A Modest Proposal to Reduce Partisan Hackery During the Supreme Court Nominations Process

The job of a Supreme Court Justice is replete with contradictions.  The Court is accountable to the people, and the Senate uses its “advice and consent” power to approve nominees.  However, the Court must be independent of the people, rendering judgment based on its interpretation of the law, instead of serving a political master or agenda.  The Court must generally defer to the democracy, allowing elected legislators to dictate policy.  But the Court must unflinchingly champion our constitutional rights, upending democratic will based on vague constitutional amendments that are subject to multiple interpretations.

The difficulty of navigating these contradictions, which focus solely on the abstract roles a Justice must play, is compounded by the task of deciding the substance of specific cases, which are complex, multi-faceted, and often technical.  We need experts on the Court – experts at reconciling competing principles, experts at developing a sound, consistent judicial philosophy that can apply timeless constitutional rights to a changing society, and experts at understanding legal texts, structures, and systems.

The process of approving a Supreme Court Justice should therefore be targeted to finding these sorts of legal experts, with sound judgment and impeccable analytical skills.  We need Justices who understand that their decisions have human consequences, but who do not overly impose their own political sensibilities onto these consequences.  Instead, the Senate confirmation hearings appear, based on the grandstanding of Senators on both sides of the aisle, to be a way of pandering to the basest instincts of the very people from whom the judiciary is designed to be independent.

To some extent, the political pandering of the confirmation hearings is due to the fact the Court has appropriated a great deal of power, interpreting the Constitution to include provisions far beyond the text.  To some extent, our intractable partisan hackery problem is due to increased attention to the Supreme Court by citizens who either misunderstand or willfully ignore the role of the Court.  Neither Democrats nor Republicans at this point want to unilaterally appoint a Justice whose jurisprudence does not well align with the general sentiment of their base.  I propose a modest solution that could change the tenor of both the Senate confirmation hearings and the public’s thinking about the role of the Court.

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Populist Political Rhetoric, Out-Group Generalizations, and the Need for Greater Instruction on Critical Thinking

After years of thinking about how best to teach law students to engage with legal concepts, I have a hypothesis that I would like to subject to analytical scrutiny.  That hypothesis is this:  One reason our political and cultural discourse is in such an angry, fractured state is because people are not being taught to think properly.  Absorbing, assimilating, and evaluating information is a skill that can (and must) be taught.  I will provide examples of our broken reasoning skills using two galvanizing populist figures.

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The Lies We Tell (Including the President)

No matter your political affiliation, I recommend you watch CNN’s Chris Cuomo practically beg Presidential Adviser Kellyanne Conway to admit that President Trump lied about not knowing when Michael Cohen was paying Karen McDougal and Stormy Daniels to keep secret the affairs between Trump and the two women.  “The truth matters,” Cuomo implores.  President Trump’s lying about this issue, despite the fact that his former attorney Michael Cohen has an audio tape proving that the President is lying, erodes public trust in the integrity of our democracy and in the nature of truth itself.  Instead, Conway reiterates that the President said he is not lying, as if we should simply defer to the President’s word even when it is demonstrably false.  This “because the President said so” logic further undermines the strength of our democracy.  Perhaps worse, this logic undermines the elevation of truth as, in my view, the most important ideal of a functioning democracy and society.

Conway’s evasion and outright duplicity reminded me of others who unabashedly and directly lie, like Lance Armstrong, who repeatedly told the public that he did not take banned performance enhancing drugs but later confessed.  Romantic partners can lie, about everything from whether they took out the garbage to whether or not they are intimate with other people.  In order to allow for a clearer vision about how to talk about lying, below is a graph and a typology of the kinds of lies we tell, followed by an explanation of why I have categorized the lies as I have.

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What I Loved Most About Law School

There’s a lot of useful advice going around about how to succeed in law school, how to take advantage of its myriad opportunities, and how to set yourself up for a happy and productive career.  I have written about how to create a good law school outline, and how to read critically by using deductive reasoning.   What is most enjoyable to relate, however, is why law school was the most enjoyable educational experience of my life.  I loved law school so much.  Every year I force myself to revisit the extraordinary experience of law school in order to better understand my students.  What follows are some of the reasons law school was such an educational treat.

