PrawfsBlawg

The Truth is a National, ie. Personal, Security Threat; or, King Henry With Fewer Wives

The Trump regime paused briefly from its efforts to immiserate the American people wholesale and decided to go retail for a bit, returning to one of Donald Trump's chief regime policies: revenge. Several executive actions today are of particular note. One is an executive order and the others are memoranda to the heads of departments and agencies--although all of them are, in effect, part of the Trumpian taste for executive orders of attainder. 

One involves an executive order against the law firm Susman Godfrey. It's what we have come to know as standard-issue regime pettiness, although surely not petty to the law firm or to lawyers and decent citizens. Susman Godfrey's chief sin, first on the list in the executive order? The regime's lawyers--one imagines a couple still work there--put it in fancier language, but not so fancy as to obscure it. Susman Godfrey represented Dominion Voting Systems, which sued Fox News for defamation and received a settlement moments before trial, perhaps because Fox News in fact defamed Dominion Voting Systems. It is not clear in itself how much Trump's anger has to do with the crime of suing-the-media-while-not-being-Donald-Trump and how much it has to do with Dominion having had the temerity to interfere with the lie that the 2020 election was stolen.   

Two other orders are similarly grudge-driven. One is aimed at Miles Taylor, who Trump accuses of "disclosing sensitive information"--although not this sensitive information, which is fine. (Remember: "For my friends, everything. For my enemies, the law.") While I am normally and rightly queasy about a White House going after leakers, I certainly do not think doing so is per se illegitimate. Calling Taylor a traitor and ordering our cosplaying fool of a Homeland Security secretary to investigate him, however, is another matter. (Kristi Noem's recent social-media pictures put me in mind of other, similar photographs.) Of course Trump's interest is not in national security, but in getting even. 

Finally, and right in between the two, is his memo targeting Chris Krebs, who had the misfortune to take his oath and his office seriously while serving as director of the Cybersecurity and Infrastructure Security Agency during Trump's first term. As with Susman and Dominion Voting Systems, Krebs's greatest crime was insisting on the truth--or, as the presidential memorandum puts it, he "falsely and baselessly denied that the 2020 election was rigged and stolen." Perhaps that answers the question: Susman Godfrey's crime was not suing Fox, but doing so on the basis that claims of a rigged election were false. 

The election, of course, was not stolen. I find something especially offensive to anything like common decency, a stench in the nostrils, to see an official memorandum targeting an individual who did his duty and basing that vendetta on a blatantly false proposition, one that in the mind of this president and his lieutenants occupies the status of the propositions in the Oath of Succession in 1534. As the quote goes, "If [the Earth] is flat, will the King's command make it round? And if it is round, will the King's command flatten it?" No. But it can, in an administration run by a "King" whose councillors make us weep with longing for the intelligence and relative moral restraint of a mere Cromwell, lead to a presidential order charging Noem and the Attorney General to investigate Krebs and provide "recommendations for appropriate remedial or preventative actions." Or, as the quote goes, "My dear Norfolk....This isn't Spain."

I find "lawfare" a fatuous term, no matter which political side is using it. Still, insofar as it hangs like a moral millstone around the neck of its boss, sinking him ever deeper into the muck, I think we can all agree: "Lawfare continues to hobble the Trump administration." 

Why Should You Even Have to Ask?

The following points are blindingly obvious, but I felt compelled to make them just the same.

The first and far less important one is that it seems perfectly cogent and morally acceptable to ask the question, “Can a federal court force the president to negotiate with a foreign leader to obtain return of an alien?” Or, to put it more fully, “Can a federal court order the president to ask a foreign leader to return an alien it has concededly removed in error?” It’s a perfectly legitimate legal question raising issues of judicial power and separation of powers. I suppose the only reason the point needs to be made is that the moral overhang is so powerful that one might be accused of a kind of fatal moral desiccation for even asking such a question, in the same way that one might be astonished by someone asking whether the American soldiers who liberated Buchenwald maintained proper unit discipline. Of course such an inquiry would miss the main point, and of course such an inquiry might well be made for morally desiccated, bad-faith, or even monstrous reasons. But the question is not illegitimate as such. It could be asked for purely academic reasons—to write a history, for example. It could even have some forward-looking value. Buchenwald was not the first or the last prison camp, and—provided, at least, that the United States prefers to liberate such places rather than to build them or lease space in them—it might be nice for planning purposes to know such things.   

The second is, again, obvious: It seems bizarre to ask the question above without asking, “Why on earth would it have to?” If the United States reaches an agreement with a dictatorial populist thug and part-time internet troll—hard to imagine us being well-positioned to do this, I know, but bear with me—and offers to pay several million dollars, plus (one imagines) other benefits such as improved relations, to rent space in that leader’s human-rights-violating maximum-security prison, and then by its own admission sends someone there in error, why on earth would a court have to ask it to make some effort to seek the return of that individual? (To say nothing of the unknown number of others it has also sent there in error but hasn’t gotten around to admitting to.) How, unless perchance there were a particularly important golf tournament, would it even have time to before finding out that the question had been mooted by the government’s own mitigating efforts?

One can understand that whether a court can order a president to engage in what our regime pretends, in high-flown language, is “sensitive foreign negotiations” is a genuine question. But when the United States realizes it has sent someone to a foreign prison camp-cum-American-storage-space-rental in violation of a court order, and knows that the sensitive negotiations consist of some lackey picking up a phone and exercising the same leverage he used the first time around, or at least trying and failing, the obvious prior question is: How does it not even try?

I suppose one could view this as a matter of “breaking norms.” But I prefer to think of the norm of attempting to correct your own mistakes without having to be asked as more of a fundamental question of morality and of honor. And not one that exists entirely outside of or irrelevantly to the Constitution. One reason courts are not faced with fixing every mistake made by executive actors is that executive actors often, as honorable officials will, attempt to clean up their own messes. The core values that lead them to see themselves as honor-bound in such circumstances to attempt to correct the mistake are the same ones that permit them to take oaths of office, to give some content to them, and to live up to them. To be willfully indifferent to the first is to be unworthy of and presumptively incapable of carrying out the second.

Of course it is often harder to undo a mistake than to make it in the first place, easier to destroy than to build--or to remedy. I take it that is one reason for things like due process, the separation of powers, and a system that requires law to be made by large legislative bodies rather than by one short-fingered individual. You can’t guarantee the return of a prisoner from a foreign prison camp, any more than you can resurrect ten trillion annihilated dollars. (I believe the current word for that kind of thing is “oopsie.”) That it doesn’t occur to an executive branch to try—or, worse, that it does occur to it—is, it seems to me, the more pressing question. Very pressing.

As I said, these are obvious points, so forgive me. Whatever the result in this case, all these things are obvious to the courts too. I’m more concerned at present with the enormity of the conduct. But I’ll note, also obviously, that this is one more occasion on which the Trump regime has said to the judicial branch, as loudly as possible, that its actions and justifications should be viewed with skepticism and with no presumption of good faith, legitimate motives, or the capacity for lawful, honest, or decent conduct. No one can reasonably expect judges, like other human beings, not to recognize and, implicitly or explicitly, respond to the extent to which the current executive branch—and, perhaps, its apologists—have become legally, mentally, and/or morally deranged.     

Behind Every Terrible Artist is a Foolish Patron, Tariffs Edition

It has been difficult this week, for those who are interested in at least attempting to get the contrary arguments on seemingly obvious points, to find any expert defenses of the Trump tariffs on economic policy grounds. This is unsurprising, since the economic policy is terrible and the experts agree that it's terrible. If you absolutely insist on finding "economists" who are willing to serve as apologists for Trump's single-person taxation frenzy, your options are highly limited. But you could consult Oren Cass and his team at American Compass. 

Out of curiosity about how it might come by its expertise in the area, I visited its website. The group, which describes its mission as "developing the conservative economic agenda," has a small team of "economists"--actually, "chief economist" Cass is the only one with "economist" in his job title, so I guess it's "chief" in the same way that I’m the chief law professor in my family--plus "policy directors," "policy advisors," and the usual add-ons. It is so fiercely devoted to its "economic agenda" mission that, on a team of twelve, it can boast a remarkable total of zero economics doctorates, zero master's degrees in economics, an MBA, and around two-ish undergraduate degrees in economics. That is...a surprising number, for a group which describes its own mission as developing an "economic agenda." I can understand an argument that economics isn't everything, which is basically the "a peat-burning barter economy is next to godliness" position that Trump's apologists are forced or even eager to take (albeit from comfortable perches and with a stock of claret laid in). But you'd think a group devoted to developing an economic agenda would occasionally hire a trained economist just by accident. (Even Cass, incidentally, had criticisms of the manner in which Trump has indulged his tariff obsession.)   

For well north of $2 million in grant money to support the team at American Compass over the last five years, including a $950,000 grant in May 2024, we may thank...the Hewlett Foundation, led until recently by former law school dean Larry Kramer--which, as Troy McClure would say, you may know from grants such as its ongoing seigneurial largesse to the Law & Political Economy Project. Yay team. 

One for (and by) Ethan: Of Good Faith and "I Love Beating George Washington"

At Jotwell today, I am very pleased to spotlight a recent paper by our own Ethan Leib. The paper, a book chapter, offers an introduction to the subject of "Good Faith in U.S. Constitutional Law." It is, I suggest, both very helpful and an instance of "exquisite lousy timing." The role of virtue, character, a "proper sense of honor," and fiduciary responsibility in making constitutionalism possible--and in making rights and the rule of law something more than a bunch of fancy paper obscuring the entrance to a sewer--is always worth examining, in any administration. It is especially urgent now. But it is also, perhaps, already too late, given that this regime, despite the volubility of some of its intelligentsia on the subject of virtue, not only has none but appears positively to reject the notion that someone who holds an office should seek to act in a way that is at all worthy of it. Some snippets:

Every era gets the constitutional scholarship it needs—after the fact....Given his recrudescence, to go for le mot juste, the study of the—bear with me—constitutional jurisprudence of Donald Trump presents an interesting case. What was too late the first time—a consideration of what American constitutional requires by way of character in its office-holders—might now become newly relevant. Or it might be too late once more: not only practically ineffectual, but also a pathetic plea for behavior that the wider culture now treats with a mixture of indifference and contempt. Nevertheless, there is new cause for this work. In his short but sweet contribution Good Faith in U.S. Constitutional Law, Ethan J. Leib presents a useful summation of one strain of this character-based constitutionalism: officials’ duty to act in good faith. Its conjunction with an administration in which good character is as plentiful as rainfall in the Atacama Desert is, we might say, an act of exquisite lousy timing....

[Leib's chapter] summarize[s] the ways in which good faith is “central to constitutional law, even as the apex Court seems only ambivalently committed to its ability to be useful in deciding cases.” As Leib notes, its centrality begins with the text itself. Just as marriage begins with public vows, so both Article VI and Article II of the Constitution mark the entry from private status to public office with a promise before witnesses: a binding oath to “support this Constitution.” The president is further bound to “faithfully execute” the office of president and the laws of the United States. Other portions of the text, such as the Emoluments Clause, forbid the kind of self-dealing that is an affront to fiduciary duty.

Here and elsewhere, the Constitution relies on the oath-taker’s understanding that any power he exercises stems from the proper execution of the office, not the unfettered will of the individual who occupies it. (“What are the highest places,” as a judge once put it, “but obligations of the greatest dewties?”) At the same time, by swearing, the oath-taker openly acknowledges that his private character and reputation have been fully yoked to his performance of his public duties. Or, as Robert Bolt’s Thomas More puts it, “When a man takes an oath, he’s holding his own self in his own hands like water; and if he opens his fingers then, he needn’t hope to find himself again.” Knowing that men are no angels, the Constitution’s crafters nonetheless envisioned officers who treated one’s conduct in office as a commitment of one’s honor—indeed, of one’s soul....

For Leib, the fact that courts are reluctant to inquire into officials’ good faith is understandable, given concerns about institutional competence; it’s simply another example of the ways in which courts’ “decision rules” often apply more clearly but also more narrowly than the underlying “conduct rules.”...Leib concludes that good faith remains a central conduct rule for officials—one of “the very foundations of constitutional government in the United States”—even if the judicial treatment of that rule involves “careful calibration.”

...[The timing of the chapter] both supports its arguments and raises questions about them, or about their efficacy. Leib’s summation of fiduciary constitutionalism... could not be more relevant right now. The current regime has pushed a more thorough-going unitary, centralized approach to the presidency than anyone in modern history, and joined those actions with a reckless rate of change and a slippery view of law and legal duty.

Under those circumstances, even a neutral or supportive observer of this president should be interested in the public duties, virtues, and commitments that are, as a matter of constitutional obligation, supposed to channel and restrain his actions. That person should be equally interested in how the oath, and other fiduciary aspects of office, are supposed to direct subordinates—from Elon Musk and Russell Vought all the way down to a lowly peon, like a Cabinet secretary—in the performance of their duties. One needn’t like or dislike the man or his policies to acknowledge that Trump’s approach to presidential administration demands attention to these questions, and to how they ultimately cash out in the courts.

Of course, one might be less supportive, one’s sense of reality not so purblind. One might see the administration for what it is. “What it is” isn’t incipient fascism, most likely. (Although this administration has shown an unmistakable eagerness to hire, hang out with, and champion fascists, along with Jew-haters, rapists, Blut-und-Boden freaks, and other thugs—and that’s just counting the Trumpian intelligentsia.) But this is certainly a personalist, patrimonialist, authoritarian administration, staffed mostly by the craven and the roguish—and all of it in the service, not of party or ideology, but of the whims, fads, resentments, corruption, and appetites of a walking id. The title of this jot is a quote from Trump himself, as he was delighting, Commodus-like, in Bill O’Reilly’s flattering lie that Trump is the greatest president in American history. In reality, Trump and his administration resemble Washington’s less than they do a semi-organized criminal enterprise, albeit with two key differences: In a well-run mob, the capos are able men who have guts, and the don is capable of occasional dignity, foresight, and good taste. (Historically speaking, the Mob was also much tougher on Russia.)

Leib’s introduction to fiduciary constitutionalism is especially valuable against this real-world backdrop. If nothing else, it provides the measure against which the current regime’s dizzying plunge away from honor and the rule of law can be evaluated. But Leib’s treatment does two things more. On the “conduct rules” side, it encourages us to think about the degree to which constitutionalism generally, and our Constitution specifically, not only assume but demand basic qualities of character and virtue. For all the usual talk of structures, incentives, guardrails, and the like, without those personal qualities all else is mere parchment barrier. The Constitution does not prevent officials from departing from the ordinary politics, policies, and practices we are accustomed to. But it does require something more than ordinary men and women—not only at the top, but also within positions of responsibility throughout the executive branch.

On the “decision rules” side, reading Leib’s piece in the current moment encourages us to think more about the courts’ increasing reluctance to think in terms of character, duty, or motive itself. The reasons for this reluctance are varied, and Leib does a good job of spelling them out in this context. But one wonders whether the courts’ “irregular support for motivational inquiries,” which Leib describes as stemming from nervousness about courts’ competence to judge such matters, does not also reflect those judges’ confident assumptions that the executive branch’s officials possess basic qualities of character and virtue.

Those assumptions rely in substantial part on the ordinary processes and customs that are in place and have been followed by both Republican and Democratic administrations. If those assumptions become plainly unwarranted, perhaps the courts need to adjust their approach to compensate. When the Court in Trump v. Hawaii refused to follow the tweets, it did so in the belief that rounds of litigation had forced the administration into something like a more normal process of interagency consultation, with concomitant amendments to the travel ban. There was some reason in this. What, then, should the justices do when it is clear that this round of the administration just is its tweets—that to strip it of its vulgarity and “hyperbole” is to miss the point entirely—and that the grown-ups who might conduct ordinary business with more than one eye on the law have been banished? The Supreme Court’s approach through the first Trump term was to nudge the administration back within the guardrails of ordinary process, while premising its grants of power on assumptions about the ordinary good faith of those who fill any given executive branch. The Justices are not morons. They know that those assumptions no longer hold. One would not be surprised to see the Court, at the point at which the “acoustic separation” becomes too vast, turn back to a more frequent and explicit use of motive inquiry. It certainly ought to.

We might finally ask whether these questions come too late. If it is, it will not be because of the extraordinary nature of this regime and its Dear Leader alone. It will also have much to do with the degree to which our very culture, both elite and popular, has simply dispensed with the very idea of character and virtue as central and necessary elements of individual and official conduct. The blame could be heaped on social media—and, indeed, one of the most striking aspects of the Trump regime is not that it lives on social media, but that it seeks to make the lies and vulgarity of social media normative offline as well as online: it sees politics as the continuation of Twitter by other means. The problem might be traced further back, to a hollowness at the heart of individualistic, thin versions of liberalism or neo-liberalism. And it might have to do with the extent to which those who reject liberalism, for the purported reason that it does not sufficiently foreground basic requirements of virtue, have instead filled the post-liberal space with paganism, hedonism, grifting, and der Wille zur Macht. Whatever the case, it may simply be that good-faith constitutionalism requires a vocabulary that we as a culture no longer possess. As I said: exquisite lousy timing.

Enjoy the jot--and read Ethan's chapter! I note that while some scholars who had written about this or similar concepts in public law seemed lamentably to observe something of a caesura on the topic from 2021 to 2025--something I hope they will remedy now by picking it up again, not neglecting questions about the last couple of years of the Biden presidency if and as better evidence becomes available--Ethan has maintained a steady interest come rain or deluge.   

 

"I Used to Go With the Wrench"

Mark Tushnet has a nice explanation for why he signed the Harvard Law professors' letter. I think there is an important gap in his account. It explains why he might feel a professional, vocational duty to speak out, but not why he would sign a group letter as opposed to engaging in some other form of communication. Perhaps Will Baude's measured, reasonable post on the Divided Argument blog fills that gap a little, although that depends on Mark's own views. (Divided Argument, which now includes some of the finest former Volokh Conspiracy bloggers, requires immediate bookmarking. I don't know their reasons for moving over there and quite agree with those reasons.)

I remain generally lukewarm about such letters, both because I believe their politics are often counter-effective and because I dislike signing on to other people's language. Nor do I see much point in a national push for such letters. (It doesn't much matter, to be sure, since I am locked into a half-convenient, half-humbling cycle, in which I rarely sign such letters and am rarely asked to.) But I do think the closing passage of Mark's post is entirely right:

Rattling around in my head was something from my experience during the Vietnam War era. I won’t go into all the details, but participating in antiwar protests I learned of a poem by James Russell Lowell, written in 1847 to protest the Mexican-American War and then converted into a hymn, whose opening lines are, “Once to every man and nation comes the moment to decide/In the strife of Truth with Falsehood, for the good or evil side.” You live long enough, and it happens more than once, unfortunately.

Of course opinions will vary about when this language applies. I think political parties, at least, invoke variants of this sort of language all too often. (Romney?!?) Rightly or wrongly, I would not have found it as applicable during the first Trump term, despite my dislike for his policies and rhetoric in those years and despite some clear descents in that time into corrupt personalist rule. (See, e.g., Ukraine, Phone call to.) The difference might be a matter of error on my part. Or, as I would prefer to think, it had to do with the presence of a greater number of administration guardrails. Those guardrails included Republican officials within the executive branch who, when necessary, fulfilled their oath-given duties, and honored their offices, by ignoring or subverting their boss's infantile "desires." Those officials believed in the sorts of norms and processes that allow for ordinary politics, in which vehement disagreement over policy does not demand the kinds of statements that are called for in a more genuinely or incipiently authoritarian regime.

Of course the guardrails have been cast off from the Boss Baby's crib, the family cash registers are ringing, agencies and the DOJ have signed on to exact revenge for personal slights, and bizarre and arbitrary action reigns. So, yes, it is one of those times.

But I think there is another excellent bit of literature one might call to mind for our current moment. It's a passage of dialogue from the sentimental but well-written movie Good Will Hunting. 

Will: He used to just put a belt, a stick, and a wrench on the kitchen table and say, “Choose.”
Sean: Well, I gotta go with the belt there, Vanna.
Will: I used to go with the wrench.
Sean: Why?
Will: Cause fuck him, that’s why.

Of course the application of the quote is imperfect, although it does have a certain zing that Lowell lacks. The most important reason it's imperfect is that people like law professors are, as a discrete category, at present mostly safe from harm, aside from the general destruction of the economy, the possible loss of their jobs or defunding of universities, and so on, in addition to the lashes they might suffer personally on some other basis. The damage from such things is immense but mostly collateral. Speaking out for us, as lawyers or citizens, may be an indefeasible, urgent moral duty but is also, for now, a luxury. We certainly suffer no reputational harm within our own particular community by doing so.

But in a country that makes deals with vicious autocrats, bribing them with public money to rent space in torture camps, sends the "wrong" people there through "administrative error," and then invites the courts to mind their own business--in a brief that treats the question whether or not it has rushed to correct its error as an incidental item not worth mentioning--that luxury status is nothing to be proud of. (I imagine that natural law and "unitary and discernible" truth have something to say about such conduct. And I imagine the answer is not a shrug of the shoulders.) Of course we have a duty to speak up against this regime. And the more often, and casually, the regime employs state power for its cheap, ugly, punitive ends, the stronger that duty is. Because...well, read the quote.      

Defenders of "Plundering, Harassing, Misery, and Agony"

Double Aspect is consistently an interesting and eloquent blog, which I have praised before and think deserves greater attention. (Its focus is on "Canadian public law and other exciting things," so I'm not sure how it wouldn't receive it.) I don't agree with everything I read there, but that's hardly a disqualification. I often learn from it. 

Sitting at its top currently is a lovely post by Leonid Sirota titled "Vermeule and Verres." I won't quote the whole thing; you can click the link easily enough. The subtitle gives the gist clearly enough: "The 'common good constitutionalism' motte-and-bailey revisited, and why due process matters to the moderns as well as the ancients." One should be especially grateful for the passage from Cicero, never more important as a legal source than now. 

The post was put up on March 24--splendid, and splendidly disinterested, timing in light of the weekend's exchange of faculty letters to the students of Harvard Law School, a group that I dare say seems to send and receive entirely too many letters. I'm not much of a letter-signer myself, but given my recent posts can hardly object overmuch to public statements. I admit that my primary thought about the letter signed by some 90 members of the faculty is that, although I agree with its sentiments, I do always worry that the primary effect of a letter signed by 90 members of the Harvard Law faculty will be to influence thousands of minds--regrettably, in the opposite direction. It would be more effective, I think, although admittedly more time-consuming, to quietly take 90 Republican members of Congress or 90 mid-level executive branch appointees out to dinner, to express those concerns one on one. (And to hear those concerns shared in return, based on everything those members and officials have been saying to each other everywhere but on the record.) But clearly I am in no position to deny the proposition that when faced with gross corruption, lawlessness, disregard for the rule of law, pointless cruelty, and evil, one must sometimes opt to speak rather than take a more cunning or prudent approach.

As for the Vermeule letter, aside from things that fall plainly outside the realm of soundness--to describe Rudy Giuliani as having been disbarred "for [his] representation of President Trump," and not for his having been grossly irresponsible and at times perjurious in that representation, is to do grievous violence to a perfectly innocent preposition like "for"--it seems to me only that the letter is incomplete. It cannot be evaluated on its own. To properly judge its claims and its meaning, it must be read alongside this article. Indeed, with respect--and this does seem to me to be the most and perhaps the only genuinely respectful position one can take as a reader--it seems to me that no piece of writing he has done in the past seven years, his book included, can properly be read or evaluated unless it is read alongside, and as if incorporated into, the Integration From Within article. If someone takes on the labor of a decade-long project of writing esoteric literature, and is generous enough to hand out the key for deciphering it, the least the rest of us can do is use it. 

The Trump-Vance Theory of Presidentialism in Seven Words

As, I suppose, the opposite of a palate-cleanser--more a moment of overwhelming, emetic dysgeusia--consider this, possibly the epitome of le mot juste. It comes from Vance's stunt trip to Greenland, the current object of Trumpian cupidity. Attempting to justify the ongoing inanity, Vance said: "We can't just ignore the president's desires." 

There you have it. Not only is it as good a one-sentence description of Trump's id-driven vision of presidentialism as we are likely to see on this earth; it also superbly captures the faux-manly aggressive servility that is this regime's vision of the vice presidency.

Two other pithy phrases occur to me. One is from John Locke: "The discipline of desire is the background of character." The other is from Scripture: "Jesus wept." 

The Week in Corruption, Plus Two Cheers for "Corporate Media"

Another free speech post, albeit somewhat tangentially so, following on Howard's post below. (Although it's clear to me that we're living in two different bubbles. I don't see a refusal of "many," if that word is to have some value, to recognize this regime's hostility to free speech. I don't understand him to be referring to hoi polloi, to the far right, or to Trump cultists and apologists. Most others I see--most certainly including conservative writers, who are proving the most eloquent effective of Trump's critics, far better than either mainstream or lefty elected Democrats--recognize and criticize these attacks. If all he means is that despite widespread recognition of the regime's attack on free speech and press, there are some who persist, out of outrage about Hamas or anti-Semitism or on-campus behavior, in supporting the anti-speech attacks and offering weak justifications for them, well, yes: that's obviously true.)

This week has been an unusually busy one for lawlessness, corruption, incompetence, and cruelty. Just how indefensibly bad has it been? I wrote earlier this week, "The best way...to discern the views of a Trump apologist and/or office-seeker among the nominal intelligentsia is to note all the things they don't write about. If you are looking for the dregs and remnants of principle, decency, and a vestigial sense of shame among the Richard Riches of our time, look for the things they most conspicuously ignore." Some of the most shameless and logorrheic Trump apologists have been remarkably quiet this week. So it's that bad. 

In addition to my work obligations, I find I am pushed further behind in noting the regime's evils by the sheer pace of wreckage, trolling, and contempt for law, truth, and decency. And the hits keep coming! (Still on tap: something on the Trump DOJ speech, which deserves to remembered alongside the greatest hits of Nuremberg; something on the Trumpian logic of deporting Canadian conservatives; and something on the doctrines the Supreme Court will need to revive to address the regime's dishonesty and vengefulness. The bad news is the stories that motivated those pending posts are fading further into the past. The badder news is that new instances of the same things keep occurring.)

