What Good is "[Anti-]Zionism"?

For the Third Narrative blog, I was asked to answer the question "is anti-Zionism antisemitic?" But, not having a death wish, I kind of traversed the issue. The better question, I think, is "what good does the word '[Anti-]Zionism' do in most contemporary practical debates about Israel?" And the answer, I think, is "not much".

From the conclusion:

For the “Zionists,” framing contemporary controversy as questions of Zionism vs. anti-Zionism dramatically raises the stakes of basic political disputes, making anything and everything a matter of existential survival. For the “anti-Zionists,” the ambiguity behind the term “Zionism” is regularly exploited as a mechanism of exclusion; they smuggle in broad-based attacks on the Jewish community as a whole while pretending to target only a narrower band of reactionary conservatism. Neither maneuver has lent itself to salutary debate over justice in Israel and Palestine. So perhaps it’s best we find a way to move past it.

The Right Not To Keep and Bear Arms

Earlier this month, a district court judge upheld a West Virginia statute which required private property owners to allow guns to be locked in employee or customer cars while in a parking lot (h/t: Volokh). The court rejected general property-rights and expressive association challenges to the statute. One argument it did not consider, however, is that West Virginia's law might violate the Second Amendment as interpreted by Bruen.

At first blush, this may seem to be a strange argument (which is probably why it wasn't made): this is a law expanding gun rights protections; and Bruen concerns attempts to restrict gun rights. But on closer inspection, I think it is quite likely (contingent on the historical record) that laws like West Virginia's violate the Second Amendment as that provision was interpreted in Bruen.

Start with first principles. Bruen, along with the other members of the "Roberts Trilogy" on guns, was emphatic that the Second Amendment is not a "second-class" constitutional right. And a critical component of other constitutional rights is that they all contain a robust negative component. The right to free speech includes the right not to speak (this is the locus of the "compelled speech" doctrine). The right to free association includes the right not to associate. The right to freedom of religion includes the right not to profess religious belief. And so, by extension, it seems evident that the right to keep and bear and arms includes a right not to keep or bear arms on one's own property.

Once that observation is made, then West Virginia's law plainly implicates property owners' Second Amendment right not to "keep" arms on their property. At that point, Bruen insists, the only question courts are permitted to ask is whether or not the law in question has historical analogues dating from the enactment of the Second and/or Fourteenth Amendment. I won't claim to have canvassed the history exhaustively, but my sense is that there aren't such laws (there certainly were plenty of laws protecting an individual's right to keep arms on his or her own property, but it doesn't seem like there were many laws which expressly forbade property owners from prohibiting arms on their own property). This is especially noteworthy because this is not a "novel" Second Amendment situation -- the issue of allowing property owners to forbid guns on their property was perfectly cognizable at the time of the framing, it is not an issue that only later sprang into existence based on some social or technological development. So if the historical record doesn't turn up a pattern of state laws akin to West Virginia's, then West Virginia's law must be struck down.

To be sure, West Virginia could argue that its law strikes a reasonable balance between the interest of gun owners being able to keep and carry their own arms for self-defense, and the desire of property owners to keep guns out. After all, the gun owner who wishes traveling in the public with his weapon will be significantly deterred from doing so if they're not even permitted to keep their gun locked in their car the moment they enter the parking lot of the "wrong" business or enterprise. In practice, a world in which gun owners can't enter even a parking lot with their guns locked in their car is one where they are significantly limited in their ability to travel anywhere with guns. 

But while this argument might have considerable purchase under traditional "balancing" review, Bruen expressly forecloses that sort of inquiry. As the Court emphasized, the Second Amendment's historical test is "the very product of an interest balancing by the people." History is what sets the "balance"; any additional weighing of policy considerations is impermissible. Ultimately, West Virginia's concerns that private limitations on gun possession may spillover to lessen the prevalence of guns is no different than New York's worries that striking down its gun control measures will result in too many guns on the streets. At root, West Virginia seeks to intrude on the Second Amendment in order to effectuate its policy judgment favoring more guns. A state like New York seeks to intrude on the Second Amendment to have fewer guns. Either state may or may not be correct as a matter of policy; but under Bruen both states' arguments must fall on deaf ears.

Nor can West Virginia's statute be defended as a means of securing the Second Amendment from infringement. Just as the First Amendment does not create an interest in forcing a newspaper to publish your op-ed, the Second Amendment protects against government infringements, not acts of private individuals. The only germane Second Amendment interest here -- the only actor threatened by government impingements -- is the negative interest of property owners who wish not to keep and bear arms on their property. Admittedly, cases like PruneYard do suggest that in the First Amendment context some government regulations protecting speakers on private property may be permissible, notwithstanding the property owners' own interest in declining to speak. But leaving aside whether that extension should carry to a law like this (West Virginia's attorney general made this argument; the court did not end up addressing it) under First Amendment balancing tests, it does not carry any weight under the Bruen regime, which again boils the question down solely to an inquiry into history. If West Virginia's law has proper historical analogues, it survives. If it doesn't, it doesn't, no matter how strong the policy argument in its favor may be.

Of course, we've already seen courts bend the "no policy" principle of Bruen when policy arguments seem to favor increased gun access, and it's entirely possible we'd see a similar move here as well. This is especially so since the "negative Second Amendment" idea the argument hangs on -- while I think one that has to be correct as a matter of constitutional interpretation -- is a bit novel and certainly cuts against the grain of what we expect the Second Amendment to do in cases like this. Nonetheless, in theory Bruen both gives and taketh away -- there will be times when Bruen strikes down even well-warranted laws and times when it upholds repellent ones. West Virginia's law strikes me as a good example of an enactment that is absolutely defensible as a matter of policy, but which probably cannot withstand Bruen's harsh review. The only question, as always, is whether Bruen's goose will ever apply to its gander.

One other thought: If you're looking for a viable progressive "bounty" program to counter the shenanigans anti-abortion activists are pulling in Texas, this seems like it could set one up.

