Looks like an excellent symposium, featuring "submissions from lawyers, scholars, policymakers, and other experts on the myriad issues surrounding AI and the law grounded in conservative legal principles." You can submit proposals here. The topics they suggest (though it's not an exclusive list) are:
Constitutional Implications of AI: Exploring how the deployment and regulation of AI intersect with fundamental rights enshrined in the Constitution.
AI and Property Rights: Assessing the challenges and innovations AI brings to property rights, including intellectual property and data ownership.
AI in the Courts: The potential implications for due process, evidentiary standards, and the broader judicial system.
AI Ethics: Navigating the balance between individual freedoms, innovation, and the moral and societal implications of AI.
AI and National Security: Addressing the implications of AI for defense, surveillance, privacy, and our nation's cybersecurity infrastructure.
AI and Foreign Policy: Understanding the role of international law and the potential for collaboration or conflict with other nations in AI governance and contemplating the questions posed by international regulations, treaty-making bodies, trade and science policy, export controls, and intellectual property protections.
The Regulation of AI: Evaluating whether AI represents a new subject for regulation or not, and taking into account the state and federal regulatory approach(es) inclusive of innovation and accountability for harms. Potential questions of how current state and federal regulatory regimes will promote or inhibit innovation or accountability for harms, and examining alternative regulatory approaches. Discussion of the principle of federalism may be explored.
AI and Competition Policy: When "big data" became a popular notion, competition advocates began to describe "data as the new oil." We learned quickly that merely having a lot of data is insufficient for building competitive moats.
AI and Intellectual Property: Examining the existing uses of publicly accessible data for training large AI models, and the intellectual property rights of those who want to control the works that they own. Evaluation of the tradeoffs to multiple parties, and examination of alternative regulatory regimes—that may or may not include new types of property rights.
AI and the Legal Profession: Thinking through different ways that AI may change the practice of law—whether with legal research, brief writing, evidence, and how the judiciary may react to such changes. Also, an exploration of legal ethics, the current regime or potential future regime for model rules of professional conduct. Other potential topics may involve increased access to legal services, and the existing impact on legal licensure or the legal profession.
The Takings Clause of the Fifth Amendment says the government may only "take" private property for a "public use." In cases like Berman v. Parker and Kelo v. City of New London, the Supreme Court has ruled (wrongly, in my view) that almost any potential benefit to the public qualifies as a "public use." Thus, in Kelo the Court upheld the condemnation of homes for purposes of promoting privately owned "economic development," even though the development plan in question was so badly flawed that the condemned property ended up (for many years) being used only by a colony of feral cats.
But the Kelo majority also indicated that a taking can still be invalidated if the government tries to "take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit." Under Kelo, pretextual takings are an exception to the general rule that the government can condemn property for virtually any reason.
How do courts determine whether a taking is pretextual? Since Kelo, lower-court decisions on that issue have been all over the map. In Chapter 7 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, I identified at least five different approaches to this issue adopted by state and lower federal courts since Kelo (see also this article).
Most pretextual takings cases deal with situations where the government condemns property for transfer to a private party. But in Brinkmann v. Town of Southold, the US Court of Appeals for the Second Circuit addressed a case where a condemnation for transfer to public ownership might still be pretextual, because the official rationale was a pretty obvious smokescreen for a different motive.
Prominent takings litigators Michael Berger and Robert Thomas have helpful summaries of the facts and what the court decided. Here's Thomas:
The facts of the case are pretty straightforward. The Brinkmanns wanted to build a big box hardware store on a 1.7 acre vacant parcel. The usual objections from area residents and the Town itself appeared (you know the drill): a store like this would result in too much additional traffic (traffic study said no), special permits and impact studies are needed (the owners began to comply), a moratorium on building permits in a one-mile radius, "despite the county government's finding that the moratorium lacked supportive evidence' (oops). Slip op. at 3. Even a failed attempt by the Town to buy the property itself before the Brinkmanns closed their purchase.
When all those didn't succeed in stopping the development, the Town began proceedings to forcibly acquire the land by eminent domain. What for, you ask? A public park. More precisely, a "passive use park." What's that, you ask? It isn't what you might think make a typical public park. Things like public facilities, art installations, walking trails, recreational and entertainment spots and stuff. No, this was to have none of those things, it was to be "a park with no significant facilities or improvements," also known as a big open, empty field.