Here's one salient new story. It involves something that has been going on since the inauguration but whose pace picked up remarkably this week: Donald Trump--he ought to legally change his name to "Danegeld Trump"--has been pardoning convictions or commuting sentences of financial criminals frequently enough to exhaust the most tireless autopen. When he's not doing that, he has been ordering his law enforcement officials corruptly to drop charges and investigations. Things got off to a rousing start with the pause of the civil fraud case against Justin Sun; you may know him from such canny investments as the $75 million he put into the Trumpcoin grift. That one got a good deal of attention, but was just the tip of the iceberg. This week, Trump offered a new flurry of announcements. In keeping with the regime's preferred style, in which brazenness and contempt for reason are not accidental but deliberate, he did so not quietly but with full publicity. This week's list includes a gallery of rogues: former Nikola CEO Trevor Milton, Ozy Media founder Carlos Watson, three co-founders and a high-level employee of BitMEX, and--a fitting tribute to Trump's status as Vulgarian-in-Chief--financial wunderkind "Hawk Tuah Girl." 

It will not surprise you that Milton, at least, has given generously to the Trump campaign and to the MAHA Alliance, a PAC that champions the policies of our nation's new leading cause of illness, RFK Jr. But corruption is the damnedest thing. It's not always done in a clear, transparent, easy-to-detect way. It's the kind of thing that needs dedicated resources--money, skilled and experienced detectives, and time--to uncover, and equally good resources to tell people about it. And it helps if the research and publicity are carried out by reasonably trustworthy people. It's not a job for David Brock or the DNC or a lone, partisan Substacker.

This is why, for all their faults, and for all the trimming of sails that will continue to occur as long as people like Brendan Carr dishonor their offices, I can't go along with popular, cliched, inflated criticisms of "corporate and billionaire-owned" media and paeans to "independent" media. It is bad that Jeff Bezos crippled his editorial page, although it's also fully his right. (In any event, I found that far less worrisome than the outright payment of protection money via Amazon and its Melania "documentary" deal.) But editorial pages are, in their very essence, basically useless. The primary alternative to the "corporate media" turns out not to involve real journalism at all. Instead, it consists of a flood of freestanding op-eds, run by non-"corporate" individuals or entities subject to their own capture problems--in their case, capture by a subscriber-based financial model and the orthodoxy and crowd-pleasing it demands. Like a Winger album, it's all very loud but pointless.

We are drowning in "opinion and cultural commentary." We don't need it. What we need is financial reporters, investigative reporters, beat reporters, data-set reporters, and every other kind of reporter (and editor!)--preferably boring as hell, detailed as hell, dogged as hell, largely indifferent to their readers, and at least somewhat freed from the pressures of the hot take and the social-media-paced publication schedule. That costs real money. It's why the corporate-owned Wall Street Journal has become utterly indispensable for those who want to follow the crimes and follies of the Trump regime in a way that the Free Press or the Contrarian could never be. If you hope to discover going forward whether money has changed hands in this flurry of financial-crime anti-law-enforcement, and how much, and how, and (God help us) what the nature of the Hawk Tuah Girl's quid pro quo was, find a newspaper with a large company or a billionaire behind it; scrutinize its owner constantly; but thank the good Lord that it still exists. 

Alternate Headline: Law Scholars Launch Actual, Normal, Non-Silly, Scholarly Journal

Noted with interest: "a number of law professors from top schools are working together to start a new publication—the Independent Law Journal. All articles published in the Journal will be peer-approved by a faculty board, but student staff will still handle most of the Journal's operations and will collaborate with faculty in initial article selection....[T]he ILJ is...a non-partisan [journal] committed to publishing equally from left, right, and center. Nobody benefits from groupthink, and the Journal will work hard to prevent itself from becoming an echo chamber."

Kudos. Law faculty should take notice and steer their submissions thusward. And hiring and P&T committees, barring the qualitative review they are obliged to undertake, should presumptively view publication in such a journal as a stronger mark of quality than publication in a student-run journal, regardless of the prestige or ostensible selectivity of the latter. A few things to note:

1) I trust that the "from top schools" language is mostly for purposes of identification. It's not a bad thing,of course! But it's also not a necessity as such (nor are all the leading scholars at the top law schools), and a demand for "top law school" professorial involvement shouldn't be the bottleneck that holds up an increase in the number of peer-reviewed professional legal academic journals. 

2) Of course students should handle most of the operations and of course they will, in doing so, pick up the skills that law review in its usual current form is supposed to teach (although its real value to students likes mostly in its proxy function for employers, of course). But I hope the journal will offer further detail about student involvement in "initial article selection." If that means going through the slush pile with some easily applied criteria in hand, it's reasonable. If it means something more, the editors ought to explain further.   

3) One assumes, given its ambition to "foster high-quality publishing and free and robust debate in legal academia," that the ILJ will avoid like the plague some of the bad practices that have taken a foothold among student-run law journals: e.g., "whole person review," mechanical obsessions with "firstness," editor- and volume-specific mission statements or secret selection criteria, anonymity that isn't, peer review processes that consist of an editorial board soliciting and ignoring peer reviews, and so on. 

4) It's good that the journal doesn't want to be an echo chamber, but perhaps less good that it is committed to "publishing equally from left, right, and center." It should not let the tail wag the dog. For the most part, it should simply evaluate the quality of submissions and publish what is best, while watching the outcomes and running, as it were, diagnostics to make sure that skews in the results are not the result of bias. 

5) I would cabin that point a little by suggesting that law review editors, despite our living in an age in which everything is seen as part of a larger database instead of as a tangible, discrete object in itself, ought always to think about the shape of individual issues. They should select and organize the pieces they select for some degree of variety and readability for each issue, complete with what magazine editors call a "front of the book" and a "back of the book." The desire to have actual journal issues that are a pleasure to behold and to read would itself contribute to the desire for greater attention to political and other forms of diversity. That would include subject diversity--more private law, etc. (it goes without saying that there should be more admiralty law pieces)--and diversity of length and format.

6) In line with that, and because of simple need, I hope the editors will make special efforts to solicit, and give extra weight to, short submissions--under 30 pages, say, of the sort that Cass Sunstein has been churning out of late--as well as essays and, especially, book reviews. We always need more book reviews and review essays.  

7) What the editors are proposing is, of course, just a normal scholarly journal, in line with the standards of the academic calling. Other than journals that run only student pieces, all law journals should be faculty-run and involve peer review of anonymous submissions. As legions of academics have pointed out ad nauseam. 

Illustratively Pointless Lies: One Millionth of a Series

I still have not gotten around to the post I promised last time, about why the Trump regime should--at least by its lights--start forcibly deporting the politically conservative Canadians hiding among us. For one thing, Donald Trump prefers dealing with thugs over democracies, so I assume his focus will remain with his pals in Moscow and San Salvador. For another, every morning brings three fresh hells to absorb. (The best way, incidentally, to discern the views of a Trump apologist and/or office-seeker among the nominal intelligentsia is to note all the things they don't write about. If you are looking for the dregs and remnants of principle, decency, and a vestigial sense of shame among the Richard Riches of our time, look for the things they most conspicuously ignore.) 

Today's item is relatively minor but quite illustrative. It has to do with Trump's ruination of the Kennedy Center, a hobby that nicely combines his pathologically childish ego with his bred-in-the-bone vulgarity. Speaking to the clown's-car-full of board members he appointed, Trump boasted of his childhood aptitude for music. It may be so. But it wasn't enough. Asked to comment later, his communications director, Steven Cheung, had to gild the lily. Cheung said that the Don "is a virtuoso and his musical choices represent a brilliant palette of vibrant colors when others often paint in pale pastels." 

Of course this is a lie, and of course it's a trivial lie. That is rather the point. It's the very triviality of the lie that fascinates and repels me. In his eagerness to be liked by anyone he spoke to, Joe Biden famously, frequently exaggerated and lied about his own biography. Donald Trump, of course, lies about everything, but most of all he lies about himself--not to be liked or to find points of sympathy with others, but to exalt himself. (I would say he is the spitting image of Commodus, but Commodus came from a family of warriors and Trump...does not.) What is new here, and entirely in keeping with the norms and, no doubt, job-keeping imperatives of the regime, is that in more or less normal past administrations, press secretaries' sad role in such cases would be to ignore or make excuses for a presidential lie. (One could have set a watch by the last administration's invocations of the childhood stutter.) In this administration, the instinctive response for someone like Cheung is to lie more. It is to lie more fulsomely, more floridly, more brazenly, more pointlessly, more eagerly--after all, this was a thoroughly unnecessary, volunteered lie--and with an active indifference to the concept of the truth and an equally active contempt for the very idea of honesty.

A popular, although I think inaccurate, adage about the actions of the first Trump administration and the present regime is that "the cruelty is the point." (I would have thought that the ego was the point, and that ill-gotten gains would nose out cruelty as a motivation.) If I had to come up with a different decoder-ring for this regime, it would be online culture. The dominant attitude of the Trumpian political culture is the degraded-Clausewitzian view that politics is the continuation of Twitter by other means.

If we were to imagine social attitudes toward the online world over time, we might start with the early view, in which the online world was either seen as amusing or viewed with a utopian spirit. Then we might proceed to a period in which it was agreed that online culture is brutish, ugly, mean, and ignorant, but this was minimized by viewing it as a separate reality, something not "in real life." Yes, one might say, people are awful online; but that's just online, not the real world. Among finer people with more self-restraint than I have, it was responded to more stringently, by choosing to live as much as possible away from devices.

The Trump regime view, as far as I can see--and, looking as far as I can see, it pervades every aspect of the regime--is that the ugliness, dishonesty, self-centeredness, and mean-spiritedness of online culture is normative. It ought to be that way; it ought to be how people live and speak. And not just online. Far from being a separate and distinct thing, its ugliness, incoherence, illiteracy, and casual disregard for truth should be normative in every aspect of life.

The grift, the scam, the indifferent lie and the deliberate one, the vulgarity, the love of bullshit, the online distance from reality that makes getting "likes" from Putin or some fraudulent. on-the-make pseudo-scientist more palpable and important than the deaths of Ukrainian children or the spread of tuberculosis: These are baked into everything that Trump and his administration do. This is what the world looks like to them and what they want the world to look like. Only Cheung's relative literacy distinguishes his slavish lie from the hundred other lies and crudities that his boss and his boss's underlings utter every day. (For illiteracy, we must go straight to the top, or to people like the interim U.S. Attorney for D.C., whose innate mediocrity and lickspittle nature lead him perforce to parrot his boss's own mangling of the English language.) 

Of course, the online disease is not unique to Trump, to his inferiors, and to his cult. We live in a rude, vulgar, degraded culture and online-ness is its name. In politics, virtually every misstep and gross error of the last administration was connected to Biden's decision (or, perhaps more accurately, the decision of that administration's active decision-makers) to follow the views of those individuals and groups whose goals, focus, and rhetoric derived heavily from online debate. What was the tenor of the campus movement of the last year, and of a few years ago, if not Twitter made manifest? Having surrendered or never even entertained the notion of governing, every rising star in the GOP on Capitol Hill for the past several years, and a good many off the Hill--judges certainly included--has been someone who either lives only online or lives only as if online. Much of journalism and all of journalistic success have become subsidiaries of social media. This is our world, alas. We are a nation of trolls.  

But the Trump regime is not only the natural consequence and culmination of this culture; it is its apotheosis. And unlike normal politics or culture, it comes to us without the sense of hypocrisy, embarrassment, and shame that remind us to hope for something more from ourselves and others and to occasionally curb our worst tendencies. The regime wants this culture. It delights in it. It thinks people who expect better and hope for more are, like fallen soldiers, "suckers" and "losers." Its apologists think trolling is fun, that presidents who troll are most fun of all, and that "he's just trolling" is an actual excuse for presidential misconduct, lying, and hostility to democratic allies and one's own citizens. Their efforts to defend the indefensible inevitably resort to phrases like "stripped of the hyperbole" or "despite the crassness." But even more than cruelty, even more than greed, much more than partisanship, and leagues beyond anything like policy, the hyperbole and crassness are the point, are the whole thing. To strip Trump, or underlings like Cheung, of hyperbole, boasting, lies, and vulgarity is to misstate and mistake everything they do; it is to strip them past imperial nakedness and into non-existence.

Cheung's analingual lie about Trump's musical genius, trivial as it is, is as good an indication of the heart of this regime as anything else, in large measure because it is so trivial. Take a press spokesman who views lying as a regrettable and generally counter-productive necessity of the job and replace him with one who lies for the lulz. Take a more or less decent--or even gravely flawed--culture, one that is occasionally richly conservative and tradition-laden, put a landmine under it, and replace it with "Cats" and "the home-decorating taste of a third-world dictator." Take the idea that politics is the art of attempting to find a stable, predictable, and, if one is lucky, boring approach to governing social and economic relations, leaving some open space for private life, and replace it with randomness, whim, fealty, corruption, bullying, and naked vengeance. Take a dull but incrementally successful effort to make government more efficient and replace it with a Ketamine rush. Take the worst of online culture--the vulgarity, ignorance, and dishonesty, the crank amateurishness and mob rule, the ceaseless, more-than-half-sincere trolling, the "nothingburger defense" and the misquote of Lincoln, the active or actively tolerated Jew-hating and misogyny and racism and idolatrous, corrupted religion--and make it your normative vision of America. That is as good a heuristic as I can imagine for predicting what the Trump regime will do later today, tomorrow, next week, and every other chance it gets. Not because it lacks wisdom, decency, judgment, taste, and imagination. (Although it does.) But because that is its fundamental understanding of the world.        

 

The Trump Regime Continues its Retrospective Celebration of 1798

I'm working on a longer post, but may I just note the news that the Trump regime is apparently preparing to invoke the Alien Enemies Act of 1798 in service of swifter and more draconian deportation of illegal immigrants, relying on tendentious assertions about "invasion." This cannot be wholly a surprise. And I will not find it a great surprise if and when the regime closes the loop and relies on the whole armament of the Alien and Sedition Acts and their descendants, to punish speech as well as status and to attack citizens as well as non-citizens. I wrote a week or two ago about Ed Warren, the gormless still-Interim U.S. Attorney for the District of Columbia, that his threats against members of Congress and others for engaging in constitutionally protected speech should not be treated merely as a gross misreading of true threat doctrine. Rather, they should be seen as

a revival--impressively, in the absence of anything like a war or emergency--of circa-1917 views on incitement. "The Alien and Sedition Laws constituted one of our sorriest chapters, and I had thought we had done with them forever." I rarely feel the need to quote Justice Douglas, but, I guess, never say never again.

The regime can be relied upon to supply its own "emergency," of course. And a properly cowed and subjugated Secretary of State can be relied upon to offer whatever verbal formula is required.

If there is any comfort to be taken, I find it in two or three things: 1) The regime can be counted on to offer five or six justifications for its actions on any given day, even if they contradict each other and render the justifications incoherent and untrustworthy, and to careen wildly between enforcement and non-enforcement. 2) The more lawyers it fires, or who resign after being told to make bad or improper arguments that would violate their oaths, consciences, or law licenses, the worse things will go for it in the courts.* Opting for "loyalty" over competence and integrity is a costly choice. 3) The more it does, the more it says, the more pretextual or inconsistent or incoherent its arguments become, the more likely it is that at some point the courts--including the Supreme Court--will rethink any general presumption of deference to the executive branch, and reconsider any general or trending reluctance to scrutinize and second-guess the executive's motives, in both separation of powers cases and rights cases.

Law should not be remade for every new administration, and there are good general reasons for judicial deference to the political branches. But I'm reminded of a quote from Harry Kalven: "The Court thus has a hybrid role; and the arresting thing is that were its role to be purified in either direction--by having it become more simply a court and nothing more, or by having it become, bluntly, a political agency and nothing more--it would lose its power and its purpose. The special burden of the Court...is to exercise great political powers while still acting like a court, or if we prefer, to exercise judicial powers over a wide domain while remaining concerned, realistic, and alert as to the political significance of what it is doing." Even as a highly judicial body, the Court is not obliged to remain blind to the nature of this regime and its approach to the executive branch--both in its organization and in its exercise of power. Its reluctance to look behind presidential actions depended on its assumption of the existence of an "impersonal, thoroughly institutional presidency," sufficiently bureaucratized and staffed by capable individuals who provide internal constraints that its actions and good faith could be given some presumptive credence. But the Court exists in a dynamic relationship with the presidency and Congress. The faster, harder, and further the regime runs from a professionalized institutional model, the more likely it will be that the Court adjusts its assumptions and presumptions accordingly.* As it should. 

* Perhaps, in thinking about the legal presumptions of good faith that should or shouldn't apply and the necessity for a hard judicial second look at motives, the Justices and lower court judges will keep in mind the intersection between Trump's desire for an executive branch staffed only by personal loyalists and the blindly obedient, shorn of more independent-minded oath-keepers, and Elon Musk's typically off-putting vision of just who carries out historical atrocities, given that carrying out orders without questioning them appears to be exactly what this presidency wants from its servants:

 

Cowardice is the Through-Line

I cannot agree with something that Howard writes below. Among my extraordinary range of talents is the ability to walk and chew gum at the same time, while recognizing that of the two walking is probably more important. (It depends on the flavor of the gum.) So I'm not sure I get his point about "no one noticing" the enormous chilling effect on speech this administration is having "because people have been screaming about woke college students for so long."

For one thing: People notice! Most certainly including the same people Howard seems to suggest are benighted. They are fully capable of engaging in some version of "screaming about woke college students" while also believing--and saying--that the the use of state power generally is more worrisome than the threat of some moron in a North Face balaclava shouting "Go back to Poland" or blocking a public thoroughfare. Indeed, even in the interregnum between the first Trump administration and the present Trump kakistocracy, some individuals who were concerned about unhealthy exercises of private and mob power in public discourse not only charged that Donald Trump and other "forces of illiberalism" pose "a real threat to democracy," but warned that extreme or illiberal tactics on the part of those "woke college students" would be easily exploited by "right-wing demagogues." (Not that it took a genius to predict this. But then, it hardly took a genius to work harder to forestall it. And despite the obviousness of the point, any number of people, some of them college students, along with one or two candidates for president, spent most of either or both of 2020 and 2024 either not seeing it, or demonstrating by word and deed that they didn't care.)   

The same people are not only capable of believing that abuses of state power can be and generally are worse than abuses of private power. They are also capable of believing, and saying, that the particular uses this regime is making of state power are more worrisome than the average speech-chilling abuse of state power by the average Democratic or Republican administration, because they are more widespread, more lawless, more corrupt, more political, administered by more servile and incompetent hacks, less interested in paying lip service to existing law, and so on. It's not a question of "real" and, one supposes, "fake" chilling effects, but of bad and bad-plus-dangerous. It is possible to believe that both private actions and state actions can damage public discourse, but that state action doing so is more worrisome. Indeed, unless one wants to use state power to regulate those private actions, "screaming" about private behavior that chills speech or distorts discourse is precisely what one is supposed to do; in the case of state action, one screams--but one also sues and votes and lobbies.   

With respect to the universities, there is one sense in which the two unequal things--the use of "woke student" power and the corrupt exercises of state power--are  connected: the cowardice of universities in the face of both. Despite the many university administrators who did in fact support or give a pass to illiberal conduct for ideological reasons, I tend to believe that at the very top, the determining factor was cowardice far more than ideology. Universities treaded too lightly too long in the face of frankly illiberal conduct, often unlawful and generally disruptive of universities' ability to carry out their core missions, not because they were all in for Hamas or whatever the cause of the moment was (and the cause was more sympathetic in 2020), nor because they were trying to bend over backwards to protect First Amendment rights. Rather, they did it because universities are corporate enterprises that deal with both internal forces and external competition. They generally prefer not to rock the boat. They worried about blowback from faculty and other on-campus constituencies, and about alienating a small but select slice of the current or prospective student body, in a market that is always competing for students, rankings, and reputation. Privately, or so my experience suggests, university officials could be scathing about the student organizers they were dealing with, as well as those off campus who often used them as stalking horses. But they worried that any firm early steps would just lead to escalation. And they worried too about the calls and headlines they would get if they started suspending or expelling students, not to mention the ones they would get if--as is sometimes fully consistent with a university's duty, especially when some of the individuals impeding the university's operations are non-students and others are students who mask themselves to avoid being identified and disciplined --they called in the police to make arrests.

They were right to be nervous. Students wreaked havoc when their fellows were expelled. Students and faculty complained when students who were disciplined for disrupting university events realized that multiple suspensions might actually affect their visa status. Being students and faculty, they complained about everything. And although I lack sympathy for the students, one can see why they were surprised. Having first timorously underenforced their own rules, both in 2020 and 2024, the universities, after coming under pressure from various external forces including Congress, ramped up enforcement drastically and sometimes unevenly in a very short time. From my perspective, both the laxity and, when it finally came, the more draconian enforcement were equally motivated by fear. One understands that large institutions should act prudently. But to call all this "prudence" is an undue compliment. 

It thus can't be surprising that the universities are now offering statements in response to the current regime's law-adjacent crackdown that are milquetoast at best and at worst servile. (Servility, the status of a mere "subject," and "ritual self-abasement" being the things this regime desires above everything but money, from its Manchurian Cabinet all the way down to we poor suckers who just live here.) It certainly helps that the regime will punish universities without any clear goals, limits, instructions, guidelines, or guardrails, and that it is more than willing to take revenge on anyone who questions it. And it helps that the universities, along with every other institution in American life, have come to rely on the infusion of massive amounts of federal money and taken for granted the significant strings that are attached. It's not true that Columbia doesn't care about civil liberties. But, like other universities, it cares even more about being decimated. 

Beyond that, though, one important reason why universities have offered a cowardly response is that they have been trained for it. A university that has spent years afraid to utter simple, fully free-speech-respecting phrases like "pack up your stuff after 5 p.m.; you're not sleeping on the lawn" or "stop occupying this office or I'm calling the cops"--both things it should be saying as a matter of course--is hardly going to be habituated to telling a vindictive, force-wielding, semi-arbitrary political/law enforcement regime to go to hell, or that its job is to maintain order on campus, not to get rid of people with lousy ideas.

For Howard, the current moment demonstrates the folly of ever having treated private threats to a well-functioning free speech regime as serious. To me, it demonstrates that institutions that fall out of the habit of standing up for themselves in response to smaller problems are unlikely to find the backbone to deal with graver ones. 

 

They're More Than Just Hoops or They're Nothing at All

David Bernstein writes of the administration's apparent decision to cancel $400 million in federal grants to Columbia University, "I don't know whether this is lawful, or whether federal law requires hoops to be jumped through before such sanctions can be levied," but does not think arguments about the government's actions are usefully conducted by minimizing or denying any problem with antisemitism on that campus. That sounds right to me. But I am very concerned about those "hoops!" David does not say otherwise, to be sure. (Indeed, this post has less to do with any agreement or disagreement with him, and more to do with the fact that his post encouraged me to write out my own thoughts.) I just think it deserves much more emphasis. 

The current regime, unfortunately, seems to mistake loudness, terminal-online-ness, and never-shutting-up-ness for actual transparency. In the case of these cancellations, it has at least provided a press release trumpeting its action. The press release contains fairly standard-issue pomp. If anything, it is relatively mild by this regime's standards. Unsurprisingly, the RFK Jr. quotes in the general press release of a few days ago are closer to the regime's usual rhetorical pitch. I might note that although RFK is right to liken anti-semitism to "history's most deadly plagues," it does not reassure me to think that the administration has sent RFK Jr., of all people, to address any sort of "plague." Dealing with plagues is not really his strong suit--regrettably, given that for some reason he is the HHS secretary. I'm surprised he didn't recommend that Columbia try Vitamin A and cod liver oil. I am not surprised, given his involvement, that one of the grants allegedly identified for cancellation is "related to the possible development of a malaria vaccine." That does seem on-brand for Kennedy. Why the HHS secretary should be involved in oversight of campus speech and funding issues in the first place is yet another question. In any event, neither press release offers much by way of directly useful information. 

The press release announcing the cancellations does not specify the grants being cancelled, the basis for cancelling those grants in particular, the statutory or contractual basis for doing so, or anything else of real use. Nor does it link to any documents doing so. The executive order that launched the current enterprise provides no further useful detail on this point either. One expects reasonably fatuous generalities from any administration. But the lack of detail is, I venture to say, of special concern in a non-grown-up administration that, even when it does the right thing (as it sometimes does), does it erratically and is fueled by ressentiment, bile, petty ambition, and Twitter. (But I repeat myself, as the phrase goes.)

You may assume for present purposes that I think Columbia, among other schools, has a real problem with anti-semitism and an even clearer problem of failing to enforce basic disciplinary rules on campus. That still does not answer some important questions--"hoops," if you like. Was yesterday's action the result of anything Columbia has failed to do in the last week or month--or just something the regime was going to do anyway? Was the pathetic behavior of a Barnard administrator last week a contributing factor, or just a nice news hook for the regime, given its thoroughly online mentality? Does the administration have anything like a clear idea of what constitutes an "illegal protest" as opposed to an offensive but protected one? (It has some experience with "illegal protests," to be sure, but not of the confidence-building variety.) The administration has named other universities as targets of attention. Were they chosen for legitimate or illegitimate reasons? Will they be penalized similarly, and regardless of what they actually do? The press release certainly suggests the answer is yes. For any stage of this administration's actions--selecting universities to investigate, deciding what questions to ask and what university rules and actions to review, deciding what grants to cancel, deciding what universities should be doing, deciding whether or when grants should be resumed--are there any clear, rational criteria that respect both existing laws and regulations and the Constitution itself? Or are this administration's enforcement decisions, or at least those not tied to donors, basically a Magic 8 Ball with a cudgel and a loudmouth attached to it? 

Should those of us who are disturbed by anti-semitism on or off campus be encouraged by the fact that this literally constitutes "action?" Or should we instead (or also) be disturbed by the fact that--as with tariffs, the Russian invasion of Ukraine, prosecution of public corruption, crypto and securities law enforcement, the treatment of law firms, and so on ad nauseam--the "action" in question is not targeted to any clearly voiced goals or policies, let alone clearly voiced positions on the limits of or constraints on those policies, and can seemingly be wielded and withdrawn on a whim? This approach of course lends itself on the one hand to arbitrary and purely political punishment (or the withholding of punishment), serving goals that are at best purely partisan and at worst involve petty personal revenge as well as gross corruption. On the other hand, it lends itself to the risk that any actual commitments to addressing anti-semitism will be subject to the vagaries of individuals with infantile attention spans and an abiding need to be flattered and appeased (and to appease in turn).

