I am pleased to pass along this announcement from my friends at the Buckeye Institute in Ohio:
The Buckeye Institute is seeking first- and second-year law students to apply for a Summer Associate Legal Fellowship.
This position offers the opportunity to directly work with Buckeye's attorneys while providing a strong foundation, hands-on experience, and valuable skills for a career in public policy, research institutions, or other legal careers.
Fellows will assist Buckeye's legal team, including conducting substantive and timely legal and policy research involving exciting and cutting-edge issues and cases. Fellows may have active participation (under the guidance of Buckeye's professional legal team) in cases pending before state and federal courts as well as preparing for filing new lawsuits. The role may also include assisting with the preparation of amicus curiae briefs to be filed in federal circuit courts up to and including the Supreme Court of the United States.
Summer Associate Legal Fellows will be expected to work full-time, in person, during regular business hours when The Buckeye Institute's office in Columbus, Ohio, is open (9 a.m. to 5 p.m. weekdays).
This position may also include exposure to the proceedings of the Ohio legislature and state and federal courts, depending upon their schedules and sessions.
To apply, please submit the following materials to Erin Sutter at Erin@BuckeyeInstitute.org:
Résumé with contact information (name, address, preferred telephone number, email), most recent GPA, degree, and (expected or actual) graduation date.
Transcript (unofficial records are acceptable).
Cover letter explaining why you are interested in this position at The Buckeye Institute.
Writing sample (no more than five pages in length that has not been edited by anyone else), which can be in the form of a blog post, a short paper, or an excerpt from a longer paper.
Applications will be considered on a rolling basis but should be submitted no later than Friday, January 3, 2025.
The application process is highly competitive. Accordingly, applicants should demonstrate academic excellence, outstanding verbal and written communication skills, strong research capabilities, and a commitment to limited government and free-market public policy solutions.
If selected, applicants will have the opportunity to apply for a $10,000 grant through one of The Buckeye Institute's partner organizations.
If you voted this way, or feel you can reliably and sympathetically report on the views of family members or close friends who voted this way, please tell us in the comments why you did that. The Trump victory, whether one likes it or not, is obviously a tremendously important—and in many ways surprising—event. I think it's important for all of us, regardless of our own personal views, to understand it, and some personal accounts can be one tool for helping us understand it.
Please do not post in the comments unless you fit this category (again, voted Biden in 2020 but Trump in 2024, or can reliably and sympathetically report on the views of family members or close friends who voted this way). My goal in this particular thread isn't to promote debate (something I'm happy to see in other threads), but to provide to all of us a possibly enlightening source of a very particular kind of information. I appreciate that we might not have many readers who qualify given these conditions; but I'd like to see if there are some who can help us here. Thanks!
No, said an Eighth Circuit panel in U.S. v. Jackson earlier this year; yesterday, the court refused to rehear the case en banc, so the answer is still no in the Eighth Circuit. Judge David Stras, joined by Judges Ralph Erickson, Steven Grasz, and Jonathan Kobes (a total of four of the eleven judges on the court), dissented from the denial of rehearing:
I have no special affection for felons either, but the Second Amendment does not care. It says what it says, and so do the Supreme Court decisions interpreting it. See generally U.S. v. Rahimi (2024); N.Y. State Rifle & Pistol Ass'n v. Bruen (2022). And what Jackson [II] [the panel decision] says about as-applied challenges conflicts with both.
Start with Rahimi. It was a facial challenge, but the Supreme Court dealt with it by examining whether the statute was "constitutional in some of its applications," including in "Rahimi's own case." It reviewed the historical analogues, surety and going-armed laws, and held that an individual like Rahimi—someone who has been "found by a court to pose a credible threat to the physical safety of another[—]may be temporarily disarmed consistent with the Second Amendment."
If the Court meant to cut off all as-applied challenges to disarmament laws, as Jackson II concludes, it would have been odd to send that message by deciding Rahimi based on how his as-applied challenge would have gone. See id. (stating that "[s]ection 922(g)(8)'s restriction was temporary as applied to Rahimi"); id. (noting that § 922(g)(8) applies "only once a court has found that the defendant represents a credible threat to the physical safety of another"). It would have just announced the law's across-the-board constitutionality and moved on, like Jackson II does.