1. Write an ordinance that says guns are forbidden on private property unless consent is granted by the owner (an "opt-in" rule). These laws are being challenged, but I genuinely think they should survive constitutional scrutiny because all they do is establish a default rule, and for the reasons stated above the Second Amendment doesn't protect the right to bear arms on others' property.
2. Create a civil cause of action for violating the ordinance.
3. Add in all the abusive nonsense that Texas pioneered (no governmental enforcer, anyone can sue anyone, imbalanced attorneys fees, and so on).
4. Lie in wait for anyone who pulls into a Wal-Mart parking lot with a gun in their trunk, and have at them.

To be clear: I think a law like this would be terrible and destructive, notwithstanding my own views on guns. These "bounty" laws are recipes for chaos. But to the extent that the only way we'll see them curbed is by showing that they'll exact costs on both political camps, I offer it as a way of establishing deterrence: mutually assured destruction.

Update: Turns out this article has already been written. Oh well -- at least I wasn't the only one with the thought!

To Infinity and Beyond

Well, I bought an Xbox. And Starfield. Basically, I've decided to write off the rest of the month of September (at least). Wish me luck!

[Very early thoughts: It's definitely overwhelming to begin. I'm a semi-Bethesda veteran -- yes to Skyrim, Oblivion, and Morrowind, but no Fallout -- and I'm not sure if that experience is truly helping me. There's little question the game overwhelms with menus and options. Already, the ship-based portions of the game are far more involved than I anticipated (contrast a game like Mass Effect, where your ship is basically a glorified fast travel nexus). Planetside traveling is extremely difficult to navigate because the local area maps are truly terrible. But the scope of the game already feels breath-taking, and it does feel like the sort of game where once you get past a somewhat-stiff learning curve, it will be worth your while. I'm excited!]

Vivek Ramaswamy: I Didn't Know My Host Was Antisemitic Until After I Made My Own Antisemitic Statements

Upstart GOP presidential candidate Vivek Ramaswamy has come under scrutiny after appearing on an antisemitic podcast (the host has said, for example, that Jews "own almost everything" and that we pay Black celebrities to attack White people).

Ramaswamy's campaign has defended him by saying he didn't know the host's views on Jews prior to coming on the show.

Problem #1 is that, given Ramaswamy's campaign is built primarily around "anti-woke" hysteria that's shot through with antisemitism, it's inevitable that the waters he swims in will regularly include antisemites. This was not bad luck. Scratch an anti-woke extremist, and it's a very good bet you're going to find an antisemite.

But larger problem #2 is that Ramaswamy decided to give his own antisemitic riff on the podcast. Responding to the fact that he was a recipient of a Soros Fellowship (sidenote: LOLOL), Ramaswamy took pains to distinguish Paul Soros (the funder of the fellowship) from his brother George Soros. What's the difference, you might ask? Answer: George Soros is, according to Ramaswamy, “the bogey man pulling the strings.”

Subtle! And to think Ramaswamy belted out that dogwhistle foghorn without even knowing his host was an antisemite too! It's so nice when things work out.

Media Alt-Centrists in Disarray

 

When I first saw this Tweet (Xeet?), my eye was drawn to "Dems should pursue working-class voters of all races." It's a great example of something that is simultaneously (a) alt-center conventional wisdom and (b) utterly inane. What are the sorts of policies Dems should pursue to working-class voters of all races? Answer: the ones they're already supporting! 

The difference between talking and delivering. pic.twitter.com/mb6bp65eKV

— Joe Biden (@JoeBiden) August 31, 2023

Price negotiations for prescription drugs is a great, obvious example of a policy that's geared to the interest of working-class voters of all races. Standing with the incipient wave of labor mobilization is another. The infrastructure bill was yet another. All of these are centerpiece items of the Democratic Party's economic agenda. But the alt-center punditry acts as if they don't exist. The "advice" on offer is "do what you're already doing, but make me pay attention to it." And one cannot help but think that the price the pundits have put on "make me pay attention to it" is "stop distracting me by also supporting policies that are distinctively to the benefit of specific historically marginalized communities."

At the same time, there is a separate vapidity in the "advice" that Biden shouldn't run for reelection. Again, as advice this is just terrible: Biden has a proven electoral track record and has already beaten Trump once. There's no universe where a chaotic primary free-for-all would actually be healthy for the Democratic Party or the broader prospect of ensuring that Trump or any of his lackeys stay out of the White House. The desire for "a real primary" is just thinly-disguised thirst for the good old days of "Dems in disarray" and the chaotic intraparty knife fights that aren't happening on the GOP side because virtually all of Trump's "challengers" can't help but cozy up to him (with a not-so-subtle wink to the various factions within the Democratic Party whose definition of a "real primary" excludes any primary where their preferred candidate doesn't march to victory).

Finally, "faculty lounge" politics is also a meaningless phrase. If it's meant to refer to the notion that Democratic party politics take their cues from whatever petition is currently being passed around the Wesleyan anthropology department email list, it's delusional. If it's meant to be a general referent to so-called "culture war" politics, then it's horribly outdated -- we are long past the days where the main "culture" wedge issues favored Republicans over Democrats. Republicans are getting absolutely blitzed on reproductive rights as their radical campaigns to imprison, maim, and murder women are predictably reviled. And their anti-LGBTQ agenda doesn't fare much better. Democrats have a lot of room to punish Republicans for their extremism here, and absolutely should.

Biden should run for reelection, and in the process will no doubt trounce token primary opposition. He should promote his policies which will improve the lives of working class voters of all races, and he should absolutely torch Republicans for their unabashed extremism in desiring to take American "culture" back to the 19th century.

Steeled for Stealing

Last night, I had -- well, epiphany is probably too strong of a word. Crystallization, perhaps. A thought I already basically knew just became clearer in my mind. Namely: that the next time a major Republican candidate tries to overturn the results of an election, they're going garner a lot more support from the Republican establishment (in particular, the GOP judiciary).