In a regime with this particular management style, I can think of only one person to ask for answers to any of these questions. Unfortunately, that person has a lousy reputation for honesty or consistency in word and deed. 

There are of course many people who revile anti-semitism, and believe that universities ought to consistently maintain and enforce their own rules for functioning campuses, even where that involves calling in the police and/or expelling students, and who believe in due process, and believe that issues worth caring about--like anti-semitism, like campus speech, like funding for research--should be dealt with through sound and consistent policy and enforcement decisions. Those of us who think all of these are important may well doubt, under such circumstances, that any of these things will be addressed in a serious, consistent, intelligent, meaningful way. That's a problem precisely because anti-semitism is so prevalent in this society, and demands to be addressed--lawfully, but seriously. If these kinds of hateful beliefs are not addressed early, we run the risk that anti-semites, those who champion them, and those with virtually indistinguishable views from anti-semites will leave campus and end up in positions of responsibility in the Pentagon press office, the Justice Department and Homeland Security, the Treasury Secretary's plane, the State Department, and elsewhere. No decent person can excuse that. 

More of a Bemused Grunt

I'm concerned that replying to some things does more of a disservice to public discourse than anything else. Still, I'll bite to this extent: I have heard, and voiced, many reasons why a Supreme Court Justice, or any other judge or official, might want to step down from office. Age is one, has been particularly relevant for the last three presidential terms including this one and for some time on the Supreme Court, and remains an understudied aspect of contemporary American constitutional law and politics. Dishonor is another. A proper sense of self, in which one's job is not one's life, and a sense as an official that everything has its season, is yet another. It's why David Souter is the best Justice in modern Supreme Court history and why, even absent term limits, a great judge might decide that the thing to do is to serve no more than, say, 20 years or one's 65th or 70th birthday and then step down regardless of the president then serving. (This, I would suggest, is not a flashy form of "judicial greatness"; it is merely an accurate use of the phrase.)

Other sound or plausible reasons are legion. But until now, I had never heard it suggested that "not liking the president," or possibly--and it does seem in context to be the most likely meaning--just "not liking President Trump specifically"--is a reason to leave judicial office. Even in its more general form, I do not think it is likely to join the standard list of reasons. Since many and possibly most people, in and out of all three branches of the federal government, do not like Donald Trump personally, and others just haven't met him yet, I should think that the more specific, personalized version is just a non-starter.   

The Dis-Engaged Scholarship Cycle?

Am I mistaken in thinking, as I wade through the flood of abstracts for new articles making their way onto SSRN, that this publication cycle faces a stark problem of sudden, unintended irrelevance and forced dis-"engagement" in this year's crop of legal scholarship, at least in public law?

It seems to me that a great many public law articles coming down the pike right now a) deal with issues that were contemporary a short time ago but have been utterly superseded by events; b) assume a host of premises--about methodology, the functioning of courts or executives, about the basic norms of law and the functioning of government, even about fundamental values and even fundamental facts--that are now inoperative or in doubt and newly in need of justification; or c) deal with ideas and proposals that the authors treat not as abstractions but as feasible, practical, going concerns, but which have in fact been rendered as mythical and fanciful as hippogriffs.

I'm not referring to articles that the authors are fully aware are abstract, theoretical, fanciful, imaginative, impractical, or otherwise deliberately disconnected from current events or some reasonably immediate practical goal. Nor am I criticizing that kind of scholarship, at least if it is clear about what it is. (It does seem to me, though, that even these forms of scholarship will often suffer from the problem noted in (b) above. However abstract, they will still often implicitly or explicitly rely on premises that are now in doubt.) But plenty of legal scholarship is not so abstract. It is more immediate and practical in its purpose, aims to respond to current events, advances a goal-oriented political position, or seeks to have some effect in the world on a reasonably short timeline. That's always been true for legal academic writing, for reasons that hardly depend on contemporary politics or scholarship. Rather, it's simply in the nature of the American legal academy, which is still substantially a professional adjunct rather than a university enterprise, and which, despite its trappings, is still structured on a more or less non-scholarly and non-intellectual basis. That orientation is no less present in an era in which current buzzwords like "engaged scholarship" or older ones like "praxis" pop up with regularity. (Although, in fairness, articles that brandish phrases like those are often less practically oriented, and in some ways less "engaged," than, say, the average student comment.) 

It's this scholarship--or so I keep thinking as I peruse the current crop of draft articles--that has been wrenched into substantial irrelevance and "dis-engagement" by events. They read as if the author had bet on a different horse to win. Or they rely on formerly applicable understandings and definitions of political and ideological terms which have been thrown into flux. (Although that flux has been evident for some time.) Or, most understandably, they did neither of these things, but simply failed to account for the degree of disequilibrium we now face. This is not, to be clear, a knock on their quality. Rather, it's a matter of the sudden gulf between their claims to or hope of relevance and engagement, and the reality into which they now emerge. There is already often a gap, borne of the authors' location within the bubble. This is something much more than that. 

Of course this kind of thing happens any time there are significant changes in facts or law, with the ideas that might explain or account for them necessarily needing time to be worked out. We saw some of this with the first Trump term. It took a while before the law reviews started filling with discussions, often excellent, of constitutional and political "norms," illiberalism, and so on. But the disjunction was far less extreme, because that administration featured a larger number of political appointees and career employees who, quaintly, were competent, experienced, conservative, and would reject as contemptible any pledge of personal loyalty to an individual rather than to an office and to the laws and Constitution of the United States. The current personalist regime is being run on a different basis.  

Clearly it won't be long before the machine starts turning out scholarly responses to the current moment. In the meantime, it seems to me that we are about to see a volume of public law articles--including, I'm sure, a fair number of articles operating from conservative premises--whose claims of relevance or engagement were blown out of the water even before they were submitted, and must now be read as abstractions, markers for the future, or memorials.  

Vain, Wrong, and, Dangerous. But at Least His Grammar is Awful.

One might say that Ed Martin is a gift that keeps on giving, or at least that he can be relied upon to serve as the entertainment between episodes of terrible behavior at Main Justice, were it not for the fact that he currently serves as a federal law enforcement official. That somehow takes the joke out of things, leaving me to wonder what you call something that is ridiculous without being at all funny. Outrageous, I guess, in the sense that it evokes outrage in decent people. Or perhaps horrifying. 

I think a government that not only steeps itself in social media (a mistake administrations have been making, while congratulating themselves for being savvy, since Obama) and uses Twitter as the administration Slack page, but also takes its cues for how to speak and behave directly from those sloughs, is acting unwisely and dishonorably. Regardless, I'm not inclined to treat any given stray remark, often by some punk staffer, as the last word about that office or officer's views. But when you say something that contains multiple errors, all quite telling, and take the time and effort to make the graphics all pretty, I think at some point your audience is entitled to conclude that you have moved beyond slips of the tongue or pen. Especially if you put it up on your (currently misnamed) official Twitter page. 

The message in question:

Start with the fact that Martin, not having been confirmed by the Senate, is not the the U.S. Attorney for D.C. yet; he remains the interim U.S. Attorney. A pedantic point, to be sure--unless you are addressing someone whose amour-propre led him to insist on being referred to as "U.S. Attorney" in court filings within days of taking his interim position. Add the general idiocy about putting America first--if not as a misunderstanding of journalism, then as evidence of ongoing ignorance of, indifference to, or contempt for Title 1.7 of the Justice Manual (in fairness, he is only the interim U.S. Attorney), as well as of general principles of discretion and good taste. Add the gross misunderstanding of who he and his office represent. (Also in fairness: Martin is not always clear on who he represents.) At that point, the misplaced apostrophe and incorrect plural has to be seen as the cherry on top.

I would like to greet this with better humor. Everyone loves a clown, after all. But I am so fond of the First Amendment. And the interim U.S. Attorney has spent a busy week or two demonstrating a decidedly dubious regard for it. His tryout round was bad enough. But his letters of last week, seeking "clarification" from Democratic members about speech he treated, absurdly, as raising "threat" concerns, suggested that he is elevating the use of state power to chill speech from an unforced error to a mission.

Like FIRE, whose statement I link to immediately above, I spent much of last week thinking of this in terms of a governmental abuse of true threat doctrine. But I think that is giving Martin too little credit for ambition, and paying too little attention to the content and context of the statement from Sen. Schumer (an asinine statement, to be sure) that Martin targeted for inquiry. Really, this is more properly seen as a revival--impressively, in the absence of anything like a war or emergency--of circa-1917 views on incitement. "The Alien and Sedition Laws constituted one of our sorriest chapters, and I had thought we had done with them forever." I rarely feel the need to quote Justice Douglas, but, I guess, never say never again.

A clown, as I say. But more in the Pennywise vein--still a clown, but also dangerous and scary. As always, in this personalist or patrimonialist administration as in any other, the final blame rests at the top. But it certainly includes the interim U.S. Attorney himself.  

Is There a Non-Imbecilic Version of the President's Latest Assertion?

That assertion being, "He who saves his country does not violate any law." (I have cleaned up the quote out of respect for the English language.) 

There is. In more contemporary legal academic literature, it is represented by several fine articles. One might start with Henry Paul Mongahan's The Protective Power of the Presidency, a 1993 Columbia Law Review article whose core question is the extent to which "the President, acting on his or her own, [can] invade the rights of American citizens in circumstances which Congress could—but did not—authorize." Monaghan concludes that the president "cannot act contra legem," but that the executive may have a bounded "protective power" to "protect and defend the personnel, property, and instrumentalities of the United States from harm." He makes clear that the protective power he envisions is limited, both in scope and in nature; it does not, for instance, contemplate the use of the word "harm" in the distended contemporary manner beloved these days on both sides of the political horseshoe. (That seems obviously relevant here, since the only way in which the words "saves his country" could possibly be applicable at present is a fatuously general argument that not having the country one wants, the second one wants it, justifies extralegal emergency measures.)

Another chunk of material addressing this question was birthed after 9/11. The positive case was put by Michael Stokes Paulsen in his 2004 article The Constitution of Necessity. Paulsen argues there that "the Constitution itself embraces an overriding principle of constitutional and national self-preservation that operates as a meta-rule of construction for the document's specific provisions and that may even, in cases of extraordinary necessity, trump specific constitutional requirements. The Constitution is not a suicide pact; and, consequently, its provisions should not be construed to make it one, where an alternative construction is fairly possible." And where such an alternative saving construction is not possible, the necessity of preserving the Constitution and the constitutional order as a whole requires that priority be given to the preservation of the nation whose Constitution it is, for the sake of preserving constitutional government over the long haul, even at the expense of specific constitutional provisions." Paulsen argues that "the primary [but not exclusive] duty of applying it and judging the degree of necessity in the press of circumstances" rests with the President. He describes this power as both necessary and dangerous, obviously susceptible to misuse, and adds that both Congress and--more pertinently today, for the time being--the judiciary have a duty to independently review any exercises of this power: "While the courts, and Congress, should recognize the correctness of a doctrine of constitutional necessity,...that does not mean they should go along with whatever the President says. A constitutional power of necessity necessitates checks on its exercise. Complete congressional and judicial acquiescence or abdication has a name. That name is Korematsu." 

Another example of the positive case from the same period comes from Oren Gross, who argued in 2003, in Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, that "there may be circumstances where the appropriate method of tackling grave dangers and threats entails going outside the constitutional order, at times even violating otherwise accepted constitutional principles, rules, and norms." He argues that any such conduct must involve an open and public acknowledgment of the extralegal nature of these actions, and it may then be judged by the public, including other officials, who may approve it or may call that official to account and require that he or she "make legal and political reparations." 

On the other side, I have always been impressed by Sai Prakash's The Constitution as Suicide Pact, written as a response to Paulsen's article. Prakash argues that "though the Constitution creates a powerful chief executive, it does not empower the President to suspend the Constitution in order to save it." He writes eloquently: "I do not regard it at all obvious that people framing a constitution would include an 'anti-suicide' provision. In fact, there are many sound reasons why reasonable people might omit a rule of necessity. To begin with, constitutional framers might value other things, like religious freedom or a slavery prohibition, more than the durability of the constitution and the nation. In particular, constitutional framers might not wish to frame a constitution that permits the expedient sacrifice of such principles, even temporarily. Moreover, constitution-makers might believe that officials will violate the constitution on grounds of necessity anyway, and that we ought not to multiply those violations by explicitly sanctioning what otherwise might occur once in a blue moon." This argument, I should think, will be especially legible to religious individuals, who may think of any given state as a temporary expedient that is ultimately subordinate to higher values and ultimate things. (Admittedly, this understanding may be different if the religious individual in question is an idolater.) 

Needless to say, all of these arguments, back and forth, have occasioned a rich library of commentary. And these are just recent efforts. All of them take place against a longer history of argument, stemming most particularly from Lincoln's presidency, about what presidents or other officials may do, when they may act extra-legally, and whether such actions should be understood as non-violations or justified violations of law. Viewed from a suitably wide perspective, they do not break down into party or crudely ideological lines. Arguments for expansive governmental power, executive or otherwise, are often grounded in some form of "necessity." What the best of these discussions have in common is a sense that something more than legal realism or crude power is at play in these discussions, that any such power that might exist is deeply perilous even if it is necessary, and that it ultimately relies on candor, on a non-shirkable duty of independent evaluation by other officials and by citizens, and on the willingness to face the consequences of one's decision to act in a way that would normally be considered a law violation--although this runs up against what Prakash, writing elsewhere, calls "an extreme executive aversion to admitting illegality during crisis,....a tendency that predictably leads executives to press rather sweeping readings of their constitutional and statutory authorities."

I should add, however unnecessarily, that none of this is present in today's eccentrically capitalized presidential statement. Just as one should be willing to acknowledge serious arguable questions and not dismiss them simply because the source is poor, so one should be cautious about putting lipstick on a pig. It's not a fatal fault of a presidential argument that it could be put more seriously and deeply. We do not expect depth from presidents and should, in my view, even be wary of any desire for them to be eloquent. But we should distinguish between elaborating on someone's actions or arguments, and engaging in post-hoc rationalizations on their behalf, in a way that risks wildly missing the point. One should not assume that a rationale is called for or even relevant when addressing the words or behavior of a gross, unbridled appetite wearing the skin of a man. One should not too readily assume that his words have much semantic content at all, as opposed to being barbaric yawps. 

Neither, however, should one somehow take as a given that a president's statements are "mere" trolling. (Nor should one forget that trolling is not an acceptable activity for mature adults, in or out of high elected office, even if it has soaked deeply into our culture and appears to be this administration's sole mode of speech. On that point, the title of the second Prakash paper I've quoted seems unusually apt: The Imbecilic Executive.) I don't want to dignify what can't be dignified. But it is nice to be reminded that in other places and times, intelligent people have discussed intelligent versions of these genuine questions. For some, that might indicate that those discussions were already dangerous, insofar as they legitimized dangerous behavior. I'm more inclined to think that what it suggests is that those conversations could only take place because everyone involved in them assumed and shared, perhaps far more than they realized, a baseline level of seriousness, legality, and common ground about the ascertainment of facts. The common ground between the people on opposite sides of those arguments was vastly greater than the space between this president and everyone involved in those debates.       

What is it Like to Be an ABA Member?

One useful way of spotting the indefensible is that those writing an apologia for some action write around that topic but not on the question itself. A nice example of this is a Volokh Conspiracy post yesterday discussing one of the day's flood-the-zone stories: a letter from Andrew Ferguson, chairman of the FTC, stating that political appointees are barred from, inter alia, renewing existing ABA memberships, and prohibiting the agency from any spending to facilitate any employee's participation in an ABA event. The letter is an exemplary Trump administration missive written in the Trump administration house style. It's exemplary, among other things, in that it curries favor with the boss; how fitting that it was dated February 14. It is exemplary also in being deliberately provocative without being especially purposeful, in centralizing power and favoring it over expertise, and in being uneven and self-serving in application. (That prohibition on spending for participation in ABA events does not include commissioners or their staffs.) And its signs of the house style include repeated invocation of the personalist nature of the presidency (eight uses of the president's name in a little over two pages), breathless praise and puffery, bad writing, and bald dishonesty. (Remember: the bald dishonesty is the point. A more elegant lie would not serve the purpose of demonstrating loyalty. Like hypocrisy, it would pay tribute to virtue; and reserving a place for virtue might denote a dangerous independence.) 

In almost-defending the letter, the VC post argues that the ABA has had it coming for a long time, without ever getting to the rightness or wrongness, seriousness or silliness, of the "it." This is a justification in roughly the same way that one might accurately discuss the loud barking one's neighbor's dog and the need for it to be better behaved, while avoiding discussion of the fact that you dealt with the problem by poisoning the dog's food. 

I'm sympathetic to the criticisms of the ABA. I have belonged to the ABA since 2000. I have found it useless at best as a membership organization. Its function in my own life is minimal. The ABA Journal, which has had good moments in the past, is now so poor that it makes state bar magazines look good by comparison. The political leanings of the organization have long been evident. (Although, predictably given the rhetorical exaggeration of the house style, Ferguson's letter gets those leanings wrong. It's establishment liberal, not "leftist" or "radical left-wing," a distinction that Ferguson, a longstanding member of the establishment, ought to understand. For its entire history, the ABA has always only ever been either establishment liberal or establishment conservative.) I groan at some of its accreditation moves and at other policy proposals and ignore its amicus briefs. I remain a member for pretty typical reasons: one is simple inertia, and the other is that it occasionally does things in my area that I would like to know about. That second reason would be even more pertinent if I were in an area of law--say, antitrust--where bench, bar, and academy mix more often and productively. I would be interested in such matters even if I disliked many other aspects of the organization. As with, say, the Federalist Society, I might belong because I thought it put on some good events, or had some good sections or chapters, even if I found other chunks of the ABA objectionable or trivial. (And like the ABA, I belong to the Federalist Society most years, with lapses having more to do with inertia than the desire to make a statement.) It is an extremely weak-tie membership group. 

For those reasons, I could well imagine any administration criticizing the ABA or having no interest in working with it. (Although I expect that, in reality, this administration will often work with the ABA at multiple levels, while also attacking it and engaging in dumb-shows of this sort.) But that's not the "it" here. The "it" is a flat ban on membership in the organization for political underlings and a categorical refusal to subsidize even the most politically anodyne and practically valuable event participation by any employee. (Except, of course, for the commission's ruling class.) It is, as the letter's last paragraph makes clear, a literally and purely performative action. After years of performative exercises by administrations of both parties, one ought to be used to it, even as one notes the aggressively personalist and cumulatively authoritarian elements that distinguish the Trump administration. But one longs for the days of vaguely serious and non-trivial government, and vaguely serious and purposeful intellectual discussion directed at points of substance and significance.   

Nonsense--Not Acidental, But Deliberate

I suggested the other day that a lodestone of this personalist presidential administration is its historically familiar requirement of self-abasement: what better way to ensure the non-interference of principled and professional individuals, the kinds who gummed up the works last time, than to require anyone seeking an executive position to engage in a ritual act of self-humiliation--to deny one's own principles, the evidence of one's own eyes, and one's own good name? To be sure, there are committed ideologues and partisans seeded among the riffraff. But, apart from the fact that to think of Trump himself as an ideologue or partisan is to make a category mistake, partisanship and ideology are insufficient safeguards against the possibility that an individual might find in those beliefs something that transcends personal loyalty--not to the president as an officeholder or the presidency as an institution, but to the man himself. Ideologues and partisans may turn out to have character. Mandatory public self-abasement is the best way to weed out such people.   

Today's ongoing news about the Eric Adams transaction offers further evidence. The appearance of Mayor Eric Adams with Thomas Homan is Exhibit A. The appearance was not incidental; it was the point. That point was beautifully captured--again, in words with a remarkably apt historical resonance--by Adams's awkward silence and apt self-description: "I'm collaborating." (Truer words....) And it was underscored by Homan's suggestion that if Adams "doesn’t come through, I’ll be back in New York City,...in his office, up his butt, saying where the hell is the agreement we came to?" (I understand that confusing vulgarity with fortitude and energy is a bipartisan failing in a country that rejects dignity and tradition. I enjoy being vulgar myself, outside of the classroom. But I expect high officials to avoid it, even in an administration whose chief figure is famed as a short-fingered vulgarian.)

Recall that the president's* two stated excuses for wanting to dismiss the Adams indictment were that the timing of the indictment was improper, including its proximity to the primary and general elections, and that the indictment would interfere with Adams's support of the administration's immigration policies. Each was described as an independent justification. Neither was said to indicate any conclusions concerning Adams's guilt or innocence or the strength of the case against him.

How do Homan's words comport with these justifications? They strongly suggest two things. They suggest that the talk of interfering with the timing of the elections was the sheerest nonsense, since Homan's threat indicates that the administration will let the sword fall at a time of its own choosing, quite regardless of that timing. And they suggest that the president's argument* that there was an appearance of impropriety in prosecution because Adams criticized the Biden administration's immigration policies shortly before the indictment (but long after the commencement of the rigorously monitored investigation) are also nonsense. This administration has promised, in almost as many words, that it will refile charges against Adams (who it has not said is innocent) precisely if and when it is unhappy with him. This is not even the appearance of impropriety, but its very definition. A passage from Bolt's A Man For All Seasons springs to mind--one of many that do these days, actually, this one quite frequently: "MORE: You threaten like a dockside bully. CROMWELL: How should I threaten? MORE: Like a minister of state, with justice!"      

It is not surprising that I have seen no defenses of the administration's actions or the president's arguments by any lawyer who is even marginally fit for the profession. Those arguments are transparently poor. And that is not an accident, but the point. Adams labeling himself a collaborator, Homan indicating that he doesn't take the stated reasons for wanting to dismiss the indictment at all seriously as justifications for this transaction with the president, and the embarrassing lack of seriousness of those reasons (especially the president's follow-up letter* accepting Danielle Sassoon's resignation) would not serve their deeper function if they were not facially absurd and humiliating to those offering them (assuming a lack of ignorance and the capacity for shame) and publicly offered. A serious effort might indicate the belief that a serious effort is called for, and that a proper counter-argument might change one's mind despite the presidential will. Obviously the justifications and arguments are lies, marginal fig leaves for a corrupt deal. But the important thing is that they be visibly bad ones. Anything else would be contrary to personalist administration, both because a proper effort at justification would imply that the president cannot do as he wishes, and because they would not provide the requisite element of self-abasement on the part of the people offering them. This administration's fundamental approach to securing the personal loyalty of its officials it to require that they behave in a way that leaves them fit for no further decent use elsewhere. And advertising the fact that unfitness and unseriousness are job requirements for service in the administration helps winnow the pile of resumes. Every administration has its share of individuals who are vice-ridden, casual or contemptuous of the truth, lacking in character, dishonest, care too much about their own skin, curry favor, flatter like sycophants, and, yes, have the personality of dockside bullies. What is unusual is the structuring of an entire administration to make this a feature, not a bug.  

* Technically, some of these arguments were not made by the president himself, but by underlings like Emil Bove. It seems fitting to attribute his words, and Homan's to the president directly, since the indivisibility of this executive branch is its basic position. Trump's own statement that he "know[s] nothing about the individual case," which is also probably a lie, are irrelevant.  

"Forgiveness," Modified: The Abasement Principle

Over at the Volokh Conspiracy, a modest proposal for a constitutional amendment providing that "federal and state elected officials can be indicted while in office, but cannot be tried for those indicted offenses until after they no longer in that elected office." The proposal, derived from Texas's so-called "forgiveness doctrine," is aimed at curbing "Lawfare," admittedly an undefined and imprecise term whose bounds are as difficult to figure out as its harms are "difficult to quantify." (Public discourse these days seems to run, a remarkable amount of the time, on neologisms and coined phrases. This is not new--"McCarthyism" has stood in for a great many things--but it does seem especially widespread in our age of morons with megaphones. The habit is even more popular among the highly credentialed morons, who seek primacy or "novelty" in crowded, competitive scholarly and discursive environments. I see little evidence that these coined words and phrases play a clarifying role. My rule of thumb is that if a thing is worth saying in one word, it's worth saying in five clearer words from our existing store of English.)

It's an interesting proposal. But it's not sufficient, for a couple of reasons. A full and proper act of forgiveness usually entails some degree of acknowledgment by the wrongdoer of his or her misconduct and some degree of repentance. It may be impractical to have this process occur through an effort to communicate with the entire electorate. But it is possible to have a single figure stand in for the public in this step. The obvious candidate is the president, with his or her singular nature. 

The other problem is that, insofar as the doctrine is in part fitted to making officials "of use [to] the executive branch" as a figure willingly carrying out the president's will, too absolute a rule leaves a disturbing amount of freedom on the part of the local or federal officer not to serve the presidential will. Local and federal officials owe obligations to their voters and to the laws and Constitution of the United States and of the several states. What if they put things like local political sentiment above service to the president, who may be the locus of a profound popular national mandate? What if they embarrass the president--the representative figure, remember, in the forgiveness process--by disagreeing with him or publicly correcting an obvious lie or error on his part? Can we still call the forgiveness process complete under such circumstances? No. A sword of Damocles is needed--some ability on the president's part to require an ongoing show of repentance and fealty, with the reprieved figure knowing that the president can order the charges to be refiled at any time and may or may not issue a pardon.

In place of the proposed "forgiveness" doctrine, then, I suggest a modification: an "abasement doctrine." Under this doctrine, officials seeking some measure of grace or favor from the president, such as intervention into an ongoing criminal investigation or prosecution, must make a public show of self-abasement. In putting themselves in the president's good graces, they show that they are truly sorry for their wrongdoing. By leaving it entirely to the president's own discretion whether to forgive or not, the abasement doctrine ensures that both repentance and forgiveness are willing and voluntary. Because the forgiveness, along with the suspension of criminal charges or other consequences, is still within the president's discretion, the abasement doctrine requires the person seeking forgiveness to make a clear showing of self-abasement.

This required showing might be satisfied through various forms of public self-humiliation, such as agreeing with patently false factual propositions, denying one's previously stated policy positions with little or no persuasive explanation, praising the non-praiseworthy and condemning the virtuous, or even publicly denying and befouling one's most dearly held principles, sneering at one's own religious faith, and so on. Someone willing to do this is clearly going to be subservient to the embodied national political will. And since all of this takes place under Damocles' sword, a point that might be reinforced if the president pretended to act in a mercurial, prickly, arbitrary, easily offended manner, the person seeking forgiveness knows that it can be withheld at any time, with or without good reason. Such an individual--already demonstrably willing to abase himself and now also under a continuing and uncertain threat of punishment--will surely do everything in his power to be of use to the chief executive. 

