

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  1. If the globalists (Somin and Soros, et al.) were candid they would simply say . . . “Americans will not vote for globalism, we must bring in more immigrates who will.”

    1. If people like you were candid – you would simply say “I hate brown people – keep them away from me” or “I hate America”.

      Both statements would be true.

      1. I don’t hate brown people, but I hate the system of government that inevitably results from brown people, who are genetically less intelligent and less able to care for themselves. Why are white nations obligated to turn themselves brown?

          1. Sorry the truth upsets you, but 85-90 IQ Hispanics vote for big government because they can’t make it any other way.

            1. If you shout “I am a Bigot,” you’ll never con any thinking person.
              (puke)

      2. That whole “you hate brown people” is such a chickenshit cop out. No one hates brown people, except your side, who’ll use these people to get political power while holding them down on the Dem plantation.

        1. RWH is so virulent I wonder if he’s a plant trying to poison the well on honest discussion of the real issues regarding unrestricted immigration not because of economic benefits, or of a love for huddled masses, two reasonable claims, but to grow “your” voter numbers.

    2. I accidentally flagged that comment

    3. Do you know how visas work? They don’t give people the ability to vote.

      1. Tell that to the state of California. We are already wallowing in the mud at the bottom of that particular slippery slope.

      2. No, but their “citizen” children will surely be voting in 18 years, and for Democrats. Tie the visas to sterilization, and I’ll be on board.

    4. Setting aside Mr. WJack’s failure to understand the difference between residents and citizens, what on earth does “globalism” even mean in his statement?

      1. In this case, “globalism” means empowering local communities with some immigration decisions.

  2. I’d just point out that the reason these places have declining population is the lack of opportunity there.

    Of course a combination of a skill and place based visa could cause some some companies to open offices in these cities, since technology allows many jobs to be performed remotely.

  3. If a city can not support its existing population but some other location can deal with the influx why should anything be done to “fix” this situation? This simply sounds like a solution in search of a problem.

    1. Well, I assume that America has sunk costs of hundreds of billions (trillions??) in tons of cities–colleges, highways, sports stadiums, hospitals, etc etc. If we just let a crapload of unsuccessful towns turn into true ghost towns, then that is just lost money. But if this suggestion works, then these can be turned into economically viable communities again. Your approach seems to be, “Well, it will work. But so what. We owe nothing to these cities, they failed on their own, and they (and their residents) should suffer the consequences.”

      That seems to be a fairly selfish approach. One reason why it makes sense for America (writ large) to help out struggling communities is the comfort at knowing that, God forbid, if something untoward happens to me (cough, earthquake, cough), Americans will be equally willing to help out and bring back my area to economic viability.

      1. Equating help following a natural disaster with importing third worlders is a new one. I’m sure the people living in depressed areas are just DYING for that type of “help.”

      2. I’ve never understood the notion of labeling people who want to keep their own property as “selfish” rather than those who want to take other people’s property. Moreover, your argument conflates places and people; if a place turns into a ghost town, it means that their residents aren’t suffering the consequences because there aren’t any residents.

        Just as it doesn’t make sense to pour lots of investment into Kmart just because it is “struggling,” it doesn’t make sense to pour investment into a dying down. It’s not cruelty; it’s common sense. Let the investment be directed somewhere more productive instead of propping up a place that few value.

        1. Ayn Rand would clear that up for you, by pointing out that wanting to keep your own property absolutely IS “selfish”, the problem here being that you’ve been conditioned to think of being selfish as a bad thing, and so don’t want to properly identify the rational and moral pursuit of self-interest as “selfishness”.

  4. Places that are suffering declining population are most often places where taxes are high and services suck (like Baltimore). Recipients of placed-based visas still need to have job before they come here – areas with declining populations also have higher than normal unemployment. More immigrants are not going to fix Baltimore’s problem, Chicago’s problem, or any other place suffering declining population. Lowering taxes, improving services (like education) and adopting business -friendly policies will fix the problem. Not to mention the fact that the real problem is mobility within the US. Baltimore has above average unemployment, Places in the Dakotas low unemployment (shale oil). Before we encourage immigrants, we should do all we can to encourage interstate migration. Bringing immigrants into a city with high unemployment is a recipe for disaster.

    1. Yeah, Employers should do job interviews in Mexico.

    2. I don’t think mobility matters. The US has extremely high internal mobility. Some of these places just suck to live in, whether it’s getting paid little but living somewhere you like or getting paid more and loving somewhere you hate. Sure, either is better than living in Bangladesh, but that’s not a choice most of us face. We should just let dying communities die, as sad as it can be.

  5. How about we tighten up the entire process for H1B visas, so that Americans can actually get the jobs? There is not a shortage of programmers (for example), there is a shortage of programmers willing to work for the wages offered.

    1. That’s a wage issue. Supply and Demand

      1. Sure. And as long as cheap foreign programmers (and other technical workers) can be imported, the wages stay depressed….

        Same as any other trade.

        1. Havent you heard? The labor market is immune from the laws of supply and demand

          1. I love sarcasm, but not where thinking would be better.

        2. If there’s a shortage because the wages are too low, then the wages will increase. I did say Supply and Demand. And wages,

          But thanks for sharing your feelings.

        3. So is there a shortage or not? If the wages are being pushed down then there isn’t a shortage. A shortage would increase wages.

          1. There is not a real shortage, but many companies are claiming a shortage so that they can hire more H1B workers.

  6. It actually sounds like a thoughtful plan.
    As long as the number of permits are limited and the rules carefully tailored to create a maximum net benefit for the Americans in the local community, it would probably help out quite a bit.

    My own suggestion was for companies who wanted to hire H1Bs in high housing cost areas, they would have to relocate at least 2x that amount of gross payroll to below average housing cost areas.

    It would partly mitigate the problem of tech companies bidding up the price of everything in one area. The prosperity would be more spread out in the country instead of concentrated in San Jose, Seattle and a few other places.

  7. Close, but no balloon. NO immigration proposal seeks the obvious. What does the labor market.

    Immigrating college graduates impresses the goobers, But we now have too many! Millions of college graduates work at non-college jobs. Not just humanities majors … plus we’re graduating too many. My wife had to leave the room, to hide her rage when our son’s girlfriend said she was seeking an associate degree in airline reservations, at a community college..

    Wife was 30 years at a major airline, in reservations. They were hiring at that time! When girlfriend she gets that degree, she will be more hirable than a high school grad … NO value to the employer … but subsidized by taxpayers.

    As for reducing immigration. Fine for the uninformed. Buy we’ve had a NEGATIVE replacement birthrate for about a decade. Without immigration, our population would be declining. If that sounds good, you just screwed your own children’s FICA tax rates, to finance YOUR retirement.

    1. This lie is really getting old. Low wage, low skill people cost the government way more than they produce. If you really think $9/hour laborers are going to keep our entitlement programs funded, you’re deluding yourself, as you’re not including the costs they and their low IQ children will place on to society.

      1. You’re bigoted rant has absolutely nothing to do with what I said.
        Plus, I peed my pants laughing, as your sneered that the wages distribution would be any different

        Even if you were correct, you just said NOBODY to offset your damage to your children and grandchildren is better than ANYBODY at even $6 per hour,

        And as for birth rates being a lie … would you believe Breitbart?
        https://www.breitbart.com/politics/2019/01/13/states-birth-rate-2017/

        Or should I have given you the Fox News Link?
        The Daily Caller link,

        1. I didn’t say that the birth rates is a lie. I said that the idea that third world immigrants were the “solution” to the problem of solvency of our public programs is a lie.