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Evaluating and Treating the “Campus Free Speech Problem”

A few weeks ago, Vox ran an article arguing, based mostly on a preliminary study by Georgetown University’s Free Speech Project, that the campus free speech crisis is overblown.  The article, like many popular media pieces describing academic research, is a bit misleading and overstates the conclusions of the studies it cites.  The article also downplays the scope of the campus free speech problem, even given the data.  But the article does require those of us who care about free speech values to reflect on the true nature of the “campus free speech problem.”  I think its true nature lies in chilling self-censorship, partially caused by the extent to which schools lack meaningful intellectual diversity and cultivate an atmosphere where social justice exists in tension with genuine academic pursuits.

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Which 1L Class Are You?

Have you ever wanted to know which first-year law school class epitomizes your personality?  (I bet you do now.)  Take this quiz and find out.

  1. Your favorite genre of television series is:
    1. Gritty crime series
    2. Reality TV
    3. Businessperson intrigue shows
    4. Feel-good human dramas
    5. Quiz game shows
    6. Westerns
  1. Your favorite subject in school growing up was:
    1. Philosophy
    2. English literature
    3. Math
    4. History
    5. Foreign languages
    6. Biology
  1. For fun, you like to:
    1. Write dark poetry about justice
    2. Play pranks on friends
    3. Negotiate at flea markets
    4. Debate unanswerable questions
    5. Play strategy games
    6. Browse real estate rentals
  1. Which of the following sounds like the most interesting topic to discuss:
    1. Does free will exist?
    2. How much would someone have to pay you to cut off a finger?
    3. Should we legalize the sale of organs like kidneys?
    4. Should language evolve to incorporate incorrect uses of words?
    5. Does every hero need a villain? Does that make the Joker less evil?
    6. What does it mean to own something?
  1. Which line from a song most resonates with you?
    1. I fought the law, and, the law won.
    2. I didn’t mean to hurt you…I’m sorry that I made you cry.
    3. If you can make a promise, if it’s one that you can keep, I vow to come for you, if you will wait for me.
    4. Bring me a higher love. Where’s that higher love I keep thinking of?
    5. I am not throwing away my shot. I’m just like my country; I’m young, scrappy and hungry, and I’m not throwing away my shot.
    6. Ah, home, let me go home. Home is wherever I’m with you.
  1. One of your weirdest qualities is:
    1. Obsession with serial killers.
    2. Laughing at inappropriate times.
    3. Loving to make charts and graphs, or quantify everything.
    4. Perennially indecisive.
    5. Fascination with very specific details.
    6. You love obscure terms that have almost no relevant usage today.
  2. How do you make a peanut butter and jelly sandwich?
    1. Depends where I am.
    2. However is most efficient and fair.
    3. According to the specs I decided beforehand.
    4. However I want!
    5. The optimal way to get me motivated for the day.
    6. The way my family has done for generations.

 

Results are below the jump.

  Continue reading “Which 1L Class Are You?”

“Good Orthodoxy” and the Legacy of Barnette (draft), Posted on SSRN.

The latest draft of my Essay, “Good Orthodoxy” and the Legacy of Barnette, is posted on SSNR.  Here is the abstract.

This Essay applies the much-revered case of West Virginia Board of Education v. Barnette, which held that public school students may not be forced to stand and salute the American flag, to what I call the “good orthodoxy” context.  In so doing, I hope to build a bridge between partisans on issues of free speech.

In good orthodoxy cases, the individual claiming a right against compelled speech seeks to overturn a law or policy that was designed to remedy the harms committed against or to otherwise benefit historically marginalized groups.  These good orthodoxy cases are both similar to and different from Barnette, where the Supreme Court held that the state cannot compel “unanimity of opinion” in support of patriotism or nationalism.  Using examples such as public accommodations laws that compel production of expressive goods, union dues for public sector unions, and diversity statements at public law schools, I will demonstrate how new groups of dissenters are created in response to policies designed to protect historically marginalized or disadvantaged groups — instead of laws designed to compel respect for authority.

Because of the differences between Barnette and the good orthodoxy cases, I argue that courts should be cautious before holding that the modern cases implicate pure speech, as opposed to expressive conduct or unprotected conduct.  However, when pure speech is implicated, these laws or policies should be generally overturned as failing to satisfy strict scrutiny.  Specifically, dignitary interests designed to protect individuals’ sense of acceptance in the community should generally not be considered sufficient to compel unanimity of opinion, and indeed, dignitary interests often indicate that what is being imposed is conformity to particular values.

