Friday, June 14, 2024

The Supreme Court is Overly Insulated from Democratic Control

Ian Ayres

A few days ago, I published an op-ed in the L.A. Times detailing how disconnected the composition of the Supreme Court has become from electoral influence.  Justices nominated by Republican presidents have constituted a majority of the court for more than 50 years and, unless something changes, will continue to do so far into the future.

A natural comparison is to imagine what the composition of the court would look like if presidents were given two appointments each four-year term (one for each two-year Congressional session). 

E. Donald Elliott has shown that regular presidential appointments were once more the norm for forty years (from 1952 to 1992), with presidents on average nominating and winning confirmation for two Supreme Court justices every four-year term.  But from 1992 to 2016 that average “dropped to only one per term,” as show in this figure from the same article:

With the help of Richard Peay, I have constructed a graph that measures the difference between the actual Court composition and what it would have been with regular presidential appointments (once every two years) as a measure of the court’s democratic detachment.  The following graph shows the degree of detachment over time, going all the way back to 1873 when the Court was first fully composed of Justices nominated by Democratic or Republican presidents: 


The graph shows that over the years, detachment has tended to favor Republican-nominated justices.  The detachment of the Supreme Court’s composition from presidential influence has never been more pronounced.  Under a system of regular appointments, justices nominated by Democratic presidents would currently hold a 6-3 majority on the court instead of holding the 3-6 minority position – that’s why the graph shows Republican-nominated justices holding three more seats than they would with a regular appointment system.

Adam Chilton and coauthors have published an excellent law review article full of useful number-crunching on what the impact of various regular appointment proposals might be – focusing on how long the transition period would be.  They also examine the past and show how often justices have served longer than the 18-year limit that would be produced by the regular appointment proposals.  For example, they include the following graph and description:

The bars are colored by the party of the appointing president with the darker area indicating the years after which a Justice has served eighteen years. At bottom of the figure is a distribution of the number of Justices that have been serving for more than eighteen years over time, organized by year.

The graph shows how the proportion of Justice-years beyond 18-year service has been increasing.  The authors note:

Between 1950 and 1970, only Justices appointed by Democratic presidents served past eighteen years; from the early 1990s through 2010, only Justices appointed by Republican presidents served past eighteen years; and since 2010, Justices appointed by presidents from both parties have served longer than eighteen years.

One small criticism I have of their analysis is their focus on “extreme ideological imbalance,” which they define as “seventy-five percent or more of the Justices appointed by presidents of the same party.”  They reckon that the Supreme Court has had extreme ideological imbalance “for sixty percent of the time since President Franklin Roosevelt’s effort to pack the Court.”  But in my view, holding seventy-five percent or more of the Court is not a concern if that political party has held the presidency for an analogous proportion of recent Congresses.  The detachment of the Court from democratic control should be a central concern.  As I said in my op-ed: 

The Jan. 6 assault on the U.S. Capitol, with its attempt to stop the transfer of power from Republican President Trump to Democratic President Biden, can be seen as an attempt to insulate the executive branch from democratic control. That goal has largely been accomplished, more or less quietly, with regard to the judicial branch.

Thursday, June 13, 2024

The Law of AI is the Law of Risky Agents Without Intentions


 I have posted a draft of an article by Ian Ayres and me, The Law of AI is the Law of Risky Agents Without Intentions, on SSRN. Here is the abstract:

Many areas of the law, including freedom of speech, copyright, and criminal law, make liability turn on whether the actor who causes harm (or creates a risk of harm) has a certain mens rea or intention. But AI agents—at least the ones we currently have—do not have intentions in the way that humans do. If liability turns on intention, that might immunize the use of AI programs from liability.

Of course, the AI programs themselves are not the responsible actors; instead, they are technologies designed, deployed and by human beings that have effects on other human beings. The people who design, deploy, and use AI are the real parties in interest.

We can think of AI programs as acting on behalf of human beings. In this sense AI programs are like agents that lack intentions but that create risks of harm to people. Hence the law of AI is the law of risky agents without intentions.

The law should hold these risky agents to objective standards of behavior, which are familiar in many different parts of the law. These legal standards ascribe intentions to actors—for example, that given the state of their knowledge, actors are presumed to intend the reasonable and foreseeable consequences of their actions. Or legal doctrines may hold actors to objective standards of conduct, for example, a duty of reasonable care or strict liability.

Holding AI agents to objective standards of behavior, in turn, means holding the people and organizations that implement these technologies to objective standards of care and requirements of reasonable reduction of risk.

Take defamation law. Mens rea requirements like the actual malice rule protect human liberty and prevent chilling people’s discussion of public issues. But these concerns do not apply to AI programs, which do not exercise human liberty and cannot be chilled. The proper analogy is not to a negligent or reckless journalist but to a defectively designed product—produced by many people in a chain of production—that causes injury to a consumer. The law can give the different players in the chain of production incentives to mitigate AI-created risks.

In copyright law, we should think of AI systems as risky agents that create pervasive risks of copyright infringement at scale. The law should require that AI companies take a series of reasonable steps that reduce the risk of copyright infringement even if they cannot completely eliminate it. A fair use defense tied to these requirements is akin to a safe harbor rule. Instead of litigating in each case whether a particular output of a particular AI prompt violated copyright, this approach asks whether the AI company has put sufficient efforts into risk reduction. If it has, its practices constitute fair use.

These examples suggest why AI systems may require changes in many different areas of the law. But we should always view AI technology in terms of the people and companies that design, deploy, offer and use it. To properly regulate AI, we need to keep our focus on the human beings behind it.