In U.S. v. Rahimi, the Supreme Court held that the law may forbid gun possession by people subject to harassment restraining orders, when the orders were entered based on a showing of actual violence or domestic violence. Sometimes, such orders contain gun restrictions even without such a violence-related showing (see, e.g., the restraining order in the Sarrita Adams case, PDF p. 43); that, I think, violates the Second Amendment.
But in K.G. v. E.G., decided Monday by California Court of Appeal Judge Kathleen O'Leary, joined by Justices Thomas Goethals and Joanne Motoike, the trial judge had denied a domestic violence restraining order, and still issued a gun surrender order.
Appellant and respondent were married in 2009 and had three children. Respondent filed for dissolution of the marriage in 2021. During the ensuing period, respondent made various allegations against appellant, including that he had molested the couple's young daughter. The parties nevertheless stipulated to joint legal and physical custody, and the trial court (Judge David J. Hesseltine) adopted their agreement as a permanent custody order.
In 2022, the parties filed competing DVRO applications. As relevant here, appellant alleged that respondent had: coached their daughter to falsely accuse him of abuse; made other false allegations against him and threatened to make additional false allegations to extract concessions; hacked into his computer, accessed his e-mail account, and forwarded his e-mails to her account; and placed GPS tracking devices in his car. He claimed that the totality of respondent's misconduct was disturbing his peace….
During the DVRO hearing, the trial court learned that a California law enforcement registry showed a handgun registered to appellant under a former name. The court immediately made the firearm order, instructing appellant to "fill out a DV-800 [form] to relinquish [the gun]." Appellant told the court that he did not have a gun, but the court replied that he could still file the form. The court later stated that it had concerns about either party owning a firearm and asserted that it could "make findings pursuant to Family Code Section 3011 for the best interest of the minor children." Appellant subsequently testified that he relinquished the gun in 2009 and offered documentary evidence as corroboration.
Here's a quotation from Richard Rorty about context, and the last two sentences are instructive for legal interpretation. It is impossible to read a text without a context. Instead of even trying to, the interpreter should consider how each object/text is situated within a broader contextual "web," from which insight can be draw for resolving the "tensions in the region currently under strain":
We pragmatists must object to, or reinterpret, two traditional methodological questions: 'What context is appropriate to this object?' and 'What is it that we are putting in context?' For us, all objects are always already contextualized. They all come with contexts attached, just as Riemannian space comes with axioms attached. So there is no question of taking an object out of its old context and examining it, all by itself, to see what new context might suit it. There is only a question about which other regions of the web we might look to to find ways of eliminating the residual tensions in the region currently under strain.
Richard Rorty, "Inquiry as Recontextualization: An Anti-Dualist Account of Interpretation," in The Interpretive Turn: Philosophy, Science, Culture (David R. Hiley, James F. Bohman, and Richard Shusterman eds. 1991), 64-65.
An Introduction To Constitutional Law Video Library: New York v. U.S. (1992), Printz v. U.S. (1997), Hans v. State of Louisiana (1890), Seminole Tribe of Florida v. Florida (1996), City of Boerne v. Flores (1997), U.S. v. Morrison (2000), Board of Trustees of University of Alabama v. Garrett (2001), Nevada Department of Human Resources v. Hibbs (2003)
Many people have sued Sean Combs (P. Diddy) for alleged sexual assault in federal court in Manhattan (S.D.N.Y.); many of those have sued pseudonymously. So far:
[1.] Some judges have allowed the cases to go forward under a pseudonym (Doe v. Combs) until Combs' lawyers enter an appearance and have an opportunity to oppose pseudonymity. The orders (see, e.g., here, here, here, and here) have mostly been short, but have offered at least some reasoning; here's one from Judge Lewis Liman:
In determining whether a Plaintiff may proceed anonymously, "the plaintiff's interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant." A court should consider factors including whether the litigation involves matters that are "highly sensitive and of a personal nature," "whether identification poses a risk of retaliatory physical or mental harm," whether the defendant is prejudiced, whether any such prejudice "differs at any particular stage of the litigation," whether any such prejudice "can be mitigated by the district court," and the public interest.