Next step was a federal court section 1983 action by the Brinkmanns, "alleging a pretextual taking in violation of the Takings Clause of the Fifth Amendment." Slip op. at 4. The Town may have claimed that the taking was for a "classic" public use (a public park, even if it is a "passive use park"), but the Town's actual reason, the Brinkmanns alleged, was what we call a "spite taking" -- the Town didn't like the use we're making or going to make of our property, so decided to take it from us. This was the real motivation to take our property, and that's not a public use, according to the complaint. The district court wasn't having any of it, and dismissed for failure to state a claim.
A divided panel of the Second Circuit affirmed. This "pretext" thing you allege, property owner, is merely a "passing reference…." And we all know that when the legislature has declared that a certain use or interest is a public one, the courts have no role because "the public interest has been declared in terms well-nigh conclusive." Slip op. at 7 (quoting Berman v. Parker, 348 U.S. 26, 32 (1954)). Taking property by eminent domain is just legislation, property owners, so go make your fight in the political process. Don't bother the courts.
"There can be no dispute that a public park, even an unimproved one, is a public use." Slip op. at 8. The court distinguished between pretext for private benefit, and pretext for some use that isn't public….
The majority focused on the complaint's assertion that the Town's supervisor stated, "I will never allow anything to be built on this property." Id. In the majority's view, that statement revealed that the Town's motivation was just fine, because it didn't matter that the taking was for spite, as long as it wasn't for a private use or purpose. As the opinion put it, "Plaintiffs have not pointed to any Town purpose that violates the Takings Clause…"
In short (and this is our characterization, not the court's), the Fifth Amendment contains a Public Use Clause, not a "Good Motivation Clause…"
The key point in the majority opinion is that a taking can only be pretextual if the official rationale is a pretext for a scheme to benefit a private party. If, however, the government condemns property and does not transfer it to a private party or try to benefit such a party, then it doesn't matter whether the official stated purpose was the real motive for the taking or not.
The dissenting opinion by Judge Steven Menashi argues that a taking can be pretextual even if there is no plan to benefit a private party:
The court emphasizes that "[p]ublic parks have been recognized as a 'public use' for more than a century" and that a court should not "substitute its judgment for a legislature's judgment as to what constitutes a public use…" But no one disputes that a public park would be a public use. The plaintiffs instead argue that the Town of Southold does not want a public park. The court admits that the plaintiffs are right. The court acknowledges that the complaint in this case "alleges facts sufficient to support a finding that the decision to create the park was a pretext for defeating the Brinkmanns' commercial use" of their own property and that the Town decided to seize the Brinkmanns' property for a park only "after varied objections and regulatory hurdles that the Town interposed and that the Brinkmanns did or could surmount…." In other words, the Town did not like what the owners were doing with their property, but the Town was unable to muster the political support to pass a zoning law or to deny a permit. So the Town of Southold grabbed the land for itself….
The Constitution has nothing to say, according to the court, "when a property is taken for a public amenity as a pretext for defeating the owner's plans for another use…"
That is incorrect. In my view, the Constitution contains no Fake Park Exception to the public use requirement of the Takings Clause. A taking of property must be "for public use," U.S. Const. amend. V— or at least for "a public purpose," Kelo v. City of New London, 545 U.S. 469, 478 (2005)—and thwarting the rightful owner's lawful use of his property is not a public purpose. I dissent.
Menashi goes on to point out (correctly) that Supreme Court precedent allows scrutiny of government motives in a wide variety of other cases (e.g. - when seemingly neutral policies are pretexts for efforts to engage in unconstitutional discrimination on the basis of race or religion). He also cites various state court cases where takings for pretextual motives were invalidated, even in some situations where the condemned property was not transferred to a private party. The majority distinguishes those cases on the grounds that they dealt with state constitutional law, had somewhat different facts, or were different for other reasons.
Having written a book and numerous articles on public use issues, I rarely run across a public use case where I'm unsure what the right outcome should be. But this is one of those rare times.
Pretextual takings doctrine is a mess generally. But I think it can legitimately be used to strike down a variety of takings for transfer to private parties; indeed, I believe most such takings are unconstitutional even aside from the pretextual motives, because I support the "narrow" view of "public use" under which the government may only take property for publicly owned facilities or private ones that have a legal duty to serve the entire public.