Oddly enough, it was the 5th Circuit's latest ivermectin ruling that triggered the realization. Even at the start of the pandemic, we wouldn't see right-wing judges pulling stunts like this. The seals were still in place; it takes time for them to crack. But as they start to come undone, there's no backstop of legal or ethical duty to hold them in place.

Despite Trump's regular warnings (dating back to 2016) that he would not respect the results of an election that he lost, few in our political and legal elite really believed that he would go through with an overt plan to steal the election. Remember "What's the downside for humoring him?" It wasn't real until suddenly it was. And as a consequence, Republican elites hadn't really braced themselves to go all in for election theft. It's not just that it was too much, it was that it came too fast. They weren't ready.

But with time and distance, the Republican Party has come to assimilate Trump's actions as justified (same as they've done for every other one of Trump's abuses). Those who actually did unashamedly oppose Trump's actions have been ruthlessly purged from the party. Nascent momentum to support consequences for Trump during the second impeachment trial have entirely disappeared as far as the GOP is concerned. The unthinkable became thinkable, and Republicans have had four years to come up with clever rationalizations and apologias for why actually overturning democratic elections is fair play and What The Founders Would Have Wanted.

I've remarked before that GOP election theft attempts are akin to the carnival game where you swing a hammer and try to ring the bell. They weren't strong enough to ring it the first time. But they're getting stronger. It's not just that the next attempt will be less slap-dash and more well-organized (though it is that). It's also that the GOP has had time to mentally brace itself that stealing elections is appropriate, even necessary, and certainly just.

In 2020, virtually all GOP judicial actors refused to go along with Republican efforts to steal the election. Come 2024, I do not expect to see that unanimity anymore. They've steeled themselves for stealing, and next time they will come harder than before.

.... And Getting Worse Roundup

This will not be my cheeriest roundup. But there are a bunch of links burning a hole in my pocket, so here you go.

* * * *

Apropos yesterday's post on Fugitive Uterus Laws, a Washington Post article on similar efforts underway to set up checkpoint towns in Texas designed to capture any pregnant women who has designs on leaving the state for freedom.

North Carolina Republicans considering impeaching a state supreme court justice because she talked about racism. While I can't fault Slate for juxtaposing this against the undisclosed largesse heaped upon Justice Thomas, my mind more rapidly went to efforts in Wisconsin to impeach a state supreme court justice because she might vote for democracy.

A politically engaged fifteen year old kid asked a (not even that tough!) question that made Ron DeSantis uncomfortable on the campaign trail. So he sent his goons to rough him up.

You see, the real problem with the "War on Drugs" is that it's too metaphorical.

The latest Fifth Circuit crack-pottery: it's probably illegal for the FDA to tell humans they're not horses (yes, this is the latest conservative institution to burn its remaining dignity in defense of ivermectin conspiracies).

Georgia school district: saying the word "gay" around fifth graders is like graphically describing the horrors of the Holocaust to kindergarteners. 

Are States Allowed To Trap Pregnant Women Inside Their Borders, Berlin Wall Style? Views Differ!

In his Dobbs concurrence, Justice Kavanaugh took pains to argue that even after the right to reproductive freedom was stripped from the constitution, it was still forbidden for "a State [to] bar a resident of that State from traveling to another State to obtain an abortion." It was a very, very small sop given to the predictable calamity the Court unleashed upon women of reproductive age, who were otherwise told in no uncertain terms that their body is not their own when the state has a different agenda for them.

But Justice Kavanaugh's opinion was not signed onto by any other justice. And, much like the question of whether states can murder pregnant women, views differ as to whether they can criminalize pregnant women leaving their borders. Right now, Alabama is in court arguing that it is entitled to criminally prosecute those who aid Alabama women in leaving the state to have an abortion. After all, if Alabama has a valid interest in forcing its women into labor, then surely it has an equally valid interest in thwarting those women who might try to escape their wardens and find freedom over their bodies in other states. The term Fugitive Uterus Act is absolutely fitting and appropriate, and the passage and enforcement of such laws is a top priority for the current Republican Party.

Justice Kavanaugh's concurrence notwithstanding, the entire point of Dobbs is that a woman's right to control her own body has zero constitutional significance. That said, if we take Justice Kavanaugh at his word (far from clear we should), and if Chief Justice Roberts goes along with him (far from clear he will), then maybe this is a bridge too far for the current Supreme Court. If, if, and maybe.

[Source for the above image]

Another Case of Self-Inflicted BDS

Some of you are familiar with the "Deadly Exchange" allegation -- an effort by JVP and allied groups to block cross-training programs between Israeli and American police officers on the grounds that such programs really are just avenues for Israel to transmit brutality and oppression to their American counterparts. It's a signature campaign of the BDS movement, albeit one that -- like most BDS activities -- hasn't gotten much traction.

But today comes the news that Itamar Ben-Gvir, the notorious far-right racist who also happens to be Israel's National Security Minister, has taken it upon himself to bar Israeli police from partaking in programs run by the Wexner Foundation for Jewish Leadership. Wexner programs have hosted an array of significant figures in Israel's security establishment, but as is becoming increasingly passe they have come under predictable fire from the Israeli right upon allegations that they are a tool of leftist indoctrination and the ever-shadowy "deep state". So a ban was announced, and yet another screen of isolation falls upon the Israeli public vis-a-vis the outside world (and here, in particular, the Jewish diaspora world).

The Wexner programs are not, to be sure, exactly the sorts of police cross-training programs that "deadly exchange" targets. Nonetheless, this is yet another data point to the proposition that Israeli right is far more successful at actually instantiating a BDS regime than BDS activists ever have been.

The Unique Vulnerability of Sexual Assault Victims Under Defamation Law

A former George Mason University law professor and FTC commissioner, Josh Wright, has sued several of his former students who accused him of sexual misconduct and exploitation for defamation. He's seeking over $100 million in damages. (As I understand Wright's position, he admits to having engaged in sexual relationships with several of his students but denies any form of abuse or exploitation). This has some resonance with Johnny Depp's lawsuit against Amber Heard where he largely successfully convinced a jury that Heard had defamed him upon accusing him of domestic abuse.