          If Americans aren’t having enough children, the solution is to change policies that cause or encourage that. Not to replace Americans with Hispanics and Muslims.

    2. Negative replacement rate, so what? Automation makes immigration obsolete.
      Social Security will die? Sure, but low wage immigrants is not going to save it. Payments will soon be subject to needs based testing.
      If you really want to solve the negative replacement rate, see what Hungary is doing. That will be more beneficial than continuing to import low IQ migrants.

  8. How utterly convenient. Let’s stick 3rd world immigrants, who’ll most certainly vote democrat, into right leaning states like Texas, Kansas, Nebraska or Indiana. I’m SURE there is no ulterior motive here…

    1. America’s fatal flaw was in the founders not putting their understanding of racial reality into the paper.

      1. I’ve never heard anyone defend slavery. How large is your Klavern? How could you swallow the dumbass lie that the only blacks here were slaves. And why do you despise the Will of Almighty God- given rights?

        Rights are innate, endowed by a Creator, not granted by government. Why not return to the country of your birth?

        Did you enjoy your march in Charlottesville?

        1. I’m not defending slavery.

          1. Not explicitly, but the Confederacy DID put its understanding of racial reality into its founding documents. So for the average person, you are, indeed, defending slavery.

    2. Visas don’t let people vote. Even if they implement it and include a “three years until green card” clause they still can’t vote after three years.

    3. Under this and similar proposals, it would be communities within those “right leaning states” that make the decision on whether or not to try and bring in immigrants.

      So if there is an ulterior motive, it’s held by the local communities who would be doing this.

  9. The left sees the solution to be laws that won’t be enforced, but can be sold on the grounds that they will be enforced.

  10. The plan is dumb, though not because it involves immigrants, but because it involves government subsidization of failing communities, as we’ll certainly splurge on such projects and allocate extra funding for them. They’re not failing because there aren’t enough people around but because of a lack of opportunities or mismanagement. Putting a bunch of people there stresses the local decaying infrastructure until they can pay it back, if that ever happens. The towns can’t afford that and it will drag even more on local productivity, further decreasing wages.

    The market is already showing that they’re bad investments: companies could be marching in and buying everything but currently aren’t. Why should we fund it as a nation?

    1. “The plan is dumb . . . because it involves government subsidization of failing communities”

      Are you contending America should simply abandon its can’t-keep-up rural and southern stretches — and with them the substandard residents of those deplorable communities?

  11. Creating a special class of immigrant restricted as to where they can reside will be easily and successfully challenged in court. They will also successfully petition for voting rights. This plan is an epic lie. Did Shikha come up with this one?

  12. If you put immigrants into failing areas and things don’t improve they’ll move to where the economy is better. How do you keep them from moving?

    1. Well, I think that was addressed: “If you live in the specified city for a certain period of time — Buttigieg’s implementation sets it at three years — you can convert to a regular green card… A reasonably large share of Akron visa holders would end up moving elsewhere after their initial three-year stint, especially at first. But it’s also the case that people have a tendency to stick around a place once they’ve put some roots down there. And once an immigrant community is established somewhere, its very existence becomes a draw for other people with similar cultural roots.”

  13. “If you live in the specified city for a certain period of time — Buttigieg’s implementation sets it at three years …”

    And there it is. The location argument is a fig leaf for open borders. And the writer of this article approves of the fig leaf lie.

  14. Immigrants might be the best hope for many of America’s desolate backwaters, the rural and southern stretches hobbled by dying towns, declining industries, and the depleted human residue that remains after generations of bright flight remove the smart, ambitious young people from a community.

    Immigrants could bring entrepreneurship, optimism, drive, education, effort, tolerance, and marketable skills to communities ravaged by backwardness, addiction, indolence, ignorance, bigotry, economic inadequacy, and dependence.

    Bigotry and insularity trump reason and progress for most of the residents of the desolate communities, however, so the backwater voices reject the immigrants and immigration that could help them.

    The place-based visa seems worthy of consideration.

    1. Better those backwater towns die than turn into some third world shit hole supported by taxpayer dollars.

      1. That argument was advanced by those who opposed Italians, Jews, blacks, Asians, Catholics, gays, the Irish, agnostics, women, eastern Europeans, Muslims, Hispanics, Mormons, other Asians, other Hispanics, and others.

        I expect it to be just as effective today as it was when America was threatened by the cultural onslaughts of linguine, bagels, egg rolls, collard greens, sushi, burritos, hummus, Jameson, lutefisk, pierogis, and the Friday fish fry. This latest batch of bigots seems nothing special.

        1. We no longer live in an industrial age when we need all the labor we can get. When America re-industrializes, automation will do most of the work.
          If those backwater towns are economically viable, they will come back to life. Reminds me of how gentrification restores previously impoverished areas.

          1. ‘This time, it’s different. This time, bigotry is a good idea and will totally win the day for conservatives.’

            Good luck, clingers.

            1. Notice how the “Good Reverend” fall back on name calling and race bating instead of economic arguments?
              Al Sharpton, is that you?

              1. That jab means a lot, coming from the “third world shit hole” (if infected by brown people) guy.

                Try again, you bigoted rube.

                1. Thus you name call, proving my point. I guess your “Rev” tittle is just for show.

  15. Somin: any restrictions on freedom of movement on labor populations are awful and racist.

    Also Somin: hooray for this DNC proposal that more severely limits the freedom of labor populations to move and seek opportunity!

    If there was any doubt that Somin’s posts are simply faux libertarian cover for DNC policy proposals, this article should resolve that doubt.

    1. Reading isn’t your strength, is it? How does a proposal that allows people to migrate here “more severely limit” their freedom to move than a proposal that doesn’t?

      Moreover, the proposal as described doesn’t limit their freedom to move at all; it merely rewards them if they don’t move for a certain period of time.

      1. Reading isn’t your strength, is it? How does a proposal that allows people to migrate here “more severely limit” their freedom to move than a proposal that doesn’t?

        I’d recommend reading the article above the comment section. There is a surprising amount of information contained therein. For example:

        “Instead of giving work permits to skilled workers that tie them to a specific company, as the US does now, a new category of visas would tie them to a specific place.”

        I didn’t say this wouldn’t be a good policy. It might be a good policy. The US has a history of segregating recent immigrants into distinct communities (as do other countries), so maybe we could look at those experiences to see how effective such a policy would be.

        The content of my comment was to point out Prof. Somin’s hypocrisy on this issue. Prof. Somin regularly laments borders as restricting the free flow of labor. This proposal would do no more than slightly change the borders where labor is allowed to move. That would – if you took Prof. Somin’s positions as consistent – be just as bad as the current system of national borders.

        If such an arrangement would ordinarily be objectionable, we might ask “why is this system any different?” As rsteinmetz suggested, these areas do not lack opportunity because of a lack of population, they lack population because they lack opportunity. There’s only one thing you accomplish with a large population: votes. As WJack suggested, this sounds like a case of importing voters to “fix” a “broken” electorate.

        If importing a large group of immigrants into a city is all that is necessary for the city to succeed, why aren’t the same group of people already successful in their home country? I argue that importing a lot of people from a foreign country results in the politics and culture of that country coming with that group.

        See, e.g., anti-Semitic Muslims from anti-Semitic countries electing anti-Semites to Congress.

    2. I think at this point Somin is trolling to get views.

  16. “many millions more people”

    As we all know, leftists want to destroy America, or “fundamentally transform” it, if you will. They have been braying for years in op-eds about how their plan is working and how “demographic change” will give them permanent political power making their agenda inevitable.