Plaintiff has made a preliminary showing sufficient to permit the filing of the complaint and the issuance of a summons. The nature of Plaintiff's sexual assault allegations is highly personal, and Plaintiff states that Defendant Sean Combs threatened her with violence if she spoke of the alleged assault. Given that Defendant is a public figure, revelation of Plaintiff's identity may also lead to significant, potentially harmful attention from media and the public. However, Defendants have a right to be heard, the Court must take the interests of the public into account, and "the balance between a party's need for anonymity and the interests weighing in favor of open judicial proceedings may change as the litigation progresses." Therefore, Plaintiff shall file a renewed motion to continue to proceed anonymously within 30 days after service of the complaint. In the absence of a timely filed motion, the Court shall order the name of the Plaintiff be disclosed.
(Recall that the question in these cases is whether the plaintiff's identity could be hidden from the public; the plaintiff's name would of course have to be provided to the defendant, since otherwise the defendant wouldn't be able to defend himself.)
[2.] But last week, Judge Mary Kay Vyskocil refused to allow pseudonymity, even before Combs' lawyers entered an appearance:
Podcaster Michael Liebowitz interviewed me on why Kamala Harris is a lesser evil than Trump, and the more general issue of the logic of voting for a lesser evil.
Trump and Harris. (Li Rui / Xinhua News Agency/Newscom)
Michael Liebowitz recently interviewed me about the election on his Rational Egoist podcast. Despite the title, this isn't so much a case for Kamala as a case for why she's less bad than Trump. We also discuss the broader issue of the ethics of voting for a lesser evil vs. voting for a third party candidate with no chance of winning.
The final published version of my article "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver) is now available for free download on SSRN. Here is the abstract:
We argue that exclusionary zoning—the imposition of restrictions on the amount and types of housing that property owners are allowed to build— is unconstitutional because it violates the Takings Clause of the Fifth Amendment. Exclusionary zoning has emerged as a major political and legal issue. A broad cross-ideological array of economists and land-use scholars have concluded that it is responsible for massive housing shortages in many parts of the United States, thereby cutting off millions of people – particularly the poor and minorities - from economic and social opportunities. In the process, it also stymies economic growth and innovation, making the nation as a whole poorer.
Exclusionary zoning is permitted under Euclid v. Ambler Realty, the 1926 Supreme Court decision holding that exclusionary zoning is largely exempt from constitutional challenge under the Due Process Clause of the Fourteenth Amendment, and by extension also the Takings Clause. Despite the wave of academic and public concern about the issue, so far, no modern in-depth scholarly analysis has advocated overturning or severely limiting Euclid. Nor has any scholar argued that exclusionary zoning should be invalidated under the Takings Clause, more generally.
We contend Euclid should be reversed or strictly limited, and that exclusionary zoning restrictions should generally be considered takings requiring compensation. This conclusion follows from both originalism and a variety of leading living constitution theories. Under originalism, the key insight is that property rights protected by the Takings Clause include not only the right to exclude, but also the right to use property. Exclusionary zoning violates this right because it severely limits what owners can build on their land. Exclusionary zoning is also unconstitutional from the standpoint of a variety of progressive living constitution theories of interpretation, including Ronald Dworkin's "moral reading," representation-reinforcement theory, and the emerging "anti-oligarchy" constitutional theory. The article also considers different strategies for overruling or limiting Euclid, and potential synergies between constitutional litigation and political reform of zoning.
This project is an exercise in cooperation across ideological and methodological lines. Josh is a progressive and a living constitutionalist. I'm a libertarian generally sympathetic to originalism. If we can nonetheless agree on this important issue, we hope others can too!
"This year, we will select a small number of first-year law students who have demonstrated academic excellence and an unwavering commitment to Jewish and American flourishing."
I am pleased to pass along the application for the Tikvah Legal Fellowship. I lecture at this program each year, and it is an amazing gathering. Here are details:
We are excited to announce that applications are now open for the Tikvah Legal Fellowship class of 2025. If you are an alumnus of the Tikvah Legal Fellowship or are not eligible for this program, we highly encourage you to nominate suitable candidates. Please respond to this email with nominations.
Since its founding, Tikvah has brought together young people to study great texts and consider pressing issues with experts in Jewish thought, the Western canon, and public affairs. Law school is a crucial gateway to effective advocacy of many of the causes Tikvah represents: religious liberty, freedom of speech, a strong alliance between the United States and Israel, school choice, and others.