In most situations, the narrow view is satisfied when the government takes property for public ownership - even if the motive for the taking is unrelated to the potential benefits of the new use. So far, I side with the majority. But this case is different from most takings for public ownership because the government isn't actually using the condemned property for anything. As Judge Menashi puts it, the supposed "public park" is actually "fake."
This opens up the possibility there can be public ownership without public use. To be sure, there can sometimes be "use" even if the government doesn't build anything on the land it takes. For example, it could decide to use the property as a nature preserve. But there is no such use here, not even a "passive" one. The only goal is to block the Brinkmanns' plan to build a hardware store, not to use the land for any affirmative purpose.
Perhaps such blocking can still be a "use." But the issue is a difficult and murky one.
Both Robert Thomas and Michael Berger suggest the Supreme Court might take up this case. Pretextual takings jurisprudence has long been a mess, and at least four Supreme Court justices have expressed interest in clearing it up, and perhaps overruling or limiting Kelo in the process.
I very much hope the Supreme Court does clean up the mess and - better still - overrules Kelo. But this case is not a good vehicle for that.
Unlike Kelo, it does not address the issue of condemnations for transfer to private parties. It instead deals with the unusual situation where the government retains the condemned property but has no desire to do anything with it other than block a private use it objects to. The issue is an extremely difficult one. And even if the Court resolves this hard question correctly, doing so would not do much to improve public use doctrine more generally.
For those reasons, I would prefer the Supreme Court take up a public use case whose facts are more similar to those of Kelo. At the very least, it should involve the condemnation of property for transfer to a new private owner.
In a recent article in the Jesuit publication America, urban policy commentator Addison Del Mastro explains "Why Catholics Should Resist NIMBYism":
The cost and supply of housing has gone from a problem associated with a handful of high-growth cities to a national crisis. Anybody who has moved in the last three years understands this. Calls to loosen zoning restrictions and repeal parking space requirements for apartment buildings in the hope of spurring housing production have become mainstream….
Perhaps the most relevant element of the Catholic ethic here is the idea that people are good. Pope Francis affirms this in his encyclical "Laudato Si'," in which, contra Malthusian fears about overpopulation, he argues that even concern for the earth cannot be placed above the dignity of the human person….
Using the not-surprising example of abortion, Francis articulates the broader Catholic conviction that no public policy which contradicts the principle that people are good can itself be good. Likewise, no apparent good that relies on the negation of this principle is worth keeping….
This may seem easy enough. But people do not exist in a vacuum. Recognizing their dignity or accommodating their needs is not just an intellectual exercise. Their needs must be provided for concretely in the real world, and one of those needs is housing.
If people are good—if babies and families are good—the housing they need must also be good. Housing is an extension of people and of the family, and when babies grow up, they become neighbors. But in American politics, these concerns have been separated and siloed….
Does this mean Catholics should never oppose new housing? What about objections to ugly new buildings, or traffic, or rapidly increasing density leading to a sense of overcrowding? Are these illegitimate concerns? I would not argue that, and housing policy is certainly one of those matters on which Catholics may freely argue and disagree.
I would instead frame this issue this way: At least in our country's higher-growth, most housing-deficient regions, it may be necessary to choose between the needs of people and our preferences for the built environment around us. We might have an image of what a "family-friendly neighborhood" looks like: detached houses with yards, for example. But a family-friendly neighborhood could instead be a neighborhood that the average family can afford, and it may look different than our ideal. It may be the case that putting the human person and the family first requires letting go of certain aesthetic preferences…
Del Mastro omits an additional reason why Catholics should oppose NIMBYism: the Church is - rightly - supportive of migrants fleeing poverty and oppression. But, in many places, exclusionary zoning is a major obstacle to building new housing needed to take in migrants and refugees (as well as native-born Americans seeking economic and educational opportunities). This is one of the major causes of New York City's current problems with asylum-seekers, for example.
I am not a Catholic, myself, or even a religious believer at all. But many of the points raised by Del Mastro are ones that can be shared by many secular people, as well. For example, I too believe "people are good," and that NIMBY esthetic considerations should yield to that imperative (though it is also the case that current homeowners in communities with restrictive zoning often have much to gain from reform).