Wednesday, June 12, 2024

Justice Alito knows which side he’s on

Andrew Koppelman

People disagree what to make of Supreme Court Justice Samuel Alito’s recent remark that in today’s climate of political polarization, “one side or the other is going to win.”  It has been interpreted as an “anodyne” description of that polarization, or as a “horrific” claim that compromise is impossible and that he is one of the partisans.  Either reading is possible, standing alone.  In the context of his considered views as presented in his judicial opinions, the nastier view is the more persuasive. 

I explain in a new column at The Hill.

Intimidation at Columbia and Harvard

Andrew Koppelman

Last week, the Columbia Law Review’s board of directors shut down its website briefly because of concerns about the process by which the review published an article critical of Israel. The decision quickly called forth charges of censorship. Then the board reactivated the website, leading to allegations that it had “buckled.”

Both the editors and the board pushed against the boundaries of normal procedure.  But we should focus on the broader context that shaped everyone’s behavior.  An organized right-wing movement is in the business of destroying young people’s careers if they say the wrong thing. That climate of fear is the real threat to higher education, one that reaches far beyond Columbia.

In an earlier incident, a Harvard graduate student, Rabea Eghbariah, wrote a short piece for the Harvard Law Review blog accusing Israel of genocide in Gaza.  (Whatever you think of that accusation, it isn’t idiosyncratic. Its merits are best discussed when it is presented in serious scholarly form. More on that anon.)  Eghbariah is a Palestinian lawyer who has argued human rights cases before the Israeli Supreme Court. He has won several prizes for his academic work. (And in case it matters, his dissertation supervisor, Noah Feldman, is a Jew.)

In November, Eghbariah’s essay had already gone through edits when the Review’s editors abruptly withdrew the offer of publication, citing “concerns about editors who might oppose or be offended by the piece, as well as concerns that the piece might provoke a reaction from members of the public who might in turn harass, dox, or otherwise attempt to intimidate our editors, staff, and HLR leadership.”  The Review’s president intervened to delay publication, which was then killed in an emergency meeting of editors.

The editors had some basis for their fears.

Immediately after the October 7 Hamas massacre of Israeli civilians, 34 Harvard student groups posted a statement declaring that they “hold the Israeli regime entirely responsible for all unfolding violence. . . . The apartheid regime is the only one to blame.”  It was a stupid and vicious claim, rationalizing rape and murder (the extent of which, in fairness, was not known at the time of the posting). It garnered widespread condemnation, and several of the organizations quickly retracted their endorsements.

Then at least four websites used publicly available sources to determine who was a member of those organizations, and posted their personal information online. The most prominent of those groups, Accuracy in Media, drove a truck around Harvard Square with a digital billboard displaying those students’ names and photos, captioned “Harvard’s Leading Antisemites.” (A similar truck later appeared at Columbia and other schools, triggered by statements that were far less egregious.) The students (some of whom had never seen the statement before it was posted) feared for their safety.  Some received death threats. Their siblings back at home were harassed.  Wall Street executives asked for lists of names to blacklist. Job offers were withdrawn.

AIM’s president never intends to stop tormenting these students.  He has said that he is considering sending his trucks to park outside businesses who hire them after they graduate. AIM has been reckless in choosing its targets. Its Columbia truck, for instance, displayed a former president of one of that school’s Islamic organizations, who had left the group months before the October attacks. He is suing for defamation.

Ryan Doerfler, a professor at Harvard Law School who had met with law review staff, said that the decision to cancel Eghbariah’s piece “took place amidst a climate of suppression of pro-Palestinian advocacy.”  One of the Harvard editors acknowledged that this climate made it dangerous to have normal conversations about the merits of the article:  We’re not at a point in time where that debate can happen without your face being put on a truck.”


Egbariah’s piece was ultimately published in The Nation.  This whole episode has made him famous.  So what’s the big deal?

The big deal is that the Harvard Law Review has been corrupted by fear. Its value is its capacity to select work for scholarly quality. It now has a de facto political litmus test: The editors know that they anger AIM at their peril and respond prudently to that danger. And AIM, which has existed since 1969, is a collection of right-wing cranks.  It denies climate change, considers COVID-19 “overhyped,” and calls Barack Obama “a member of an international socialist movement.”  These are the last people on earth who should get to veto what the Harvard Law Review can publish.

AIM is of course (occasional defamation aside) legally entitled to do what it does.  It relies on publicly available sources. But that doesn’t excuse it. Its free speech rights are like the free speech rights of Nazis marching in Jewish neighborhoods: unquestionable as a matter of law, but deeply malign. Free speech includes the right to say horrible things that nobody should ever say. And of course AIM’s threat is not only felt at this one journal. It reaches beyond Harvard.

Since the Harvard Law Review affair, AIM has acquired powerful allies, including some members of Congress who grill college presidents on why they tolerate “hate speech.” Not long ago, speech was being targeted as “racist.” Now it’s targeted as "antisemitic." Both types of speech are odious, obviously, but the odium only properly applies to unambiguous cases. Today, though, such terms are being deployed very capaciously, with ever-expanding definitions.

Which brings us to Columbia. According to Associated Press, the Columbia Law Review editors “voted overwhelmingly in December to commission a piece on Palestinian legal issues.” It formed a smaller committee to select that piece. It is not unusual to bypass the regular Articles Committee this way: the same is done for symposia and memorial issues. That group then accepted a long article by Eghbariah, titled “Nakba as a Legal Concept.” The piece argues that Palestinians are subject to a kind of oppression not yet recognized in human rights law, and “proposes to distinguish apartheid, genocide, and Nakba as different, yet overlapping, modalities of crimes against humanity.” (I won’t try to evaluate its scholarly soundness, an issue that is hotly contested. The ensuing controversy had nothing to do with that.) 

The editors did not upload the piece onto a server visible to the entire membership of the law journal and to some administrators. Instead, they put it on a private server available only to those who were editing the piece. That is the big point of contention. The Board of Directors later wrote that the secrecy was “a profound deviation from the norms of respect, trust, and collegiality on which the Review depends.” 