    What agenda is that? Well, the progressive utopia of course. Global socialism, communism, gun grabbing, the end of self-government and national sovereignty, the destruction of families, 8 year old transgender boys pole dancing, etc

    1. Leftists wish to destroy America.

      Conservatives attempt to counter with nothing but failed economic proposals, can’t-keep-up communities, race-targeting voter suppression, lousy schools, gay-bashing, prudish authoritarianism, old-timey misogyny, stale superstition, unpopular gun absolutism, and long-discredited xenophobia.

      Where is the hope for America?

      1. I think there is hope for America. Not in either of the political parties as such, but in the sovereign People embracing definitional American values.

        1. You are going to hate the next half-century of American progress as much as you have hated the progress America has made — against your wishes and against the efforts of conservatives — throughout your lifetime.

        2. the sovereign People embracing definitional American values.

          Helluva thing watching you radicalize over the years.

      2. Take way government subsidies, we’ll see America restored to it’s natural state.

        1. Take away an apostrophe and your comment would feature standard English.

          1. Wow, you’re not just a standard socialist Nazi, but a grammar Nazi to boot.

  17. I can’t see giving a cheer for an idea that will only add more confusion to the mayhem that already exists about “what immigration means”.

    The twisted history of citizenship (and the non-citizen workforce) is littered with different approaches to dealing with marriages, death, and divorce whether to bona fide visa holders or “aliens”. Take a trot through the regulations of the early 1900’s, then the 1940’s and 50’s – they’re fascinating.

    The “birthright citizenship” matter needs work, and we need clarity about what “dual” citizenship means; that’s been all over the map.

    The only thing more certain than death and taxes is the expansion of government, given the opportunity – and I think that this visa policy idea would lead to all sorts of untended consequences. The confusion about locales’ role is tortured now.

    The rogue nature of state and local “sanctuary” policies has already deeply frayed the national fabric in ways that remind me of the tensions that led to the Civil War. In the 1800’s the “labor” (and political) interests of the south led states down divergent paths, and to terrible rulings like Dred Scott. When the fractured union rejoined, civil discourse and civil liberties remained damaged for 100 years.

    The idea of apportioning visas to import labor to meet local needs simply doesn’t sit well. Work visas have always had a faint smell of indentured servitude, and the accompanying downsides look like mayhem to me.

    “Right to vote” used to be a fairly forthright concept (citizens vote). As adrift as things are now (residents vote?), I dread the idea of involving states and locales directly in the immigration game.

    1. I think once they become citizens, there can’t be any limits on where they can go. The same would be true of their children born here. Limits would only be possible while they remain foreigners, immigrants or temporary visitors.

  18. This is one of those areas where accepting that personhood is not a binary may lead to more policy options and more possibility for having positive results.

    Full persons have a right to travel and hence can’t be kept from going wherever they want. But if we accept that prospective immigrants have only partial personhood with respect to their rights to enter here, it may make good policy sense, in terms of allowing immigrants in while keeping the peace, if we limit where they can settle, until they become citizens at any rate, to where they are wanted, especially since there can be large geographic differences in levels of acceptance of immigrants.

    I have to confess I’m surprised Professor Somin didn’t reflexively say that any limit on their right to travel would mean they don’t have full equal rights (and I think it does mean that) and hence can’t be contemplated on ideological grounds.

    1. He’s willing to contemplate the proposal because he’s aware that the restrictive element would never be enforced.

  19. Swing and a miss. Immigration is about culture, not economics. We don’t need more unskilled laborers with inevitable automation.

    1. Modern America culture, or that of the white-centric “good old days” that never existed but for which conservatives nonetheless pine?

      1. We will fight for what was, and the dream of what could be.

      2. As white-centric as limited, Constitutional government is, sure. It’s existed for the past 250 years.

  20. Eh.

    Doesn’t sound horrible, but it kind of feels like it falls into a classic peril of supply-side economics.

    “If we import labor, surely someone will build here to employ it”.

    One apparent problem is enforcing the “your visa only lets you work in Backwatersville, OK”, but face it, someone that comes over legally is probably going to follow the rules, so the lack of easy enforcement probably won’t be much of an issue.

    So it’s not the worst idea, and America would survive giving it a try, but the supply-side economics theory smells like a promise waiting to be broken.

Please to post comments

Short Circuit: A Roundup of Recent Federal Court Decisions

A fake university, safe and sanitary conditions, and old school equal protection.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

"We're not asking for the Wild West. We're asking for cookies." New Jersey is the only state that completely bans the sale of homemade food, and home bakers are suing over it. Read more about it in The New York Times.

New on the Short Circuit podcast: Three wise men or three stooges? Special guests Michael Kimberly of McDermott Will & Emery and Adam White of the Scalia Law School discuss the Supreme Court's three big admin law decisions from last term. Click here for iTunes.