Cases like this have an interesting character; one that poses special danger towards defendants and, by extension, potentially make leveling accusations of things like sexual misconduct or domestic abuse especially fraught.

Truth is an absolute defense to a defamation claim. But establishing falsity is not normally sufficient for a plaintiff to win a defamation claim. Even a defendant who utters a false statement still can't be held liable for defamation unless they exhibited some sort of culpable disregard for the truth. Where the target is a public figure, the standard is known as "actual malice" -- a requirement that the false statement be uttered with either knowledge of its falsity or reckless disregard for whether it is true or not (for non-public figures, this standard may be relaxed). So there are many circumstances where a jury might believe that an allegedly defamatory statement is indeed false, but still will not assign liability -- for example, if they think the speaker made an honest mistake or a regular poor judgment.

But a sexual assault claim by the putative victim is different, because by definition the victim has firsthand knowledge of what happened. If the attack happened, then her accusation is true, and there's no defamation (truth as an absolute defense). But if the jury concludes the attack didn't happen, then the defamation claim essentially succeeds by default, because if the attack didn't happen then the "victim" must have known the attack didn't happen, rendering her allegation knowingly false. In other words, in a defamation case regarding a firsthand accusation of sexual assault, the entire case resolves down to the jury's judgment about whether they believe the accuser or the accused. If they believe the latter, then -- despite the normally additional hurdles put up by the "actual malice" standard and its cousins -- defamation is essentially a strict liability offense.

This prospect, one imagines, is yet another deterrent to sexual assault victims going public with their accusations. We speak a lot about the propensity (or not) to "believe women", and how widespread tendencies towards disbelief deters victims of sexual abuse from coming forward. In the public square, it is essentially inevitable that -- regardless of the underlying truth of the allegation -- there will be some cadre of observers who will believe the accusation and some cadre who disbelieve. One reason a victim might not directly seek legal recompense from their attacker is because they lack confidence that a jury will be comprised entirely of believers, and so the effort will come to naught. In the court of public opinion, a victim may in practice come to terms with the fact that some will believe her and others won't; speaking her piece and letting the chips fall where they may. She may, in other words, be well aware that some significant quotient of listeners will not believe even her true story and be willing to ensure that prospect as a cost of speaking her truth.

But the aspect of defamation law I'm flagging here means that victims cannot simply opt out of the legal process. The victim who wants to speak but do nothing else still is automatically exposed to potentially ruinous liability in any circumstance where a jury is comprised of disbelievers -- and disbelief is all it takes (the additional guardrails offered by doctrines like "actual malice" do not apply). The woman who is willing to endure a significant cadre of the public disbelieving probably will not be so sanguine about that disbelief translating into financial catastrophe.

If one has strong confidence in juries being able to sort truth from falsehood in cases like this, then this may not strike you as much of a problem. But in general, I suspect one reason why defamation law normally has these guardrails beyond "is the statement true or not" is because we understand juries are not perfect and that there needs to be wiggle room in hotly contested cases. And in specific, I suspect that defamation claims around sexual misconduct are cases where we may be especially likely to see significant error rates. Low confidence in accurate judgments surrounding truth or falsity, combined with an effective strict liability regime for statements adjudged to be false, equals a very strong deterrent to speaking out in the first place.

Whither #TeamVaccineNanoBot?

The COVID vaccines have been widely available for well over two years now. Surely, if Biden/Soros/Gates/the Rothschilds were going to flip a switch and take over our bodies with the nefarious nanobot technology they deviously microchipped us with via the vaccine, it would have happened by now. So I'll ask: what happened to team nanobot?

In all seriousness: how do the conspiracy theorists explain that none of their dire predictions have come to pass? In even greater seriousness, I know the answer is: they won't bother to explain; conspiracy theorists happily skip to the next mania without bothering to look back whenever their last round of doomsayings come to nothing. But I still feel a deep urge to hold their feet to the fire and say "where are your nanobots now, huh?"

Alas, that is likely to remain just a fantasy. But we can still take the opportunity to reflect on just how stupid anti-vaxx activists are and ever will continue to be. Remember: they're always wrong, until finally, they're still wrong.

Hickory Smoke

This weekend, Jill took a train trip up to Seattle to visit friends. It was a lovely time -- Seattle is a great city, we saw Liz Miele do stand-up -- just a pleasant weekend all around.

However. Our friends have a three-year-old, and consequently much of the car music over the weekend was an album of nursery rhymes. On its own, that didn't bother me at all. I'm sure that by the nine hundredth thousandth millionth iteration the songs would get aggravating, but seriously -- I had no problem singing along with "The Itsy Bitsy Spider" to a toddler.

The problem was Hickory Dickory Dock. Which, to my horror, I found out I -- and by "I", I mean "everyone else" -- have been singing wrong my entire life.

Here are the core lyrics as I always sang them as a kid:

Hickory, dickory, dock

The mouse ran up the clock

The clock struck one

And down he runs

Hickory, dickory, dock.

Notice that "one" rhymes with "runs". Which makes sense for a nursery rhyme. It's great.

But here is how it was sung on the album (and further research suggests this is a more common iteration):

Hickory, dickory, dock

The mouse ran up the clock

The clock struck one

The mouse runs down

Hickory, dickory, dock.

 What is this? "One" does not rhyme with "down". It's not even close enough to be a slant rhyme, but it is just close enough to be horribly jarring and discordant and wrong.

Also, I disapprove of the melody the album chose. I think the first two bars of the song should go:

G-A-G-F-E-D-C

C-E-E-F-D-E

But what we got was:

F#-G-A-A-B-D♭-D

A-F#-G-A-A-B-D♭-D

And of course, Wikipedia suggests that's the traditional melody choice as well. What is wrong with all of you?

As you can imagine by the fact that I'm still writing about it, this is driving me absolutely nuts -- to the point that I saw a recipe for "hickory rubbed watermelon" yesterday and almost flew back into a rage. The whole word is ruined for me.