There are two accounts of why the students did this. The first is that a small group illegitimately excluded their colleagues from the editing process. As David Bernstein, a law professor at George Mason, has put it, “the real problem is that a cabal of editors . . . conspired to ensure that anyone who might have objected to publishing the article was kept out of the process.”

The alternative explanation is that the secrecy was an effort to protect the integrity of the process. Intimidation had corrupted decision-making at Harvard. The Columbia editors were guarding against similar corruption. As they put it in a recent statement, “In light of the repressive climate around Palestine, especially in the fall and winter of 2023, we felt this discretion was necessary to ensure that the piece could go through the entire publication process before it was released to the public. We also felt that discretion was not wholly unprecedented, given how CLR has restricted editor access to confidential sources in the past to honor author integrity.”  Erika Lopez, one of the piece’s editors, explained:  “having seen what happened with the HLR,” the Journal leadership “was concerned that early drafts of the piece would be leaked to the public. We worried that early leaks would prevent the piece from ultimately being published, perhaps due to possible intimidation (which is what ultimately happened last Sunday). Last Sunday, we learned that people outside the CLR staff had learned about the piece prior to its publication, which was exactly what we had always feared.”

The two stories are not inconsistent. A small cabal kept the piece secret, but they felt they had good reasons.

The day before the scheduled publication, the article was disclosed to the review’s entire membership. One student complained to the board of directors, a group of faculty members and prominent alumni. The board then asked for publication to be delayed for a few days, in order, as it later explained, “to preserve the status quo and provide student editors some window of opportunity to review the piece, as well as provide time for the Law Review to determine how to proceed.” One wonders what good thing the board imagined could happen during those days.  One might easily anticipate a repeat of the Harvard episode. 

The board claimed that secrecy “inevitably raises questions about the adequacy of the editing and substantiation processes to which the piece was subjected.”  (That seems silly to me. Articles are always edited and cite checked by a subset of the staff, and the rest of the staff is generally too busy to worry about what is happening on other members’ committees.)


The law review initially agreed to the board’s request for a delay. According to Lopez, the editor in chief did not consult with the other editors before making that decision, which they refused to support.  So the review reneged on the agreement and posted the article. 

Lopez says:  “Once we had credible evidence that others outside the CLR staff knew about the piece on Sunday night, we feared that we would be intimidated into not publishing at all. The piece committee, in consultation with the current EIC, made the decision to publish early Monday morning to avoid this. It was also the professional thing to do given that Rabea and the six other authors expected the Issue to go live that day.”

That was a poor decision. Even if the delay led to a last-minute rejection like Harvard’s, the review had made a commitment to the board, the editing was done, and the piece was going to be public one way or another.

The board obviously had to respond somehow to this defiance and mendacity. It responded by shutting down the entire website. (Evidently it did not have the technical capacity to just break the link to the article.) 

The delay really did only last a few days. The shutdown was on June 3, and the site was reinstated on June 7, including Eghbariah’s article. That was exactly the delay that the board initially proposed. At the bottom of the home page, there was a link to the board’s statement explaining its actions. It acknowledged that its efforts had proven futile, because the students simply posted the article intact to a different website, where it got a lot of attention on social media.

Public reaction to the shutdown was decidedly negative. The New York Times reported that the “decision to suspend access to the website is the latest example of how American universities have sought to regulate expression that is highly critical of Israel amid concerns that it veers into antisemitism.”  Times Higher Education wrote that the successive blocking of the article by Harvard and Columbia “fits a months-long pattern of US colleges and universities — prominent and otherwise — complying with demands from politically conservative US lawmakers and wealthy donors that they silence criticisms of Israel and its military attacks in Gaza.”

Joshua Mitts, a law professor at Columbia, told me that a different response would have been better.  “Taking down the website,” he said, “exposed the board of directors to allegations of censorship. This was conduct that undermined the procedural integrity of the law review. There was outright deception involved. The appropriate response would be termination of the existing editorial leadership and, at the very least, elimination of their normal ability to select the next year’s leadership.”

The website now displays a statement (somewhat different from the one originally posted) that it had received “multiple credible reports” of a “secretive process” and that “some individuals reporting exclusion expressed concerns with the process and the denial of their opportunity to provide input.” The student editors then voted to go on strike until that statement was removed, demanding total editorial independence.  They refuse to perform their editorial tasks or help select next year’s board until their demands are met. 

The threat posed by AIM, and others eager to suppress pro-Palestinian speech, hangs over the whole affair. The board’s stated concerns included this troubling sentence:  Whatever your views of this piece, it will clearly be controversial and potentially have an impact on all associated with the Review.” That sounds a lot like a claim that the full membership ought to have had the opportunity to capitulate to anticipated pressure. AP also reported that some of those “involved in the publishing of the article said they heard from a small group of students over the weekend who expressed concerns about threats to their careers and safety if it were to be published.”

Paul Horwitz, of the University of Alabama School of Law, points out that the objection about broken norms cuts both ways. “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 article, like much legal scholarship, is a piece of advocacy.  (Again, I’m not a Middle East specialist and can’t judge its overall soundness, but quality issues were not what got Eghbariah’s two pieces in trouble.)  Its point of view is not mine. But I am glad to have seen it. It is good to know how the world looks to a lawyer who has represented Palestinians in Netanyahu’s Israel. I appreciate being able to read a smart, articulate and detailed presentation of ideas that many of my fellow citizens hold.  Even where I disagree, it is good to have the opposing view laid out, so that one has a position to respond to. This what universities are for. 

Freedom of thought must include the capacity to entertain controversial, and even terrible, ideas. Students cannot learn to think if they are terrorized into silence.  They must be able to make bad arguments without lasting personal repercussions.  Organizations that harm them for propounding the wrong views are the enemies of education, no less than the thugs who harass Jewish students or vandalize buildings.