Although the abasement doctrine might, in a technical sense, apply only to a narrow set of conduct, the general principle might be extended usefully throughout further policy realms. This is especially true in a maximal Article II world, but that in itself is insufficient. Policies might be centralized, made through executive orders rather than legislation. And the policies themselves might be selected to enhance the opportunities for presidential forgiveness and individual or collective abasement. If policies were not only made through executive order rather than legislation, but also employed policy instruments that maximized opportunities for individual exemptions and exceptions, the president might more fully exploit the abasement doctrine--now more of an abasement principle--to ensure their ongoing loyalty and obedience. Tariffs, for example, may serve the abasement principle far better than more economically "conventional" or "sound" but non-abasing forms of national trade and business policy. Suspending all national business, on a non-legislative and non-agency-driven basis, while exempting or reviving only those programs favored by the president would also create multiple opportunities for shows of abasement. 

I can already hear the objections. Doesn't such a policy encourage people with genuine principles and and a sense of character and virtue to avoid public office? Doesn't it incentivize the craven and cowardly? Will it disserve rule of law values? What if a president is not pretending, but actually is arbitrary, whim- or ego-driven, quick to attach personal slights to what are actually matters of office, insistent on personal loyalty rather than loyalty to law? Even if it makes the most sense to use the president as the locus of the forgiveness process, doesn't this encourage a departure from virtuous, law-obedient, reasoned government in favor of personalism or even a form of personalist dictatorship? Did you not read A Man For All Seasons?

I am aware of all these costs. But there are benefits. I think. Maybe. Actually, I'm not sure. It's entirely possible that this is not so much of a cure for a problem and more of a rationalization for a democratic and rule-of-law cancer. ("It's painful, brutal, and mortal. But you'll lose weight.") Still--it's worth thinking about!  

 

Past the Extreme, Actually

I agree with Howard that the Levinson and Pildes article is very relevant to the current moment, keeping in mind that they wrote it on the understanding that it has been parties have been more relevant than powers for quite some time, including periods in which our conventional habit was to treat separation of powers as if it was still relevant and operative. But I think he misses one trick--a point that suggests that reality has outstripped the Levinson and Pildes thesis, perhaps rendering it descriptively inaccurate on the other end of the extreme. Howard suggests that current events indicate--or confirm, if one agrees with Levinson and Pildes--that party loyalties prevail over branch loyalties. It seems to me that the problem includes but is broader than that. The larger problem is that, in our two-party system, we actually have not one but zero functioning political parties--one because it is locked in the grip of personalism, and the other because it currently lacks almost any identity at all.

The untrammeled personalism of the "party" in power is indeed a train wreck for separation of powers and federalism, among other things. But it's worth noting that Levinson and Pildes didn't think the inevitable result of separation of parties was chaos and incoherence--not, at least, as long as the parties were not only polarized but "cohesive." The adoption of personalism as a substitute for ideas or principles on the part of the Republicans is indeed a serious problem for this or any party in power. But when the opposition party is also lacking even a substitute form of cohesion, including ideological cohesion or a cohesive program--even a cohesive program of opposition--and certainly lacks anything like a leader, the problem is graver. In those circumstances--our circumstances, in my view--the possibility that party interests might serve as a framework in place of the branch interests that Madison envisioned is bound to be even more imperfect and unreflective of any sort of constitutional design.  

UPDATE: Just a brief note about Howard's subsequent post. I doubt that "new ideas" as such would make a difference, at least not unless those ideas reflected some actual change in the electoral zeitgeist and uptick in party energy and enthusiasm. But there still has to be enough of a there there, enough of a core around which cohesion can take place, for a party to effectively function as an opposition. I don't see that as being the case currently, even by Will Rogers standards. ("I am not a member of any organized political party. I am a Democrat.") That assessment may be mistaken but is certainly not without foundation. And it should not be surprising, given the period of realignment characterizing both parties. The Republican Party has effectively papered over its ongoing post-fusionist debates with a personality; the Democrats have neither resolved what they are nor yet found some means of successfully avoiding that issue.

Independent Agency or Codependent Agency?

As I watch for various aspects of "realignment" that render dated a great deal of commentary that relies on "left vs. right" or "conservative vs. liberal" classifications, I was struck by one passing example of this, from Senator Elizabeth Warren:

Information and discourse from That Place (where That Place equals any social media platform) are to be treated skeptically if not contemptuously, and it is always worth remembering that many or most of the statements from public figures and elected officials on such sites come from the minds of smart, earnest young creatures whose instructions are imperfect and who lack fully developed prefrontal cortices. And I have no reason to doubt this prediction from Senator Warren, or at least (assuming someone else wrote the tweet) "Senator Warren" in a more corporate sense. I have the general sense that she maintains a strong interest in the agency. Strictly speaking, though, shouldn't we consider it odd for a member of the legislative branch to pledge in advance the support of an independent executive-branch agency, as if this single senator can speak confidently for it? Could she not at least instruct her staff writers to maintain the niceties of form?   

"The great ones..."

Reporters naturally use the best quotes from their interviewees and give them good placement. So one may be tempted to overread Georgetown Law professor Brad Snyder's quote in this story about Supreme Court justices and retirement, which makes the third graf:

“The great ones get their backs up,” observed Georgetown Law professor Brad Snyder, author of a Felix Frankfurter biography and a scholar of the 20th century court, referring to retirement pressure. “They say ‘No one can do this job as well as I can.’”

Since the second part of the quote is as apt to describe hubris as greatness, and is untrue besides, it seems clear Snyder does not mean "great" in the sense of qualitative greatness. A later quote from Snyder in the story appears to confirm that: "'They are trying to keep power, and they are trying to stay relevant.'"

It is still worth lingering on the word "great" for a second even if Snyder is cleared of any charges here. "Great" seems accurate in some ways: Many of the most famous and influential justices have indeed served long terms and declined to leave early or even on time. John Marshall was the fourth-longest-serving justice and longest-serving Chief; Holmes, Thomas, and Ginsburg have all been celebrated, admittedly at various times and in varied circles, and all stayed past the point at which honor and fitness suggested they should step down. (Thomas is still serving.) 

This is not a coincidence. I refer readers to the June 1995 issue of the NYU Law Review, which contains an excellent symposium on judicial biography. Of particular note is a pair of articles--by G. Edward White and Sarah Barringer Gordon--about the historiography of judicial reputation and the canonization of judges as "great." As befits a great symposium, the writers are not all in agreement on all points. But they are widely agreed that justices like Holmes and Brandeis were not held up as "great" because there could be no doubt on the question; whether they would be held up as great, how that greatness would be described, and so on were all contingent questions.

I would add (as various commentators in the symposium do) that you need folks around to do the holding-up: a claque of former clerks, influential friends or followers, writers pursuing some ideological project, and others who become "invested," to quote White, in building and burnishing those justices' reputations (and, often, their own, or at least the reputation of the project they wish to advance) and defending them against critics. Longevity doesn't guarantee that you'll accumulate such a cadre of supporters, or that they will have the eloquence or status to push forward your canonization successfully. But it sure don't hurt any. The shorter your term of service, the fewer followers you'll have and the fewer opinions for people (preferably people with the right bylines) tp become attached to and lionize for political and ideological reasons as well as reputational ones. As former Justice David Souter observes in the story, "For most of us, the very best work that we do sinks into the stream very quickly."

Obviously, beyond the question of PR-and-politics, what constitutes judicial "greatness" is contestable, since it's a word--like "courage"--that's protean, a bucket that can be filled with many things and often has been filled in advance with a crude checklist of substantive results, rendering the epithet almost useless. So I'll just cast my own vote and note that the greatest justice discussed in the piece is in fact Souter, precisely because he provided a reasonable term of service and then left quietly--and, one might add, has further blessed us with a null set of post-tenure books, neither a weak-soup memoir nor a pamphlet scolding his or her replacements. ("Dies at __; Published No Books" will one day be a wonderful tribute of a headline to an obituary for a Supreme Court Justice.) It's in the graceful willingness to sink into the stream that the greatness lies. May we honor and forget such judges more often. 

A Nice Bit of Law and Political Economy-Oriented Reporting on Disability Accommodations

The Chronicle of Higher Education is at its best when it offers the occasional bit of long-form journalism, filling the gap left wide open by the long-dead, long-mourned magazine Lingua Franca. Here's an interesting piece (paywalled, alas) in that vein. It's written by a professor but clearly must be taken to be a piece of journalism rather than expert commentary--which is good, because I'm not an expert reader on the subject, but it does a good job of interviewing a variety of individuals and discussing recent studies. The headline asks, "Do Colleges Provide Too Many Disability Accommodations?" The answer is, "Most likely, yes."

My sense is that, if one takes the definitions that seem increasingly to prevail in the mine run of legal academic literature, the article, and the issue it discusses, can be thought of as a law and political economy story. (Admittedly, some scholars use more specific definitions of the term; others use definitions derived from the 200 years of law and political economy scholarship that preceded the present, somewhat amnesiac version; and still others have retooled their articles for the submission game by adding "law and political economy" to what are apparently already-existing articles, while using a highly protean definition of the term.) At its broadest level, the article can be understood as arguing that the force behind universities granting an excessive number and degree of disability accommodations is neoliberalism. (For a definition of that term, see my prior parenthetical note.) More specifically, it can be taken to argue that the reason for the phenomenon is a combination of institutional factors: 1) laziness, greed, budget cuts, fear of litigation and/or increased insurance premiums, indifference to professors' views and role in governance, and a capitalist imperative to enroll more students and adopt a more consumer-oriented attitude on the part of universities; 2) greed and market imperatives among disability testing services; 3) careerist cowardice among disability scholars; and other forces. The result, the author argues, is an exacerbation of existing inequality:

The equity problem should be clear: If accommodations help everyone, and we relax the diagnostic criteria necessary for securing them, wealthier students will experience even more of an advantage, which is precisely what we are seeing. Accommodations are disproportionately secured by the highest performing students, further increasing the achievement gap. In one study of students receiving accommodations at a selective private college, most “showed above-average cognitive abilities, average academic skills, and no evidence of impairment.” Limited resources should be going to the students who need them most, not the students who are most skilled at securing them. A more restrictive approach to diagnosing disability and granting accommodations would allow for increased focus on lower-socioeconomic status students who are dramatically underperforming compared to their peers but do not have a diagnosis (or a disability). It would also lower the disability-provider-to-student ratio, facilitating better care for students with more serious disabilities.

Given the forces the author discusses, and universities' own place in the ecosystem of late capitalism, I am dubious of the author's closing suggestion that "higher education is ideally positioned to take the lead" on addressing these issues. This seems like the kind of BS we usually see at the end of a perfectly interesting descriptive and analytical article because of individual academic market actors' inability to resist the pressure to include a set of recommendations for reform. Nevertheless, and without endorsing all its analysis, I found the article interesting, and no doubt most teachers will. Read the whole thing, if you have the economic power to do so. 

 

The Political Economy of, inter alia, Law and Political Economy

From this recent (and paywalled) piece in New York Magazine by Jonathan Chait:

Six months after Obama left office, Larry Kramer, a law professor and president of the William and Flora Hewlett Foundation, convened a meeting at the ‘21’ club in Manhattan. The group included an array of leading philanthropists, think-tank heads, donors, progressive writers, and academics. As Michael Tomasky, one of the participants, later reported, the group continued its discussions the following day at the Ford Foundation, where its members began to envision themselves as the founders of a new intellectual paradigm that would move beyond the failed neoliberalism of the Obama era....

[A]nti-neoliberalism had some key advantages that made it irresistible to its progressive audience. It supplied an explanation for Trump’s victory that did not require progressives to compromise on their political values in order to allow Democrats to regain power. To the contrary, this theory allowed — nay, demanded — the fulfillment of every progressive wish. A Green New Deal, a jobs guarantee, higher minimum wage, Medicare for All — these proposals were not only possible but politically necessary to defeat Trump.

The plan devised by Kramer and his allies explained how anti-neoliberal thought would be disseminated. “It makes sense to begin with the academy and think tanks — though we will not want to confine ourselves exclusively to these even in the beginning — and to work out from there in subsequent stages,” a Hewlett strategy document explained. Hewlett poured $140 million into grants to writers, magazines (The Atlantic, Washington Monthly, and The American Prospect, among many others), conferences, podcasts, academic centers (at universities like Harvard, Columbia, and Georgetown), and think tanks. The Roosevelt Institute’s budget more than tripled. The massive upsurge in demand for essays, columns, and lectures assailing neoliberalism was met rapidly with a booming supply....

Devotees of the anti-neoliberal movement gained special access. Jennifer Harris, who had been running a Hewlett Foundation grant program called the Economy and Society Initiative, which sought to counter neoliberal thinking, joined the administration and became, as the Times put it in a flattering profile, “the Queen Bee of Bidenomics,” who “had a hand in everything from making the case for industrial policy to designing a new framework for trade.” Twenty-five grantees from Harris’s project, as well as two fellow Hewlett employees, joined her in the administration.

I offer all of this in a fairly value-neutral way, descriptive way. At most, the value added here is just good plain caution. I am not endorsing or disagreeing with the rest of Chait's article. I definitely don't intend this as a criticism of law and political economy as a scholarly endeavor. (I understand that some members of the law and political economy movement who currently reside in the academy may also understand LPE as a political project and either move, or see themselves moving, between the academy and other, non-intellectual spaces, such as think tanks, foundations, congressional staff, and the executive branch. I don't intend this as a judgment of that branch, either, but to the extent that those individuals are engaged in extra-academic matters that involve seeking and exercising power and status, of course they deserve careful scrutiny, journalistic investigation, and, where warranted, criticism. If you're in the arena, you're in the arena.) To the contrary, I find the best of the law and political economy work excellent and provocative, although I remain perplexed that so much of it says so little about the prior 250 years of work in political economy. (To be sure, a certain number of articles are creeping into the law reviews that bear the words "political economy of" in their titles but say nothing for which any grounding in political economy, old or new, is required. But that is pretty standard in the period when a new entrant into the "law and" field becomes sexy. The best work should not be blamed for the inevitable coattail-riding. Only the authors of that work, and law review editors, and the legal academy for relying on law review editors, should bear the blame.)  

At most, I offer it to suggest the following: 1) As Jesus said, if I recall correctly, the rich are always with us. That most definitely includes academics, philanthropists, and "progressive writers" who hang out at the 21 Club or the Ford Foundation building. 2) As I suggested the other day, journalism lost a lot when the era of mass and diffuse funding from large and small businesses through advertising faded. Targeted funding from ideologically committed groups for specific projects is dangerous as hell, and one should distrust the magazines, radio networks, and other media organs that take that money, with or without disclosure. 3) Mocking the number of people and projects that are in a symbiotic relationship with and draw sustenance from the teat of foundations, billionaires, establishment types, and so on is pretty low-hanging fruit. It should be plucked at every opportunity. 4) More to the point, it should be observed. For every political economy-draped narrative that involves political movements, funded by shadowy figures with connections to vast reserves of money, engaged in ideological projects and seeking to extend their power and influence, there is almost certainly a counter-narrative about the money, foundations, shadowy figures, and unmentioned motives behind the effort to frame, publicize, and exploit that narrative. As long as things like foundations, funders, and project meetings are involved, there is a political economy story--one that generally involves competition for power, status, influence, employment, funding, and prestige within both the elite academic ecosystem and the foundation/think-tank/rich-philanthropist-heir ecosystem. It's a competition for money, power, and status all the way down.

Personally, I always find both sides of the game--both the shadowy networks that are written about and the shadowy networks that write about them--interesting and worth investigating. It's only when we pretend only one side exists that we fail in our intellectual duties and risk being suckered.     

 

A Reply to Howard on the Press

I appreciate Howard's courteous reply. I hope it is clear that my rather tartly worded post is aimed not at Howard but at a particular group of press critics. For me, Nichols is not terribly important. (I think this is also how I would characterize his writing in general these days; I've admired some of his work but I think he's imbibed too much Internet fame and become too much the Atlantic contributor, both of which are intellectually harmful.) Rosen and Sullivan, on the other hand, are indeed, in my view, very bad press critics; they were bad even before Trump announced his first candidacy and, like many, got far worse after that.

I appreciate Howard's further elaborations in his post below. (And note the earlier post that elicited my sharp words about Rosen and Sullivan.) In attempting to think more specifically about his views, as opposed to those of the critics I was warning against, I imagine that, as is often the case, there are vast fields of agreement, and that identifying the precise points of disagreement is more valuable and difficult than anything that follows from that. 

As far as that goes, I also deplore inaccuracy and imbalance; who doesn't? But I do disagree with his add-on reference to inaccuracy and imbalance "in the name of objectivity." This, too, is a popular view and, lest there be any mistake about it, was oft-heard back when Howard and I were in journalism school. But I take the view that 1) if the word "objectivity" became a cliche in journalism-talk, "there is no such thing as objectivity" (a phrase Howard did not utter, to be clear) has long since attained the same status; and 2) for journalists, writing in the heat of the moment, often unburdened by knowledge and increasingly unaided by good editors, shooting for objectivity is much better than discarding it because it is incapable of perfect attainment. I'm happy to agree to disagree about this or, as I said, to figure out exactly where and how much we disagree. I would simply point readers to Marty Baron's arguments on this point (there is a critical response from Wesley Lowery, who I would put generally in Rosen and Sullivan's company) and a related argument from Kwame Anthony Appiah about neutrality. Of course, used this way "objectivity" becomes more of a placeholder for a set of institutional goals and practices, and I would be fine with it if we used the term "professionalism," or "kumquats" for that matter, instead. I do not think rejecting objectivity does a better job than shooting for it when it comes to avoiding "narratives," both because they're in the nature of the game in journalism and more broadly because we all engage in narrative framing all the time. Nor does it do a better job of avoiding partisan narratives in particular.

I don't think the press is especially or uniquely susceptible to narratives pushed by Republicans as opposed to narratives pushed by Democrats, a phenomenon which happens with equal frequency because both parties are lousy with professional narrative-pushers. We did not live through two weeks of repetitive commentary about childless cat ladies because the press was independently pursuing an issue without worrying about accusations of bias. The chances that the quote was unearthed and pushed by someone other than a Democratic opposition researcher asymptotically approach zero, and the press ate it up. The press did not go all in on Biden's age because it was buying into a Republican-concocted narrative. It did so because 1) there was an actual issue there, 2) it was a hell of a story, 3) the debate gave the press, which knew it had done less reporting on that issue than it should have until recently, the hook to write about it, at which point it compensated or overcompensated for its prior quietude, and 4) Democrats who wanted Biden out of the race then pushed the story hard, and pushback, also from Democrats, created the sense of conflict that generates news coverage. Republicans may have been gleeful spectators, but that's all they were. (The press should refocus on Trump's age and fitness. But one should remember in fairness that it ran a slew of those stories between 2019 and 2021, often more poorly sourced and speculative than the Biden age stories.) And they wrote about Trump showing grit in the moments after being shot not because Republicans encouraged them to do so but because it was also a hell of a story. (They wrote a lot of nonsense after that, but I think most of the nonsense was self-generated, as well as being drawn from the press's current, poisonous, bottomless well of a reporting resource: Twitter.)

I also do not think that the approach pushed by critics of the old-fashioned press approach makes for more accuracy. I anything, I think it is even more likely to result in blatant partiality. (For some, the idea is that at least the partiality will be more visible in the reporting. Whether that's so or not, my concern is that the reporting will simply be worse--that it will result in some stories being poorly done and others being missed altogether.)  

Finally, I see no evidence that the press's move, both a conscious one and a symptom of generational change, away from "objectivity" and toward something else after 2016, encouraged by folks such as Lowery, had much effect at all on the Trump presidency, the 2020 election, public opinion, or anything else. And in the long run, I doubt that the current sweetheart coverage it is now giving Harris, or the later negative narratives it will run with for some period of time as it overcompensates for its current puffery, or the more critical reporting it will devote to Trump and Vance to please subscribers (it turns out that big corporate advertisers did more to benefit journalism than to harm it; the subscriber model will kill journalism in the act of trying to save it) and out of "fear of accusations of bias," will have much effect either. The press, like the president who was at a standstill in the polls and leaking support in every direction, has done plenty of pushing of the "accurate Democratic argument that Trump is an authoritarian who undermines and threatens the constitutional order" between 2016 and today. I tend to find many of the facts underlying that argument--although we should use the correct label: it's not an argument; it is, in fact, another narrative--largely accurate and newsworthy and therefore worthy of reporting. But simply trumpeting it, as critics like Sullivan thought and think we should at every opportunity, turns out to be an essentially empty exercise if the assumption is that simply repeating the phrase frequently will somehow change things. When Trump, or any candidate or public official, lies, the press should report that fact clearly. When he says something authoritarian, the press should likewise report it. But the idea that it makes a difference, to either change in the world or better journalism, whether its headline uses the word "authoritarian" or not, is a fallacy. Again, this is not what Howard wrote. But I think it's a fair characterization of what Rosen and Sullivan believe. I think they genuinely believe that putting the word in the headline will ward off authoritarianism, and that every time they are proved wrong they take this as evidence that the press should put the word in the headline even more often. In their Escher-like views and enthusiasm, they are impervious to refutation. 

And, perhaps somewhat contra Howard, I think that belief, and the associated belief that the press must adopt a new approach, does indeed lead not to more accurate reporting but to ignoring or suppressing genuine news--it encourages "not reporting" as well as "accurately reporting." The press did adopt a new approach after 2016--not to the extent that Rosen or Sullivan wanted, and certainly not as much as Democratic operatives wanted, but the changes, and the pressure to do so from within and without, were obvious. The result was some missed or underplayed stories, some unforced errors, a momentary increase in subscribers, and nothing else. It turns out that the way to fight authoritarianism is to get out there and fight authoritarians in one's capacity as a citizen, not to change journalism (or art, or academic writing, or any other specialized, professional, or avocational activity). 

Of course all of these things can be debated and much of the debate will turn on perspective. People who mistakenly think the press is, more or less literally, a wholly owned subsidiary of the Democratic Party will evaluate the evidence one way, and people who think (rather incredibly) that Maggie Haberman personally loves Donald Trump will evaluate it another way. I suspect, but not with complete certainty, that my disagreement with Howard can be put down to three things. 1) I think the critics he cites are awful. 2) I think we have different views of the role and value of "objectivity" in professional journalism. 3) I think we probably have different views about whether an "emergency" is a sound reason for changing fundamental practices in journalism or not. I may be wrong. And even if I'm right that leaves a lot of room for agreement on particular issues, as well as disagreement about how to characterize particular moves on the part of the press. But I think that's the core of where we part ways. 

I should add that I think Howard's views are more popular than mine, and in many cases more popular within the press itself. I just think they are wrong, if not in every particular then in the general tendency. Our main social and political crisis is an institutional crisis. It does not demand wholesale change to, or abandonment of, those institutions. It demands a firm re-commitment to them, and to their standard practices. Although I see this as demand as requiring activity and energy, my position may also seem to put me on the side of staidness, conventionality, and quietism. I'm pretty content with that. In my view, the changes we have seen in the profession in the past few years, that a new generation of "journalists" (many of whom do more commentary than actual reporting) have demanded, and that critics like Rosen and Sullivan and others are urging, will do little to combat authoritarianism. I fear that instead, those changes will ultimately result in a further drop in public trust in journalism, a decrease in the quality of the work done by that institution, and the further and perhaps final financial collapse of the institutional press. I doubt all my fears will be realized. But I think the best way to forestall those eventualities is for the press to refocus on doing its job in a fairly conventional, old-fashioned, and admittedly imperfect and aspirational way.  

"...disinclined to listen to media professors...."

I tend not to see eye to eye with my friend and co-blogger Howard on press issues, perhaps because we went to competing journalism schools, both of which, as journalism programs go, are very fine. (Mine was better. At least it used to be. Now that it offers master's degrees and doctorates instead of overpriced but excellent meat-and-potatoes training, it may be much worse.) That's okay! Marketplace of ideas and all that. But because he recently cited Jay Rosen, a non-journalist press critic who has had the misfortune to become a popular online commentator (online popularity being a recipe for ego and hubris), I thought I would share this recent Substack piece, by Mike Pesca, an actual journalist. Examining recent events, the piece quite rightly argues that Rosen is--once again--wrong in his position on how the press should cover the election and specifically former president Trump's candidacy, and likely to remain wrong by retaining and repeating the same mistaken position, no matter the evidence and without much sign of the capacity to acknowledge errors or reexamine his positions. Pesca also notes the endless wrongness of Margaret Sullivan, formerly a high-ranking journalist before becoming the last and worst of the New York Times's public editors; she has since enjoyed sinecures at the Washington Post and the Guardian and also, alas, teaches at my alma mater journalism school. 

Press criticism can be a valuable and necessary thing. (Among other things, it is useful in contextualizing the increasingly negative view the Supreme Court may hold of the press and why there may be actual reasons that its members, along with large numbers of the public, are more likely today than in past years to view it "in a negative light.") On the other hand, as Thor would say, as press critics Rosen and Sullivan are just the worst. (Tom Nichols, also mentioned by Wasserman, has been an interesting writer from time to time but is not much better.) As Pesca notes, most sensible working journalists will simply ignore them--Rosen because he's wrong and not a journalist and Sullivan because, well, because she's awful. This is an excellent approach for non-journalists as well. 

"I'd Give it a...."

It is possible I've offered a complaint about quotes by law professors awarding low hypothetical "grades" to various opinions and statements before. But it's an evergreen topic and, every now and then, several examples will catch my eye. Law professors, who purport to hate and groan through the grading process, nevertheless seem to have a strong attachment to handing out "grades" to judges and their opinions. I mostly avoid Twitter nowadays, but my recollection is that there are some noteworthy law professors there who have handed out thousands grades in their teaching careers, and almost as many hypothetical grades. I have never entirely understood the lure of this habit; as I say, my understanding was that professors hate grading. But it must stop. 