Are Red State Universities Starting to Feel the Pressure? An Anecdotal Account

As a member of academia, I periodically get inquiries from other law schools asking if I'm interested in lateraling. This is quite flattering, though I know full well that such messages aren't only being sent to me and that there is a long road from "email of interest" to actually getting a job offer.

Recently, though, I've noticed that the schools making such inquiries of me are disproportionately located in deep red, southern states. It could be a statistical artifact, of course -- I don't get so many solicitations so as to negate the possibility of random clustering. But it does make me wonder if the decaying political climate in those states means that these schools are experiencing more pressure in terms of faculty outflow, which they're trying to replace via laterals.* 

Both the specific anti-academia initiatives (crusades against "controversial topics"; attacks on tenure), and the broader threat to political and civil rights (abortion bans, threats to democracy) that are characteristic of these states make working there -- and to be clear, I hold the universities in question in the highest esteem -- a far less attractive proposition. And from the other side of the fence, serving on our school's appointments committee this year it did seem to me like we were getting an uptick in "red state refugee" lateral applications -- though again, that's just an impression, and I have no data to back it up. For another bit of anecdotal evidence, see Sapna Kumar's recent interview explaining why she elected to leave Houston Law for the University of Minnesota.

I'm curious, though, if others are noticing this pattern as well. Other junior law professors -- are you getting disproportionate interest from "red state" schools? Any other sense that these schools are indeed facing faculty outflow pressure?

For what it's worth, I'm very happy in Portland and at Lewis & Clark, and have no interest in decamping anywhere. My wife and I have bought a house, we've settled down, I like my students and my colleagues, I've got the course package I want -- life is good and I see no need to mess with a happy status quo.** But my wife and I have also decided that, even beyond any generic inertial resistance, we're in particular not interested in moving to schools in places where our basic rights don't feel secure. We're at the phase of life where we're thinking of starting a family, and doing that in a place where pregnancy turns my wife into a vessel for the state would be horribly unfair to her. And for my part, I teach constitutional law -- a course that, rumor has it, sometimes veers into "controversial topics". I don't want to go to jail because some yahoo right-wing prosecutor decides I'm teaching Roe and Dobbs wrong.

* It might say something about my professional self-esteem that I assume the only reason these schools would be interested in the likes of me is that they're in the midst of a political crisis.

** All that said, I want to be very clear that if Harvard Law School wanted to entice me to move to Cambridge by tripling my salary, they can feel free to mess away.

The Sunset of Women's Rights

Going off my post from yesterday, I'm quoted in today's Bloomsburg Law article about Judge Ho's wild opinion in the mifepristone case -- particularly his ruminations on the "aesthetic injury" pro-life doctors endure from women being allowed to control their own reproduction.

“I absolutely get and agree with the idea that there is something degrading about treating women as, you know, akin to kind of the natural splendor of a sunset,” David Schraub, an constitutional law professor at Lewis & Clark Law School, said noting the criticism Ho’s argument has gotten on social media.

[....] 

Schraub said Ho is “a standard-bearer for a new generation of conservative jurists” who recognize and believe in the judiciary as a vanguard for right-wing social change. This generation, he said, isn’t afraid to attack in bold language anyone who’s advocating for a more constrained, traditional view of the judicial role.

Ho “likes the bombast and it’s a very, very common feature of the opinions he writes,” Schraub said. 

Not quite sure how I became the mifepristone guy, but here we are. 

Scientists Aren't Gods. Fifth Circuit Judges Are Gods

The Fifth Circuit has released its decision in the mifepristone case. In essence (and I read this quickly, so take with a grain of salt), the court did not overturn the initial FDA approval of mifepristone or the approval of generic variants (the former because the claim was time-barred; the latter because the plaintiffs showed no specific evidence that they were additionally injured by generic approvals). However, it upheld the district court's stay on subsequent FDA decisions which made mifepristone more readily accessible (e.g., allowing it to be prescribed by telemedicine). The new FDA regulations were, the court concluded, "arbitrary and capricious" primarily because while the agency did analyze the risks latent in the individual alterations it was making to the regulatory schema and found them to be negligible, the FDA did not specifically analyze how all these changes might interact when aggregated together.

The decision is, as the panel took pains to repeatedly note, stayed until the Supreme Court has an opportunity to act.

In May, I proffered three possibilities of what the Fifth Circuit would do in this case. The first was that they would take the Supreme Court's hint and reverse the district court. The second was that they would largely affirm the district court but try to file off the "rougher edges" to make it more likely the Supreme Court would uphold the ruling. And the third would be to let their freak flag fly and go all in on defending the extremity of the district court ruling.

What we got was mostly in that middle camp. The court didn't accept the most extreme iterations of the district court's ruling which would have completely taken mifepristone off the shelves nationwide. And its analysis, for the most part, styles itself as sober review of the administrative record and standing doctrine. But the end result was still the court stretching the law to force a substantial rollback in its accessibility. The hope, I think it is clear, is to present this ruling as the "reasonable" conservative position that doesn't go as far as the district court and so one that liberals can't really complain about if it is upheld (spoiler: we can and should).

Judge Ho concurred in part and dissented in part because he would have upheld the district court's decision in its entirety, and in contrast to the majority his opinion was squarely in the realm of possibility number three. He went whole hog on every possible avenue for showing his right-wing culture warrior bona fides, including florid discussions of the importance of the doctor's "conscience rights" to be mad that they have to treat patients who are suffering from medical emergencies they disapprove of and a full-scale defense of the applicability of the Comstock Act to block any sort of approval for abortion medication.

There is stiff competition for who is the worst federal appellate judge. But I'm not sure there's any competition for who the most arrogant federal appellate judge is (and it's no surprise, perhaps, that it's a University of Chicago Law alum taking the crown). In that vein, one passage of Judge Ho's opinion especially stood out to me -- his strident defense of the judiciary refusing to accord deference to the scientists at the FDA.