In a related recentReason article, Christian Britschgi explains how zoning reform can help various religious groups survive and grow.
I have written previously about how zoning reform is a cross-ideological cause that cuts across conventional ideological and partisan lines. In this case, it might also cut across some of the divisions between the religious and the secular.
At the UnPopulist site, Cathy Young has a valuable analysis of Vladimir Putin's admirers on the political right in the US:
[W]hile opposition to aid to Ukraine doesn't necessarily entail support for Vladimir Putin…. Putin-friendly themes have been increasingly prominent on the right. At this point, pro-Putinism is no longer an undercurrent in right-wing rhetoric: it's on the surface.
But not all Putin-friendly conservatives are the same. For some, their hatred of the American left overrides any feelings they have about Putin. Others are more ideological: they oppose the Western liberal project itself. Untangling these different strains is key to explaining why so many on today's right embrace views that, until recently, would have gotten them branded Kremlin stooges by other conservatives….
[Tucker] Carlson reflects the dominant mode on the Trumpist right: if not actively pro-Putin, then at best anti-anti-Putin. The anti-anti-Putinists may concede that Putin is kinda bad, but only to insist that other things are far worse: Mexican drug cartels, progressive philanthropist George Soros, "the left," or America's "ruling class." Like the left-wing Soviet apologists of old, they make up faux political prisoners in America to suggest moral equivalency with the dictatorship in the Kremlin….
It's hardly news by now that many American right-wingers see Putin's Russia as the antithesis of Western "wokeness." This is especially true with regard to sexual and gender norms: I noted the beginnings of this trend in 2013, when several right-wing groups and conservative pundits praised a Russian law censoring "propaganda" of homosexuality. Discussing the phenomenon recently in the context of the GOP's anti-Ukraine turn, David French pointed to such examples as far-right strategist Steve Bannon's praise for Putin's "anti-woke" persona and Russia's conservative gender politics, or psychologist Jordan Peterson's suggestion that Russia's war in Ukraine was partly self-defense against the decadence of "the pathological West."
The idea of Russia as a bulwark of traditionalism and "anti-woke" resistance is an image the Putin regime deliberately cultivates—not only to appeal to its own population's biases but to win friends among conservatives in the West. And many are seduced into an affinity that goes well beyond anti-anti-Putinism…..
Yet distaste for post-1960s social and sexual liberalism doesn't entirely explain the right's Putin love. Some right-wing pro-Putin rhetoric indicates a far more radical rejection of liberalism, even in its more classical varieties (the liberalism of John Locke and John Stuart Mill….)….
[Christopher] Caldwell, who unabashedly hails Putin as "a hero to populist conservatives," just as unabashedly acknowledges that the "hero" has suppressed "peaceful demonstrations" and jailed and probably murdered political opponents. Yet he asserts that "if we were to use traditional measures for understanding leaders, which involve the defense of borders and national flourishing, Putin would count as the pre-eminent statesman of our time." Leaving aside dubious claims about Russia's "flourishing" under Putin, perhaps the most revealing thing about this defense is that it openly invokes standards which predate and reject modern, Enlightenment-based beliefs about liberty, self-government, and human rights.
Young rightly analogizes Putin's American right-wing fans to earlier left-wing Western admirers of the Soviet Union and other communist regimes. Both groups feel a strong enough affinity to a foreign dictatorship that they overlook or deny horrific atrocities, which in Putin's case include both large-scale domestic repression and horrific atrocities in Ukraine, comparable to those committed by Hamas against Israel, but on a much larger scale.
Interestingly, as Young notes, one of Putin's American right-wing fans even embraces the analogy with support for communism:
Caldwell praises Putin's refusal to accept "a subservient role in an American-run world system drawn up by foreign politicians and business leaders"—and offers a startling analogy:
"Populist conservatives see [Putin] the way progressives once saw Fidel Castro, as the one person who says he won't submit to the world that surrounds him. You didn't have to be a Communist to appreciate the way Castro, whatever his excesses, was carving out a space of autonomy for his country."
If Putin-friendly "populist conservatives" are the equivalent of Castro-friendly, Cold War-era progressives, that's quite a self-own—and a self-reveal.