One oddity of these "grades" is that the opinions they are awarded to are substantially worked on by law clerks. These clerks have already, ex hypothesi, received As like candy on Halloween, and were praised by their mentors to anyone who asked as the smartest young lawyer since Brandeis. And they are working on team-production opinions with other law clerks and with their judges in a period where, at least on the Supreme Court, the number of decided cases is low and the length and technical detail of the opinions high. I may disagree--and in the case of, say, many of the writings of individual Fifth Circuit judges, violently disagree--with some or many of those opinions. But as a "grader," I am inclined to say that the quality of modern judicial opinions is very high. In technical respects, it is higher than the quality of opinions written during the periods when some of the graders were clerking. The low grades that are suddenly so freely handed out to former A students are silly. (That's a judgment of quality along certain lines, I should add. As a reader, and for other reasons, I would gladly trade completeness and sheer technical skill for brevity and sharpness of thought and language, along Holmesian lines. But there was only one Holmes, and in any event that is not the prevailing style. I would add that while I think the quality of lower court opinions is also high, in part because the clerk selection process has become such a big affair, there are lower court judges for whom the opportunity to score points or use cute Internet-ish language trumps, so to speak, quality in writing. Again, the Fifth Circuit springs to mind.) 

 

Another is that judges on apex courts (and on lower courts, sometimes because they have no choice and sometimes because they're eager to do so) don't simply stand still; they move the law. This is a rough fit for grading by law professors, many of whom want students not only to regurgitate the law as they were taught it, but to repeat and flatter the views of the grading professor. (I try not to be one of those professors. I'm pretty sure I succeed. But, on information and belief, they're out there.) Professors who grade opinions of this sort, which is many of them, and who grade in the manner that they do, are especially liable to be affected by their priors. An opinion that moves or manipulates existing law is, I would guess, more likely to be excoriated as, heaven forfend, a "C" effort when the movement and manipulation is, in the professor's view, running in the wrong direction. 

 

More important still are two other factors. First, at least based on what I have seen of grading at six different law schools, it takes hard, hard work to get a genuinely low grade. Of course it does happen, including to some of my students, and some of them a) have good reasons and b) become great lawyers. But genuinely low grades are nevertheless far from the norm. Some law schools—I generally think of them as opportunity schools, and have taught at one--​ demand a given number of lower grades, so that they can identify and remove some of the low-performing students they took a chance on, and whose first-year tuition payments they were happy to cash. But most law schools and all first-tier schools dislike low grades. At those schools, it's very hard to get in and even harder to get out--that is, even harder to manage not to graduate. They have a generous curve, tending to a B+ median or, somehow, higher. Given the difficulty of writing something coherent in three hours while artificially highlighting the points the professor wants to see, and given general declines in writing skill, even a B+ exam can be less than impressive as a reading experience. (I'm not sure I'd like to go back and reread even some of my A exams.) And for some types of class, the curve is either higher still or nonexistent. If the exam or paper was written for a small-enrollment class that doesn't require a curve, most professors, both because they like awarding high grades and because they know the effects of low grades in seminars on future enrollment in that class, are as generous as they can manage without hearing from the associate dean or registrar. Grade inflation is alive and well at most law schools and, despite occasional efforts to address it, thriving like a tropical jungle at the elite schools.

 

Second is the sheer hubris involved. That hubris embraces the hypothetical grade awarded, the grading skills of the person awarding the hypothetical grade, and the grader's confidence in him- or herself, his or her position, and the shimmer of authority, expertise, correctness, finality of judgment, gatekeeping, influence, etc. that surrounds the very idea of handing out a "grade." Academic expertise and its importance are real. So is the self-love of the academic expert, the overestimation of the scope of that expertise, its misapplication, and the expert's belief that his or her public bouquets and brickbats matter. 

 

One option is simply to say things like, "I think it's a bad opinion" or "I think the judge's view is wrong." It's not very quotable, but it is a sensible approach. But if we are going to insist on continuing to hand out hypothetical grades, I'd like to see us be more honest about our grading practices and more humble about the thing we are "grading." A sound and probably accurate statement would run more like this: "If this opinion were one of my students' exams, I'd give it--let's face it, I'd give it an A, or at worst an A-. I hate it anyway."     

The Core Crisis of Our Time is an Institutional Crisis, pt. MMDCLIX

Also in anti-institutionalist news, this forthcoming book attributed to Kevin Roberts, head of the Heritage Foundation, a sometime Washington think tank, with an introduction attributed to J.D. Vance. (There are occasions where I think the listing of an author is true-to-fact, and occasions--say, judicial opinions, Ivy League admissions essays, and celebrity autobiographies--where one should avoid making a firm assumption to that effect. This is one of the latter occasions.) It is currently titled Dawn's Early Light: Taking Back Washington to Save America. The book's description suggests that "Washington" (and possibly also "America") should be understood here as more of a placeholder, given the number of institutions outside of Washington that it wishes to "take back." Its salvific vision is straight out of the Battle of Bến Tre:

Chapter by chapter, it identifies institutions that conservatives need to build, others that we need to take back, and more still that are too corrupt to save: Ivy League colleges, the FBI, the New York Times, the National Institute of Allergy and Infectious Diseases, the Department of Education, BlackRock, the Bill and Melinda Gates Foundation, the National Endowment for Democracy, to name a few.

I have had interesting discussions with interesting and thoughtful conservative friends who despair of various institutions, although in my view some of their despair is overly pessimistic, or reasonably pessimistic but overly operatic. (In many instances, I have had interesting discussions with similarly thoughtful liberal friends who despair of the same institutions, generally for the same reasons.) I haven't read the book, so I'm going out on a limb here, but I don't think this book is a gateway to such conversations. If the description holds, it seems to have far more in common with those on the left whom I have criticized for taking a view of institutions that purports to be critical or reformist but is ultimately either destructive of or fundamentally indifferent to them. In any event, since my examples of anti-institutionalism generally focus on the left, given that my home institution is the academy, I offer this prominent example as a reminder, as much to myself as others, that the phenomenon is best defined as a social and not, in the colloquial sense, a political one. (May I add, despite being a big fan of capitalism and a frequent bore on the topic of everyday, small-c corruption being more important than large-C "Corruption," that anyone who makes $600,000 as the head of a former think tank should go easy on the phrase "too corrupt to save.")

Of obvious note to a) the presidential election, b) my location of the book in, as academics these days would say, an anti-institutionalist "space," and c) the general cravenness of authors, publishers, and politicians: the book until recently had the charming subtitle "Burning Down Washington to Save America."  

Law Schools and State Court Clerkships

Although I get its emails, I don't read Above the Law, haven't for years (probably since before David Lat's departure), and can't imagine why anyone would. But I offer sincere credit where it's due: my generally-ignored email from that site tells me it is publicizing a list of law schools that are the most active and successful in securing state court clerkships. Kudos to author Staci Zaretsky for her post. (It doesn't change my mind about the truism that the post-Lat site is dreadful.) The schools at the top of the list, from Princeton Review, are

1. Seton Hall University School of Law (no change)
2. Rutgers School of Law (no change)
3. University of Maryland Francis King Carey School of Law (ranked #4 last year)
4. Widener University Delaware Law School (ranked #7 last year)
5. Vermont Law and Graduate School (unranked last year)
6. University of Hawaii at Manoa William S. Richardson School of Law (ranked #8 last year)
7. Drexel University Thomas R. Kline School of Law (ranked #3 last year)
8. University of St. Thomas School of Law (MN) (ranked #5 last year)
9. University of Minnesota – Law School (ranked #10 last year)
10. University of Montana School of Law (unranked last year)

One notes that: 1) none of these schools are the vaunted "prestige" schools; 2) federal clerkships confer more status and prestige on their recipients (and on the schools that are successful in placing federal clerks) than state court clerkships; and 3) in my view, state court clerkships may well be more important and can offer better training in more areas of law than federal court clerkships.

Of course the third point is debatable. To the extent that it is true, however, that suggests that (4) prestigious law schools, despite the verbiage, are less interested in sending their graduates places that provide the greatest potential for being "change agents" tout court. Rather, they, and the vast array of professors, commentators, advice networks, and so on that steer people to federal clerkships for ostensibly non-crass, social-change-oriented reasons, are interested in jobs that achieve such goals provided that those jobs also confer a sufficient amount of status and prestige. Professors who are happy to talk about how it is a scandal that law schools don't teach more state constitutional law, how much action there is in state constitutional law, how state supreme courts can serve as a bulwark for rights against conservative federal courts, and so on would nevertheless be aghast at the idea of steering their best and brightest toward state supreme courts rather than federal district or appellate courts. In the British gentlemen's phrase, it just isn't done. And the process becomes self-reinforcing. In faculty hiring, for instance, we all treat federal court clerkships as proxies for the quality or promise of the candidate, even where the candidate's interest is in an area of law that is mostly dealt with in state courts, because they generally are a proxy for various achievements.

As Vonnegut would say, so it goes.  

P.S.: In fairness, let me add a note from a correspondent, who suggests that because it is harder to form pipelines from state court clerkships to firm jobs, post-clerkship outcomes, rather than prestige, may be a big part of where law schools focus their efforts. I take the point, and take it as a critique (although it was offered in a warm and collegial fashion) rather than calling it a friendly amendment or something of the sort. I suppose I'd say on the one hand that I think the point certainly can explain and justify rational choices on the part of applicants and schools, and on the other that, just as I'm not sure that firms' disproportionate focus on graduates of a small number of schools, even as against top students at other schools, is entirely rational or that immurement in prestige as such has nothing to do with it, so I'm not entirely sure it makes sense that federal clerkships are prized more highly than state court clerkships by firms, to an extent that then drives other actions within the larger ecosystem.  

Two Notes on Gerontocracy

First, I remain convinced that the most interesting and valuable piece of legal scholarship in American constitutional law I have read in the past year or two is Sam Moyn's piece on gerontocracy in Granta, "The Trouble With Old Men." This despite because of the fact that it a) mentions Hesiod, James Frazer, and the regrettable lack of mandatory retirement in American universities more frequently than it does the United States Constitution, which is mentioned exactly zero times, and b) is not published in a law review. 

Second, and with essentially no hope at all, I would say that for anyone who is serious about Supreme Court term limits for other than uninteresting short-term reasons, this--the season of Biden, Ginsburg, Trump, and Feinstein (to mention only those whose age has been or come close to front and center)--is about as good a time as one is likely to get to make some progress, 22nd Amendment-style, on a bundled, prospectively oriented constitutional amendment that provides both reasonable term limits on the Court and reasonable age limits in the executive and legislative branches.  Even if one doesn’t change the lower age limit, it seems to me that 30 years (if one sets the upper limit at 65) is a pretty substantial window of opportunity in which to seek and take one’s opportunity to run for the presidency. (For what it’s worth, I felt the same way in 2016 and 2020 and considered it somewhere between questionable and dishonorable for a number of candidates in both parties, including Trump, Clinton, and Biden, as well as Sanders and Warren, to seek the office. Offices are not entitlements, and the possibility that the vagaries of time and chance might cause a particular politician to miss his or her shot should bother no one except for the politician. Nor was there any adequate excuse, even during wartime, for Roosevelt to make virtually a deathbed run for a fourth term.)

A Serious Issue, Unseriously Reported

As Paul Caron notes, Inside Higher Education has an article suggesting that Columbia law professor Katherine Franke faces potential dismissal by her university. If she were dismissed or seriously disciplined for the statements that apparently are the focus here, statements that I find rather silly, that would be a cause for serious alarm and objection. Whatever one thinks of what she said, it is not proper cause for academic dismissal. Those who are concerned to protect academic freedom should watch vigilantly.

That said, may I note that the article is so poor that it cannot possibly count as a serious and reliable account. (It is also dismally written. I don't know whether the fault is the reporter's or the editors'. Wherever the fault lies, something went very wrong for the lede to be relegated to the thirteenth paragraph.) Despite a mild genuflection toward the idea of seeking comment elsewhere, it is essentially a single-source story, that source being Prof. Franke, and it mostly simply retails her own arguments and complaints. The idea that she may be fired--something that should not happen, based on what is presented here, and that I would of course oppose--is based wholly on this statement: "The university did send a copy of its Office of Equal Opportunity and Affirmative Action policies, which include termination as one of multiple possible sanctions for alleged discrimination and harassment. Franke says her lawyer has told her she has a 50-50 chance of being fired." I am not sure I would take a list of sanctions that includes dismissal as strong evidence of what will actually happen, and I am disinclined to give much weight to a second-hand report of a lawyer's probability estimate.

At the risk of tiresome repetition, I would oppose such an outcome. But neither this story, nor a story published--on the very the same day--by The Intercept, which is better written and better done but otherwise mostly identical in its substance and sourcing, should yet be taken as serious indicators of what is to come. I was not a journalist for very long, although I was glad to learn a few journalism skills at the university at which Prof. Franke teaches. But from that perspective, and especially given their overlap, both stories seem closer to transcription or to a PR campaign than to serious independent journalism.  

Hmmm….

Any present or former journalist, or anyone who has written an op-ed or essay for a general interest publication, knows that editors are keen on compelling openings that suggest to the reader the immense importance of the topic. (Law reviews increasingly demand the same, for roughly the same reason: the authors are trying to captivate student editors who are a short step above being general readers themselves.)

It’s an understandable practice. But it carries with it tremendous temptations to exaggerate, mythologize, or pay implicit tribute to Harry Frankfurt. So we come to the first paragraph of this essay in the online spaces of the midbrow conservative “public intellectual” publication City Journal. I have to wonder: Does anyone really think that anything in this paragraph after the first six words is true? Does the author, a law school graduate, really think so? I just can't see how.   

Hardly anyone reads law review articles, but those who do are among the most influential readers in the country. Supreme Court justices and federal and state judges rely on academic theories to decide important cases and to set the legal doctrines that shape American life. Professors shape their students’ worldviews by assigning articles appearing in prestigious journals to show that they are authoritative—the law equivalent of peer-reviewed. Though these journals are student-run and -edited, they often legitimize the ideas that become law and common knowledge.

U. of Alabama Law Seeking Assistant Dean of Public Interest Law/Assistant Professor of Law in Residence

My lovely law school, the University of Alabama School of Law, is seeking an Assistant Dean of Public Interest Law, who also will be Assistant Professor of Law in Residence. From the job search portal, a brief description: "The Assistant Dean will manage the organization, planning, and operations of the Public Interest Institute of the Law School. The Assistant Dean will also teach Public Interest Lawyering and other related courses."

I encourage folks to apply or to spread the news to others who might be interested. For what it's worth, whoever is fortunate to get the job will find that we have a substantial population of law students who are deeply interested in and committed to public interest law and our public interest program. The Law School offers a Public Interest Certificate to students who have demonstrated their commitment to public interest law through hard work in clinics, courses, and community service, and every year the number of students graduating with a public interest certificate grows. You'll also find that our relatively low tuition makes the school attractive to those students precisely because upon graduation, they are much freer to take up a job in or around public interest work. In short, you'll have the pleasure of working with a very serious, enthusiastic group at a law school with a deep student and institutional commitment to public interest work.  

There's a job portal with a longer description of the job and how to apply. Here it is: https://careers.ua.edu/jobs/assistant-dean-of-public-interest-law-and-assistant-professor-of-law-in-residence-523889-tuscaloosa-alabama-united-states. If you have any serious questions about the school or about living here, feel free to email me.  

On Judicial Ethics and "corruption:" Celebs, Authors, and Medicis

In a pair of posts at the VC, Josh Blackman raises some valuable questions about modern judicial ethics. I think of them as follows: 1) Are books and book contracts for Supreme Court justices unethical? 1a) Are they corrupt? 2) Are gifts to justices unethical? 2a) Are they corrupt? 3) Are standard-issue versions of the examples of (1) and (2) no different from, or even worse than, a 26-year trail of lavishly generous patronage from real or ostensible "friends," from a legal-ethical or general-ethical perspective?  

As you can see, I tend to think of this general topic in terms of two separate categories: what is unethical in a formal legal-professional sense, and what is dishonorable or corrupt. I mean "corrupt" in the small-c sense not of acting for gain, but of moral debasement, degradation, or decline. I think it's a mistake for lawyers to treat every moral and ethical issue as a legal one, and for interest groups to publicize every act of alleged corruption as if it necessarily has some legal consequence--and, conversely, to call it a "nothing-burger" if it doesn't. The question whether a judge should recuse is relatively uninteresting to me, and the "scandal"-based arguments for recusal or punishment are often unpersuasive and, from a systemic perspective, unwise or ill-thought-out. The question whether office-holders or people with power have lost what George Washington called "a proper Sense of Honor," on the other hand, I find both interesting and crucial. that sort of quotidian corruption is, after all, the ordinary state of affairs in politics and political advocacy, and the effects of everyday small-c corruption are far more pervasive, routine, and damaging than legally unethical or criminal behavior. Corruption in this sense is also more interesting because it raises harder questions about how to participate in politics, how to live and behave in a corrupt world, what should and shouldn't be taken for granted, when and whether to respond in kind, what the going price of Wales is, and so on.

Talking about corruption in the small-c sense is admittedly harder to pin down, harder to address, and less likely to result in answers to the question what to do, although it is more conducive to asking the question "How shall I live?" It is also, perhaps, sometimes harder to face. Partisans, inside and outside of electoral politics and within both the for-profit and nonprofit sectors, are generally already soaking in it. If you already get your funding from Arabella Advisors or Leonard Leo and the Marble Freedom Trust or David Brock and his sponsors and vehicles, you are already steeped in small-c, often within-the-rules corruption. It's perhaps understandable that advocacy groups, which draw their water from the same well, would thus focus on what is actionably wrong rather than what is permitted but degrading. The greatest risk of such corruption is not so much that you will change your views or alter your life, but that you won't change a thing--just accept and entrench a dishonorable and dissatisfactory way of life, politics, and public and private morality. But this kind of corruption is still worth our attention--still worth, as it were, the continual effort to make it unfamiliar--even where it falls short of some code violation. 

From that perspective, I doubt that books or book advances present an ethical issue. Morally, perhaps the call is a little closer, given the size of book advances and, perhaps more importantly and interestingly, the niche nature of markets and the degree to which, in a polarized society, some presses (and judicial authors) are going to be thinking more about how a book should be tailored to one side of the usual divide or the other rather than seeking a general audience. My sense of the question is perhaps affected by my view that some judges--Posner, Scalia, Friendly, and others--have published books whose absence would be a loss, and so one doesn't want to disincentivize their creation. The Code of Judicial Conduct agrees. The reason I see a moral flipside is that the books most likely to earn a substantial advance are not the deep dives, but books that simply mouth platitudes or memoirs. Despite the fact that some judges obviously have interesting stories to tell, the memoirs that get larger advances generally trade off of the judge's status as a celebrity or as an idol to the right or left. Others may be keener on such projects insofar as they bridge the gap with the general public. But it is easy for such books to be not a general bridge-building effort but more of a targeted liberal or conservative project. Is that really a worthy supplement to an already-sufficient income?

On gifts, my loose read of the general approach is that we take a liberal view of gifts that are either truly personal, fundamentally trivial, or commensurate with the circumstances--both the occasion and the relationship--while requiring reporting in other circumstances to allow parties the opportunity to judge for themselves whether and when they might raise questions about the judge's impartiality in particular matters. Most of the time, that is sufficient. But a factor perhaps less accounted for is the celebrity status of a Supreme Court justice. That status can contribute to a small-c corruption, in which the justice receives gifts because of who he or she is as a general public figure, or as a prominent figure in the political divide. The gift may be of trivial value to the giver; but it can still tempt the judge to enjoy that celebrity status too much, or to become too much accustomed to access to special velvet-rope privileges handed to them because of the office they occupy. Judges are not special; judicial office is special. When those gifts accrue to the person and not the office, an air of entitlement or unearned privilege can develop. 

In that sense, one might justly be uneasy about things like Justice Jackson's gift of precious and expensive Beyonce tickets, the subject of Josh's second post. I'm not quite sure how to read that post, because some of it may be deliberately parodic. Of course no sensible person treats a quip based on song titles as actually intended to sell Beyonce records, or thinks Beyonce was seeking to curry influence with Justice Jackson; I therefore assume that Josh's comments on that score were intended to be humorous. But that doesn't make such gifts unproblematic. The problem with them, as I've suggested, is not that they involve a quid pro quo or something of the sort, but that there is something unseemly about even duly-reported generosity of this sort when it permits judges or justice to take for granted a celebrity or elite lifestyle that would otherwise be unavailable to them. It's the kind of generosity one enjoys by virtue of being a celebrity, not a judge, and a judge should avoid that celebrity status even if it means rejecting the fruits. (Even though these are legal events, I feel the same way about justices speaking at fancy ACS or FedSoc events--not that donning evening wear to listen to a justice make light jokes over the dessert course can hold appeal to anyone.) If you wouldn't get in to a concert or be able to afford the tickets otherwise, you shouldn't do so because you've become famous or notorious or adored by virtue of the robes you wear or the publicity your confirmation generated. 

Does that make such a gift as bad or worse than a 26-year record of lavish gifts and quasi-loans extending to motor homes, Lifestyles of the Rich and Famous junkets, tuition, and antique Bibles, real estate purchases, and the lavishing of lavish similar attentions on the justice's spouse? Well, of course not. Others may argue about their legality or consequences for recusal in individual cases. I'm less interested in the legal question than in its corruption and corrupting nature, in the small-c sense. I don't know whether, as Josh writes, "no one doubts that [Justice Thomas] and Harlan Crow are genuine friends." I'm also not sure why he is firm about a friendship that developed after Thomas attained his lofty status, while doubting that Justice Jackson could be "genuine friends" with Oprah or Beyonce. Isn't the question in both cases whether the relationship, even if genuine, was a product of Jackson (or Thomas) being a famous, and perhaps also a politically sympatico, judge? If Oprah wanted to meet Jackson because of her status or politics, hit it off with her, and then chose to spend the rest of her life lavishing gifts on her, giving Jackson a lifestyle she otherwise couldn't hope for, wouldn't accepting that generosity be corrupt even if they had developed a "genuine" relationship? If a judge or justice wants to get rich and enjoy the lifestyle of a rich person, isn't the answer to quit the bench and try his or her luck as a capitalist? And if the alternative is to enjoy the office and status of a judge while merely subsisting as a member of the ten percent, is that really a hardship or sacrifice?

At the moment, all one can say of Justice Jackson is that she received concert tickets--tickets she ought to have turned down, in my view--and duly and promptly reported them, without unfortunate bouts of forgetfulness, obfuscation, or amendment. By contrast, Justice Thomas seems to have treated the later-acquired friendship of a politically sympathetic plutocrat as a pleasant opportunity to live a part-time plutocratic life himself. I imagine he could have forced himself to enjoy a deep "kinship and connection" with Harlan Crow that did not involve the Bohemian grove, jaunts to Bali and other luxury outings, Frederick Douglass's Bible, and so on.

I would suggest that the legalistic frame leads us to focus on the wrong things--whether a real friendship exists, whether any votes will change, even how such a relationship will be perceived. A look further back in history suggests the more accurate way to think about this relationship. Whether a friendship exists or not, this is a three-decade relationship of patronage. Justice Thomas has allowed his friend or friends to serve, Medici-like, as a patron or patrons, enabling him to live in the lifestyle that he may mistakenly think a Supreme Court justice, or just he in particular, should receive as a matter of dessert. (This was Justice Fortas's malady as well.) But this isn't quattrocento Florence, and I can't help but see that patronage relationship as fundamentally unseemly and corrupt even if they also enjoy a true and deep friendship. It's as simple as the old British phrase: It just isn't done. A justice deserves no lifestyle in particular, other than the one his or her generous salary will afford, and should retain the good plain common sense to know it. To allow oneself to become accustomed to live otherwise is surely corrupt in the small-c sense.   

The Missing Ingredient

I would suggest, in response to Gerard's post below, that if we ask why those actions succeeded with Nixon and failed with Trump, the missing ingredient is: an Establishment. A good, old-fashioned Establishment, a dominant elite that is enmeshed, to quote Henry Fairlie, in both "the centres of official power" and "the whole matrix of official and social relations within which power is exercised." It mattered that the Post, a well-connected newspaper in a well-connected city, opened the door to Watergate reporting and that the Times and other mainline papers and TV networks (remember them?) quickly followed suit. They had influence in large measure because those institutions were part of or important to the Establishment and taken seriously as such. It mattered when someone like Walter Cronkite spoke to a huge chunk of the nation at the same time. It mattered, too, that the other figures and institutions he mentions were part of that Establishment. Although in our popular histories and memories of the event we sometimes dramatize folks like Woodward and Bernstein and the young lawyers working for congressional committees as young rebels or outsiders, they were for the most part consummately inside, or worked for institutions that were taken seriously as Establishment organs: they were inside the barricades, not outside--and stayed there, sometimes pursuing power and sometimes wealth, for decades. It certainly mattered that Mark Felt was a member of the Establishment. It probably even mattered, despite his inexcusable conduct, that Nixon was a member of the Establishment. 

At best, we have two establishments now, but I doubt even that is an accurate description. In any event, once there are multiple establishments, and multiple avenues to success and notoriety outside any establishment, their power to include or exclude or enforce norms is greatly weakened if not wholly evaporated. Both Donald Trump and President Biden, in their ongoing willingness and ability to ignore, bypass, or freeze out the legacy papers, demonstrate that they no longer have the power they once did, however seriously some of their staff may take themselves. Nor does anyone take select committees or federal district court judges seriously anymore--and for good reason, often enough.

There are certainly still elites. I'm fond of observing and writing about them--their dreams, projects, and illusions, their games and their self-image, and their never-ending struggle with cognitive dissonance. And there are certainly still elite institutions; if Toward Nakba as a Legal Concept had been published and de-published by the Podunk Law Review, we would not have spilled so much ink about it. But the Establishment itself is now, for the most part, like Gertrude Stein's Oakland: there is no longer any there there. I would add that it's crucially important that Establishment mingling, in circumstances in which things can be hashed out by all hands on what passed in the Establishment for all sides, is neither possible nor especially welcome. 

An "Establishment" is also exclusionary, cozy and clubby, self-selecting and self-dealing, and so on. There are lots of reasons to oppose or question it and its structure. I certainly have, especially when it comes to what I think of as the Canadian mandarinate but also here. It's more than a little ridiculous that anyone ever treated any single figure like Cronkite as "the most trusted man in the nation." But the value of reposing trust, and having something in which to repose it, is not so absurd. Back when people thought the Internet was a good thing, they (I include myself) would talk, sometimes rhapsodically, about the democratizing power of moving from a "one-to-many" model of communication to a "many-to-many" model. (It's interesting to look back and think about how much that particular vintage of Internet still revolved around a relatively small number of both traditional and new speech institutions that were effectively Establishment publications. That was, in retrospect, really an era of "more-than-one to many" communication. It's long dead. Something like The Atlantic [est. 1857] exists largely vestigially, can be read or ignored quite safely and easily, and farms engagement like everyone else.) But a one-to-many model, and the social structure that undergirds it, has its benefits too, and any change in governing models has its costs.