In this appeal, neither the FDA nor Danco is content to simply argue that the district court erred. They disparage the ruling as “an unprecedented judicial assault on a careful regulatory process.” The “non-expert” district court issued an “unprecedented order countermanding the scientific judgment of the Food and Drug Administration.” 

Their message is simple: The scientists at the FDA can do no wrong. So courts have no business reviewing their actions. 

That’s mistaken on multiple levels.  

[....] 

Scientists have contributed an enormous amount to improving our lives. But scientists are human beings just like the rest of us. They’re not perfect. See, e.g., Whole Woman’s Health v. Paxton, 10 F.4th 430, 464–70 (5th Cir. 2021) (en banc) (Ho, J., concurring). None of us are. We all make mistakes.

And the FDA has made plenty....

The scientists at the FDA deserve our respect and our gratitude, but not our blind deference. That would defy Congress’s clear directive that courts conduct independent legal review of FDA action under the APA. 

Of course it is true that scientists can make mistakes. Judges can make mistakes too (this case is replete with them). And since "we all make mistakes," the actual germane question is who is more likely -- scientific experts or generalist judges -- to make a mistake when it comes to assessing highly technical medical and scientific decisions on drug approval. And the answer there is obvious: judges are far more likely to be mistaken. Hence why the standard of review is "arbitrary and capricious". The agency doesn't get blind deference, but it still gets regular deference. Absent blatant, smack-you-in-the-face mistakes -- the sort that go beyond disputes about best practices or disagreements on matters of judgment and slide all the way into "arbitrary" or "capricious" conduct -- judges defer to the scientists because judges know that in normal circumstances they're more likely to cause a mistake than to correct one.

In this case, the FDA analyzed the risks of its new regulations enhancing public access to mifepristone and found that they were negligible. Would it have been better if it is specifically analyzed how these risks might change when all the regulatory changes were aggregated? I have no idea (since again, I'm not a scientific expert, and I'm modest enough not to venture a guess). But it is hard to argue that the decision to rely on the individual negligibility of the risks is either "arbitrary" or "capricious". That sort of pot-shot second-guessing of scientific judgment is exactly what normal judicial modesty and deference should foreclose. 

But Judge Ho's eagerness to emphasize the fallibility of the FDA's scientists is quite predictably paired with a blind refusal to recognize his own parallel status as a mere mortal. In our constitutional system, it seems, scientists aren't gods; only Fifth Circuit judges are.

The Conservative Experiment at New College is Failing on Easy Mode

I'll admit: when Ron DeSantis and Christopher Rufo announced their intention to convert the New College of Florida into a conservative indoctrination camp, I thought they might succeed. Not just in the enshrining conservative orthodoxy part, but in doing so while maintaining or increasing New College's numbers along traditional metrics of academic excellence.

Simply put, the New College is a small place (fewer than 700 students). And so my logic was straight-forward: are there 700 young conservatives with reasonably good test scores who are eager to devote their college experience to a crusade in owning the libs? Probably! Especially given the largesse that undoubtedly would be funneled to them by the DeSantis administration in support! And given the high profile of DeSantis' and Rufo's machinations, it would be easy to attract that sort of young right-wing zealot to the New College campus. Any right-wing culture warrior who would find this sort of endeavor appealing no doubt would have heard of the New College and what's being done there, and would quickly put it at the top of their application list.

The problem, I thought, was always going to be one of scalability. Sure there may be 700 such students who could make the New College experiment into a "success". But are there 10,000? 100,000? The factors which would make the New College experiment work could not be replicated across the education sector as a whole. Try this at the University of Florida and you'd just have the academic wrecking ball of mass faculty departures and an enraged student body, and nothing to show for it. So my prediction would be that some of the "cream of the crop" currently going to Liberty or Patrick Henry might redirect themselves to the New College, thus giving a false impression that there was untapped demand for the product Rufo was selling, and then we'd have to explain that redistributing the small set of baby conservative crusaders is not actually evidence of a plan that can work at scale.

But it turns out I was still giving Rufo and DeSantis too much credit. Because the early returns are in, and while they've certainly done a number in terms of destroying the New College's academic reputation and standing (over a third of the faculty have departed, alongside dozens of transferring students), the new crop of students coming in are actually less impressive than those the college attracted before the takeover.

Rufo speaks a lot about academic excellence and the virtues of a classical liberal education. But as Steven Walker of The Sarasota Herald-Tribune reported in a damning July story, the incoming class recruited by the new administration has lower average grades, SAT scores and ACT scores than last year’s class. “Much of the drop in average scores can be attributed to incoming student-athletes who, despite scoring worse on average, have earned a disproportionate number of the school’s $10,000-per-year merit-based scholarships,” wrote Walker.

With all the publicity, and all the conservative cheerleading, and all the momentum of the right's latest culture war, the New College couldn't even attract a few hundred talented right-wing youth to create the impression of a successful reform? Hilarious.

And it gets better. Rufo defends the recruitment of underperforming athletes on the grounds that -- wait for it -- there are too many ladies at the New College.

Rather than reviving some traditional model of academic excellence, then, it looks as though New College leaders are simply trying to replace a culture they find politically hostile with one meant to be more congenial. The end of gender studies and the special treatment given to incoming athletes are part of the same project, masculinizing a place that had been heavily feminist, artsy and queer. When I spoke to Rufo last weekend, he offered several explanations for New College’s new emphasis on sports, including the classical idea that a healthy body sustains a healthy mind. But an important part of the investment in athletics, he said, is that it is a way to make New College more male and, by extension, less left wing.

In the past, about two-thirds of New College’s students were women. “This is a wildly out-of-balance student population, and it caused all sorts of cultural problems,” said Rufo. Having so many more women than men, he said, turned New College into “what many have called a social justice ghetto.” The new leadership, he said, is “rebalancing the ratio of students” in the hopes of ultimately achieving gender parity.