I made related points about Putin's Western fans (including Europeans as well as Americans) in this video, part of Marshall University's series of podcasts about the Russia-Ukraine war:
If I have a disagreement with Young, it's that I give more emphasis to the nationalist element in Western right-wingers' affinity for Putin. I think that, for many, this is more significant than social conservatism and cultural grievances. US social conservatives who are not also highly nationalistic tend to be far less sympathetic to Putin, and some strongly support aiding Ukraine against him. Examples include former Vice President Mike Pence and GOP Senate Leader Mitch McConnell.
But these two sources of pro-Putin attitudes are often interconnected, and their relative importance varies from case to case.
Young also devotes part of her article to Tucker Carlson, one of the American right's most prominent cheerleaders for Putin. I discussed some of his fallacies regarding Russia here.
From Stanford Report (Chelcey Adami) on Jan. 25, 2024, reporting on a Stanford Faculty Senate meeting:
Multiple [faculty] senators asked for more details regarding when university leadership should speak on an issue, and Graduate School of Business Dean Jonathan Levin said issuing a statement with absolute moral clarity shortly after an incident does not reflect how the university wants its students to act.
"I think it models the wrong thing for our students, and it actually undermines our basic educational mission …," Levin said. "We want them to think slowly, to hear from different people, to weigh things carefully, and we should model that and have the focus after an event in the world to be around listening and learning."
Thanks to James Creigh and Steve McGuire for the pointer.
A Dallas man was sentenced today to 37 years in prison, with credit for time served in state custody, following his guilty plea to hate crime charges arising out of a fatal shooting at a car repair shop.
On Sept. 14, 2023, Anthony Paz Torres, 39, pleaded guilty to five federal hate crime counts for killing one individual and attempting to kill four others during a mass shooting at Omar's Wheels and Tires in Dallas on Dec. 24, 2015. Torres also pleaded guilty to one count of using a firearm to commit the murder….
According to court documents, Torres admitted that a few days prior to the shooting, he went to Omar's Wheels and Tires, made anti-Muslim comments, and pledged that he would come back. When he returned to the business on Dec. 24, 2015, Torres asked customers if they were Muslim. After being escorted back to his vehicle by Omar's Wheels and Tires employees, Torres discharged his firearm in the direction of multiple employees and customers. Torres admitted that he killed one person and attempted to kill four other people at Omar's Wheels and Tires because he believed that they were Muslim.
We live in an era of profound anxiety about the threat that lies, and false speech more generally, pose to American democracy. It's not hard to understand why. Lies saturate the political realm. George Santos lied his way into office. Donald J. Trump lied his way through his tenure as president and is gearing up to lie his way back into power. Meanwhile, blatant lies, hyperbolic rhetoric, and misleading claims about important issues of public controversy—critical race theory and its use in public elementary schools, the risk of COVID-19, the reliability of the 2020 election results—saturate many reaches of the mass and social media and motivate, or at least justify, all manner of both elite and popular political mobilization.
The obvious political potency of these kinds of lies raises many questions about what kind of society we live in, and about our political past and future. But it also raises deep questions for and about free speech law—perhaps the most fundamental being whether the First Amendment, as it is currently understood, enables or impedes the collective pursuit of something we might call "truth." I spent the 2021–2022 academic year at the Knight First Amendment Institute at Columbia University, exploring these questions through a series of roundtable discussions culminating in a major symposium in April 2022 on "Lies, Free Speech, and the Law."
A fundamental assumption of the modern First Amendment is that (as Justice Holmes put it in his famous dissenting opinion in Abrams v. United States) "the best test of truth is the power of the thought to get itself accepted in the competition of the market." But as contemporary experience makes quite clear, this assumption is not always true—or, at least, may not be true on a time horizon that prevents society from incurring significant costs—especially if we equate the market, as First Amendment law tends to do, with the hurly burly public marketplace of ideas. There are many reasons why an idea might win out over its competitors on the television screen, in the newspaper, or at the water cooler, other than because it accords better with empirical reality. It might reinforce its audience's assumptions about the world and therefore be easier to embrace than more disruptive alternatives. It might be promoted by an institution or person that is widely viewed as trustworthy. It might be repeated so frequently it becomes one of the taken-for-granted background assumptions of our lives. Or it might give its audience permission to do what they really want to do. The love of truth is not the only motivation that leads listeners to embrace or reject ideas. The result is that there is no reason to think that the fact that an idea wins in the public marketplace of ideas means it must be true, or is likelier to be true, than an idea that fails to win adherents.