Absent an Establishment, I am unsurprised that the Watergate model is ineffective. How can you be cast out of, or by, a social and political power elite that doesn't exist anymore? And I'm rather doubtful, for the same reasons, that the prosecution model will be effective either.      

A Second and, Deo Volente, Last Post on the CLR Mishegoss

I won't try to follow and comment on every twist and turn (It's up! It's down! It's up! It's...whatever. I just want to know when the April issue of the Michigan Law Review will come along.). But new information came in not long after I put up my post the other day, and there has been some further news coverage since. I found this Inside Higher Ed piece useful, as well as this Times article (though points were deducted for the appearance of the phrase "speaking [one's] truth"). The Intercept has a second piece, and although I commend it for its work, that work continues to be tilted in its sourcing and to fail to provide links that might allow a reader to judge for himself. That includes not giving a link to the board's letter, which one can find here, if you'll pardon the X-ness of the source. I also found Mike Dorf's commentary useful, although I don't see eye to eye with him on everything. (I do agree with him on a lot of bottom-line stuff.) The new reporting and commentary occasions a couple of observations--few in number if, as always, excessive in length. 

For the most part, the latest information doesn't change my general view that even if the board had some legitimate complaints, its actions were unwise. It was never, it seems to me, going to end up permanently spiking the issue or the article. It should not, therefore, have taken the article (and the website) down--even if its hand was forced by the editors. If it had or has complaints about the process, they could have been addressed after the fact, by a statement about the process followed with this article. More important, in the longer term, the board could carry out a reexamination of current policy, an assessment of whether current editors are following it, and a consideration of whether further policies need to be put into place. Some of these things might, for all I know, be a good idea. Vanishing the article and website was not. As everyone has noted, it certainly did not dampen the controversy that the board predicted the article would occasion by virtue of its subject--it super-charged it.   

The new reporting reinforces the view, which I stated in my earlier post, that rather than argue that only one "side" was being irregular (which seems to me factually incorrect, despite the spin efforts; I say more about this below) or argue over which side was being more irregular (that would be the board, I think), it's better to see a larger dynamic of multi-party irregularity at work. That dynamic incentivizes tit-for-tat behavior that ends up being detrimental to the journal and its actual, essential, quite conventional mission of publishing scholarship. (The tit-for-tat behavior includes the media coverage, of course; I don't blame the editors for taking to the press, but it should be understood as another strategic move in the game.)

The argument that there was no irregularity on the editors' part seems to be that a) the article was thoroughly edited and b) it's never the case that every editor on its overstuffed staff is involved in editing a given article. I have no reason to doubt either proposition. But the same editors make clear that they did act in an unusual fashion in various ways. One I count as minor, albeit perilous. That is that the selection process was unusual: seeking to "use the Columbia Law Review as a platform to discuss" some current event, as opposed to selecting articles from the pile while using the journal's online supplement to deal with shorter-fuse issues, is not the normal process, although it most certainly happens and I suspect it is becoming more common. As I wrote last time, I think it's not a bad thing in principle: the relative speed with which this piece went through a still-rigorous process suggests that law journals could be timelier than they are in selecting new and interesting issues. On the other hand, I don't trust editors to make those choices well (in fairness, I don't trust them to make any choices well), and I suspect that, absent better processes, it's an invitation to factionalism, politicking, and power plays on journal editorial boards.  

That wasn't the only departure (not counting the rush to publish online once the board got involved). The editors defending the piece emphasize how many people were involved in the approval and editing process, focusing one's eyes on the numerator. But they are also clear that they deliberately limited participation in at least the editing process, and just as deliberately kept the project under wraps. Thus, the normal number of editors worked on the article but, unlike with most articles, any news about it--apparently including its existence--was effectively firewalled. I say "apparently" because I'm really not sure, but it's certainly suggested by the fact that the editor in chief felt it necessary to alert her own staff to the existence and imminent publication of the article.

I also speculated in my post that there was likely another departure from normal processes--one involving editors opposed to the article. And so it seems, if the Inside Higher Ed story is accurate. That article says that one of those editors, once he or she discovered the existence and imminent publication of the piece, contacted the board, at which point we were off to the races. One wonders whether the initial secrecy was worth it; would any complaints have gotten anywhere, let alone to this extreme, if things had been aired more widely and the process had gone according to Hoyle in the first place? I can't say, but this would not be the first time that secrecy was either pointless or counter-productive. Clandestine maneuvering is, perhaps, cool more often than it's effective.

Despite disagreeing with the board's actions and having criticized it twice now, I think it makes a reasonable case in its letter that the editors' actions ran contrary to "norms of respect, trust, and collegiality." I can imagine a few reasons it might have acted in a more secretive fashion, and I am sympathetic to one of them. That is the fear of having to run a gauntlet of more or less industrialized quasi-doxing and harassment. Interestingly, that concern is not mentioned in those terms in the stories. Rather, the editors quoted make clear that their concern was that early drafts might be leaked. Of course the two can overlap considerably, and insofar as they were worried about leaks because they would result in harassment and pressure to cancel the article, I am again sympathetic. Insofar as such leaks would have ultimately originated with editors on the journal--perhaps junior editors with no role in article selection--I can only say again that journals work best when all their members act regularly, and leaking articles because you want to capsize them is irregular--and reprehensible. I should add that it might have been possible to let everyone on the journal staff know that the article had been chosen and would run, while limiting access to drafts to the team editing the article. If the editors were only concerned about the leak of drafts--and this is the only thing they cite consistently as a concern in the news coverage--this would have addressed that problem without introducing an even larger degree of unusual secrecy and exclusion to the journal's usual operations. Oddly, this option does not seem to be mentioned anywhere in the news coverage.   

Even if I find some room for sympathy when it comes to acting with more confidentiality than usual, all this behavior also suggests the possibility of a kind of built-in distrust on the part of some editors of their own colleagues in the enterprise of putting out legal scholarship. That distrust is perhaps most likely to arise when editors on either side of the dispute mistake and melodramatize their function (melodrama, in particular, being a chronic ailment among American elites), seeing themselves as engaged in something of a crusade or mission rather than the workaday enterprise of shepherding a learned disciplinary journal for a year with a reasonable measure of seriousness and continuity. (The quotes from some of the editors in the Intercept pieces have an air of taking the more melodramatic, mission-driven perspective; in fairness, one has to imagine that some of those who contacted the board might have an equally melodramatic view and offer similar quotes.) Since editors on a general-purpose law journal are going to have a variety of views about both politics and scholarship, a more mission-driven perspective, along with an inflated view of what law reviews do, will naturally not command unanimity on the staff and just as naturally will encourage an equal and opposite reaction. While I still think the board was wrong in its actions, I am not inclined to dismiss its letter's concerns about "the atmosphere on the Review" or about some students "feeling excluded and unwelcome" on their own journal.

I would be happy to dispense with the therapeutic language of that quote and just say that if a journal is caught up in internecine battles over what it's there to do, something has gone wrong. A law journal is there to serve as the site of publication of scholarship in a learned discipline. That American law journals are student-run, rightly or wrongly, is incidental to that fact; the Columbia Law Review has the same basic purpose as similar general-purpose law journals elsewhere which are faculty-run and peer-reviewed. The student editors are there not to wave banners on either side or to "step into their power." They're there to run decent, probably short-term-impact-free articles about torts and insurance and property and, I suppose, occasionally, public law. Given that this is a continuous, time-extended enterprise, there should be no internecine warfare because no one should be seeking to radically redo the journal's function for a one-year period. Whatever "power" they have is the power exercised by short-term stewards of a long-term scholarly publishing project.

None of this, again, excuses the board's actions. Nor, to be clear, does any of this suggest that the article itself should not have appeared in the journal's pages. I haven't read it (I did read the initial Harvard piece and have read some of the new article) and it's not in my field, so I can't speak to its merits. I don't think students should select articles, or at the very least not without more substantial scholarly supervision by people officially credentialed in the scholarly discipline and knowledgeable about the sub-field. But that is the current process and this article passed it. And I consider the subject matter wholly acceptable insofar as it deals with legal questions related to the status and treatment of Palestine, a perfectly valid subject, and wholly irrelevant insofar as it is currently controversial; law journals may end up publishing articles on controversial and uncontroversial subjects alike and should treat them the same, and with equal indifference to non-merits-based criticism. (On the merits, of course, the article should take whatever praise or criticism it has coming to it, again without reference to subject matter.) The author should not have had to go through this tsuris twice. 

Again With the Law Review Nonsense

Having followed the last round of controversy concerning lawyer and writer Rabea Eghbariah and his scholarship on what he is free to call "Nakba,"* I am trying to keep abreast of the latest round, which concerns the publication of a longer version of that project in the Columbia Law Review, and the publication and de-publication of that article online (along with every other article, since the entire website, when I last looked at it this morning, just reads "under maintenance").

One should take early and partisan coverage with a very large, even kosher-sized grain of salt. For instance, the main story on the subject at the moment, in The Intercept, is one-sided in its sourcing and checking, and it shows. For example, it repeats credulously an editor's statement that "I remember searching Columbia Law Review’s website in October, and there’s only one other mention of the word Palestine in the entire online existence"--possibly true, but misleading, insofar as the word has appeared some 30 times in the journal's existence (not including case names), including 15 in the last 20 years or so. Not a capital crime, to be sure; but it's the kind of thing that's easily checked, and that, perhaps deliberately, leaves readers with a mistaken impression of the journal's past and present alike. (Perhaps the problem is that the Columbia Law Review's website, like many law review websites, is just not very good. If it's any comfort, others are even worse. Just off hand, the Texas, UCLA, and California law reviews all seem to require a hacker's skills if one simply wants to find out what has been published issue by issue.) 

It is difficult to pronounce on the facts under such circumstances. And absent a proper command of the facts it's even difficult to deliver some kind of principled statement. That said, just as I disagreed with the HLR editors' decision in November, I am certainly disturbed by the action of the CLR leadership in simply eliminating the entire article, along with the website, even if it is eventually published. The notion that there is a unique "Palestinian exception" to free speech norms or academic freedom is absurd, in light of numerous other occasions on which writers, editors, publishers, and others have engaged in censorship and self-censorship on numerous hot-button subjects over the years. But I am hardly comforted by the possibility that it is one more exception. And it would be no more comforting if the exception were better seen as a general "controversial subject" exception. Whatever the full facts and sequence of events, the journal ended up in an embarrassing place. Since it is unlikely the whole piece will be pulled, the board should have left the article up even if its hand was forced.  

If I am reading the available information and some of the tea leaves correctly, I would say that the following things seem true, or quite possible, about both the Columbia and Harvard incidents: 1) The leadership of each law review deviated from the usual practices, for more or less timid reasons. Note that the "leadership" is very different in each case: the student editors in the Harvard case, and the faculty/alumni board of directors in the Columbia case. 2) So did some smaller or larger group of editors who were more directly involved in or supportive of the article, for more or less ideological reasons. 3) So too, possibly, did another small group of editors who opposed the article, again for more or less ideological reasons. 4) Once there is a departure from normal standards, further departures are encouraged across the board. If you're a student editor and distrust the leadership, you try to "preempt" it by acting irregularly, as the editors here did by rushing the article online. If you're on the board and you distrust the student editors, you use that action to justify shuttering the website altogether. If you're a student editor and distrust other editors, you strategize against them with leaks and so on. And so, as Kurt Vonnegut would say, it goes. The value of routine practices, even at law reviews, is that they help stave off the war of all against all.  

One thing I would suggest, in line with my usual institutionalist instincts, is that it would help if all these people understood that they have one job to do. It's a professional job, and it has nothing to do, in a direct sense, with effecting change or seeking or avoiding public notoriety. A law review article is just a law review article! Its function is to present scholarship. That's all it's there to do. Other than indirectly (and even this is unlikely), it won't change the world, for better or worse. But for writers and editors to do that--to provide a reasonably well-vetted forum for "collegial, co-operative inquiry that makes progress, however slowly and collectively"--is enough. The journal's editors are not there to change the world or "make a statement" either, and certainly not on a short timeline. They're there to edit and publish scholarship in the field, which again is work aplenty. They're stewards, not movers and shakers. Their job is not to seek fame or attention or display solidarity or anything else, but just to seek to publish good scholarship and avoid bad scholarship. Its editors--and editorial board--should do only that, and disregard pressures to publish or not publish other for any other reasons. The more consistently they do that, treating all else as irrelevant, the easier it will be to ignore either breathless and most likely unwarranted praise or inappropriate threats. Just vet and publish good articles--a serious and conventional, even boring, job and the only one you have.

I would add that although departures from normal processes are noteworthy, not all of them are equal. It's somewhat unusual that the CLR decided to solicit a piece on a particular topic, and somewhat unusual that it then solicited the piece from a particular author (although one understands the likely reason here), when most non-symposium articles go, at least ostensibly (leaving aside pressure to publish tenure pieces, pressure to publish particular articles from faculty members, and other abuses), through the same calendared over-the-transom process. But perhaps there should be more of that sort of thing. I don't particularly trust law review editors to do this. On the other hand, their standard selection process is not especially trustworthy either, and at least this would result in the publication of timelier pieces more often. Other departures are more questionable.

Finally, if one at least partially accepts the Intercept article on this question, it seems likely that the editorial board acted both unusually and wrongly. That's especially unfortunate for one reason: Law review editorial boards and/or faculty advisors, and law school faculty as a body more generally, should intervene more regularly and firmly in the law review process. Law reviews exist for the scholarly discipline, not the students (and not for judges, firms, or other future employers either). In my experience, many law review editors are excellent and "top" law review editors are especially sharp. But they're still definitionally unqualified to do the job of vetting scholarship in the field that they're still studying. This is evident in the choices that even top journals routinely make. It's evident in the fact that a number of them, in recent years, have adopted missions that are incidental to their actual function. It's good that some of them have introduced some measure of peer review, but that process has quickly become more of a fig leaf than a serious vetogate. The faculty of the schools that sponsor these journals are responsible for all of this; any blame attaches to the student editors only second. In the absence of a switch to the standard, everywhere else in the academy, of peer review, American law school faculty should take a more hands-on role in making sure that law reviews, at elite and non-elite schools alike, are doing their jobs properly. They should more actively oversee law reviews' selection process, demand more peer review where it is needed, and overrule editors' selection choices where appropriate, whether the students like it or not.

But they should exercise this sort of oversight at the beginning of the process, not the end, and if they are going to move to this imperfect but more professionally responsible model, they should make it a transparent and routine process, not some exceptional, struck-by-lighting thing. And the responsibility for doing so must rest with the faculty alone, since a law journal is an academic disciplinary publication. In this case, the board's intervention was clearly highly rare and irregular, clearly had as much or more to do with fear of controversy as with quality or scholarly soundness, and came long after the selection of the article had occurred. Moreover, the board apparently includes alumni, who have no business whatsoever telling a scholarly journal what to publish or not publish. The time had long since passed for the board to put up or shut up; its job now, at most, was to support and not undercut the editors, and controversy be damned.

I might add that one benefit of the kind of faculty involvement I envision is that it would thoroughly disrupt the whole process as it is currently conducted. If faculty were to be more involved in the selection process--as they should, albeit ideally they would do so primarily through peer review--the whole works would be gummed up and slowed down. Given the need to give qualitative and not resume-and-politics-scrutiny-style review to each piece, and given the other demands on faculty's time, law reviews would have to move away from the current single annual selection sweepstakes. Their involvement in review and selection would also disrupt the whole silly process of gaming offers from other journals. It might, indeed, lead to rules against multiple submissions. It might diminish many law students' desire to work on journals, as they slowly became mere copy-editors and cite-checkers, and reduce the value of law review membership as an employment credential. In time, American law reviews might actually become respectable disciplinary journals.

But none of this describes the process here, so far as I can tell. The article was selected and edited. It might have been selected in an unusual manner, and the last-minute stuff all looks irregular. It might be a good or bad article; certainly the fact of publication in a top U.S. journal is not currently a very strong indicator on that point. But it should have been published without any of the nonsense accompanying it. I hope at the least that the board appreciates that on these sorts of issues, there is no such thing as doing things quietly or confidentially, and that if its actions were intended to avoid controversy, they achieved the opposite result. 

*Incidentally, Eghbariah was educated at the University of Haifa and Tel Aviv University and worked at an Israeli human rights organization. Although the purported goal of conventional BDS movements is to aim at institutions and not persons, it does seem true that he honed his gifts at the sorts of institutions that many people cheering on his article would urge us to shun and weaken at all costs. One should pause for at least a moment to appreciate the juxtaposition.  

Some Observations About the Alleged Law Clerk Statement

The title of the post refers to this statement, allegedly issued by current federal law clerks, regarding the conflict in Gaza. As the Reuters story about it notes, the statement was published by "Balls & Strikes, a court news and commentary site sponsored by Demand Justice, a progressive legal advocacy organization."

I say alleged although Balls & Strikes, which sites like How Appealing treat as a valid source of information, says in an introduction to the statement that it confirmed the identity of the (of course) anonymous speakers. I personally don't doubt that it's true. But I also see no very good independent reason to trust that it is an accurate statement. Balls & Strikes does not exist to do reportorial journalism: most of its content consists of commentary, of which God knows we suffer no current deficit. Some of its contributors are bona fide journalists, others are not, a few I would put in the "I guess you could call that a journalist" category. Its parent organization, Demand Justice, is a standard modern partisan-politics vehicle. Its funding is dark but apparently comes from the grossly wealthy and wealth-derived Arabella Advisors, aptly described as "the hub" of a left-leaning dark money network. Demand Justice's heads come from the standard government-to-donor-patronage revolving door; they are well compensated and none of them were journalists, although one had a substantial career as a high-level press hack. It has a mission, but other than as a by-product, that mission is not honesty or accuracy; it's victory. Well and good. That's the environment we live in. But to take either Demand Justice or Balls & Strikes too seriously--to take seriously, in general, the endless, fundamentally corrupt networks that sell substitutes for either honest reporting or honest, public, and transparent discourse, to take it for granted and be immured to it, to pretend that this is the stuff that serious people can allow into their lives without suffering its effects--is to ignore Johnny Rotten's immortal question: "Ever get the feeling you've been cheated?"

So that's the first observation, a frequent one for me but only because it keeps being relevant and true: The fundamental crisis of contemporary society is an institutional crisis. That applies to Demand Justice and Balls & Strikes, which have moved into the empty space formerly occupied by the institutions whose death, decline, or drop in authority, often through their own actions, has been so damaging to our culture and politics. It applies to the judges mentioned by the clerks, whose boycott statements and other public actions treat the judiciary not as a special-purpose institution with substantial constraints on behavior and expertise, but as one more platform to say whatever one wants on the issues of the day. And it applies to the notion, not that law clerks might have something useful to say as individuals, but that if they want to say it as law clerks, they should go right ahead, and have been sorely treated if they can't. (Countless "professors' letters" demonstrate that this problem is not unique: Academics have long brandished their titles and affiliations on questions to which their jobs and knowledge contribute nothing--letters which ironically destroy the very authority they are trying to leverage.)       

A second and third observation: In the statement, the law clerks write, "Violations of these rules [barring law clerks from speaking out on matters of public interest] could result in immediate termination of our clerkships—a potentially career-ending ramification. We have thus been forced to spend the last several months as only passive observers of Israel’s assault on Gaza." There are two errors here--unsurprisingly, since the statement is geared toward rhetorical effect, not candor. The first: They were not "forced," except insofar as anyone who joins a special-purpose institution commits him- or herself voluntarily to the rules and norms of that institution. They were "forced" in the same way that a journalist is "forced" to avoid lying, a lawyer to refrain from speaking ill of her own client in public, or a chess player is "forced" not to move her pawn three spaces in a turn.

Nor is it true or useful to say that the termination of a clerkship is "potentially career-ending." This is a triumph of rhetoric, and perhaps self-perception, over candor. The candid version of that assertion would be similar to the notion that not taking a clerkship itself, because one can't follow the rules, is "potentially career-ending." Reframed in this way, the statement could have said something like, "potentially damaging to the kind of career that we, as elite lawyers with ambitions, want and think we deserve." Lots of people will hire a lawyer who was fired from a clerkship. Lots of lawyers who can't find jobs at fancy firms or, indeed, anywhere, hang out their own shingles. Lots of people with law degrees who don't find work in the law take other lines of work and thrive at them. All that happens to them, or that would happen to these anonymous clerks if they were dismissed, is that they wouldn't get to live out whatever high-end life plan they wrote out for themselves at some point: to work at Justice, or to get a judgeship, or to get a ticket to the inaugural ball or tenure at a cushy law school. (Although Bernadette Devlin might beg to differ.) To this, the proper reply is, tant pis. I dislike industrial-scale, well-funded doxing efforts, for the same reason I don't care for Red Channels. But the number of times people at elite-reproduction academies have evoked "career-ending" tropes in the past few months should encourage us to keep in mind the difference between "I can't find a job" and "I can't find a job at McKinsey." The classism of statements like "potentially career-ending" ought to be obvious. 

Finally, the law clerks are right to invoke the endless Judge Ho nonsense. Not every judicial action they cite in their statement is necessarily improper, and none of it is the same as their own obligation to avoid public political activity during their clerkships. But many of the examples they cite are illustrative of judges exhibiting the same desire the clerks feel the need to indulge: to perform, loudly and publicly, something other than their jobs. It is reflective of the idea that a judgeship (or clerkship) is as a good a place as any to engage in culture-war-mongering or political performance. They are right to criticize the judges, even if all that means is that both the judges and the clerks are wrong.

I don't think that Judge Ho and his ilk are responsible for the clerks' choice or that his actions justify it. It's better to see both as symptoms of a sickness that afflicts institutions, and thus our culture, in general: an unwillingness to live within norms and constraints. Which brings me back to my first point: The fundamental crisis of contemporary society is an institutional crisis.     

An Addendum: Language Matters

It strikes me that the last couple of posts I've written about campus speech issues--on the "it's not a protest if" assertion and on the difference between "peaceful protest and non-violent protest"--lean heavily on making a big deal about what others might consider semantic quibbles. As an academic I'm fine with making a big deal out of semantic quibbles. (In the book A Terribly Serious Adventure: Philosophy and War at Oxford, 1900-1960, Nikhil Krishnan recounts the story of a don describing the philological question on which he had been lecturing at great length: "Absolutely insoluble problem, of not the slightest importance." That sounds perfectly wonderful to me.) But I think such quibbles do matter. They clarify our thinking in such matters, especially when the subject is one with great immediacy and emotional impact. They better help us describe what it is we are arguing about when it comes time to argue about whether something is permitted or not, should be permitted or not, and so on. (Are we arguing about whether and when officials can break up "peaceful protests?" Non-violent but not truly peaceful protests? Protests that "defy the authorities?" What is the it that is the subject of our attention and our arguments about what is allowed?) They enable us to better guard against mere propaganda, the use of arguments, descriptions, tropes and memes, and pre-loaded definitions that are meant to make us think as someone else would have us think rather than think for ourselves--propaganda that is often swallowed whole, often repeated unthinkingly by journalists, and competing uses of which end up taking up more time, attention, and passion than arguments about the thing itself. And as I suggested in my last post, because there is often an imperfect boundary between free speech as a doctrinal and as a cultural matter, and because discussions and understandings of one often bleed into the other, they help us better identify which domain we're arguing in and about. This is good for clarifying discussion and prescription in both domains and, for that matter, in whatever "liminal" remainder there is. These kinds of improvements to or clarifications of general public discourse may be mere drops in a bucket. But after all, when it comes to public discourse, the depositing of individual drops in very large buckets is precisely and possibly solely what academics are here to do.   

Just by way of closing, let me offer an illustration that renders the point less abstract: If one is thinking clearly and using language clearly, one knows that a boycott is a purposeful relation to deal or associate, generally for political or moral reasons and generally in the form of a measure intended to inflict economic pain. On the other hand, a judge or law firm's insistence on selecting law clerks only from "top" law schools, however ill-advised, arrogant, and foolish it may be (and I tend to think such a policy are mistaken for these and other reasons), is not a boycott. Indeed, it bears no useful relation to it, and thus is useless for purposes of analogizing to boycotts. 

The "It's Not Protest If...." Fallacy

A trope I have seen often in the recent campus and off-campus protest discussion is that some activity or other is "not protest" if it doesn't involve some form of transgression, rule-violation, or disruption. This would seem not to be a specifically legal point; and for the most part, under a common reading of the First Amendment, it wouldn't be. But it comes up in what we might call First Amendment-ish or free-speech-adjacent public discourse, in a way that has some legal, or I guess legal-ish, significance. Surely this trope is wrong. 

A mild version of this kind of proposition comes up in Chicago philosophy professor Anton Ford's recent erroneous op-ed in the Chronicle of Higher Education about the Kalven Report. Ford writes: "Protest is essentially disruptive; if it’s not disruptive, it’s not a protest. While not all protests are equally disruptive, all aim to disrupt normal life to at least some extent. A ban on 'disruptive protest' is a ban on protest tout court."

It's easy enough, even without going to Twitter, to find examples of cruder versions of this sentiment that go past the "disruptive" point. People adopting such a position argue that protest necessarily involves rule-breaking: "It's not a protest if you have to ask permission." "If it’s 'acceptable,' it’s not a protest. If you’re not pissing people off, you’re not protesting hard enough." Demonstrations, as an ideal type, "defy the authorities." All of these are actual quotes. I can provide more exact examples from Twitter, and would do so were I not semi-debarred from using them. And although the chance of their being stupid increases substantially simply virtue of their being on Twitter and Instagram, so would the relevance of such assertions, given how many people conduct a version of public discourse and debate on these issues there. (The truth is that if one wants to research and discuss these kinds of issues, one must look at social media platforms--even, Lord help us, if one just wants to know what academics, and not normal people, think, given the awful habits of contemporary academics. So I do look. But I still find it better to avoid citing those platforms and to avoid going to those poisoned wells too often. I find myself nauseated by even short exposure, and other than for research purposes I find that the benefits of staying away far outweigh whatever I lose in terms of awareness of the anecdotal outrage of the day. Your mileage, I will say politely but insincerely, may vary.) 