The deep issue that this episode exposes is the climate of fear that influenced everyone’s actions, at both journals. Columbia happened in the shadow of Harvard. We ought to blame, not the students or the board, but AIM and its ilk.  It can’t be stopped, but it can be stigmatized.  It should be regarded with disgust, the way we regard the Rev. Fred Phelps, who, the Supreme Court held, had a right to lead cruel anti-gay protests at soldiers’ funerals. It was a great day for freedom when America stopped fearing Senator Joe McCarthy, and it will be just as great when America stops fearing AIM and the other enforcers of orthodoxy on the right and the left.

The above is at the Chronicle of Higher Education,

Tuesday, June 04, 2024

Assisted Living

Ian Ayres

Calls from the public for Justice Sonia Sotomayor to step down so that President Joe Biden can name a younger replacement are unlikely to be effective.  Advice from strangers often carries little weight or might even backfire if the recipient doesn’t want to seem to knuckle under political pressure.

Private suggestions from trusted colleagues are more likely to be taken seriously.  On a Sunday afternoon in 1932, Chief Justice Charles Evans Hughes visited Justice Oliver Wendell Holmes Jr. in his study and persuaded him to resign

But providing direct feedback can be daunting.  Direct feedback, even when it is asked for, can cause resentment.  Barry Nalebuff and I have argued that the common knowledge created by direct communication of criticism can ruin relationships. It’s hard to tell a friend that they have bad breath, because they know that you know their breath smells.  

In some cases, the law may also impede this kind of communication.   A dean who suggests that it is time for an older professor to retire might fear being accused of age discrimination.

But there is a way forward.  A few weeks ago, I sent a joint email to about a dozen of my colleagues and family, giving each of them “the opportunity now or anytime in the future to send me an anonymous message advising me to change my ways.”  I told them to feel free to make suggestions concerning large questions (such as when I should retire or stop driving a car) or smaller questions (such as whether I should use more deodorant) or really any mistaken choices they believe me to be making. 

The suggestion box idea is centuries old.  In 1721, a Japanese shōgun placed a suggestion box, called meyasubako, outside of Edo Castle both to collect new ideas and to expose “dishonesty and incompetence.”  During World War II, the defense department circulated a nine-minute film promoting suggestion boxes as a way to improve production efficiency.  Some states have a kind of suggestion box that allows family and friends to anonymously trigger a reexamination of someone’s driver’s license. Some professors supplement end-of-semester evaluations by providing their students with continual opportunities to send anonymous feedback.

But anonymous message platforms carry dangers. Such platforms that are open to the general public, whether they are in high school, college, or graduate school, all too often become toxic spaces of bullying and harassment.  Fortunately, today’s technology allows users to curate the group of potential responders to people they trust. 

I sent my email to a limited group of people that I admire and who see me in different professional and non-professional contexts.  They are well suited to advise me on issues that I worry about (such as when I should retire or stop driving), but I also chose a somewhat eclectic group of friends who might alert me to issues that were not on my radar screen. At a minimum, it is a fun thought-experiment to try to identify the group of people you would most trust to give you anonymous advice. 

My email told recipients that it was fine with me if they talked amongst themselves about whether an intervention is warranted.  Sometimes people will want to have their concern confirmed by others before speaking up.  Observing one driving error might not be concerning, but a pattern of negligence confirmed by others could be.

Asking for advice doesn’t commit me to follow each and every suggestion, but it signals that I welcome their feedback and intend to carefully consider any advice.Technology makes setting up a curated, anonymous suggestion box child’s play.  You can create one with google forms in a few minutes for free. Other apps (for a fee) allow you to write back to the person making a suggestion while maintaining their anonymity.

Most people – including you, dear reader -- will resist the opportunity to create their own suggestion box.  Some may believe that they are unlikely to have blind spots in their decision making.  Others may not be able to identify a group of people who are well-positioned to see their mistakes.  Still others will doubt that the people who see their mistakes would need anonymity in order to provide advice.  I ask you to question whether these excuses are plausible. 

Suggestion boxes are not foolproof.  At times, the advice details will reveal the identity of the sender.  And there is possibility that the recipient will take offense and blame the entire group.  But used wisely, they can be a tool for continuous improvement and thoughtful change.

As for me, the most challenging feedback so far has been the suggestion to yield to my spouse's wish for a dog. While it may seem minor, it speaks to the broader principle of being open to change and advice, even in the most personal aspects of our lives. By resending the email to my friends every few years I can emphasize that the door to improvement is always open.

I have colleagues who cling to their tenure to the detriment of their institutions and their own legacies.  By creating a way for trusted friends to show me the error of my ways, I hope to avoid this and other missteps.  For me, it’s a way of committing to being mentored. 

In the end, embracing such feedback mechanisms can lead to better decisions, a more thoughtful approach to transitions like retirement, and perhaps, a new canine companion.

Monday, June 03, 2024

Strategic Litigation as Seen by Journalists and Academics

Mark Tushnet


Sunday’s NY Times had a story about “the network that took down Roe v. Wade.” From an academic’s point of view, the journalistic breathlessness (“told for the first time,” accounts of “secret meetings”) is dismaying. The story the authors tell is basically a story about how strategic litigation of all sorts occurs. I know about the NAACP’s school desegregation litigation campaign, the NAACP’s anti-death penalty campaign, and parts of the ACLU’s prisoners’ right campaign, and everything in the Times article can be found in those stories as well.