But gender parity is not necessarily compatible with a pure academic meritocracy, which Rufo claims to prize. Women are outpacing men in education in many parts of the world, including Saudi Arabia and Iran. In Hungary, nearly 55 percent of university students are women, leading the government to warn about the “feminization” of higher education. Selective American colleges tend to have more female than male applicants; to maintain something approaching a gender balance, some have adopted lower standards for men. In other words, it often takes deliberate intervention — one might call it affirmative action — to create a student body in which women don’t predominate. New College isn’t jettisoning gender ideology. It’s just adopting a different one.

Oh buddy, I hope upon hope someone sues the New College for sex discrimination based on these passages. 

It's entirely appropriate to call Rufo's endeavors an affirmative action program for men. And while the SFFA opinion is about race-based affirmative action, even before that case conservative lower courts had been reflexively applying their affirmative action skepticism to sex-based programs (for example, in Vitolo v. Guzman, the 6th Circuit struck down preferences for women in COVID relief programs using essentially identical analysis to why it struck down race-based preferences). The logic of SFFA should, if fairly applied (I know, I know: that's one hell of a caveat), cover a case like this as well.

But even absent SFFA, the sex discrimination here is worse than a standard affirmative action case. Not only does the quoted language from Rufo suggest that the New College's decisions were taken "because of, not in spite of", the effect they'd have on women, they also demonstrate that explicit hostility to women -- a belief that too many women leads to "a social justice ghetto" and creates "cultural problems" -- was a motivating factor in the decision. This is far more powerful evidence of discriminatory intent than one would find in, say, the Thomas Jefferson High School for Science & Technology case (where race-neutral changes to admissions policies were alleged to be motivated by discriminatory animus against Asians). Even defenders of affirmative action have never agreed that an affirmative action program could be justified by disdain for the overrepresented class. And one would struggle to find a more overt admission of misogynistic motivations than what one has here -- all in the service of further degrading the New College's academic quality in service of an ideological indoctrination effort.

There's still time for Rufo to, er, "right ship". If you dump enough money and resources into the New College, it will attract students no matter how bad its academic reputation gets. A lavishly funded subsidy program for right-wing kids really should be able to find an audience even if it's being run by incompetents.

But for now, this is just delightfully embarrassing. What a joke.

UPDATE: I believe it's paywalled, but this article has a lot more detail on the utter chaos that's overtaken the New College as it prepares for the next academic year.

Forcing Child Rape Victims To Give Birth Is Exactly What the Dobbs Justices Hoped Would Happen

This is a picture of a twelve-year old girl.

(I assume. It's from an article titled "Awesome Things About Raising 12 Year Olds." For obvious reasons I didn't want to spend too much time Google Image searching "12 year old girl").

This is an article about a different twelve year old girl.

Ashley just had a baby. She’s sitting on the couch in a relative’s apartment in Clarksdale, Miss., wearing camo-print leggings and fiddling with the plastic hospital bracelets still on her wrists. It’s August and pushing 90 degrees, which means the brown patterned curtains are drawn, the air conditioner is on high, and the room feels like a hiding place. Peanut, the baby boy she delivered two days earlier, is asleep in a car seat at her feet, dressed in a little blue outfit. Ashley is surrounded by family, but nobody is smiling. One relative silently eats lunch in the kitchen, her two siblings stare glumly at their phones, and her mother, Regina, watches from across the room. Ashley was discharged from the hospital only hours ago, but there are no baby presents or toys in the room, no visible diapers or ointments or bottles. Almost nobody knows that Peanut exists, because almost nobody knew that Ashley was pregnant. She is 13 years old. Soon she’ll start seventh grade.

In the fall of 2022, Ashley was raped by a stranger in the yard outside her home, her mother says. For weeks, she didn’t tell anybody what happened, not even her mom....

[Ashley's mother] Regina tentatively asked [Dr.] Balthrop if there was any way to terminate Ashley’s pregnancy. Seven months earlier, Balthrop could have directed Ashley to abortion clinics in Memphis, 90 minutes north, or in Jackson, Miss., two and a half hours south. But today, Ashley lives in the heart of abortion-ban America.... Within weeks [of the Dobbs decision], Mississippi and every state that borders it banned abortion in almost all circumstances.

Balthrop told Regina that the closest abortion provider for Ashley would be in Chicago. At first, Regina thought she and Ashley could drive there. But it’s a nine-hour trip, and Regina would have to take off work. She’d have to pay for gas, food, and a place to stay for a couple of nights, not to mention the cost of the abortion itself. “I don’t have the funds for all this,” she says. 

So Ashley did what girls with no other options do: she did nothing. 

It bears repeating what Scott Lemieux said: the very consistent Republican position on cases like Ashley's is that states should have more latitude to force child rape victims to give birth compared to the average women (and they very much believe the average women shouldn't have much in the way of rights either). Ashley's situation isn't a case of unintended consequences; it's the Dobbs ruling doing exactly what its proponents intended and wanted it to do.

Is the President Congress' Babysitter?

A newly-ascendent doctrine the Supreme Court has used to strike down disfavored executive regulations is the so-called "Major Questions Doctrine". The MQD, in essence, says that we should not assume that Congress has legislated on issues of major social or economic importance unless it does so very, very clearly. This means that even where the plain statutory text seems to authorize presidential action, courts can still nullify it if they decide that Congress' language was not "clear" enough given the magnitude of the policy at issue.

For example, in NFIB v. OSHA, the Supreme Court invalidated the Department of Labor's vaccine mandate despite statutory text authorizing OSHA to issue emergency rules when necessary to protect employees against "grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." COVID-19, of course, is an "agent" which poses "grave danger" to employees, so it would appear based on the plain language that Congress had authorized this course of action. But no, said the Supreme Court -- if Congress wanted to authorize OSHA issuing blanket rules covering essentially all employers across the entire economy, it needed to be even clearer than that.

Many critics have assailed the MQD as the Court abandoning textualism when it conflicts with conservative policy preferences. In response, conservatives have tried to argue that the doctrine can be reconciled with textualism because the MQD comports with how ordinary readers read texts. In the student loan case, Justice Barrett made a popular version of this argument:

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: "Make sure the kids have fun." Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter's trip consistent with the parent's instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent's instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park….