On social media, especially, assertions and arguments like this do bleed into free speech law--or perhaps "'free speech' 'law,'" in the sense that there is a difference between a thing A and the object A-prime, or between Hancock Park and "Hancock Park adjacent." Protest, this line of thinking runs, is a fundamental, long-recognized aspect of free speech. And protest is--on this view--definitionally transgressive, disobedient, rule-or law-breaking, disruptive. It follows that it must violate the First Amendment to break up or make arrests at an encampment, march, demonstration, etc., even if the protesters were, say, violating clearly established rules or laws, engaging in obvious trespass or worse, and so on. Versions of this argument have been presented as Hail-Mary attempts by individual January 6 rioters. And similar arguments have been made, and taken seriously, in public discussion of the campus protests and the responses of universities and local officials. People making these arguments have included professors, although not generally law professors.   

There is something to the argument that protest is generally disruptive, I think. Even there, I doubt it's right to say protest is necessarily disruptive. Thousands of people may seek a permit to gather in a large park or public gathering place that has long been a prominent site for such assemblies, in order to visibly protest something like American involvement in a war. While they are there, say for a pre-arranged span of twelve hours, clearly the space cannot be used by others, and people strolling nearby may be disturbed or inconvenienced. But it's all been planned in advance, the authorities have had time to manage it and deal with contingencies such as waste disposal and security, and the crowd leaves when it's all done. That's a protest, surely. But is it really "disruptive?" Nominally, yes, perhaps; but in the sense in which some of the writers above or elsewhere mean it? I doubt it. It's certainly not transgressive.

One could come up with other examples. Protests and demonstrations happen all the time by pre-arrangement, often involving mass gatherings (obviously so for demonstrations, although an individual can protest, a la Hyde Park) and perhaps some level of planned "disruption." They are to actual disruption a little like what a scheduled work of performance art in a gallery is to real life. The organizers may even work closely and collegially with the authorities. Of course we may have concerns about officials using their permitting or licensing power arbitrarily or invidiously. In such a case there may be good reason to march without legal permission and without regard to legal proscriptions. But in theory, if that system were acting justly, people would have the right to seek an advance permit to make use of a public forum for purposes of peaceable, lawful assembly in order to protest. Is that "not a protest?"

Indeed, in a just society--a just actual society, not a "just society" in a just-this-side-short-of-Heaven hypothetical sense, in which all issues on which people disagree have been settled--we would likely still have assemblies, protests, and the like. And the ability to protest would be equally available to all, conducted under a fair and reasonable permitting system, and conducted thoughtfully with regard to the interests of others. They would be an effective exercise of voice for purposes of mass expression, and they might be somewhat "disruptive"--but, although they would still unquestionably be protests, they would not involve transgression or rule-violation. It's a point actually worth considering, not just by way of disagreement with the "it's not a protest if" trope, but because it suggests that protests, demonstrations, and assemblies have a function in any liberal society, including a fairly just, and justly administered, one--and that this function is not limited to those gatherings that "defy the authorities."

In short, the whole trope, common though it may be, is wrong. At best, it involves either a vacuously large definition of "disruption," or is simply a misdescription, in which "protest" is treated, wrongly, as a synonym for "civil disobedience." At worst, to the extent it is common or frequently voiced, it encourages participants and onlookers (including professorial onlookers) to misunderstand free speech as a legal doctrinal matter.

Incidentally, for a careful discussion of these issues, check out this paper on demonstrations by Jeremy Waldron. He offers a definition of demonstrations on page 38 that includes the line above about defying the authorities. I don't agree with his definition, obviously, and would pick nits with other aspects of the paper. But it's very good.   

Is Boycotting a University the Best Means of Criticizing it? Is it Even a Good One?

The federal district court judge who served as the speaker at my law school's graduation ceremony yesterday--congratulations to our newest alumni!--gave a speech that was in turns funny and moving. In the latter category, he shared a couple of incidents from his life, including serving as a bone marrow donor, to remind our graduates to look for those moments when your gut is telling you to do something and seize them as opportunities to do the right thing. I appreciated his sharing the recollection and admired him for his donation. But I don't recall him issuing a press release about his donation; his goal at that moment, I'm sure, was to help someone and not to self-aggrandize. That is a good quality in a judge, since for the most part judges, like pets and children, are at their best when they're fairly quiet and avoid calling attention to themselves. It's a classic judicial trait, partly as a matter of disposition and partly as a matter of office and ethics. 

Then there is Judge James Ho, who once again is co-signing and, of course, trumpeting a boycott announcement. This one says that he and other co-signers "will not hire anyone who joins the Columbia University community—whether as undergraduates or law students—beginning with the entering class of 2024." The boycott shares several things in common with the current demands of student protesters. One is the letter's overwrought prose, and its self-seriousness--which always risks becoming a form of self-regard. Another is its sweeping nature, which embraces the guilty and innocent alike. A third, perhaps, is its assumption that there are no innocents, because any students who choose to become members of that institution are ipso facto guilty. Another is a ready willingness to attribute motives to others. There is also the fact that it makes demands vague enough that there is no clear gauge for their satisfaction, so that one can continue one's boycott for as long as one wishes and end it just as easily (although probably much more quietly). 

Yet another is an imperfect regard for accuracy. As Josh Blackman notes at the Volokh Conspiracy, Justice William Brennan did not "refuse[ ] to hire law clerks from Harvard Law School because he disliked criticisms of the Supreme Court by some of its faculty." Rather, as Blackman helpfully points out, quoting Owen Fiss, Brennan "decided to end his practice of hiring his clerks, as a matter of course, from Harvard." The key language is "as a matter of course." Brennan, like some justices before him, had previously effectively contracted out the job of clerk selection to a professor at a single school, in this case Paul Freund at Harvard. After he "became somewhat disillusioned with his alma mater," he changed his practice. He no longer selected Harvard graduates "as a matter of course," but began looking at clerks from other schools, while still also hiring Harvard graduates, although at a slower clip. (The "somewhat disillusioned" quote is from Stephen Wermiel's article on Brennan and his law clerks. Wermiel agrees with Fiss's explanation that faculty reactions were at the root of Brennan's disillusionment. Illustrating that recollections like Fiss's are not history and should not be taken as the whole story, however, Wermiel notes other bases for dissatisfaction on Brennan's part, and adds that Brennan had faced pressure for some time not to select his clerks from one school only.) Judge Ho is still a young man, and so we might excuse a little inaccuracy here and there just as we excuse it for feckless young student protesters: by saying "they're just kids" or "it's just a little exaggeration for effect." I prefer to think that people of legal age who come from fancy schools are responsible for their own words and actions, and that if you're going to close a statement with a flourish, you'd better stick the landing.     

Finally, there is the simple fact of seeing the boycotts of institutions, and specifically the application of that boycott not to institutional leaders or the institution qua institution, but to its members--including, say, 18-year-olds rendered guilty by choosing to attend that institution--as a useful approach. I can't say I agree. For one thing, at least in this context, it's rather elitist in its treatment of elite schools. I not concerned, for present purposes, about some thoracic surgeon's kid who ends up choosing among Columbia, Stanford, and Penn. But I don't begrudge the decision to go to a school like Columbia to a smart kid who got into only one such place, or a smart kid with no means who only got into one that would offer enough scholarship money to make it viable to go there. And it gives short shrift to the other reasons people choose particular schools, even fancy-pants ones, beyond their general elite status. It doesn't really make much difference what law school you go to: a smart, hard-working young man or woman can fail to learn the Rule Against Perpetuities all across this great country of ours. But it matters for other sectors of university education. It does matter when a particular program is only offered at some schools (maybe the student wants to study at a school where freshmen still have a Great Books requirement!), where there are qualitative differences in approach or focus between schools in particular departments, and so on.

But these are secondary concerns. I simply doubt that boycotting a school is the best means of either criticizing it or reforming it, and a good deal of the time I doubt whether it's even a particularly good one. People who care--actually care--about institutions would much rather see them meaningfully strengthened and steered back onto the right path than withered and gone, or given over to those who would remake them in ways that would further detract from the core functions of that institution. That requires involvement, not the back of the hand. And that's especially true for students. Their exercise of voice will be much more powerful coming from within that institution, and their use of exit will be of limited importance. And, however much the letter may be addressed to the president of Columbia, it's the prospective students the boycott is addressed to in its effects. Even now, some students are choosing to attend Columbia not because of, but despite, the tents or the cops or any other distractions, and for sound academic reasons. I would just as soon not put them on some list by virtue of guilt by association, or treat their choice as necessarily tainted because of it.

Ultimately, the letter seems to me to be much closer in spirit to those student protesters who do seem to reject the idea that institutions, and nations, are varied and complex, and that individual decisions to participate in them are varied and complex, and instead prefer to slather the concept of moral complicity on everything with the gusto of a starving man with a jar of peanut butter.

(What justification those students--or faculty--can claim for continuing to be associated with these schools is another matter. Given some of the views that have been enthusiastically expressed on the topic of moral complicity, and given that the protests merely called attention to features that they claim are longstanding and persistent, the choice to attend or teach at such an institution rather than withdraw or resign from it is much more morally dubious for individuals holding these views. One wonders at the fact that there has not been a much larger faculty exodus from Columbia and other similarly “complicit” universities, or that students at elite universities who hold such views do not balk at attending them.) 

Although I agree with Josh that the letter writers close their announcement with an inaccuracy, I can't say I agree particularly with him that it was "fitting" that the announcement was issued on Holocaust Remembrance Day. Since there is no single Jewish view on this (or just about any other) question, I don't begrudge him a different view. As a Jew, though, I will note that although anti-semitism is mentioned in the letter, twice, on the whole it barely figures in it. I don't question the letter writers' sincerity. But given the passel of other issues it raises, and the general sense that it's just another routine salvo in the culture wars, I can't help but feel that--despite the fact that it happened to be issued on Holocaust Remembrance Day--Jews occupy a wholly familiar role in the letter: an incidental and convenient one, in which we are mere objects and not subjects. Thanks all the same, but I'll pass.     

"Peaceful Protest" and "Non-Violent Protest"

Campus protest season is winding down, unevenly, unprettily, and sometimes unlawfully, and for a variety of reasons, not least the academic calendar, which is the eternal annual balm for campus unrest. My views on the propriety of the conduct of both protesters (and counter-protesters) and universities are determined and bounded by my sense of  the First Amendment's demands, and also by my sense of the role of universities and the norms that should govern in that institutional space. But I would like to make one point.  

The point may feel somewhat semantic, but it clearly feeds into the understandings of both the participants and the wider public. The phrase du jour was "peaceful protests." That's a pretty imperfect phrase, or at least one that requires further specification. It seems to me to elide the difference between "peaceful protest" and "non-violent protest." At least based on what I have read, there is an excellent argument that the vast majority of protests and protesters were engaged in non-violent protest. Of course one can engage, if one wishes, in arguments about what constitutes "violent" protest, with potential pushback from two sides. One is the conventional contemporary argument that violence to property can never be considered violent as such. As a strictly intuitive matter--as a question of how I would fit some example into my perhaps eccentric mental schema--I doubt I'd think of spraying graffiti on a building as "violent" simply because it constituted damage to property. I would think of shattering the windows of a building or breaking down its doors for purposes of breaking into and occupying it as "violent," even if no people are harmed. I would think of it in those terms, not to put too fine a point on it, because it is violent, and the argument to the contrary is bosh. From the other side comes the argument that any protest, or any slogan, that is emotionally or psychically harmful to some audience is violent. I am equally unpersuaded by this line of argument. Whether "from the river to the sea" is a just slogan or a stupid one, it is not "violence."  

But there's a difference between "non-violent" and "peaceful," I think. And the statement that many protests were non-violent but not necessarily peaceful seems like an accurate summation--and one that's more accurate than simply using the blanket description "peaceful protests." Of course many protests were both peaceful and non-violent. But if, as was sometimes the case, protests were sufficiently loud and disruptive; if students, faculty, or staff were prevented from going whither they would on campus, sometimes because a space was occupied and sometimes by a degree of mobbing; or, no doubt, if other conditions were met--then I think it would be more accurate to call those protests non-violent than to call them peaceful. (Likewise, many counter-protesters were non-violent but not peaceful. I would add that I began writing this post a few days ago, before recent counter-protester action that was clearly and disturbingly violent.)

Is it a side issue? Yes and no. The First Amendment protects protest in many ways, just as it generally protects many other forms of expression. And it generally draws the line at violent activity, not just for protest but for other forms of expressive conduct. But there is no absolutely protected category of "peaceful protest," not least because "peaceful expression," whether in general or with respect to protest in particular, is not in itself an absolutely protected category. It is always potentially subject to any number of limitations. Not least among them is the difference between public and private property, but even on public property that has been since "time out of mind" used for protests and other forms of assembly, there are, among other things, permissible time, place, and manner restrictions. One may argue quite reasonably that the permissible spaces for that expression have shrunk, and that the courts should take a different and more expansive and protective approach to speech in those spaces. But it is beyond question that permissible limitations existed even when the courts were at their high-water mark in lauding and protecting protest, and would even if the legal landscape changed.

In that sense, what to call the campus protests is, legally speaking, close to irrelevant, although both the protesters and others seemed to place a great premium on the allegedly sacrosanct legal status of "peaceful protest." But a protest has always been, and certainly is these days, not just a thing in itself, but an object for media consumption, in which it is not just described, but branded, marketed, and propagandized from all directions. To convey and sell a mental picture of utter placidity and harmlessness, it is more useful to call a protest "peaceful" than merely, and somewhat pregnantly, "non-violent." The protesters, and their advocates (among whom I count myself as to some but not all of their conduct), surely appreciated this. More accurately, probably, some of them appreciated the strategic value of the right label and thus pushed "peaceful protest," and many others simply absorbed it and took it for granted. But it's an imperfect label and we should question it, regardless of one's conclusions about the legality or morality of particular protests.

One other point. I try to avoid the Other Place, but someone sent me a tweet by Scott Shapiro, a legal theorist at Yale, who wrote, "Now that Hamilton Hall has been cleared, Columbia students can go to class and learn about the glories of liberalism." Far be it from me to argue with a legal philosopher, or just about anyone else, about the nature of liberalism and its merits and demerits. And quips on Twitter, along with anything else written there, should not be paid undue attention. But it seems to me this quip nicely achieves two layers of irony. The first is what I assume is the obvious and intended one. The second-layer irony, however, is that whatever else one might say about the manner of retaking Hamilton Hall from those who occupied it, the general fact of retaking a university building that has been forcefully occupied by students, and doing so through the threat or use of state force, is entirely consistent with liberalism. Perhaps the second layer was intended too, even if its audience does not seem to have appreciated it that way. Of course one is free, in our liberal society, to make up one's own mind about whether this counts for or against liberalism.     

Fish on the University: It's All Academic

I haven't posted much in the past couple of weeks about the events on campus across the country, partly because of exams and other duties that actually relate to the core of a university's functioning, and partly because I wanted the time to work through my ambivalence about David Pozen's interesting Balkinization post. I thought it simultaneously had real value as a discussion of failures to follow university procedures, and ran the risk of doing the same thing I see in too much recent contemporary constitutional scholarship: the invocation of "norms" and "settlements" in a way that potentially loads up the content of those words in an imperial and conversation-stopping manner, when there is actually fair debate to be had about what the norms are, how stable the settlements are and when they may be reexamined, and what lessons we might take from the paradigm cases that gave rise to those always-contestable "norms" and "settlements." (The lesson to be taken from the vandalism, anti-intellectualism, and American-style milquetoast hostage-taking that was the 1968 Columbia occupation, for instance, including questions about its morality, efficacy, message discipline, and larger political consequences, may differ in the eye of various beholders. On 1968 as a wider global or at least Western event--in which the American version, predictably, was both closer to cosplay and further away from a meaningful connection to workers or the working class--I recommend Richard Viner's fine book 1968: Radical Protest and its Enemies.)

Of course a good deal has happened since then. I should say that the letter issued by multiple Columbia law faculty members is quite good. God bless lawyers for focusing on the key question of process, and skipping the standard sentences that genuflect to one or another standard sentiment in a way that inevitably leaves someone or everyone dissatisfied. And I am still thinking about Super's post.

In the meantime, I commend to readers a late entrant to the discussion: Stanley Fish's post A Note to University Administrators, which appears in the excellent and pleasingly eccentric Catholic journal The Lamp. Readers of Fish's other work in this area will not be surprised either by his views or by the élan with which he states them. The core of his post is that the university is a university and not something else; its job is to do its job; that job does not include "play[ing] a role on the world's stage"; and while student or faculty political speech may occur on campus in particular spots and at particular times, just as that sort of general speech might happen in lots of other places, the duty of university administrators is to ensure that the main business of the university can take place--and to act, forcefully if necessary, when that business is disturbed. 

I do not agree with 100 percent of Fish's post. He could have said more about the genuine enforcement difficulties involved when administrators face large numbers with few resources (a problem that would be eased if they had acted earlier and more consistently on such matters). In saying--correctly--that speech and conduct that "threatens to undermine the main business of the enterprise...must be curbed and even silenced," he could have added a few words about consistency and procedural regularity. He could have noted the difference, for purposes of university autonomy, between university administrators inviting in the police and state or local politicians sending them in. Finally, I don't think Tinker v. Des Moines was the best case to cite for his purposes. So I hover at only around 80 to 90 percent agreement. But Fish is basically right, certainly right on the fundamentals, and much better and more sensible than many other recent interventions.

The silliest of those, I think. at least outside social media, is this (paywalled) piece in the Chronicle of Higher Education, the gist of which is that the only reason students are currently forced to shout so loud is that the universities have failed to truly listen to them. The piece, by Chicago historian Gabriel Winant, offers some perfectly sensible statements about the consumer orientation of the modern university, which has indeed been a terrible mistake. And I think it uses "listen" accurately; often enough, when someone writes "failed to listen" they actually mean "failed to agree or capitulate." But Winant's piece seems to walk a fine and perhaps strategic line between suggesting that the current protests highlight the failure of current "democratic norms [in] the academic community," and arguing that whatever form the university currently takes, it ought to be a democratic institution. He writes: "Substantive democracy on campus — in which students, faculty members, and staff are meaningful participants in the governance of the university — is the only way to realize the values of academic freedom and freedom of speech that are so widely touted by university leaders and the donors and politicians whom they serve." His view that the university is or ought to be a democracy is connected to a larger complaint about the "undemocratic structures of American social institutions," which I take to include more than just universities.

All this is quite wrong. (I set aside the fact that when someone appends a word like "substantive" to a word like "democracy," you should get ready to be flim-flammed.) The university is not a democracy. It should not be a democracy. If "American social institutions" are currently in bad shape and losing public trust, it is not because they are undemocratic; if anything, the converse is closer to true: the more these institutions try to satisfy everyone's needs and drown their distinctiveness in democratic waters, the less they satisfy anyone. There is room to argue about the proper structure of university governance. But "meaningful, democratic representation for students, faculty, and staff on university boards" is not "the only institutional mechanism that can secure" what the author calls "the university’s role as a place for the free development of critical thought and democratic citizenship." To the contrary. Fish has it right: the way universities contribute to "democratic citizenship" is not by reproducing democracy (or, I guess, "substantive democracy," a phrase whose meaning, again, may end up including all sorts of questionable moves), but by doing their job of "instruction and the advancement of knowledge in the humanities, social sciences, physical sciences and computer sciences." As anyone who has fairly received a high or low grade, fairly been granted or denied tenure, or been praised for advancing knowledge or criticized for erroneous or repetitive scholarship can tell you, these are not democratic activities. 

Here are some passages from Fish's post, all of which is worth reading, although I doubt it will be pleasing to those who favor virtually untrammeled student protest, and I am sure that Fish's response to those who see this moment as requiring a purge of instructors or courses of instruction on a non-disciplinary basis would be equally displeasing to them. (I don't think he would have much sympathy, for instance, for a doctoral student complaining about the "platforming" of an academic lecture on theology and asserting that "the nuances and complexities of my religion are not open for reinterpretation by those who do not share in its lineage or practice." I think he would say, "As an academic matter, and if the academic speaker is academically qualified, you bet your ass they are.")   

University administrators faced with sit-ins, tent encampments, and other forms of protest continue to betray an inability to understand their situations. A prominent (and even poignant) case in point is Columbia’s president, Minouche Shafik, who began a recent statement by acknowledging the obvious: “There is a terrible conflict raging in the Middle East with devastating consequences.” She then notes that many on her campus “are experiencing deep moral distress and want Columbia to help alleviate this by taking action.” Her next sentence falls off the cliff. “We should be having serious conversations about how Columbia can contribute.”

No, no, no! What she should have said is this: “Intervening in a political crisis is not within our job description; it’s not something we are either equipped to do or assigned to do. Our job is to introduce students to the materials and histories of various academic disciplines and to provide those same students with the analytical skills that will enable them to proceed on their own after a course is over.” That’s it, nothing else. Any “contribution” we as members of the academy might make to the solving of society’s problems would be indirect....

If this account of what institutions of higher learning appropriately do—they don’t do everything, they do the academic thing—is accepted, a conclusion (no doubt counterintuitive to many) immediately follows: colleges and universities have no obligation to foster or even allow political protests on campus. Indeed, it is quite the reverse, for if the overriding and defining imperative is to ensure the flourishing of the academic enterprise—classes being taught, research being conducted, procedures being followed—administrators have a positive duty to remove any impediments to that flourishing, including tent encampments, sit-ins, obstacles to exits and entries, building occupations, forcing the cancellation of classes and a host of other things now occurring....

When you are granted a platform [in the institutional context of the university], you are expected to produce speech that contributes in a significant way to the practice that has accepted you as a member. This is not free speech, but speech constrained by the norms and protocols that define and monitor the profession. As with any other practice, it is always possible, and indeed mandatory, to say of something offered, “That’s not the kind of thing we do around here.” In the academy political protest is not the kind of thing we do around here; it is not part of the core mission, although universities can decide to permit a bit of it in designated places on the model of a Hyde Park corner. But once the permitted political speech gets out of hand and threatens to undermine the main business of the enterprise—instructing students and advancing the state of knowledge—it must be curbed and even silenced....

Colleges and universities are not in the free speech business or the democracy business. They are in the education business; and while institutions of higher education may decide to allow a certain amount of political speech on their campuses, they are not required to do so. They are, however, required to silence that same speech once it enters the stage of interference and disruption.

“Required” is a strong word and it hearkens back to my earlier phrase “positive duty.” Some administrators see themselves as torn between the obligation to support free speech and the obligation to maintain a secure and safe campus. But they can dispense with their moral dilemmas (a hard thing for academics to do) and the hand-wringing that accompanies them once they remember that they were hired to administer an enterprise, not to be constitutional watchdogs or guardians of democracy. Removing obstacles to the functioning of the academic process (even by calling in the police) is not something they should apologize for, but something that follows from the office they hold....President Shafik is said to be in danger of losing her job. If that happens, it will be because she doesn’t know what it is.

 

USC's (Bad) Choice

David Schraub of Lewis & Clark has a useful new article titled, They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Campus Speech. I haven't fully digested it so I have no general commentary, agreement, or disagreement. His focus, or exemplar, is campus protests, especially in "fast-moving" contexts. But he places these in the general realm of the problem of how we "facilitate public debate" on campus. And one point he makes, quite fairly, is that we might spare a thought for the administrators, especially lower-level staffers, who are faced with dealing with these issues on the ground and in the moment. Amen to that, but of course some of the dilemmas he discusses run up and down the administrative chain. 

That is the most charitable light in which I might place USC's decision (announced by the provost, Andrew Guzman, who is also a professor at USC's Gould School of Law) to cancel the speech of its valedictorian at commencement. The valedictorian is described in the Times article I've linked to as having written "social media posts supporting Palestinians," at least one of which a campus group has objected to for the writer's now-standard equation of Zionism to settler colonialism etc. The objecting group, also adopting the tedious language of our times, complains that the university "chose to platform" a student it believes will exacerbate anti-Semitism on campus. The provost's announcement is replete with equally standard language about safety.

I think the university's decision was wrong. If, as its own letter suggests, having the valedictorian speak at commencement is standard--a "tradition," in the letter's terms--and if the selection of the valedictorian proceeded according to its governing processes, as it appears to have, then that tradition should not give way to threats. It's also not clear what those threats are. The Times story reports none, but is not well-reported. The USC Daily Trojan does a better reporting job than that, quoting an official saying that "the University received threats relating to Tabassum via email, phone calls and letters" but declining to provide further details. Unless it has well-grounded fears for her physical safety, it should move forward with the usual order of speeches. The complaint about "platforming" the speaker appears to fall in line with the usual recent complaints about platforming, which is to say it conflates content-neutral facilitation with promotion and agreement. The valedictorian is apparently chosen on the basis of both academic achievement and "service and leadership." Those criteria do not include "social media history" and the service and leadership for which the speaker was cited are commendable, not objectionable. I have no idea what she would have spoken about, but it's not relevant and it's not the reason she was given a "platform," any more than a public school is advancing religion when it selects a valedictorian speaker who has the highest class rank and also turns out to be vocally religious. "Platform," especially in its pernicious verb form, is one of the many recent locutions we could use a long, healthy break from.

But take the mildly charitable view for a second. Graduation ceremonies are indeed an occasion for community, family, and fundraising celebration. Universities want them to be pleasant. One no more wants or expects the Days of Rage at a commencement than one does a portable loudspeaker at a dinner party. If the university is aware of genuine and serious safety concerns, it faces potentially great challenges in assuring that safety--a job which will be done by staff and security officers on the ground. If it faces a threat of more-than-mild protest--say, something that graduates from the usual turned backs or slogans on mortarboards to an attempt wrongly to shout down the speaker, who has precedence according to the speech norms of the occasion and is entitled to be heard--then it will have to use its resources, or those of the police, to ensure the speaker can be heard and that those causing the disturbance either simmer down or are removed (and hopefully, depending on their actual conduct in these still-hypothetical circumstances, arrested or subjected to discipline). That's not the kind of thing universities want to put photos of in their alumni newsletter. As Schraub notes in his article, it will face the blame one way or the other: for failing to protect the speaker or for being too hard on the protesters. 