As far as I can tell, for example, the characterization of a meeting as “secret” means that the organizers and participants didn’t issue a press release before or after the event. The decision to issue press releases or otherwise make it widely known that a planning meeting is occurring or has occurred is choice made within the context of strategic planning—sometimes you’ll want to let people know, sometimes you won’t. The interesting point, again from an academic’s point of view, is what goes into making one or the other choice, and the article’s breathlessness prevents the authors from asking that question. And the same point could be made about each element in the Times article.


Put another way, the authors, for understandable marketing reasons, present a quasi-conspiratorial account of a right-wing litigation campaign, seemingly to discredit the campaign because it’s a right-wing litigation campaign. Maybe, though, one could read it is raising questions about litigation campaigns no matter what their political valence (though I don’t think such questions are serious). So, for example, one might ask about the possible lack of concern about the litigants the campaigners purport to represent to see how that plays out in this campaign as compared to others. That question surfaces at one point in the article, where the advocates for an incremental challenge to Roe lose out to the choice made by the lawyer for the actual litigant. An academic account would have given that moment a more prominent place.


(For what it’s worth, one of the major players in the article is Misha Tsetylin, who was a student of mine in the basic con law course at Georgetown. As I recall it, he was extremely articulate in presenting the then-standard conservative responses to then-standard liberal critiques of originalism, which meant that he was a valuable contributor to the class discussion. I don’t recall whether I was satisfied with having the standard arguments “on the table,” so to speak, or whether I tried to push the arguments beyond the standard ones [my vague sense is the former rather than the latter]. Again as I recall [which I suppose matters for student privacy reasons], I think he received either the highest grade in the course or one of the highest—which might be an anecdata point about blind grading and liberal bias, though I suppose it’s possible that on his exam he concealed his true views and so accurately parroted my own that I thought he deserved a very high grade! I think that that possibility is remote, of course.)

A Dog Whistle for Rape

Ian Ayres

If Stormy Daniels’s sworn testimony is to be believed, the intercourse that she and Donald Trump engaged in was (1) a first-time sexual encounter, and (2) unprotected.  Katharine Baker and I have argued in a piece published in 2005 (less than a year before Daniels and Trump met at Lake Tahoe) that unprotected, first encounter sex is “reckless” and that it might be appropriate to enact a separate crime for this form of sexual misconduct:

A defendant would be guilty of reckless sexual conduct if, in a first-time sexual encounter with another person, the defendant had sexual intercourse without using a condom. Consent to unprotected intercourse would be an affirmative defense, to be established by the defendant by a preponderance of the evidence. As an empirical matter, unprotected first-time sexual encounters greatly increase the epidemiological force of sexually transmitted disease, and a substantial proportion of acquaintance rape occurs in unprotected first-time sexual encounters. The new law, by increasing condom use and the quality of communication in first-time sexual encounters, can reduce the spread of sexually transmitted disease and decrease the incidence of acquaintance rape.

Unprotected, first-encounter sex between Trump and Daniels was (if Daniels testified truthfully) reckless in part because it exposed others – including Melania Trump to potential infection.  Public policies to reduce the prevalence of unprotected first-time sex can reduce the epidemiological force of sexually transmitted diseases because a substantial proportion of sexual pairings never persist beyond an initial encounter.  In analyzing the National Health and Social Life Survey database, we found that 46.2% of all sexual pairings were one-off encounters:

This means that if society could somehow induce people to use condoms in all of their first-time sexual encounters (even if we left unchanged the amount of sexuality and the degree of condom use in subsequent sexual encounters), we would suddenly eliminate roughly half the possible nodes of contact for spreading disease. We might so dramatically reduce the mean number of connections in the population as to render infections unsustainable over time.

Inducing more first-encounter condom use would be particularly effective at reducing STDs because it would specifically target the “superspreaders” – individuals who have sex with many partners and thereby provide connective nodes for infections to spread.  We found that 10 percent of most sexually active people reported having 75.4 percent of the total number of sexual partners. We also found, unsurprisingly, that the most sexually active had the highest proportion of one-time sex.

Reasonable people can oppose expanding the scope of criminal liability.  But a bigger take-home lesson of our article was to show that a policy goal of promoting more condom use during first-encounter sex is laudable.  I’ve separately argued that public health officials should improve messaging on when condom use is advisable.

Preventing STDs was only one reason that we proposed a crime of reckless sex.  We also hoped to make it easier for prosecutors to secure convictions in circumstances where it has been difficult to hold acquaintance rapists accountable due to the difficulty of proving non-consent beyond a reasonable doubt.  The lion’s share of acquaintance-rape is first-encounter unprotected sex.  This does not mean that all or even most first-encounter, unprotected sex is non-consensual.  But it does mean that first-encounter sex is more likely to be non-consensual if it is unprotected than if a condom had been used. 

This is an inference that Trump’s own lawyer seemed to understand.  She argued to the court that allowing Daniels’s testimony that the sex was unprotected was prejudicial because lack of condom use is “a dog whistle for rape” (p. 282) – particularly after prosecution had elicited testimony from Daniels that she insisted on only working a production company that mandated condom use. 

The judge called out defense for failing to object to the condom testimony: 

[T]he mention of the condom. I agree that shouldn't have come out. I wished those questions hadn't been asked, and I wished those answers hadn't been given. But for the life of me, I don't know why Ms. Necheles didn't object. She had just made about ten objections, most of which were sustained. Why on earth she wouldn't object to the mention of a condom? I don't understand. 

Notwithstanding the assertion that Daniels’s testimony contained a dog whistle for rape, the purported encounter would not have been an appropriate basis for prosecution under our proposed statute.  Given her testimony that sex was consensual, Trump would be able to establish the affirmative defense of consent by a preponderance of evidence.  But we should not forget that the unprotected, first-encounter sex alleged by Daniels was reckless in our second sense, in that it unreasonably of increased the risk of STD infection for themselves and others.