  • Allegation: Upset at not getting a full scholarship, female student falsely accuses male Hofstra University tennis coach of sexual harassment. The school declines to interview relevant witnesses, among other procedural irregularities, and fires the coach. Second Circuit: Could be the school favors accusing females over accused males. The coach's suit should not have been dismissed.
  • In 2013, the feds create a fake university, the University of Northern New Jersey. The sting ends in 2016, having secured 22 arrests related to brokering fraudulent student visas. The feds revoke the visas of some 500 foreign students who "enrolled" at the school. (At oral argument, the feds say the students are innocent victims, but later, "for reasons known only to the Government," change their tune.) Third Circuit: The students' class action against the feds should not have been dismissed.
  • Allegation: Tired of hearing a prisoner complain about illness, prison physician assistant falsely claims prisoner harassed/stalked her, leading to prisoner's confinement in "The Yellow Room"—a cold room, kept constantly lit, with no bedding or toilet paper, in which prisoners are given only thin "paper like" garments to wear. Cruel and unusual punishment? Third Circuit:  Sounds like it; warmth and sleep are among "the minimal civilized measure of life's necessities."
  • Allegation: Pennsylvania inmate gets jumped by other inmates who break his jaw. What follows is a year of medical misadventure. Were prison officials deliberately indifferent to his suffering? District Court: Doesn't matter because he didn't exhaust his administrative remedies. Third Circuit: Yes, he did; prison officials just didn't respond to him. The case can go forward.
  • Texas' ban on public corporations owning liquor stores was written by a lobbyist for Texas liquor retailers who wanted to keep competitors out of the state. Does that mean the ban was intended to discriminate against interstate commerce? You might think so, but the Fifth Circuit isn't so sure and asks the district court to take a second look.
  • Mississippi man is convicted of murder in 2004 based largely on the dubious forensic testimony of Dr. Steven Hayne. Turns out lots of folks, including a justice on the Mississippi Supreme Court, think Dr. Hayne is a charlatan whose pseudoscientific methods have led to multiple false convictions. The man seeks habeas relief six months after the release of a deposition transcript of Dr. Hayne that tends to confirm these views. Fifth Circuit: Sorry, but you're required to file a habeas petition within a year of when a reasonable person would have discovered the facts justifying the petition, and people have been saying Dr. Hayne is a hack since way before that deposition transcript was released. So life in prison it is.
  • Allegation: Pretrial detainee is cuffed and shackled, but there's no seatbelt in the van taking him to Harris County, Tex. jail. He's thrown out of his seat by the deputy's sudden accelerating, braking, and swerving. He injures his back, he says, when the deputy hits a pothole or speedbump. Fifth Circuit: "This is not evidence of driving in a manner creating a substantial risk of serious harm."
  • Michigan man is convicted of murder based on the previously recorded testimony of a woman who refused to testify at trial. Shortly after the trial, and repeatedly over the following decade, the witness recants her testimony, claims she was pressured into it by a cop who threatened to have her kids taken away. Also, another eyewitness comes forward claiming she saw the actual killer but did not disclose this earlier because her father, a police officer, told her not to. Enough for a habeas petition? Sixth Circuit: It's certainly enough for the district court to hold an evidentiary hearing, which we now instruct it to do.
  • Grosse Pointe Farms, Mich. woman's estate sues an array of police officers, alleging the woman was murdered and officers told the murderer they would cover up the crime. Sixth Circuit: The estate has failed to make out a claim under the "state-created danger" doctrine (an offshoot of the Due Process Clause). And, adds Judge Murphy (in an all-judge concurrence), we might want to revisit whether the state-created danger doctrine is even a thing. It seems like the Equal Protection Clause might provide "a more plausible textual hook" for claims police denied someone the equal protection of the laws.
  • Man sues Memphis, Tenn. seeking injunction to let him protest on a privately owned street abutting Planned Parenthood clinic. And because he is likely to prevail, says Sixth Circuit, a preliminary injunction must issue; the street "looks and functions like a public street," so it is a traditional public forum.
  • "May police officers shoot an uncooperative individual when he presents an immediate risk to himself but not to others? No, case law makes clear." So says the Sixth Circuit, affirming a denial of qualified immunity for Shelby County, Tenn. officers who shot and killed a suicidal man who was holding a knife to his own throat.
  • Allegation: Illinois man wakes up to find the dead, bloody body of his son. Although the man speaks limited English, police interrogate him for hours with an untrained officer shoddily translating into Korean. The man's confusion (and lack of medication for high blood pressure and diabetes) is obvious. Still, based on the interrogation, he's held in pretrial detention for four years until a jury finally acquits him of the murder—which, it turns out, might have been a suicide. The man sues the officers involved. Seventh Circuit: To a jury this must go.
  • The downside of one of the more nauseating decisions this week? The Seventh Circuit had to explain that "the stench … was compounded as insects became drawn to the standing feces and urine." The upside? No qualified immunity for Lake County, Ill. jail officials who allegedly spent three days depriving pretrial detainees of enough water to drink, bathe, and flush the toilets.
  • The feds interrogate bank robber imprisoned at Pontiac, Ill. correctional facility. He admits to another robbery and accedes to a DNA swab. Bank robber: At the time of the interrogation, I'd been in solitary confinement for a prolonged period. My confession wasn't voluntary. Seventh Circuit: Conviction and sentence (an additional 18 years) affirmed.
  • Man and woman are horsing around at a pool; a bystander interprets this as domestic violence and calls police. When the woman (rather belligerently) attempts to tell the cops what happened, a Wymore, Neb. officer throws her to the ground, fracturing her collarbone. Eighth Circuit (en banc): When a 5-foot-tall woman wearing only a bathing suit is neither fleeing, nor resisting arrest, nor ignoring commands, it is clearly established that—just kidding! Qualified immunity. A dissent: Can we at least find a constitutional violation so the bone-breaking will be prohibited next time?
  • Pursuant to a 1997 settlement agreement, Border Patrol must ensure "safe and sanitary" conditions for detained minors. Does that mean minors must have access to soap, towels, showers, dry clothing, and toothbrushes even though the agreement doesn't expressly mention them? District court: Yes. Yes, it does. Ninth Circuit: Because the district court is enforcing, rather than modifying, the 1997 agreement, we don't have jurisdiction to reconsider its order.
  • Boynton Beach, Fla. police beat up motorist (who clipped an officer who was on foot) and two passengers after a high-speed chase. Several officers neglect to mention the beating in their incident reports. But wait! It's all on video. A supervisor instructs them to change their reports, tells the FBI he doesn't remember telling anyone to change their reports. Eleventh Circuit: No need to disturb either the conviction of one of the officers for the beating or the supervisor's conviction for trying to mislead the FBI. But it could be their sentences (six months' probation for both of them) were infected by legal error, so the district court needs to take another look at those.
  • Minneapolis police obtain warrant, take drug dealer to hospital for anal cavity search. A doc involuntarily sedates the man, uses forceps to remove a baggie of cocaine. Minnesota Court of Appeals (over a dissent): Which was an unreasonable search. Suppress the evidence.
  • In 2014, Maryland decriminalized possession of less than 10 grams of marijuana, making it a civil offense. So if police come upon a legally parked vehicle, smell "fresh burnt" marijuana, and see a joint in the center console, they do not have probable cause to search the driver, says Maryland's high court. Concurrence: Don't drive stoned.
  • Maryland appellate court: A sexually invasive search to find drugs on the side of a highway requires exigent circumstances, and police convenience doesn't count. Conviction reversed.
  • And in other news, the North Carolina Court of Appeals has withdrawn last week's opinion holding that flipping off a cop gives the cop reasonable suspicion that crime is afoot. Will the panel reverse course? Will it leave the holding intact but further explain its reasoning? Stay tuned.

Earlier this year, Nevada legislators passed a bill that eliminates over $2 mil in funding over the next two years for K–12 scholarships for low-income families. (The scholarships are funded by private businesses that receive a tax credit for donations to scholarship organizations, which then disburse funds to needy families to send their children to private schools.) But the Nevada Constitution requires a two-thirds supermajority in each house of the legislature to pass a revenue-raising bill, which the bill is, so this week IJ filed suit on behalf of parents and students who lost their scholarships and won't be attending the schools of their choice this year. "The quality of school available to a child shouldn't be based on their ZIP code or their parents' income," said IJ Senior Attorney Tim Keller. Click here to read more.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Man and woman are horsing around at a pool; a bystander interprets this as domestic violence and calls police. When the woman (rather belligerently) attempts to tell the cops what happened, a Wymore, Neb. officer throws her to the ground, fracturing her collarbone. Eighth Circuit (en banc): …Qualified immunity. A dissent: Can we at least find a constitutional violation so the bone-breaking will be prohibited next time?

    Majority response to the dissent: No, we don’t do things that way.

    1. I don’t really blame the Circuit Courts for these decisions. The blame rests solely with the Supreme Court that, above all else, seeks to maintain the power of the government.

  2. “”May police officers shoot an uncooperative individual when he presents an immediate risk to himself but not to others? No, case law makes clear.” So says the Sixth Circuit, affirming a denial of qualified immunity for Shelby County, Tenn. officers who shot and killed a suicidal man who was holding a knife to his own throat.”

    Blazing Saddles was a documentary?

    1. I’m almost more interested in the logic of shooting him rather than whether it was legal or not. What can that possibly be meant to achieve?

      1. Ken yee nae read, laddie? He was threatening someone with a deadly weapon. A life was at risk!

      2. I doubt that the higher cognitive functions were fully engaged. Which is both common and costly in scenarios involving firearms.

      3. A large percentage of cops are sociopaths who enjoy using force against people, the same way normal people enjoy going to the beach.

      4. Committing suicide is illegal. They were saving him from a felony charge. 🙂

    2. “Blazing Saddles was a documentary?”

      Clearly the Shelby County police could use a man like Dr. Samuel Johnson

  3. “Eighth Circuit (en banc): When a 5-foot-tall woman wearing only a bathing suit is neither fleeing, nor resisting arrest, nor ignoring commands, it is clearly established that—just kidding! Qualified immunity.”