And yet, First Amendment law makes it quite difficult (although, as I discuss below, not impossible) for the government to exclude from public discourse assertions about the world that are patently false—that do not, in other words, come anywhere close to satisfying the criteria that have traditionally been used to distinguish truth from falsity. This is not necessarily a doctrinal error, and it is not simply a consequence of courts' embrace of the arguably false Holmesian dictate from Abrams. It is also, and to a much greater extent, a consequence of judicial fears that, were the government granted the power to punish false speech, the dynamics of political competition and the vulnerability of government officials to the same cognitive biases that affect how you and I receive information would make that power susceptible to abuse, and thereby result in a public sphere even more saturated with untruths than the one we live in today. In the wake of the Trump presidency, these fears appear very well-justified. Certainly, the fact that one of President Trump's favorite means of deflecting attention away from his own lies and failures was by accusing his enemies of indulging in "fake news" suggests how powerful a political weapon false allegations of falsity can be. The result, nevertheless, is a body of law that, notwithstanding its frequent invocation of the importance of safeguarding the search for truth, often leaves "truth" vulnerable to the manipulation of media moguls, party bosses, and charismatic speakers.
“Large-capacity” magazines and semiautomatic rifles are “bearable arms” in common use, no different from the handguns in Heller, but will two en banc courts agree?
Once it decided N.Y. State Rifle & Pistol Ass'n v. Bruen (2022), the Supreme Court acted on several Second Amendment cases it had been holding, granting petitions for writs of certiorari, vacating the judgments, and remanding the cases for reconsideration in light of Bruen. One was a challenge to California's ban on magazines holding over ten rounds, and another was Maryland's "assault weapon" ban. With sparks aplenty flying, these cases were argued en banc on March 19 and 20 before the Ninth and Fourth Circuits respectively.
These cases should be decided in favor of a straightforward application of the constitutional test for addressing challenges to "arms ban" laws set forth in District of Columbia v. Heller.
Bruen simply made more explicit the "plain text first, and then historical analogue laws second" methodology adopted by Heller when it declared that the District of Columbia's handgun ban violated the Second Amendment. Applying that methodology, Heller held that arms that are in common use by Americans for lawful purposes cannot be banned.
First, as a matter of plain text, Heller held that the Second Amendment extends, "prima facie, to all instruments that constitute bearable arms." And Heller made clear that "arms" includes all "weapons." If the instruments in question are bearable arms, the burden shifts to the government to provide a sufficient number of representative historical analogue laws (not the musings of anti-gun historians) from our early history to demonstrate that the challenged arms ban falls within the country's tradition of firearms regulation. In fact, the American tradition of firearms regulation is really a history of no or very limited prohibition of arms.
Second, Heller looked at two historical traditions that spoke to the arms ban question. At the outset, the Heller Court acknowledged the history of Americans bringing their own privately-owned firearms and ammunition with them to militia musters. These protected weapons were "in common use at the time" for lawful purposes such as self-defense. The Court further found that the "in common use" test was "fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"
Accounts of modern free speech law typically begin in a moment of pragmatic optimism about the value of free speech in a flourishing democracy. In the usual story, which Laura Weinrib helpfully calls "the myth of the modern First Amendment," young progressives like Zechariah Chafee, Felix Frankfurter, Learned Hand, and Harold Laski draw on pragmatist philosophers like William James and Charles Pierce to persuade Justices Holmes and Brandeis of the U.S. Supreme Court that censorship was antithetical to democratic self-government. Holmes announced that the production of more speech served as the best test of truth. Brandeis, championed speech as a guarantor of democracy. Still others believed they had found in freedoms to speak a better way of managing dangerous radicalisms. Leading commentators ever since rest their accounts of the advent of free speech law on one or another variation of a new and hopeful conception of the function of speech in democracy.