Friday, May 31, 2024

The Constitution Turned Upside Down

Gerard N. Magliocca

The Supreme Court's erroneous decision in Trump v. Anderson is more obvious after Donald Trump's first criminal conviction. 

Section Three of the Fourteenth Amendment established that the appropriate sanction for engaging in insurrection against the Constitution was civil disqualification from office, not criminal punishment. Trump v. Anderson reached the opposite conclusion. The Court there held that states can sanction insurrectionists holding or seeking federal office only through criminal law. And that is what New York and Georgia are now attempting to do. 

I don't think that these cases would have been brought if Trump was not a candidate for President. Even if I'm wrong about that, the damage done by these prosecutions is much greater because he is a candidate. If Trump loses in November, many people will conclude (not unreasonably) that the conviction did him in. This will encourage future state prosecutions of candidates for federal office either as a Section 3 proxy or out of partisan revenge. That's more dangerous than the fear expressed by some of the Justices that there would be a retaliatory cycle of state ballot exclusion. 

One final thought--the Supreme Court's refusal to say whether Trump is constitutionally eligible to be President, combined with Trump's state conviction, increases the probability of instability following the election if Trump wins. There is a May 1914 quality to the unwillingness of people thus far to think hard about that problem.

Friday, May 24, 2024

Balkinization Symposium on David Pozen, The Constitution of the War on Drugs-- Collected Posts


Here are the collected posts on our Balkinization symposium on David Pozen's new book, The Constitution of the War on Drugs (Oxford University Press, 2024).

1. Jack Balkin, Introduction to the Symposium

2. Rachel E. Barkow, Constitutional Withdrawal

3. Louis Michael Seidman, Pozen and the Puzzle of Counterfactuals

4. Kimani Paul-Emile, Looking Inside and Outside the Law to Understand the Successes and Failures of Drug Reform

5. Jennifer D. Oliva, Pozen on Prosocial Drug Use

6. Shaun Ossei-Owusu, The (In)Fertile Constitutional Ground of American Drug Policy

7. Kate Shaw, David Pozen, The Constitution of the War on Drugs

8. Paul Butler, The Constitution of the War on Black People

9. David Pozen, The Constitution of the War on Drugs: Response to Commentators

Monday, May 20, 2024

Reading the Tea Leaves on Marijuana Rescheduling

David Pozen

The Controlled Substances Act authorizes the attorney general to schedule drugs. Schedule I of the CSA imposes a complete criminal ban; schedules II through V allow drugs to be prescribed under certain conditions. For decades, the attorney general has delegated this authority to the Drug Enforcement Administration, which has consistently opposed any and all efforts to let marijuana leave schedule I. It was therefore big news when the Associated Press reported on April 30 that the “U.S. Drug Enforcement Administration will move to reclassify marijuana as a less dangerous drug.” After decades of demonizing marijuana, I assumed, DEA had finally endorsed some reefer sanity. I now believe this assumption was wrong.

The following pieces of evidence make it pretty clear that DEA has, in fact, continued to resist the rescheduling of marijuana. I have no inside information of any kind; everything here is in the public record. 

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The Constitution of the War on Drugs: Response to Commentators

David Pozen

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

I am indebted to Jack Balkin for organizing a symposium on my book, The Constitution of the War on Drugs, and to all of the commentators for offering such rich reflections. The book recovers a lost history of constitutional challenges to punitive drug policies and argues that this history can tell us a great deal about American legal liberalism as well as drug prohibitionism. It is particularly gratifying to see distinguished scholars of constitutional law, criminal law, and health law recognize the importance of this project for their respective fields, even as they raise very different challenges and complications. In this response, I will try to address some of the key points raised by each commentator.

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Thursday, May 16, 2024

Access to Life- and Health-Preserving Care - A History and Tradition

Guest Blogger

Reva Siegel and Mary Ziegler 

We have just posted a revised draft of Comstockery, the first legal history of the Comstock Act since antiabortion lawyers have attempted to transform it into a de facto national ban on mailing abortion-related items. Our draft challenges the claim that the obscenity law is a plain-meaning, no-exceptions, national ban by tracing health-based access to reproductive care over the life of this statute. The history we excavate in fact bears on arguments in two abortion cases now before the Court —Food and Drug Administration v. Alliance for Hippocratic Medicine and Moyle v. United States and Idaho v. United States. As we discuss in the new draft and in forthcoming work, interpretation of the Comstock Act provides a window on this nation’s history and traditions, in ways that concern both abortion cases the Court will decide this term.

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Tuesday, May 14, 2024

A Hidden Subtext of the Gettysburg Address?

Gerard N. Magliocca

I've been doing some research on the history of the draft and came across something interesting. On November 9, 1863, the Pennsylvania Supreme Court issued a 3-2 decision (Kneedler v. Lane) holding the federal military draft unconstitutional. Ten days later, Lincoln gave the Gettysburg Address.

Reading the Address with this sequence of events in mind, the speech looks like a rebuke of the decision. Could that have been one of Lincoln's goals? Did anyone at the time pick up on this? I don't know, but I'm going to try to find out.

Thursday, May 09, 2024

The Constitution of the War on Black People

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Paul Butler

Like most users of illegal drugs, I have never been caught.  I have lots of company, David Pozen reminds me, in The Constitution of the War on Drugs, his prodigiously researched take down of said war but not said constitution.  He references a 2007 National Survey on Drug Use and Health that revealed that more than 100 million Americans had used marijuana (during a time when it was illegal in all US jurisdictions), 36 million had tried cocaine and 34 million hallucinogens like LSD and Ecstasy (p. 151-152).  These are my peeps, the great majority of us gloriously unpunished for our criminal transgressions.  In that sense, the phrase “war on drugs” suffers from the same imprecision as the phrase “mass incarceration.”  Scholars have observed that it’s not actually the masses that are being incarcerated at obscene levels but rather Black people.  Likewise, the war on drugs has been principally waged not so much on drugs but on people of color, especially Black people. 