    Tough but fair.

  4. The values and tradeoffs which seem implicit in the Mississippi Dr. Hayne case turn “criminal justice system” into a euphemism at best. It should instead be called a “processing system” or something similarly generic so as to do less violence to reality.

    Separate Q on the same case: If my due diligence in the prison library turns up allegations that the doctor whose testimony put me away for life is a hack, but I’m not sure whether they’re good enough for a habeas petition, can I file with what I have to beat the one-year clock, and if that’s denied, file again later if better evidence surfaces? Or is that not allowed because, well, “processing” vs. “criminal justice”?

    1. I think the thing that gets lost regarding habeus petitions from state convictions is that at least by current law there is no constitutional right to it (I think that is a debatable position but that is what it has been for decades at least). So allowing it is merely by courtesy. Therefore, when it isn’t allowed the idea is that you really aren’t harmed by that because you have no right to it and you can’t be harmed by Congress’s decision not grant you the courtesy of possible relief.

    2. Generally speaking, no. You get one shot. That’s the catch-22.

    3. ” If my due diligence in the prison library turns up allegations that the doctor whose testimony put me away for life is a hack, but I’m not sure whether they’re good enough for a habeas petition, can I file with what I have to beat the one-year clock”

      Ideally, your defense attorney would bring it up before your trial was even over. Remembering things like this while you’re being tried that affect your case is one of the reasons you get a lawyer for your trial.

      1. A difficulty here is that the trial was in 2006. The Innocence Project began its investigation into Dr. Hayne in 2008, and the habeus petition didn’t happen until 2013 when the Innocence Project investigation came up with smoking-gun evidence. It’s not clear exactly at what point the petition was supposed to have been filed. It does appear that (1) the point at which there was sufficient evidence petitioner needed to file may have been well before there was sufficient evidence the petitioner could have won, (2) it’s rather difficult to run an investigation of this type from a prison cell.

        Perhaps, in the future, when the Innocence Project starts investigating someone, it could inform those affected so they don’t lose their right to file for habeas? Perhaps piggy-back so that it’s investigation becomes part of discovery? Of course I’d expect in the meanwhile the jab was petitions would be dismissed for failure to expeditiously prosecute.

        Joseph Heller would have been proud.,

        1. “A difficulty here is that the trial was in 2006.”

          Was Dr. Hayne a hack in 2006?

    4. The values and tradeoffs which seem implicit in the Mississippi Dr. Hayne case turn “criminal justice system” into a euphemism at best. It should instead be called a “processing system” or something similarly generic so as to do less violence to reality.

      I agree. The case is an outrage. Man convicted based on BS testimony by a charlatan, then not allowed to file a habeas petition because of some dubious formalistic ruling about a time limit, so he gets to spend his life in prison for nothing.

      And why is the State of Mississippi fighting this anyway?

      1. And why is the State of Mississippi fighting this anyway?

        Because there’s some pretty compelling evidence of guilt — like the fact that the victim’s brother saw the defendant committing the murder.

        1. That’s about as disingenuous as it’s possible to be. The “victim’s brother” was three years old at the time of the death. He first allegedly told the story 2 months after the event. (And then his actual testimony was a year and a half later.) That’s not “pretty compelling” at all.

          Now, combined with a pathologist saying that the victim was suffocated in a manner consistent with the kid’s testimony, that’s a different story. Except that this pathologist had the slightly bad habit of making stuff up, which some people less charitable than I might call perjury. And without Haynes, you have a three year old who may have been coached.

          1. I knew you were misrepresenting the facts even before I looked them up to confirm, because if there really were compelling evidence other than Hayne’s testimony, that would be an independent reason to deny relief.

    5. If my due diligence in the prison library turns up allegations that the doctor whose testimony put me away for life is a hack, but I’m not sure whether they’re good enough for a habeas petition, can I file with what I have to beat the one-year clock, and if that’s denied, file again later if better evidence surfaces? Or is that not allowed because, well, “processing” vs. “criminal justice”?

      Federal courts generally do not entertain successive habeas applications — that is, you need to present all of your claims for relief together if you want them to be considered. There is an exception that allows a successive claim if “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence”. However, the claimant trying to rely on that exception also needs to show that “the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B).

      1. IOW, there’s massive Catch-22, just as David says.

  5. Please let me know if I’ve got this wrong, but it sounds as though potentially-corrective elements such as habeas petitions are regarded more as added-value niceties than as being essential to the integrity of the system.
    Which would tend to support my previous comment. Because why fret over corrective measures if integrity and justice are not of paramount importance to begin with?

    1. You need to remember the structure of the country. The states have their own sovereignty as well. So federal intrusion on that is disfavored, and in some cases unconstitutional itself. As a matter of comity to another sovereign, the states, the federal government limits the intrusion it will make on that sovereignty. Punishment of crime is a key component of sovereignty. So it is allowed, but limited so as to not unduly infringe on state sovereignty.

      There is not a singular justice system. Each state, DC, territories, and the federal government all have their own justice system. Only the federal government has any role to play in the others, but as I said above limiting the intrusion is a major part of what role it will play. So, yes, there are other serious concerns that are taken into account to determine when the Federal government should and does intrude on another’s criminal justice system and therefor sovereignty. Because in that situation they aren’t an inherent part of the criminal justice system. They are just inserting themselves into it.

      1. “The states have their own sovereignty as well”

        So long as they abide by the Constitution, at least. When they choose to ignore limits in the Constitution, the feds can land troops. See, e.g., the period from 1861-1865, or when Eisenhower had to send federal troops to enforce school desegregation.

      2. But that does nothing to rebut arch1’s comment.

        You are making federal respect for Mississippi’s sovereignty more important than the integrity of the justice system.

        A bad idea, historically.

        1. I realize that getting it right can’t be the *only* concern (reality’s ambiguous, people are flawed, budgets finite, and so on); but broad acceptance of a person being behind bars for life due to BS such as this is symptomatic of a court / “justice” system in which getting it right has been prioritized somewhat below optimizing the choice of urinal screen supplier for the mens’ bathrooms.

          I’d say this is reminiscent of the scene in the movie “Witness” where Harrison Ford’s character tells the bad cop that he’s “lost the meaning,” but that would be too generous: It begs the question whether the system ever had the meaning in the first place.

          1. The challenge is that we don’t have infinite resources to keep retrying every case, over and over again. Strictly speaking, we don’t even have enough resources to try every case even once, hence plea-bargaining.

            So, you get ONE fair trial, and if you want a second trial, you first have to prove that the first one was, in fact, unfair. (And, in fact, unfair enough to have affected the outcome.)

            Yes, it sucks that we ever put factually-innocent people in jail, and it would really suck if were me instead of one of those guys over there. But, absent divine knowledge, a trial is the best you can get for human justice. Humans are fallible, and so are the things they build.

            1. I agree perfection’s out of reach, but disagree that we can’t do better. If justice really mattered, the avoidance of obvious travesties such as this (man rotting in prison for life due to testimony of a hack, this is known, but key is thrown away on a technicality) would be very nearly top priority, as the incremental cost is small and the benefit very large. More stuff w lower benefit/cost ratio than currently would slip, but overall it’s a net win for justice, and on the same fixed budget. Standard stuff, and it would happen as a matter of course if there were an abiding institutional commitment to justice. If.