Our alumni have made significant advances in these battles. They have attained Supreme Court clerkships and authored widely cited briefs on topics such as religious freedom and the Boycott, Divestment, and Sanctions movement targeting Israel. We are pleased that they have emerged as leaders in the fight for Jewish and American civic ideals.
This year, we will select a small number of first-year law students who have demonstrated academic excellence and an unwavering commitment to Jewish and American flourishing. Accepted candidates participate in a three-pillar program:
The Tikvah Legal Fellowship Retreat
This is a five-day, in-person conference with the Blackstone Legal Fellowship in early June 2025. Fellows will study the moral foundations and power of the law, receive mentorship from preeminent legal scholars, and meet with a vibrant and growing community of Christian law students — natural allies in the constitutionalist movement.
The Summer Internship
Fellows who have not already committed to a summer internship upon acceptance will be matched with opportunities in the legal field related to the preservation of civic liberty for Jews and other people of faith in America.
The Stipend Project
Fellows have the option to pursue a $2,000 stipend. It will be awarded to Fellows who complete a significant project with a partner organization aligned with our mission and values by the end of their first semester as second-year law students.
Please click here to apply. Applicants must submit a résumé, a headshot, two short personal statements, and the names of two references. Applications close on December 1st, 2024 at 11:59pm ET.
An excerpt from Magistrate Judge Jeffery Frensley's opinion Friday in Poe v. Lowe(M.D. Tenn.):
In the fall of 2020, Plaintiff Parker Poe enrolled as an undergraduate at Vanderbilt University. Plaintiff took a leave of absence from school in April 2022, during which time he and others anonymously made and shared posts on at least two social media websites concerning Roe. Some of those posts alleged that Roe had sexually assaulted women.
Roe disputed the allegations and filed a lawsuit to uncover the identities of the anonymous posters. Poe was revealed as one of the posters. Roe and members of his family provided this information to Vanderbilt officials who opened an investigation of Poe for apparent violations of several provisions of the Vanderbilt Student Handbook. After a nearly two-month investigation, university officials concluded that Poe had committed three violations of the Student Handbook. Plaintiff was accordingly suspended from school, among other sanctions. Poe's subsequent appeal of his sanctions was unsuccessful, and his suspension began in April 2023.
Plaintiff filed the present complaint in Tennessee state court in March 2024 against Defendants for their actions in investigating and sanctioning Plaintiff. He contemporaneously filed a motion to proceed pseudonymously, which the state court granted. Defendants removed this action [to federal court] in April 2024 and filed the motion to reconsider shortly thereafter. Plaintiff then filed his amended complaint wherein he made hundreds of references to Roe using Roe's legal name. The Court granted Roe's emergency motion to intervene, temporarily sealed the amended complaint, and ordered the parties to confer regarding Roe and Poe's pseudonymity. After failing to resolve the issue, Roe filed the "Motion to Protect," seeking to permanently seal the amended complaint and require the use of pseudonyms for references to himself and his family members for the duration of this litigation. Because both motions ask the Court to decide whether parties may proceed under a pseudonym, they will be analyzed together.
The court concluded that it wasn't bound by the state court order, and went on to decide the pseudonymity question for itself:
An Introduction To Constitutional Law Video Library: Prigg v. Pennsylvania (1842), U.S. v. Dewitt (1869), Hepburn v. Griswold (1870), Knox v. Lee (1871), U.S. v. E.C. Knight (1895), Champion v. Ames (1901), Hammer v. Dagenhart (1918), Schechter Poultry Corp. v. U.S. (1935), NLRB v. Jones & Laughlin Steel Corp. (1937), U.S. v. Darby (1941), Wickard v. FIlburn (1942), Heart of Atlanta Motel v. U.S. (1964), Katzenbach v. McClung (1964), South Dakota v. Dole (1987), U.S. v. Lopez (1995), U.S. v. Morrison (2000), Gonzales v. Raich (2005), NFIB v. Sebelius (2012)
I've long warned about the dangers of voter ignorance. But the Trump era and the current election reveal that, on one crucial point, I was actually too optimistic.