Calling it a war on Black people might sound histrionic and conspiratorial but that’s not the main problem.  Lots of things happen to Black people that sound histrionic and conspiratorial, but they still happen.  The main problem with calling the war on drugs a war on Black people is that it sounds overinclusive.  I am Black and I have never been caught using illegal drugs the many times I have used them.  My experience as a prosecutor, which included a year locking up drug “offenders” in Washington D.C. taught me that the people who get caught are sometimes foolhardy – for example, getting high in public places in one of the most policed cities in the world, or unlucky.   Most Black users, like users of other races, have the good sense to indulge in private spaces, usually far from the prying eyes of law enforcement.  That’s how, playing the mind games familiar to Black prosecutors whose work mainly consists of locking up Black people, I justified prosecuting people for weed crimes when I had committed them myself.   My defendants, I told myself, were stupid to get caught.  In contrast, I stopped smoking weed when I began enforcing anti- drug laws, not based on any abstract concern about hypocrisy but because my employer, the United States Department of Justice, required random drug testing of its staff.

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Tuesday, May 07, 2024

David Pozen, The Constitution of the War on Drugs

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Kate Shaw
I admit that I was surprised when I learned that David Pozen was hard at work on a book project about the war on drugs. Pozen is a brilliant scholar of constitutional law and constitutional theory; he’s written more field-defining pieces in his time as a law professor than most of us could hope for in a lifetime. Why, I wondered, would one of the leading constitutional scholars of his generation devote this much time and work to a topic that, while clearly enormously important, sounds more in policy than constitutional law?
My reaction, of course, perfectly reproduced the failures of constitutional imagination that Pozen’s extraordinary The Constitution of the War on Drugs reveals. The story of the drug war’s policy failures is well known. What hasn’t been previously understood, and what Pozen’s book powerfully shows, is how implicated constitutional law is in all of this. Constitutional law has, at best, failed to meaningfully constrain—and, at worst, has affirmatively legitimated—the war on drugs and its monstrous human toll.
Reformers have been fighting the drug war and its catastrophic consequences across various fora and in various registers for nearly as long as it’s been around. But even though reformers ground their arguments in values like individual liberty, racial equality, fairness, and rationality—values with clear constitutional valence—those arguments have not, in the main, been framed in constitutional terms. In a legal and political culture fixated on the Constitution, this absence is striking.
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Monday, May 06, 2024

Seeing the University More Clearly

David Pozen

Crisis can be clarifying. Recent events on campuses across the country have forced many of us to look more closely at how our own universities work. I have no special insight into most aspects of the Columbia protests or the administration’s response. But as someone who studies public law and nonprofit law, I have been struck by a number of legal-institutional forces that helped bring Columbia to its current conjuncture—all of which relate, in various mutually reinforcing ways, to the power of the president’s office.

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The (In)Fertile Constitutional Ground of American Drug Policy

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Shaun Ossei-Owusu 

Ten years ago, Frank Zimring chastised legal academia for being insufficiently relevant in their teaching and scholarship. “Over a thousand of the best and the brightest criminal minds in America have been missing in action” from one of the “key debates of their field”—the War on Drugs. Zimring’s claim may have been inflated, but he raised a fair point about the relative insignificance of this governmental crusade in legal scholarship and education vis-à-vis its impact on society.  

In his recent book, The Constitution of the War on Drugs (CWD), David Pozen brings his con law talents to the crime-infested world of narcotics regulation and responds (albeit indirectly) to Zimring’s clarion call. But there is one caveat that distinguishes this slim, readable book from previous takes: Pozen is less interested in the criminal procedure questions that scholars of drug policy have obsessed over (though he nods to them and describes them to the non-legal reader). Instead, he is interested in constitutional provisions that have been used to challenge drug prohibitionism.

From my reading, Pozen seems animated by several questions, most relevantly: Where was constitutional law during this albatross of a policy experiment? How did litigators deploy constitutional provisions? Where were the missteps by advocates and courts? Did glimmers of constitutional hope exist? What were the paths not taken? In this vein, the reader gets some freedom of speech and religion, equal protection, commerce clause, penumbral privacy, and even a drizzle of comparative constitutional law, amongst other issues. In the end, Pozen shows how, in some instances, federal constitutional provisions (and state analogs) provided opportunities for challenging the War on Drugs but were ultimately overturned, rejected, or not fully adopted.

My goal here is not to rehash the analysis of a book that I think students of criminal justice and constitutional culture should buy, read, and engage. Instead, I want to raise a few issues that stood out to me as someone ensconced in that first camp, but who cares about the latter. My hope here is to trigger more inquiries or prompt additional discussion from Pozen.

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Sunday, May 05, 2024

Pozen on Prosocial Drug Use

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Jennifer D. Oliva 

The United States has long waged a “costly, punitive, racist, and ineffective” drug war “that has been a failure on all counts.” Over the last half-century, Americans have sacrificed trillions of dollars to prop up a prohibitionist drug law and policy framework that has ensured ever-escalating and record-setting drug-related mortality and enshrined the United States as the world champion mass incarcerator. Columbia law professor David Pozen’s book, The Constitution of the War on Drugs, breaks new ground by exploring the evolution of American drug prohibition through the lens of constitutional law. 