              1. ” If justice really mattered, the avoidance of obvious travesties such as this (man rotting in prison for life due to testimony of a hack, this is known, but key is thrown away on a technicality) would be very nearly top priority”

                If only there were some mechanism built into the system that was capable of resolving “obvious travesties like this”. Oh, wait, there is, and has been all along. It’s called “executive clemency”, and it isn’t the court’s province.

                1. James, I am not trying here to indict any particular actors. My point is broader and more fundamental: With respect to justice, our system as a whole can do much better than currently. Imperfection is inevitable, but this level of dysfunction, and the resulting overall quality of justice delivered, is not. We could get a lot more justice with our finite resources, for example, by prioritizing more wisely. This doesn’t require radical innovation. It mainly requires that justice be an abiding and core institutional concern. If we had such a system, there would still be mistakes, some of them big. But obvious travesties such as this would get attention as a matter of course. And a million other changes would happen as well, because the participants would *care*. The fact that decisions such as this one can occur, and not spark widespread outrage, is one of many indications that we aren’t there yet.

                  1. ” With respect to justice, our system as a whole can do much better than currently.”

                    I am not sure that it can do MUCH better. It could be more accurate, objectively, but mistakes are made, and not by “the system”.
                    If you INCREASE the number of proceedings, by, say, giving everybody two trials instead of one, you DECREASE the amount of attention paid to each one. Each proceeding becomes more trivial. “Well, if we screw up this one, they’ll get it right in the next one. Now hurry up, we’ve got a lot more of these to get through.”
                    When you decrease the amount of attention paid to something, does the error rate go up or down?
                    The Framers recognize that no justice system built by man can be perfect, so they built in a way for miscarriages of justice to be addressed. Meanwhile, nearly all of the people in the justice system are at least TRYING to get it right, the first time, every time, and everybody gets at least one appeal before their case leaves the justice system. I don’t think you improve the effectiveness of the justice system by granting everybody two, three, or an unlimited number, of appeals.

  6. I’m sorry, but I cannot agree to the court’s decision on the rectal search of the drug dealer. A warrant was obtained. It was performed in a private doctor’s office. What more could they want? You cannot have a situation in which sufficiently resisting a search means that no search can be performed.

    1. The warrant didn’t grant authority for an internal search, merely a search of his person. Basically, the cop didn’t ask for what he wanted to do, and ignored what was actually authorized because he was either incompetent or didn’t care m

      From the opinion, “The application “request[ed] a warrant to transport Brown to a medical facility and have the baggie removed” from Brown’s rectum. A judge signed a warrant and authorized a search “ON THE PERSON OF BROWN.””

      Whether they could have gotten the warrant they needed, and if so, whether it would have been valid, are separate questions. What the court makes clear though is that they didn’t get a warrant authorizing a body cavity search.

      You can see this problem all over the place, where “I have a warrant” is viewed as the ultimate authority, irrespective of what the warrant actually authorizes.

      1. I thought that yelling “Stop resisting!” was the ultimate authority.

      2. The first warrant said that, and the doctors didn’t think it enough, even though it was clearly the officer’s intent. So he got a second warrant that was more specific but still iffy on that level of intrusion.

        Nowhere can I find evidence the warrant judge considered and rejected it explicitely. This was just crossed communications and sloppy work by the judge.

  7. Your recitation of the facts is mistaken. The first warrant said “ON THE PERSON.” But then they got a second warrant that did (textually, anyway) permit this search.

  8. In the fake university case, I think the students who claimed they had taken courses at the fake university and had accumulated credits which could transfer may, unlike the other students, have made an independent fraudulent representation that might take them out of the class of victims and make them classifiable as accomplices in the fraud. It’s not clear to me all students here are the same.

    1. You’re assuming that it was the students themselves who committed the fraud, rather than someone else paid to get them into the US who does it. (The parallel is the recent college admissions scandal, in which the parents definitely conspired to defraud but it’s unclear whether the students themselves conspired in, or even knew of, the frauds that got them into the college of their parents’ choice.

      There’s a chance that the students whose paperwork claims attendance at the fictional school thought they were paying for legitimate assistance in filing the proper paperwork, and didn’t actually know what the preparer was filing on their behalf.

      If our immigration system was simple enough that everyone could be expected to understand the rules, you could assume that the person filled out their paperwork incorrectly because they themselves were attempting to enter by fraud. But, of course, it isn’t.

      1. According to the opinion some of the students applied to transfer their visas to other universities (not surprising) and in doing so some of them claimed they had been studying and receiving credits at the University of Northern New Jersey. Since that’s a false statement, making such a claim in order to help secure a visa might be considered visa fraud. Not all the students made such claims. So it’s not clear they should all be treated the same.

        1. The question is, did the student make the false claim, or did someone else who is not the student. If the misstatements were made by the students, or by people instructed to do so (specifically) for the student, then you have fraud. If not, however, then you do not have fraud.
          There’s even a possibility that if the misstatements were made by the student, they might not be fraud, they might be mistake.
          If you are talking about students who did, indeed, intend to commit fraud, who got caught committing fraud, nail them to the wall as a warning for the others. But if they didn’t, don’t. And get it right the first time, every time.

  9. I think the Mississippi case involving a man imprisoned for life based on what now appears to be zero credible evidence is crying out for a liberal Gorsuch opinion. The 5th Circuit’s interpretation of the rules creates a Catch-22 that requires a prisoner to file as soon as they suspect there is a problem, well before the state of the evidence is developed enough to enable the them to provide enough evidence to win. If they file as soon as they suspect, they lose on the merits. If they wait to file once the evidence has become clear enough to win, they lose on the timing. The result is that even unambiguously actually innocent prisoners have no way to establish their innocence.

    This is a terrible state of affairs. It needs correction badly.

    1. Obviously, the lesson is to not be convicted in the first place.

  10. A wrinkle in the Hayden case (the Mississippi prisoner convicted on his testimony) is that he sued the Innocence Project for libel and they settled for $100,000. The fact that they settled for a substantial sum tended to suggest, to a non-expert, a tacit admission that their allegations were false. So it’s understandable why people didn’t file habeas petitions until materials from the suit were unsealed and his deposition showed that he admitted to key elements of the allegations.

    The settlement had, before then, appeared to suggest that claims that he provided improper evidence couldn’t be proven in a court of law, and hence a habeas petition would have been futile.

    The Innocence Project’s insurance company, which apparently was the party that decided to settle, appears to have inadvertently destroyed the lives of possibly hundreds of falsely convicted prisoners as a result of its decision and as a result of the 5th circuit’s Catch-22 interpretation of the rules. The 5th Circuit completely ignored the settlement and its implications.

    The question ought not to be when the petitioner first became aware of the allegations, but when the petitioner first became aware the allegations are provable. This case, and the settlement which strongly implied the allegations weren’t probvable until the deposition testimony showing otherwise became public, sharply illustrates the difference.

    The Supreme Court should hear this case and clarify this distinctikn. .

    1. Thanks for digging and summarizing this, ReaderY. It already felt a bit disconnected from reality when the opinion referred to due diligence in the prison law library. But given the facts of this particular case, and given that the relevant procedural law (if that’s the right term) is brain-dead (I’m pretty sure *that’s* the right term), it seems likely that no level of diligence would have sufficed.

  11. The North Carolina “digitus impudicus” opinion in the NC Court of Appeals has been withdrawn. The appellate court had sided with the snowflake highway patrolman.

    There was a vigorous dissent, and an angry response by editorialists and the First Amendment community.