I've never been a big believer in the wisdom of voters. Indeed, I've devoted much of my academic career to writing about the dangers of widespread political ignorance, going all the way back to my first academic article. It was published in 1998, at a time when most experts tended to be relatively optimistic about voter competence. Since then, I published a book on the subject - Democracy and Political Ignorance- and many other articles exploring various dimensions of the problem, its implications for legal and political theory, and possible solutions.
Since the rise of Trump and similar right-wing nationalist politicians in other countries, academics and political commentators have become more aware of the dangers of public ignorance. I wish I could say my own take on the subject has been vindicated. But in one crucial respect, the Trump era has shown I wasn't pessimistic enough.
Though I have long argued that voter ignorance and bias are serious dangers, and that information shortcuts are overrated, I also asserted that shortcuts actually work well in one important way: democratic electorates will punish politicians who cause great harm in clear and obvious ways. For example, I cited economist Amartya Sen's famous finding that mass famines never or almost never occur under democracies, while they are all too common under dictatorship. Even ignorant and biased voters will notice a famine is going on, blame incumbent politicians for it, and punish them at the ballot box. Knowing this, democratic political leaders have strong incentives to avoid famines and other obvious disasters. And they generally do just that, at least when they have the necessary knowledge and resources (disasters can still happen if avoiding them is difficult).
"Retrospective voting" - rewarding and punishing incumbents for things that happen on their watch - often works poorly in less extreme and less clearcut cases. As explained in Chapter 4 of my book, voters often reward or punish office-holders for things they didn't cause (most notably short-term economic trends; but also things like droughts and even sports-team victories), while ignoring some that they are in fact responsible for. But retrospective voting is a great mechanism for punishing politicians for obvious large-scale awfulness, one that works very well.
Or so I thought, along with many other scholars. But Trump proved me at least partially wrong. I was too optimistic.
Trump's effort to use force and fraud to overturn the 2020 election was exactly the sort of obvious and blatant awfulness that retrospective voting theory predicts the electorate should decisively repudiate. Peaceful transitions of power are fundamental to democracy, and Trump's 2020 activities struck at the very heart of this norm. Had he succeeded, it would have severely damaged the basic structure of our liberal democratic institutions. Yet a large majority of GOP voters renominated Trump again this year. And he has roughly an even chance to win the general election this year. If he goes on to lose, it will probably be by a very narrow margin, not the kind of overwhelming repudiation that would vindicate the theory.
Some people who would otherwise vote GOP are punishing Trump for his 2020 behavior by voting for Harris, or at least abstaining. Mike Pence and former GOP Rep. Liz Cheney are not alone. Thanks in part to these defectors, Trump is doing worse than a Republican nominee untainted by 2020 probably would be. But the number of such voters is much smaller than optimistic versions of retrospective voting theory would predict.
Ignorance and bias are playing a huge role in Trump's relative success. Polls consistently show that a third or more of Americans - including a large majority of Republicans - believe Trump's lies about the 2020 election, despite the overwhelming evidence against them, including numerous court decisions rejecting Trumpian claims of voter fraud (including some written by conservative judges appointed by Trump himself). Ignorance and partisan bias are great enough that many millions of GOP base voters reject fairly obvious facts here. If you believe the 2020 election was "stolen" from Trump, then his reaction may well seem justified, or at least excusable.
But this isn't the full story. If Trump only had the support of voters who actually believe his lies about the 2020 election, he could still have won the 2024 GOP nomination. But he would be losing the general election in a landslide of about 60-40 or even more. He remains competitive with Kamala Harris because there are many voters (probably around 10-15% or so of the electorate) who reject his take on 2020, but prioritize other issues, such as the economy or immigration.
It's not unusual for voters to misallocate blame for ordinary bad developments or to misunderstand the impact of policies. But, for a large bloc of swing voters, this relatively conventional ignorance about price increases and the policies that cause them is enough to outweigh concerns about what Trump did in 2020. Bad conventional retrospective voting forestalls beneficial retrospective voting against Trump's extraordinary 2020 awfulness and the danger failing to punish it poses to the constitutional system.