Strangely, something like the opposite is more accurate. The distinctive feature of the moment in which modern free speech law arose was but grave new worries about the relationship between free communication and self-government. When Holmes and Brandeis first gave voice to free speech ideas in their famous dissents in the fall of 1919 and 1920, keen observers were coming to terms with a world of distortion and misinformation. Four long years of war propaganda had shown that speech by the powerful could dangerously destabilize public opinion in ostensibly democratic societies. The return to peace, too, had been accompanied by stunning displays of communications power. Storms of racist and nativist public opinion produced a wave of postwar racial pogroms. Employer propaganda smashed postwar strikes in the steel industry and elsewhere. A generation of public relations men left war propaganda efforts, entering new industries like marketing and advertising firmly convinced by their wartime work that information was supremely susceptible to manipulation and control.
At the beginning of modern free speech doctrine, close observers were coming to see speech as more than an indispensable foundation for democratic self-government, though it was that, too. Speech had also become—to adapt Justice Kagan's iconic phrase from a century later—a weapon for democracy's subversion.
The United States is far from the only country that has experienced serious housing shortages in recent years. Canada, Britain, and several continental European nations also have similar problems. But one country, New Zealand, has managed to significantly mitigate theirs through the simple expedient of cutting back on zoning regulations that previously severely restricted the construction of new housing.
This story should sound familiar to most Americans, and indeed to people across the world who face increasingly dire housing affordability crises in their countries and cities. Many will blame those housing shortages on zoning restrictions and exclusionary planning rules that prevent sufficient housing construction—in the US, most residential areas are designated exclusively for large, sprawling single-family homes, even within major cities,…. Theoretically, if rules were changed to allow taller and denser developments on desirable land—a process known as upzoning—housing production would increase and affordability would improve….
The mechanisms of reform, however, might be different here. New Zealand is a unitary state, not a federal one. Reform there was, in part, spurred by central government's ability to override local authorities, resulting in crucial national legislation. In addition, as Politano notes, Auckland, by itself, contains some one third of New Zealand's population, and a large fraction of the nation's most important real estate, for purposes of housing and job opportunities.
The US, obviously, is a federal system, with relevant authority spread out over many state and local governments. We also have many more jurisdictions where reform is necessary.
That said, we can give nation-wide impetus to reform by promoting stronger judicial review of exclusionary zoning. Josh Braver and I explain how and why this can be done in a forthcoming Texas Law Review article. In addition, state legislative reforms can help curtail local NIMBYism. The United States has stronger judicial review than New Zealand, and it can be used to root out exclusionary zoning, because such restrictions violate constitutional property rights.
Finally, as in New Zealand, YIMBY zoning reform can be a cross-ideological movement that cuts across conventional partisan and ideological divides. The collaboration between Braver (a progressive) and me (a libertarian) is just one small example of this dynamic.
The article is here; the Introduction and the Conclusion:
Sometimes lies are constitutionally punishable: Consider libel, false statements to government investigators, fraudulent charitable fundraising, and more. (I speak here of lies in the sense of knowing or reckless falsehoods, rather than honest mistakes.) But sometimes even deliberate lies are constitutionally protected. In New York Times v. Sullivan, the Court held that even deliberate lies (said with "actual malice") about the government are constitutionally protected. And in United States v. Alvarez, five of the justices agreed that lies "about philosophy, religion, history, the social sciences, the arts, and the like" are generally protected.
The Supreme Court hasn't explained where the line is drawn, and that leaves unclear where important areas of controversy—such as laws punishing lies in election campaigns—should fall. In this short article, I hope to offer an account that makes sense of the precedents and a framework for making future decisions….
The Court has never precisely explained when lies are constitutionally protected and when they are punishable. But the particular lines that it has drawn seem generally consistent with a comparative institutional approach to responding to lies. Government determination of which assertions are false and should therefore be punished is always perilous. When institutions—scholars, the government as speaker, the media, perhaps opposing election campaigns—are available to deal with such matters, there is a way to avoid the peril while still rebutting the lies. It's imperfect, but it's better than the alternative of government coercion; in such a situation, "the fitting remedy for" lies, as well as for "evil counsels," is rebuttal.
But in other situations, when the harm from lies is serious and alternative institutions for rebutting the lies aren't likely to exist, the government can indeed try to deter the lies by the threat of criminal prosecution or civil liability. That explains the constitutionality of properly limited libel law, and of the laws punishing fraud, perjury, and the like. And that can help decide where the lines can be drawn in the areas that remain unsettled.