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Free Speech

"Professor Exonerated for Quoting Iconic Black Writer at The New School"

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From the Foundation for Individual Rights in Education:

The New School has cleared a professor of charges of racial discrimination for quoting literary icon James Baldwin during a classroom discussion. The university reversed course late Wednesday after the Foundation for Individual Rights in Education intervened on behalf of professor academic freedom rights….

Sheck, a poet and novelist who is white, teaches a graduate course on "radical questioning" in writing. The course includes works by prominent African-American writers that examine racial discrimination. Sheck prefaces her course with a warning that active engagement with literature involves a sense of unease and unsettlement.

Early in the spring semester, Sheck assigned "The Creative Process," a 1962 essay in which Baldwin argues that Americans have "modified or suppressed and lied about all the darker forces in our history" and must commit to "a long look backward whence we came and an unflinching assessment of the record." In her graduate seminar, classroom discussion involved the Baldwin statement, "I am not your nigger," which was made during an appearance as a guest on The Dick Cavett Show. Sheck noted how the title of an Oscar-nominated 2016 documentary based on Baldwin's writings, "I Am Not Your Negro," intentionally altered Baldwin's words. She asked her students what this change may reveal about Americans' ability to reckon with what Baldwin identified as "the darker forces of history."

Months later, Sheck was summoned to a mandatory meeting with The New School's director of labor relations due to "student complaints made under the University's discrimination policy." She was not provided with any details about her allegedly discriminatory conduct.

On Aug. 7, FIRE publicly called on The New School to stand by its laudable "legacy of academic freedom, tolerance, and free intellectual exchange" and drop its investigation. FIRE's letter noted that Sheck's use of the Baldwin quote did not violate the university's racial discrimination policy and was clearly protected by her academic freedom rights. Further, The New School's own policies make clear it will not punish speech protected by the First Amendment and basic tenets of academic freedom.

I'm glad reason and academic freedom—here, the freedom to choose to talk about historical facts without expurgation and bowdlerization—prevailed, though it's unfortunate that the "investigation" (which left the prospect of possible discipline for "discrimination" hanging over Sheck for 1½ months) even took place.

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  1. Hey, now…We cannot have professors spreading knowledge around willy-nilly…..

  2. So many problems would be solved if people simply had thicker skins, but it doesn’t help having politicians eager to scratch those thin skin itches, or a government which makes those politicians inevitable.

  3. FIRE is one of the “conservative” organizations that all liberals should support (financially and otherwise). I know I do. I do not agree with each and every one of its cases. But in the vast majority of the ones I’ve heard about; they’re on the side of the angels.

  4. The Aug. 14 letter doesn’t sound as if the matter is really quite resolved.

    Yes, they determined that she did not violate any policies, but it does talk about some sort of followup with her from the Provost’s office.

    That doesn’t sound good.

    1. “We will not retaliate against you for using your academic freedom. We will assess you only for the quality of your work.”

      “James Baldwin said ‘I’m not your nigger.'”

      “The quality of your work just went down.”

      /paraphrased from Dilbert

  5. Sheck prefaces her course with a warning that active engagement with literature involves a sense of unease and unsettlement.

    It’s sad even this needs to be done, and as legal defense at that, in the land of free speech.

    Anti-harassment has grown from interceding in vile behavior to an observer-based law activation for any slight that will, in the accurate words of George Will, cause a modern, self-actualized, independently capable woman to “collapse like an antebellum belle into a pile of crinoline with a case of the vapors.”

    It breeds such hysterics precisely because of its political power to control others through government, something simultaneously ridiculius and dangerous to freedom.

    1. Indeed, the controlling memeplex has adopted not just that, but the additional meme that to even bring this up is itself actional harrassment.

      For those keeping historical score, the modern quasi-religion of anti-harassment has adopted not just “my religion is right”, but “to question it means you are hellbound and should be put in stocks.”

    2. “It’s sad even this needs to be done, and as legal defense at that, in the land of free speech.”

      It’s much sadder that it was done and wasn’t sufficient.

  6. Inmates running the asylum rarely turns out well. Giving the students more voice sounds like a good idea, but that pendulum has swung way too far.

  7. From the description, the course seems worthless so who cares who teaches it.

    Neither do I care if the left eats its own.

    1. Ideally, nobody would teach it.

      Agreed, in that FIRE should hold its fire for more worthy causes.

      1. On the other hand, FIRE work here just enrages the SJW even more, eggs them on, dares them to do even worse. That’s always fun AND educational.

        1. “FIRE work here just enrages the SJW”

          That appears to be the motivation of academics who support FIRE.

          Carry on, clingers.

    2. Not sure what you’re going on there.

      Isn’t “questioning” one important function of writing? I mean, yeah, the phrase “radical questioning” is a bit jargony, but that doesn’t mean the subject is worthless.

      1. Apparently “radical questioning” now means challenging a government censorship regime that isn’t supposed to exist in the United States.

        Carry on, ma’am.

  8. Hey, New School is doing better than Emory. Are they still having their farcical free speech symposia?

      1. Funny, they’re so interested in you.

          1. At least the rest of us did. 🙂

    1. Sadly, no. The building in which the scheduled symposia were to occur was viciously defaced with a chalk legend of “MAGA”.

      Administrators, faculty and students collapsed like an antebellum belle into a pile of crinoline with a case of the vapors at the sight. Maintenance staff called to deal with the mass swooning and to remove the potent graffito were also effected, though in their case the symptom seemed more like convulsive laughter.

  9. Waiting for the good reverend to come along and explain to Ms. Sheck that she’s a bitter clinger who deserves to be replaced.

  10. ” FIRE’s letter noted that Sheck’s use of the Baldwin quote did not violate the university’s racial discrimination policy and was clearly protected by her academic freedom rights.”

    What, exactly, are “clearly protected academic freedom rights”?

    1. Maybe something like: “to debate the quality of a writer’s work using direct quotes from the writer himself.”
      (I know this might be a difficult argument for you to follow, given that you think “liberal fascist” is an oxymoron. But, here it is again in living color.
      Do you want to open your eyes? We will try to speak slowly and use short words, so you can follow along.

      1. So, you have nothing? Why bother to comment, then?

        1. Actually, the “to debate the quality of a writer’s work using direct quotes from the writer himself.” seems pretty responsish to me.

          The rest was well-aimed and apparently necessary invective. You might have targeted the missing parenthesis, but you di’nt.

          1. “Actually, the “to debate the quality of a writer’s work using direct quotes from the writer himself.” seems pretty responsish to me.”

            Really? If this is a definition of “clearly protected” academic freedom rights, by what mechanism is it protected clearly? Where and how do this academic freedom rights arise, and what are their limits?

            1. Really? If this is a definition of “clearly protected” academic freedom rights, by what mechanism is it protected clearly? Where and how do this academic freedom rights arise, and what are their limits?

              Why don’t you google and find out, if you really want to know?

              1. I’m not the one who made the claim, so it’s not my responsibility to research it.

  11. I can at least understand when authorities censor stuff based on whether they (the authorities) believe the speech in question was accurate.

    But there’s a strain of thought – especially in universities – that truth is no defense.

    It started when professors would be censored, regardless of accuracy, for statements which offended the college’s donors. I imagine that still goes on.

    But now they have to worry about whether the remark (no matter how accurate) offends penniless SJWs.

  12. Nipping at the heels of our great liberal/libertarian institutiona…Biola…Liberty University…Sunday school classes at East Lake Baptist Church…

  13. I wonder, who exactly is it that is making these complaints?

    1. “unleash the students . . .”

    2. We might best simulate the administrative mindset by viewing each of those complainants as a teat, offering up that sweet, frothy gummint money. (Their public statements regarding their charges are always deceptively high-minded.)