What is true of price increases also applies immigration. Increased immigration is actually beneficial, not harmful, and the best way to deal with disorder at the border is to make legal migration easier, not harder (as Trump proposes to do). But even if you're more of a border hawk, it's hard to show that problems caused by migration are as pressing as threats to the constitutional order. At the very least, GOP primary voters could have picked one of several available highly restrictionist candidates who weren't involved in Trump's efforts to overturn the election. The belief that immigration is not just a policy problem but an "invasion" amounting to a huge crisis, is itself heavily linked to ignorance.
One possible way to reconcile optimistic retrospective voting theory with recent developments is to say what happened in 2020-21 wasn't really that bad, because Trump's plan to overturn the election failed and the "guardrails" held; thus, we need not worry too much about it. It's not clear if any significant number of voters continue to support Trump because of these sorts of considerations. But, if they do, it's very bad reasoning. Libertarian political philosopher Michael Huemer explains:
Let me tell you how I view this [argument]. Say you're on a bus ride on a winding mountain road. You see the driver suddenly swing the wheel to the right, trying to send the bus over the cliff. Fortunately, the guard rail on the side of the road holds, and the bus bounces back onto the road. The bus driver does this repeatedly during the drive, but every time, the guard rail holds the bus back.
When you finally get off the bus, one of your fellow passengers declares that this was an excellent bus driver. He proposes hiring this driver to drive the same group to another city.
"What are you, out of your f—ing mind?" you reply. "He tried to drive us off a cliff!"
"Oh that," says the other passenger. "The guard rail held, so what's the big deal? Don't worry, this next drive won't go by a cliff. Since the rest of his driving performance was fine, we should hire him…"
Do I have to spell it out…? Driving off a cliff is not the only bad thing a bus driver can do. There is an indefinite number of disasters a crazy person can cause. Anyone who would try to drive a bus off a cliff can never be trusted with a bus, or indeed anything else, and if you think he's an acceptable driver, you're as crazy as he is.
I would add that a driver who tried to drive off a cliff once could do so again. And even a small chance of the guardrails failing is an enormous danger when the stakes are the future of constitutional democracy. Moreover, failing to punish politicians who seek to overturn elections by force and fraud incentivizes more such behavior. And some of those who attempt it in the future might be more successful than Trump was.
This isn't the first time large numbers of people failed to retrospectively penalize truly awful policies and candidates because of a combination of belief in lies and flawed ordinary retrospective voting. The horrific calamity of World War I should have led Europeans to repudiate the expansionist nationalism that caused it. Some did. But many Germans actually doubled down on nationalism and imperialism because of the "stab in the back" myth that held that Germany only lost the war because of betrayal by Jews, leftists, and others.
Later, the combination of the stab-in-the-back myth and conventional retrospective voting against the Weimar Republic government that presided over the Great Depression helped bring the Nazis to power. In the US, the political consequences of the Depression were less bad. But ignorance did lead voters to embrace a range of harmful policies that actually made the crisis worse.
The Great Depression, at least, was a horrendous crisis that caused truly enormous suffering. Today's price increases and border problems pale by comparison. If even the latter can lead many voters to forego punishing truly awful political leaders, that means retrospective voting is much less effective than I and others gave it credit for.
Recent developments don't prove that retrospective voting is totally useless. Amartya Sen is, I think, still right about democracy and famines! Democracy is still better than dictatorship. But the threshold for reliable and accurate retrospective political punishment is higher than I and some others previously believed. A mass famine may be enough. But a blatant threat to the foundations of liberal democracy doesn't necessarily cut it. All too many people are easily persuaded that the threat was actually justified, or that it is at least outweighed by relatively ordinary policy issues.
Voter ignorance and bias are far from limited to the right side of the political spectrum. I've previously written about left-wing examples (e.g. - here). But the Trump situation is the most dramatic proof that the problem is worse than even relative voter-knowledge pessimists - like me - previously thought.
The election could yet invalidate my new more pessimistic view. If, contrary to what polls indicate, Trump loses by a large margin, that would indicate he may be paying a higher political price for 2020 than I currently expect. But if he wins, or only loses narrowly, then the increased pessimism is warranted.
Be that as it may, recent developments strongly suggest the problem is even worse than I previously believed. That makes the need for solutions even more pressing.
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The All-Argentina Issue is Here
New from Reason: a look into what Javier Milei
has accomplished and what it will take to make the most of Argentina’s window for real change. Out now
for subscribers.