Professor Sherry is an emerita professor at Vanderbilt Law School. Back in 1997, she and Professor Daniel Farber wrote a book, Beyond All Reason, critiquing Critical Race Theory. Perhaps their most controversial argument was that Critical Race Theory, in denying that there was such a thing as objective merit, and attributing all group differences to racism, was implicitly antisemitic in its inability to explain American Jewish success without resorting to antisemitic conspiracy theory.
Last October, progressive Jews were shocked by the raw antisemitism displayed by their erstwhile allies on the political left. After Hamas terrorists tortured, raped, or murdered more than 1200 Israeli civilians and took some 200 civilians hostage, some progressives – especially on college campuses – celebrated. They chanted the Palestinian mantra "from the river to the sea," seeking to erase Israel (and Jews) from the face of the earth. The number of antisemitic incidents on campus soared, coming from both students and faculty. A Stanford lecturer forced Jewish students to the back of the classroom and labeled them "colonizers." Jewish students had to barricade themselves inside a library at Cooper Union, and Jewish students at MIT were told by faculty to avoid the university's main lobby for their own safety. Many university presidents who had previously sent out campus-wide emails condemning the murder of George Floyd, the Russian invasion of Ukraine, the overruling of Roe v. Wade, and countless other world events suddenly discovered the Kalven Principles and claimed it would be inappropriate for them to take sides, or issued weak statements about how the situation in the Middle East was complicated. This double standard continued as some universities responded to student calls for genocide of Jews by invoking principles of free speech, principles that had been notably ignored when the speech in question was directed at other groups. Most campus DEI (diversity, equity, and inclusion) offices, especially at the most elite universities, had nothing to say about the surging antisemitism.
This essay explains why no one should have been shocked, or even mildly surprised, by the progressive response to the massacre. Progressive or "woke" culture –as exemplified by critical race theory, anti-racism of the Ibram X. Kendi variety, and, especially on college campuses, the DEI juggernaut – is necessarily and inevitably antisemitic at its core. That these related movements have now exposed their antisemitism publicly is no surprise: antisemitism is bred in their bones.
Yesterday, I wrote that the Judicial Conference's policy is dead-dead. Placing the final nail in the coffin was a cohort of progressive groups who wrote to Senator Dick Durbin, chair of the Senate Judiciary Committee.
The letter accuses the Judicial Conference of backing down from their initial proposal to mandate the policy across the districts:
We are deeply concerned that, after announcing efforts to combat this practice, the Judicial Conference appears to have watered down its commitment to addressing judge shopping in response to attacks from Republican senators and their allies in their right-wing legal movement. . . Troublingly, the Judicial Conference appeared to bow down to this opposition just three days later by stressing it was merely providing optional guidance that courts could do with as they will.
I'm pretty sure that I am one of those allies in the "right-wing legal movement."
The letter also tries to point to Chief Justice Roberts and Judge Sutton as proof this is a bipartisan issue:
Despite the fact that the Judicial Conference is led by a Republican-appointed Chief Justice of the United States and the policy was announced by a Republican-appointed Court of Appeals Judge – underscoring that judge shopping is not a partisan issue …
Here is what I still do not know. Was it the case that Judge Sutton accurately described the policy to the press as mandatory, and the Judicial Conference backed off? Or did did Judge Sutton inaccurately describe the policy, and subsequent guidance was issued to clarify the matter?
I am very skeptical the latter option is the right one. Judge Sutton is a careful lawyer, above all else, and I have difficulty imagine he would misunderstand a policy, or worse, mislead the press.
The former option seems more likely to me. He accurately described the policy on Monday, but the policy was later revised. (One reporter I spoke with recorded Judge Sutton's press call, but I have not obtained a copy, yet.)
If it is the former option, then in fact the Conference caved to political pressure from the right--in much the same way that the initial policy itself was a cave to political pressure from the left. This option does not speak well of these judges. Either this policy was indubitably correct, in which case the Judges should have stood behind it. Or the policy was a mistake from the get go, in which case it should have never been put forward, let alone without any discussion. Now, for better or worse, the Judicial Conference has shown itself to be pliable by the political currents. It would have been much better if the conference stayed out of this thicket from the outset.
If the Senate Judiciary Committee tries to conduct oversight from the left on single-judge divisions, then the House Judiciary Committee may conduct oversight from the right on the process by which this policy was adopted. I don't think anything good will come from such proceedings.