      1. I actually think a better simulation would be Comrade Napoleon, with the students as Jessie’s puppies.

  14. “I’m glad reason and academic freedom—here, the freedom to choose to talk about historical facts without expurgation and bowdlerization—prevailed…”

    hmmm. Is it just me, or… no, it must be just me.

  15. FFS

    Really the N word hysteria is just absurd

  16. Does anyone know the position of the Volokh Conspiracy Board Of Censors on use of the word that precipitated investigation of Professor Sheck’s conduct? Is it always welcome, always forbidden, or dependent upon the political viewpoint of the speaker?

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Immigration

Why Governments Should Not Bar Entry Based on Political Views

Israel's decision to bar two US members of Congress from entering the country is part of a much broader problem. Many nations, including the US, have similar policies. Here's why such restrictions should be abolished.

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Rep. Ilhan Omar (D- Minnesota).

Israel's recent decision to bar US Representatives Ilhan Omar and Rashida Tlaib from entering the country, because of their support for the anti-Israel BDS movement, has attracted widespread controversy.  Critics argue that the Israeli decision is both unwise and unjust. The critics are right. But, lost in the much of the discussion, is the fact that entry restrictions based on political speech are far from unusual. Israel's policy is just one example of a much larger problem. If the Israeli action is unusual, it is mainly because of the high profile of Omar and Tlaib, and President Trump's norm-breaking decision to pressure a foreign government to bar entry to two prominent citizens of his own country.

The United States itself has a long history of barring entry to foreigners with views the federal government considers unusually odious, such as communists. Many European nations deny entry to far-right racists, such as the American white nationalist Richard Spencer.  Few of those who condemn Israel's decision or the long-time US policy of excluding communists also condemn entry restrictions that bar far-right nationalists—and vice versa.

But the truth is that all these policies do deserve condemnation, and virtually all should be repealed. And we should be willing to oppose them even when the people whose rights are restricted really do have odious views. I am no fan of Omar and Tlaib. The former has made anti-Semitic statements, and the BDS movement both advocate is itself heavily tainted by anti-Semitism, as shown by its use of classic anti-Semitic rhetoric – recently described by members of the German parliament as reminiscent of Nazi propaganda—and its targeting of Israel for sanctions, while ignoring the many nations with far worse human rights records. Communists and white nationalists are even more odious, in so far as many openly advocate policies that predictably lead to mass murder. Nonetheless their freedom of movement should not be restricted based on their views.

Freedom of speech is a fundamental human right. It necessarily includes the right to advocate  extreme, awful, and unjust ideas, as well as good and "mainstream" ones. One can argue that travel restrictions do not really undermine freedom of speech because they don't ban the speech itself, but only restrict those who express certain ideas from entering particular areas. But the same defense can be offered for any regulation that does not directly restrict speech, but "merely" bars advocates of certain views from engaging in other activities. A law that forbids critics of President Trump from driving cars or flying on planes is clearly an attack on freedom of speech, even though it does not regulate speech directly. The same goes for speech-based travel restrictions.

Another problem with speech restrictions is that it is extremely difficult to keep them limited. One reason why we need constitutional protections for free speech, is that government cannot be trusted to restrict only the genuinely awful speech, while leaving the rest alone. To the contrary, censors have strong incentives to target critics of the government more generally and also any expression that is widely unpopular, regardless of its true merits.

This danger applies to speech-based restrictions on international travel as well as to more conventional "internal" censorship. In the US, nineteenth and early twentieth century efforts to bar immigrants based on views that were supposedly inimical to American republican institutions were closely linked to racial, ethnic, and religious bigotry against Asian, Catholic, Eastern European, and Jewish immigrants. In the 1930s, concerns about their possible radical left-wing political views were one of the reasons cited for barring Jewish refugees from Nazi Germany.

Just last year, in the travel ban case, the US Supreme Court cited earlier decisions upholding laws barring entry to foreign communists as in order to uphold Donald Trump's policy of barring entry to citizens of several Muslim-majority nations—a policy clearly motivated by religious bigotry. For reasons explained in an amicus brief I coauthored in the travel ban case, I believe the earlier precedents were distinguishable, and did not actually require a decision in favor of the travel ban. But it is in the nature of dangerous precedents that their reach is often difficult to confine. The entire history of speech restrictions reinforces that lesson.

In my view, freedom of movement is an important human right, even when restrictions on it are unrelated to speech. There should be a strong (though not absolute) presumption against restrictions. But even those who don't place high value on freedom of movement, as such, should be troubled by the use of movement restrictions based on political views.

Some argue that governments have the right to restrict entry based on speech for much the same reasons as private homeowners have the right to exclude advocates of ideas they dislike from their property. I criticize this "house" analogy in detail here. For present purposes, I would emphasize that the house analogy would justify barring entry based on holding any views that the government happens to dislike, not just those that are especially odious. If a government wants to bar all conservatives from entering, all advocates of democracy, or all Zionists, the house analogy suggests they have every right to do so.

Can speech-based entry restrictions ever be justified? Perhaps in some extreme cases. I doubt that any right should ever be absolute. It is possible to imagine extreme circumstances where a speech-based restriction on entry is the only way to prevent some great harm, for example the takeover of the government by some oppressive political movement. For example, the Russian Provisional Government likely should have barred Lenin from reentering the country in 1917. Similar dangers can potentially justify more conventional "domestic" speech restrictions. For example, the Weimar Republic would have been justified in banning the Nazi Party, if that were the only way to keep them from coming to power.

But such situations are rare, and a well-designed constitutional system should at least require the government to provide strong evidence that such a grave threat really does exist, and speech restrictions are the only feasible way to deal with it. At any rate, Omar and Tlaib do not pose any such threat to Israel. The same goes for the overwhelming majority of other people whom the US, European states, and other governments have denied entry to because of their political views.

Obviously, restrictions on movement can also be justified in situations where the person in question plans to engage in terrorism, violence, or other comparable crime. But such constraints can be applied regardless of the individual's political views, and regardless of whether the movement in question is international or domestic. If, for example, US authorities had realized in advance that the perpetrator of the recent El Paso mass shooting was traveling to that city from Dallas for purposes of committing a horrible atrocity, they would have had every reason to stop him.

UPDATE: Since I put up this post, the Israeli government offered to let Rashida Tlaib enter for the "humanitarian" purpose of visiting her elderly grandmother, who lives on the West Bank, but only on condition that she give a written pledge that she will not "promote boycotts against Israel," while there. Tlaib, in turn, has refused these "oppressive" conditions, though she previously indicated she would "respect any restrictions and not promote boycotts against Israel during my visit." For a more detailed account of this episode, see here.

Allowing a person to enter on condition that they not express certain political views while in Israel is less objectionable than barring people with those views entirely. But it is still a restriction on both freedom of movement and freedom of speech, and still unjust except in the sorts of extreme circumstances described above.

The  Israeli government's willingness to let Tlaib enter so long as she refrains from expressing pro-boycott views also makes it even more clear that her speech is in fact the reason she was barred in the first place, not any kind of security risk. If the latter were the problem, presumably her keeping quiet about boycotts would not be enough to persuade them to admit her.

That conjecture is also supported by the fact that the Israelis initially decided to let her and Rep. Omar enter without speech-related conditions, but then changed their minds after Trump pressured the Israeli government to bar them. Again, if the Israeli government thought the two congresswomen posed a security threat, it's unlikely they would have ever decided to let them enter in the first place.