Problem one with this defense is that it turns out Justice Barrett's intuitions may not be accurate. A new article actually empirically tested Justice Barrett's example and found that most respondents did not find the babysitter's actions to be unreasonable. Whoops. (Kudos to Ilya Somin for at least acknowledging that this study is countervailing evidence against his own affinity for the MQD).

But my problem with this analogy is a little different: is it really fair to characterize the President as akin to Congress' babysitter? The Executive and Congress are coequal branches of government. Their relationship is not as one-sidedly hierarchical as the parent who makes a one-off hire of a babysitter. If we adjusted the hypothetical so it was two parents, one leaving on a business trip and who tells the other "make sure the kids have fun this weekend!", I doubt anyone would find the choice of the stay-at-home parent to take the kids to an amusement park to be even remotely problematic.

Now, I'll concede a potential problem with the revised hypothetical: the relationship between two parents doesn't generally involve delegations of authority. Mom and dad both are generally authorized to make choices about the kids on their own initiative. By contrast, nominally under our separation of powers system the executive is only empowered to act upon authorization by Congress.

I'm not sure this objection fully holds, however, and in any event it can be easily traversed. It doesn't necessarily hold because -- as any couple knows -- lack of a formal hierarchy between spouses does not mean that it's impossible for there to be instructions and acrimony where they're not followed. If mom says "make sure the kids take a bath", and dad lets them get away with just running through the sprinkler -- well, woe is about to fall upon dad, and it'll be worse for him still if he comes back with "as a co-equal parent, I am equally authorized to make parenting decisions on my own initiative."

But even if we think the parent-to-parent relationship doesn't quite work, it still seems clear that the relationship between Congress and the President is still more distant from a parent and babysitter. So how about parent and grandparent. Take Justice Barrett's hypothetical, but it's grandma watching the kids for the weekend. Grandma, unlike dad, does only have delegated authority to look after the kids. But nonetheless, I think very few people would think that grandma's amusement park trip would be unreasonable or out-of-bounds. The fact that grandma is herself part of the family, and not some random acne-faced fifteen year old, makes a huge difference in terms of what should be deemed reasonable.

When Congress passes laws for the executive to enforce, it is not "delegating" power to some ad hoc temporary babysitter who may or may not ever be hired again for $20/hour plus tips. It is interacting with an intimate family member with whom it has a long-standing relationship that will continue across a multitude of cases into perpetuity. That sort of relationship, it seems to me, makes the MQD less feasible. That Congress wouldn't be presumed give some random stranger authorization to make "major" alterations to social or economic policy does not mean that Congress wouldn't be presumed to give the President of the United States such alterations -- particularly when we're talking about legislation that is by its nature inherently imbricated in issues of major social and economic concern (workplace safety, environmental protection, educational access, and so on).

College Football is Ruining College Sports

[Graphic: Washington Post]

Another huge wave of conference consolidation just hit, as eight schools just departed the PAC-12. Oregon, USC, Washington, and UCLA are headed to the Big Ten, while Arizona, Arizona State, Colorado, and Utah are moving to the Big 12 (the schools currently remaining in the rump PAC-12 are Stanford, Cal, Washington State, and Oregon State).

These conference realignments and consolidations are entirely being driven by college football. Even men's college basketball -- the other marquee moneymaker -- really doesn't play a role (we saw that when Maryland moved from the ACC to the Big Ten, a clear sacrifice of basketball rivalries for football dollars even though Maryland's outstanding basketball program is far more storied than its pedestrian football team). And all the other sports are complete afterthoughts -- there is no advantage whatsoever to UCLA's baseball team flying all the way across the country to play Rutgers.

The thing is, I don't know of anyone who's defending this on any basis other than the football cash grab.  And given the titanic sums in play, one can even understand that the schools in question feel like they've got no choice but to make the moves. I do feel a twinge -- just a twinge -- of sympathy for Florida State, which is missing out on massive payouts because it's stuck in the comparatively uneconomical ACC.

But the fact is that outside of football these conference realignments are just terrible for college sports. It makes me wonder whether there is a way to spin off the Big Ten and Big 12 as football-only conferences, so that in all other sports universities play in their traditional and more regional home bases. I can't imagine the Big Ten actually cares if they're still Oregon's home for gymnastics, so long as they're getting those big football games. If the NCAA or whomever could step in and basically broker a compromise where these conferences get whatever football teams they want but leave the other sports programs alone, you'd think something could be worked out. 

To be sure, I think even for football these realignments are doing real damage -- but with the money in question I'm dubious there's any way to put up resistance. It might be more feasible to just give up on college football being anything but a soulless cash grab and work to make it so that "what makes sense for football" doesn't end up dragging all the other sports down with it.

The LLM Blues

LLMs depress me.

It's not so much the existential threat to my profession and livelihood (though that does lurk in the background, at least over the midterm).*

Rather, right now the depression stems from the fact that LLMs are almost inevitably going to diminish the importance of teaching writing skills in my law school classes. And helping people become better writers is one of my great joys as a professor. It's something I truly love doing. Yet the take-home essay -- essential to providing the sort of close reading and feedback I use to develop people as writers -- feels like one of those assignments that LLMs are going to make largely obsolete, or at least shift dramatically in terms of structure. I'm already pivoting in my syllabus -- this year is going to be a relatively experimental in terms of how to accommodate the existence of LLM -- and while I still expect that I'll do some amount of writing coaching, it definitely feels like the ground is shifting, and I'm already mourning what I anticipate losing.

* On the more existential threats, there does seem to be a bit of literary irony here for persons in the highly-educated literati contingent. I don't think I've personally engaged in this, but on a class level it certainly seems that the intelligentsia often blithely responded to the risks of tech disruption with "learn to code!" bromides, back when we thought that the machines were going to displace largely blue-collar workers. It turns out that while it's hard for a machine to develop the fine motor coordination necessary to serve as your plumber, one thing the robots are really great at is being smarter than the smart people. Whoops. "Learn to woodwork, radiologists!"