One can thus sympathize with the administrators and those on the ground. One can assume its choice was not based on the identity or views of the speaker but on the "threats" or reactions it anticipated. But the university's choice was still wrong--and dangerous. The university's announcement says that its decision "has nothing to do with freedom of speech. There is no free-speech entitlement to speak at a commencement. The issue here is how best to maintain campus security and safety, period." Of course the latter sentence is important. But much depends on what the actual threat is. Again, words like "security" and "safety" can encompass all manner of things, from genuine security and safety to the weaker senses in which these words are now often used, and to something weaker still, like disruption or discomfort or bad optics. I'm doing my best to take seriously the university's statement that it faced real threats to safety without simply swallowing it whole. One may occasionally doubt the accuracy of non-detailed official statements, and the less detail USC gives, the less one ought to credit it. But if the threat to safety were real and grave, such that no amount of security would suffice, I think USC's duty then would be to "choose" to give the speaker a "platform," finding some safer way for her to deliver her intended address before friends and grandees and then broadcasting it.

And the first point is a distraction. No, there is no First Amendment right to speak at a commencement. Yes, it does indeed have a great deal to do with freedom of speech, or, perhaps more accurately, with the system of speech on campus and, in a broader sense, with freedom of speech. That's so not simply because a student wishes to speak, but because this is the speech the university customarily provides and facilitates on these occasions, and it is giving way, altering its "tradition," in the face of identity- or speaker- or viewpoint-based opposition. It has an obligation not to do so. It should prefer a lousy, unpleasant graduation with the intended speech to a graduation ceremony that goes swimmingly, pleasantly, and pusillanimously. That's so especially because it is almost certainly going to get protests and disruptions no matter which path it takes. So it might as well take the right one.   
  

This is Not a One-Free-Bite Case

I will add only one point to the conversation about the Chemerinsky fracas. Dean Chemerinsky's statement about the incident says:

The dinners will go forward on Wednesday and Thursday. I hope that there will be no disruptions; my home is not a forum for free speech. But we will have security present. Any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.

This does not appear to rule out taking academic disciplinary measures against the student or students who participated in Tuesday's disruption. But it doesn't exactly rule them in either. It reads more as if Chemerinsky is warning students about what will happen going forward. I hope I'm reading it wrong, and that Berkeley will seek to impose disciplinary measures with respect to this incident.

I can well imagine cases where the rules are insufficiently clear, or the activists' actions insufficiently deliberate, or some other set of facts exists that counsels an added degree of patience and charity. This is not one of them. Unless the university and/or law school's rules are exceptionally laissez-faire, it is obvious that this constituted a violation, and it is equally obvious from the students' writings and less-than-delightful illustrations before the fact that they intended to disrupt the dinners hosted at the home of "Zionist Chem." This is not a "one free bite at the apple" case. There is no reasonable question that the students knew this would violate any basic conduct rules--even at Berkeley! There's no reasonable question that they had fair warning. Nor is there any question they did not stumble into the violation but walked deliberately into it.  

I could imagine Dean Chemerinsky wanting, as a matter of personal inclination or prudence, to let this one slide. He might want to do so not because it was not a clear violation, but because Prof. Fisk's actions might be treated as muddying the waters or giving rise to counter-complaints; or because he fears the blowback and thinks (as seems so far to have been the case) that a warning would be more effective; or out of a simple dislike for imposing discipline, especially on graduating students.* Certainly doing so would invite disruption and protest at the graduation ceremony itself, although I assume that's going to happen no matter what.

That would be a mistake. Free speech, and especially free speech on campus (although this event was not on campus), depends on a system that is, to paraphrase and correct Justice Brennan's words, "inhibited, robust, and wide-open." Free speech rules seek to guarantee the widest scope for expression within spaces that, at least in the physical realm, are shared and resource-constrained, and within institutions that, even when public, are often dedicated to particular speech-benefiting purposes. As such, some basic rules to govern the use of those shared spaces are required. Not every speech event is a New England town hall meeting or a gathering in a crowded theater. Roberts' Rules of Order don't always apply. But in many spaces, basic rules of conduct, volume, speakers' precedence, and so on are necessary for a system of free speech to function, thrive, and endure. Those rules are meaningless without both some degree of consensus and a willingness to actually enforce them.

This is one such case. Chemerinsky's statement didn't rule out retrospective action, and this is a case in which it's obviously called for and, indeed, necessary.

I'm not baying for anyone's head. Disciplinary proceedings should and will include due process. As such, I don't predict the outcome of such a process or suggest what would constitute a fair penalty if a violation were to be found.* All I'm saying is that for the sake of robust, wide-open speech, particularly within the purpose-driven campus context, disciplinary rules should be applied to Tuesday's actions, not set aside until the next occurrence. 

* I think these portions of the text are consistent with what Steve writes above. Especially given that pursuing disciplinary measures would invite more attention to the actions of his colleague and spouse, I could imagine Chemerinsky wanting to put the matter behind him. And I could imagine any nice person thinking that the fact that the student is graduating matters, or any strategic person thinking that penalizing a graduating student would give rise to bad publicity. I sympathize with the former considerations but think that the reasons and duty to press ahead disciplinarily outweigh those considerations. I think the latter consideration should be treated as irrelevant. It might of course affect the penalty, counseling lenience--or not. In this chess game, student activists might calculate that they can move forward with impunity, whatever the action, because universities won't do anything about it. Perhaps a recalculation is required. But penalties should be consistent with due process and fairness, and I am not counseling any particular penalty, whether harsh or lenient. That said, it is hardly respectful to these students, to their adulthood, agency, and commitment, to suggest that any disciplinary action should be utterly withheld as a matter of course because they're about to graduate and might suffer serious consequences to their ability to practice law. Depending on the nature of the action and the nature of the penalty, that's the point of disciplinary actions in the professional-school context.         

DeGirolami on Traditionalism

A nice op-ed from my friend Marc DeGirolami on traditionalism, in the New York Times, which I was happy to see gave him enough space to decently lay out his view. Although the topic is not especially timely (I mean that in a good way, on the whole! "Timeliness" is an overrated and distorting quality.), he finds a nice hook by contrasting it with recent statements by Stephen Breyer and Kevin Newsom.

Normally I would say "Don't read the comments," which is the prevailing rule for sensible people everywhere. (And one that adds a sizeable question mark to claims about the democratizing discursive value of social media.) In this case I violated the rule and found it instructive. Of course there is a good deal of inanity. But much of that lay inanity reproduces exactly what ostensibly more educated and elite people who are actually in the law game have been doing for the last several years, in the time-honored tradition of fighting the last war: They give lip service to "traditionalism" or "history and tradition" up front, suggest they will be talking about it in what follows, and then proceed to criticize originalism in great detail. (Although Marc was early to this iteration of legal traditionalism, some scholars have actually started writing interesting articles about traditionalism that are actually about traditionalism, viz. recent pieces by Sherif Girgis, Felipe Jiménez, and Larry Solum. These are the exceptions.) Or they make what they think are the killer arguments against traditionalism--pointing to bad past practices or traditions--without acknowledging that most of them were addressed firmly and rightly by the Civil War Amendments and other constitutional amendments, which are an appropriate way to entrench the societal recognition that some traditions must change; others were killed in the way that bad traditions are, by the accretion of time and practice, a possibility that Mark recognizes more than once in the piece itself; and others may be constitutional but need not be enacted or practiced. (The preponderance of the remaining comments simply adopt the expedient of talking about something else.) 

You need not take any of this as an endorsement of traditionalism as a constitutional practice. I do think however that whether it is a full-on, name-in-neon-lights modality or not, accounting for and invoking tradition is not new (many of our most celebrated First Amendment decisions, for example, engage at least for rhetorical purposes in the invocation and celebration of real or fictive traditions), is probably inevitable, and happens even in the most lively of living traditionalist opinions. And I think Marc has done a valuable job in naming (or renaming) the practice. But I reserve further judgment. What I would like to see, even in a short-ish op-ed and certainly in his book, where I'm sure it will appear, is a deeper dive into all sorts of questions, such as:

• Is it relevant if a tradition is "invented"--that is, it purports to trace back to the misty past but is in fact of far more modern vintage?
• Is traditionalism as a legal practice one that yields judicially manageable standards, assuming these to be desirable?
• Is there anything to be said from a constitutional comparativist perspective about traditionalism as a constitutional practice? If we are mostly alone in using it, why is that, beyond its obvious current political uses? Is it a cultural matter, a legal-cultural matter, a function of stronger and more cohesive national cultures and practices in those nations, or a function of the relative youth of most other constitutions, which effectively start from a baseline of the state of "tradition" in those countries at the time of entrenchment of those constitutions, even if they do not speak in those terms and won't for another few decades?
• How much is traditionalism as a legal practice merely about legal "traditions?" How much should it be about cultural traditions more generally? To the extent the latter are involved, how good or bad are judges at identifying those? To the extent they're not, does it render traditionalism as a legal practice somewhat desiccated, and miss much of what really matters in thinking about constitutional law's connection to our values and practices?
• More generally, is traditionalism a legal and/or judicial skill? If so, what does it involve? How can it be cultivated or taught? Is it yet another mode of interpretation, like originalism or reliance on theories of justice, that takes judges away from their actual, common-law-like, area of greatest competence, and thus questionable, even if "true," as a judicial practice? Or is it closer to their competence because a sense of tradition is one of the qualities that marks common-law judging?
• What does bad or sloppy legal traditionalism look like? What does excellence in legal traditionalism look like?
• What is the appropriate political response to traditionalist decisions? When political majorities reject a traditionalist ruling as hidebound and out-of-date, and thus pass laws rejecting those traditional practices (or lack-of-practices), shouldn't this be celebrated by legal traditionalists, on the whole? Isn't it an as-yet under-discussed virtue of traditionalism that it shifts power and impetus to the political process, where a more pluralistic society can then examine and possibly repudiate our nation's "traditions?" If so, is there a difference between Dobbs, which purports to allow the people to pass laws protecting abortion, and Bremerton or Bruen, which entrench particular practices against legal regulation?
• If the latter practices fall into desuetude for long enough, is it proper traditionalism for a court, even in the absence of a constitutional amendment, eventually to rule that they are no longer constitutional, even though some people or jurisdictions still engage in that practice? How does one go about making that argument and identifying that state of affairs?    
• Are the current justices good or bad at traditionalism? If critics, however substantively and politically motivated they may be, come up with sound evidence that the history and traditions identified by a majority of the Court in a case like Dobbs are inaccurate in important ways, should traditionalist lawyers and scholars, however substantively and politically motivated some of them may be, openly criticize those opinions for their poor work? If they don't, or fail to at least address that evidence in their work (after all, why should we outsiders take the Justices' word for it when they describe legal traditions?), is there a problem with the state of traditionalism as a legal and scholarly practice?
• What did rights-favoring scholars who are currently ill-disposed towards traditionalism say about it when cases like Stevens and Alvarez, which invoke traditionalism in a way that is favorable toward free speech and uses it to guard against new categories of "low-value speech," were issued? Did they criticize or reject it there? Did they instead applaud it, or conveniently ignore it? 
• Are Bremerton, which is discussed in the op-ed, and the American Legion and Town of Greece decisions, which are not, examples of good or bad traditionalism? I'm not sure where in tradition Justice Gorsuch, writing in Bremerton, came up with his seeming requirement that students not "feel pressured" to participate, or the importance of the fact that he did not lead prayers with the team, or his bog-standard-liberalism assertion that "[r]espect for religious expressions is indispensable to life in a free and diverse [r]epublic." (Others have asked exactly what high school football games, or even public high schools, have to do with American "traditions." I'm not sure how strong that criticism is, but it at least suggests that traditionalism, like all other methods of constitutional interpretation, has a level-of-generality problem.) I'm not sure where in tradition Justice Alito, in American Legion, found a requirement that a monument not disparage others, or whether Justice Kavanaugh's concurrence attempting to find judicially manageable principles for Establishment Clause cases going forward should be understood as an utterly non-traditionalist opinion. I'm not sure where in tradition Justice Kennedy, who begins his First Amendment analysis in Town of Greece with the words, "[I][t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted," found the perfectly reasonable rules of etiquette he constitutionalized later in the opinion. And of course, outside the Establishment Clause, there are what we might think of as the saving provisions in Heller, which ought still to exist after Bruen. Surely those were about policy, not tradition.) Are these bad traditionalist opinions because they came up with sensible qualifications but didn't link them to tradition, and certainly not in any serious, evidence-based way? Are they good traditionalist opinions because good traditionalism, like any good method in constitutional law, must be employed--and adulterated--with a healthy measure of unprincipled Posnerian prudence, pragmatism, and consequentialist? If so, and if such adulteration makes "traditionalism" as practiced by judges look a little ridiculous, does it place it on any worse footing than living constitutionalism, which arguably is most justifiable and acceptable as a judicial practice when its liveliness is connected to--and at least somewhat hobbled by--our ties to, and the constraints of, our (evil, undemocratic, etc., etc., etc.) past, rather than being unbound in its responsiveness and justice-seeking? Or originalism, which is most reasonable when somewhat hobbled by settled precedent?
• This may not be aimed at traditionalism in particular, but more generally at modern approaches to constitutional interpretation in the U.S. After years of mocking the three-part and four-factor tests of the Burger (especially) and Rehnquist Courts, do the little qualifications and caveats in some of these opinions serve as a reminder that we may have moved to the opposite extreme, and that it may be time for a little more appreciation and revival of those former elements of judicial decision-making, which are both made-up and, in theory, conducive to judicial manageability?
• A related point: In what I think is the only useful element to be taken from the "teaching constitutional law is in crisis" assertions, how exactly does one teach--and, especially, evaluate--law students with respect to traditionalism? The same thing applies to originalism, granted, but it certainly applies to traditionalism. Does one hand students an issue-spotting question and then offer a forty-page historical appendix? (In fairness, the point is not limited to originalism or traditionalism. It's just conspicuous because of the novelty. Con law professors may pretend that students are perfectly capable of engaging in proportionality review or rights-balancing or some other form of Goldilocks-ish policy analysis or comparison of incommensurables on law school exams because we've been used to it; that doesn't make it so.)

I could go on. It's still a good op-ed, and far better than most of this kind at giving readers useful information and tools, including the tools to criticize the approach, while avoiding high degrees of advocacy, naked or otherwise. I've enjoyed Marc's work on traditionalism so far and very much look forward to his book. I do think many constitutional law professors continue to engage in an odd, perhaps unconscious pivot in which they quote judicial language concerning "history and tradition" and then start recycling old criticisms of originalism and thus render their work quite unresponsive to the current Court and the methods it is purporting to shape and use. But the study of traditionalism as a scholarly endeavor, whether by supporters or opponents, should certainly now move from identification to serious internal and external critique. Nothing is so useful or commendable, once you've identified or created a good proposal and let it loose into the world, as turning back around and setting your gunsights on it.  

Trump Law Redux

The Supreme Court hears arguments today in two cases involving the use of government pressure and/or "jawboning" to influence the decisions of private parties. Murthy v. Missouri is another Fifth Circuit special concerning the degree to which the government can communicate with, or lean on and coordinate with, social media companies to influence their content moderation policies. National Rifle Association v. Vullo asks how far the government can go in using its regulatory power to pressure companies to stop doing business with a politically disfavored group. 

A good deal of the media discussion has had to do with the serious issue (however dubious most of the public discussion and a good deal of the nascent academic "discipline" may be) of "misinformation," questions of social media platform responsibility, how far government can go in leveraging its power and conversely, how much the courts can or should limit government from engaging in normal regulatory, oversight, and communicative activity. All valid questions, and there are more besides. But if I may venture a mild suggestion: The question the Court should be asking, albeit perhaps quietly, has less to do with current or past events. Rather, the Court is now in "pathological First Amendment" territory. It should be asking: What sort of opinions should it write in these cases with a future presidential administration in mind that may be irregular, vengeful, and punitive?   

The Sense of 'Crisis' in "The Crisis in Teaching Constitutional Law"

I also have some thoughts on the op-ed Gerard discusses below. The op-ed, by Jesse Wegman, is titled "The Crisis in Teaching Constitutional Law." I think the article manages to raise some interesting issues. It is, however, mistaken in one crucial respect--in calling what it describes a "crisis," a new and sudden emergency, rather than a recurring issue in constitutional law and in the academy's relationship to the courts--and questionable in others, and it buries some of its interesting points because of that mistake. There are also posts on the subject by Orin and Will at the Volokh blog; I haven't read Will's post yet, but have read Orin's and find some points of overlap.

In writing this, it struck me at some point that I hadn't even got around to the question whether there is, you know, a "crisis in teaching constitutional law." The answer is no: it's just as easy or hard to teach constitutional law as ever. But that's a mundane practical question. The real points of interest in the piece lie elsewhere. So, for the most part, I'll leave that for a second post. 

So what is good or useful about Wegman's article? Perhaps most of all, it's useful in suggesting, not a problem arising from the Court as such, but a problem arising from generational change, and from changing views on institutions and institutionalism. On the generational front, it notes that we are dealing with at least the third generation of fallout from attachment to the Warren Court. Even if its first-generation advocates have mostly left the stage, the senior establishment still consists of people who were taught by those people, as Pam Karlan notes in the story--and folks like Karlan in turn taught most members of what is now the mid-career academic establishment in constitutional law.

The "valorization" of that Court, and of the role of judges as "heroes who would save us all," remains a powerful prevailing mythos. It is certainly evident in Wegman's own romantic-yet-embittered tone here (although his own professor was at the time leading the charge for popular constitutionalism.) Those teachers didn't just learn this faith once they entered law school. They learned it from a fairly narrow range of media that they would have been exposed to before they became law students, in an era when Anthony Lewis wasn't merely one of hundreds of people commenting on the Court, but rather its primary spokesman. Those media helped feed the mythos.

That time has long since passed. The particular stories and legends that were imbibed by my generation and those before mine are as fresh and relevant to the current generation of students as my classroom references to Kiki Dee or Conrad Bain.

In addition, as Wegman writes, there is a decline in institutionalism and institutional trust. He pins this on events like the hardball refusal to seat a replacement for Justice Ginsburg during the last year of the Obama administration. But that's both unpersuasive and insufficient. The number of institutions that now face significant distrust is far larger. The list ranges across civil society and includes institutions both public and private.

More fundamentally, the issue doesn't just involve distrust in particular institutions, for particular reasons. It involves a broader skepticism of or simple indifference towards the idea of institutions as vital but limited-purpose entities. It makes it difficult to teach about the Supreme Court--but also to be a journalism professor (an area that's been the subject of even more rapid and sustained change, and a more vertiginous decline in public trust, than anything in constitutional law), a medical school professor, and so on. And that distrust is either caused or exacerbated by things like the loss in assumptions about the good faith of one's interlocutors noted in the piece by Michael McConnell, who continues, "I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed." It's in this sense, and not in any sense tied more directly and causally to the current Court, that it makes a difference if people no longer believe that, in Wegman's words, "the Supreme Court is a legitimate institution of governance." People can disdain the current Court and still believe in the larger premise that the Court is important and legitimate as an institution; I suspect that's true for most constitutional law professors, histrionics aside. The problem is that the premise itself holds no interest, no conjuring power, for a growing number of people.   

Wegman connects this point to a quote from Mark Graber, who says, "We're witnessing a transformation in the New Deal consensus" across both left and right. I'm not sure these two things are exactly the same. But--without straying too far into Moyn or Deneen territory--it does seem fairly arguable that teaching constitutional law, in the form in which it has been handed down to us since the postwar era (with hugely important disruptions along the way), or having faith in the Court, among other institutions, depends on a set of assumptions that are consistent with postwar liberalism: its values, its proceduralism, and its reliance on a host of presumptively trusted and valued public and private institutions. Remove faith in some of these things, and the whole edifice becomes unsteady.

"Faith" does seem like the right word here, incidentally. For those who are keen on the "liberalism as religion" argument, or who like to quote the closing lines of Roberto Unger's classic Critical Legal Studies book, the quote from Prof. Melissa Murray in the story's closing lines will stand out: "You're not just ministering to [law students], you're also trying to restore your own faith....This is a place for institutionalists. Deep down they want to believe." She is surely right that law schools are places for institutionalists--at least so far as faculty are concerned. The possibility that our students no longer "want to believe" in that institutionalist project--and that others, of different generations, share both that lack of faith and that lack of desire for faith--is not something she confronts here. Nor does Wegman's story address it. But we might want to. 

These all strike me as interesting points. What is not so interesting is the framework for the story in which they can be found. That framework is that there is a thing called "constitutional law," that it is both relatively stable and closely linked to the Supreme Court and happens, somewhat ironically, to resemble the Court's Burger- and Rehnquist-era efforts to turn the Warren Court's effusions into a more routinized, formalized test-based jurisprudence whose formalization makes things look less like "politics by other means"--and that all of this has been blown apart in a flash, making it impossible to "figure out how any of this makes sense" and thus to teach it or respect it. 

The latter point falls under the "not new" category. As long as we're referencing the era of the great Kiki Dee, take a look at Isidore Silver's article The Warren Court Critics: Where Are They Now That We Need Them?, published in the same year as Dee's greatest triumph. It provides a useful rundown of some of the standard plaints of leading Warren Court critics, many of which find echoes in Wegman's article. Or try Skelly Wright's description of Alexander Bickel and other critics' verdict on that Court's decisions: "over-interventionist in purpose, sloppy in reasoning, and mistaken in result." This is not the first time law professors have confronted a host of new decisions and asked: "How do I teach this? What does it even mean? In what sense is it even constitutional law as I recognize it?"

Nor, to quote Mark Tushnet and Timothy Lynch's account of the Harvard Law Review Forewords, is this the first time that critics of shoddy craft or unprincipled work on the Court have warned that such decisions would place the Court "in jeopardy of acting without legitimacy or moral authority." Tushnet and Lynch note that "these notions appear recurrently in the legal process Forewords," before going on to note that those scholars' "hegemony [began] to crack when its adherents [saw] that their theory [had] become less relevant to the real world." Legal Process had a resurgence in popularity after Eskridge and Frickey published the famous Hart & Sacks materials and helped revive interest in them. Perhaps what we are seeing today is a "crisis" for both the generation of law professors who came to law school when you could actually buy a hardbound version of Hart & Sacks and the generation that saw it to publication. 

The former point--that there is a problem for constitutional law teachers because the stable framework has vanished--I'll take up in a separate post. 

"...Growing Interest in..."

The Atlantic, which, with Slate rendered more or less irrelevant, retains its almost 170-year title as the Mecca of American Midcult, has this interesting story titled, "I Went to a Rave With the 46-Year-Old Millionaire Who Claims to Have the Body of a Teenager." (For the sake of clarity: He claims that his body is the equivalent of a teenager's, not that he has failed to dispose of a teenager's body.) "Interesting" is a strong claim, and words in the headline like "millionaire" and "rave" suggest that a better word would be "quaint," in an 80s-in-"Madchester" kind of way. The subject--yet another person who a) comes from Silicon Valley, b) would prefer not to die, and c) would very much like to sell you something--is not at all interesting. But the story is interesting.    

Specifically, the obligatory passage in which the piece attempts to rise above the noise of the crowd, and to justify its own existence and significance, runs:

Johnson told me wants to create a Don’t Die nation of 20 million people. This may sound unhinged, but people are listening. Johnson’s societal ambition echoes that of growing numbers of tech executives and venture capitalists trying to build alternative cities and states. His quest for immortality has been the subject of features and interviews in Time, Bloomberg, Vice, The New York Times, Trevor Noah’s new podcast, and more over the past year or so. The Blueprint Discord channel has more than 14,000 members, whom he calls the “Don’t Die Army.” In addition to the meetups Johnson hosted in New York on Saturday, there have been more than 200 Blueprint gatherings in 75 countries this year. Some 5,000 people recently enrolled in a self-experimentation study to see how well the Blueprint protocol works on a broader population.

Note the actual level of correspondence between the phrase "people are listening" and the evidence given. The largest number given is 14,000--the number of people on Johnson's Discord server. Of course, 14,000 ain't nothing. As Discord servers go, it's smaller than US Furries (19,000 members) and much smaller than virtually any Discord server related to sex or gaming, but larger than the membership roster of the Smooth Jazz Chill Out Lounge server. In any event, ultimately the evidence for "people are listening," which is a long way from people actually being convinced, or serious, or even particularly interested, consists of a) a small number of Discord server members, which already places them in a specialized population; b) a smaller number of people willing to "self-experiment," which probably overlaps with the number of Discord members; and--and surely most importantly--c) some number of reporters or editors for a small number of similar chattering-class-servicing publications, all of whom are pursuing the same standard-issue feature subjects, and all of whom would prefer that those be roughly the same subjects. (Being first to the subject is good if others soon follow; being alone in finding a subject interesting or newsworthy weakens the cash value of your work and opens you up to claims of unreliable eccentricity.)

References to "growing numbers" and "people" notwithstanding, then, the justification paragraph here does not really support the claim that the subject of the story is significant or that it will be of interest to many people. Indeed, it may well be of no interest to the vast majority of people. Rather, it suggests that the right sorts of people, people occupying roughly the same cultural milieu either directly (Silicon Valley) or indirectly (people willing to read features about rich tech culture in the Atlantic), are willing to treat it as interesting. The story could have said that to justify itself, of course. But apparently that sort of justification would be considered...what, exactly? Insufficient? Inappropriate? Déclassé? Too on-the-nose, too self-revealing? Nor, apparently, is it sufficient to offer no justification whatsoever, other than that one person found it interesting enough to write about. So one must have the usual recourse to flimsy numbers, vague claims of growth, and invocations of consensus on the part of similarly situated culture-and-status markers that the subject is important and the interest justified.

Nothing unusual here, of course. This sort of thing is the vast majority of what "we" read. Perhaps this serves as a reminder to be skeptical of the importance of such stories, even or especially if they engage in the usual exertions to demonstrate their own importance. It certainly serves as a reminder that how these stories justify their importance is usually fairly telling of their narrow class and cultural perspective, and of the narrow nature of the group whose interest counts to certify the story as important. And it leaves open the possibility that the vast majority of people out there would find the same story entirely unimportant, might find whatever is on offer there appalling if they did take any notice of it, and just might be able to identify other issues of vastly greater urgency and importance to them and their lives.

I offer this as a passing observation. It is wholly--well, perhaps not wholly--unrelated to the fact that it is law review submission season; that a great many papers offer almost exactly the same justifications for their own existence and for the importance of some particular subject; that these authors too would like to be first but definitely not alone; and that these authors rely on the knowledge or hope that the people doing the selecting will, in turn, fall within the same narrow class and cultural spectrum, and thus either agree with or gloss lightly over those justifications.