Here is the link.

The Truth, Lies, and Extremes of Sacha Baron Cohen’s Stunning “Who is America?”

Sacha Baron Cohen’s new show, “Who is America?” has been almost enough to shake me from my devout political moderatism.  As someone already worried that society’s critical thinking skills are dwindling, I was still shocked by the illogic of the politicians interviewed, especially those on the political right.  As someone who believes that we are not forthright and measured enough when championing certain political causes, I was still stunned by the deception, displayed by both those interviewed and Cohen himself.  The combined effect was almost enough to allow me to embrace the very thing the show ultimately condemns — angry, hateful extremism and the stereotyping of others.

After watching four episodes, I cannot endorse all of Cohen’s tactics, but I am glad someone out there (but only one person) is successfully using them.  Some of the tactics likely do not expose real truths that outweigh the exploitative nature of lying to interview subjects, but instead reveal an all-too-human deference to authority.  Other tactics of Cohen’s seem to expose something true, and truly grotesque.  In this blog, I explain the differences between several of Cohen’s tactics, and how these differences affect my conclusions about the show.  Also, do watch the show for yourself, and let’s have a conversation about it (or, if nothing else, watch this rap battle).  This blog contains some spoilers.

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3D Printable Guns as Free Speech?

Yesterday, a federal judge in Seattle issued a temporary restraining order preventing Defense Distributed, an organization championing open source code to make guns available to the public, from publishing its blueprints for printing plastic, working 3D guns.  Defense Distributed had posted the code several days earlier, prior to its stated August 1 release, but the code was removed immediately following the restraining order’s issue.  The temporary restraining order was issued after eight states and the District of Columbia sued the State Department for reversing course and settling with Defense Distributed after prohibiting the distribution of the Computer Aided Design files as a violation of gun export laws.

In an initial lawsuit, the federal government wished to block Defense Distributed from posting its open source code.  The State Department had opposed a temporary restraining order sought by Defense Distributed against enforcement of gun export laws.  A federal district court and the Fifth Circuit agreed and refused to issue Defense Distributed the restraining order, thereby temporarily blocking the posting of code by Defense Distributed until a resolution at trial.  However, in what several states and D.C. deem a violation of the Administrative Procedure Act and the Tenth Amendment, the federal government recently settled and permitted the posting of Computer Aided Design files.

Leaving aside the questions of whether the government’s reversal of position unconstitutionally infringes upon state police powers or is arbitrary and capricious or ultra vires, Defense Distributed’s underlying First Amendment claim exposes some uncomfortable and conflicting truths about the First Amendment.  Speech can lead to harm but is not itself physically harmful.  This very attenuation between speech and harm is what gives speech its special protection.  Arguments that speech leads to harm (such as in cases of violent song lyrics or incendiary political views) are generally rejected by courts hearing First Amendment challenges.  If speech can be regulated because it ultimately causes harm, very little speech would be protected.  However, if the government has a compelling interest in regulating speech and a law is narrowly tailored to serve that interest, courts will (rarely) allow a government regulation of speech in order to prevent harm.  This mixture of necessarily principled protection of even harmful speech with harms balancing in extreme cases makes this particular scenario, involving open source gun code, a hard, unpredictable, and important test case.

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How to Talk About Immigration, Hate Crimes, and #MeToo, or Being a Moderate Academic Among Political Extremists

Moderates are vilified, even in mainstream political discussions, for contributing to any number of social ills, simply by touting principles such as open-mindedness and civil discourse.  Too many see important issues as involving only one side.  They take the unhelpful (and logically fallacious) view that unless you’re fully supporting a cause, you are undermining the cause.  Just this week, my signing up for an email list that advocates for immigrants’ rights directed me to a fundraiser denouncing moderates for their willingness to “listen to both sides.”  Two other links sent to me by friends this week – one on the hate crime charges against the man who yelled at a woman for wearing a T-shirt depicting the Puerto Rican flag, and one on the accusations against author Junot Diaz – are good opportunities to reflect on how ever-vanishing moderates can help save our political discourse and culture.

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