The drug war is a glaring example of policy failure driven by American “racial and spatial logics.” As historian Matthew Lassiter pointed out, “[t]he modern war on drugs has operated through the reciprocal decriminalization of whiteness and criminalization of blackness and foreignness, grounded in selectively deployed law enforcement and the discursive framing of idealized suburban spaces and pathologized urban slums and bordertowns.” In that connection, drug war logic is stubbornly immune to evidence-based policy.  While purporting to classify drugs as either licit or illicit based on their safety, medicinal value, and “potential for abuse,” American law is more likely to deem a particular substance illicit due to its use association with certain groups than its toxicological risk-benefit profile. This is why cannabis and various psychedelics, such as psylocibin, which are associated with racialized minorities and contingencies on the political left, are illicit under federal law, while substances like alcohol and tobacco, which account for approximately 40 times the number of deaths than all illicit drugs combined but are associated with North American colonizers, are widely available for recreational use. 

The drug war’s irrationalities, inequities, and hyper-reliance on harsh punishment to deter the private use of particular substances, including drugs that promote positive health outcomes and prosocial experiences, seem ripe for constitutional challenge. Indeed, inspired by civil libertarians, drug reformers brought “a tidal wave of constitutional challenges to state and federal drug prohibitions,” including due process, equal protection, cruel and unusual punishment, and First Amendment challenges to punitive drug laws in the late 1960s and 1970s. While those reformers achieved temporal successes, the “tidal wave was swept back to the sea” as their legal victories were “overturned, minimized, or ignored by later courts.” As Pozen notes, not only has constitutional law failed to constrain or reform punitive drug prohibition—“one of the most ‘obviously defective and destructive’ policies in modern American history”—it has repeatedly legitimized and perpetuated the drug war.

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Friday, May 03, 2024

Looking Inside and Outside the Law to Understand the Successes and Failures of Drug Reform

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Kimani Paul-Emile 

Much has been written about U.S drug prohibition over the years, so it is surprising that no one until now has used the constitution as lens for examining it.  In his excellent new book, The Constitution of the War on Drugs, David Pozen exhumes the long-buried history of constitutional challenges to punitive drug laws and masterfully chronicles how the judiciary was used by reformers and the state to dispute, rationalize, and ultimately enable the widely maligned war on drugs.  After documenting the ways in which constitutional law has failed to offer a path to more sensible and humane drug laws, Pozen observes that drug reformers today “do not invoke our supreme law”[1] and asks whether drug reformers even “need constitutional law at all to dismantle the war on drugs.”[2]  Like Pozen, my response to his query is an emphatic no.

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Thursday, May 02, 2024

Pozen and the Puzzle of Counterfactuals

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Louis Michael Seidman 

                David Pozen’s carefully researched and brilliantly argued book on the Constitution and the War on Drugs is both illuminating and disturbing.  No surprise there.  Pozen is our country’s most inventive and interesting young constitutional scholar. 

The book is illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window.  Even today, Pozen argues, there are underexplored and plausible constitutional arguments supporting a personal right to drug use. 

The book is disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world – questions familiar to students of historiography and philosophy and that once divided the Critical Legal Studies movement but that have not been adequately discussed in modern normative constitutional scholarship. 

In this review, I concentrate on these problems.  I argue that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions about constitutional reform in general and about the reform Pozen suggests in particular.

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Wednesday, May 01, 2024

The Media and the Heckler’s Veto at UCLA

Joseph Fishkin

This morning Americans woke up to headlines about “violent clashes on campus” at UCLA, a framing that was echoed in the early hours by our university administration, the mayor, and local and national media. Much passive voice was used. Violence “took place.” “Physical violence ensued.” This framing represented a complete success for the side that actually perpetrated the violence. It makes me think differently about how the heckler’s veto operates in an instant-news age.

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Constitutional Withdrawal

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Rachel E. Barkow

You might think the only thing harder than finding something new to say about constitutional law is finding something new to say about the drug war. David Pozen’s new book, The Constitution of the War on Drugs, offers refreshing and thought-provoking insights on both by exploring what the Constitution has to say – or could have said, with a different set of justices – about drug prohibition and enforcement. Pozen sets the stage for his analysis by asking “[h]ow could a set of policies as draconian, destructive, and discriminatory as those that make up the war on drugs come to be deemed, by so many officials and for so many years, to raise no serious constitutional problems?” 

In seeking to answer that question, Pozen exposes not only the limits of various constitutional doctrines to address one of the government’s greatest failures, but also the selective activism on the part of the Supreme Court justices. Pozen persuasively argues the ways in which the Court’s approach to drugs differs from its treatment of issues like reproductive choice and gun rights. That sets up the puzzle Pozen seeks to answer, as he explores why that differential treatment occurred. To those of us who focus on criminal law and punishment more generally, however, drugs do not stand alone. They are just one part of an enormous project of mass incarceration that the Court, and by extension, the Constitution, has ignored.

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Balkinization Symposium on David Pozen, The Constitution of the War on Drugs


This week at Balkinization we are hosting a symposium on David Pozen's new book, The Constitution of the War on Drugs (Oxford University Press, 2024).

We have assembled a terrific group of commentators, including Rachel Barkow (NYU), Paul Butler (Georgetown), Paul-Emile Kimani (Fordham), Jennifer Oliva (Iowa), Shaun Ossei-Owusu (Penn), Louis Michael Seidman (Georgetown), and Katherine Shaw (Penn).

At the conclusion, David will respond to the commentators.

Monday, April 29, 2024

On abortion, the Supreme Court shows it doesn’t care about democracy after all

Andrew Koppelman

In Dobbs v. Jackson Women’s Health, the Supreme Court famously declared that it was returning the abortion question to the voters.  The people could decide whether or not abortion was to be prohibited.  So, when a federal statute required that hospital emergency rooms offer abortions to women who face imminent medical disaster if they continue their pregnancy, the Justices who voted to overrule Roe v. Wade unhesitatingly enforced that statute’s plain language, relieved that the elected representatives of the people had taken this fraught issue off their hands.

Oh wait.  That’s not what happened.  The Court is so hostile to abortions that, to prevent them, it will defy the national legislature and harm women.

I explain a new column at The Hill.

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