My Supreme Court Lecture on Bushrod Washington

Gerard N. Magliocca

The video is here, with a very kind introduction by Justice Kavanaugh.

“Levels of Generality” in Dobbs, Rahimi, Muñoz, and Skrmetti – How Historical Facts Can Express Judicial Values

Guest Blogger

Reva Siegel

Two years ago the Supreme Court overturned the abortion right in Dobbs v. Jackson Women’s Health Org. Today, it marked that anniversary by taking for argument in the coming Term United States v. Skrmetti, a case authorizing a Tennessee ban on gender affirming care. Skrmetti draws authority from Dobbs: both Dobbs’s reasoning about level of generality in substantive due process law as well as its dicta reviving a 1974 decision on equal protection and pregnancy discrimination. The Sixth Circuit decision in Skrmetti authorized a ban on gender-affirming care that could put in play both the Court’s substantive due process decisions and its equal protection-sex discrimination decisions.

In 2022, the conservative Justices embraced history-and-tradition standards that tied the Constitution’s meaning to particular historical facts, both in Dobbs and in a Second Amendment decision New York State Rifle & Pistol Ass’n v. Bruen. The Justices claimed that tying judicial decisions to particular facts in the past would constrain judges and prevent them from acting on their policy preferences.  This debate over “levels of generality” in Dobbs has continued to structure debate this Term. It appeared in debates over interpreting the 14^th Amendment’s liberty guarantee in Department of State v. Muñoz, and in United States v Rahimi, the several Justices invoked “levels of generality” (both expressly and implicitly) in debating interpretation of the Second Amendment.

Can Originalism Be Indeterminate?

Gerard N. Magliocca

Here is one way to think about the discussion of history and tradition in Rahimi: If we cannot determine what the relevant original public meaning is, then we should rely on post-ratification history and practice. 

One problem with the proposition as stated, though, is that I'm not sure whether originalist judges would concede that sometimes the relevant original public meaning is unknown or inconclusive. It seems to me that originalists always think that there is an answer under that method. Reasonable people may disagree on what that answer is. Or the answer may conflict with subsequent judicial precedent. But I can't recall an opinion in recent times that says something like: "Unfortunately, the original materials are obscure or not helpful, so we need to turn to something else for guidance."

Sandra Day O'Connor versus Oliver Cromwell

Mark Tushnet

Reading recently published tributes to the late Justice O'Connor reminded me of the throw pillow she had in her office, with an inscription: "Maybe in error but never in doubt." It's always struck me that without elaboration that's exactly the wrong attitude a judge should have. For me Oliver Cromwell provides better guidance: "I beseech you, in the bowels of Christ, think it possible that you may be mistaken."

Maybe Cromwell's aphorism can be used to improve on O'Connor's. As a judge you have to make decisions, but you should always remind yourself that your decision might be mistaken--and that reminder should come after the decision as well as before it. That doesn't mean that you lose sleep over the decision you made, but it does mean that you have to keep an open mind when someone says, "That decision was wrong and should be ignored/limited as substantially as possible." You shouldn't get psychologically invested in defending the decision simply because you made it ("It was the best I found myself able to do under the circumstances but maybe I was mistaken"). So: never in doubt at the moment of choice, but after that always aware of the possibility that you were mistaken.

I suspect, though, that people who become Supreme Court justices (and find out that other people, especially lawyers, defer to them in interpersonal interactions--stand up when they enter a room, for example) aren't psychologically constituted to take Cromwell's advice. (I can't retrieve the exact quotation or source right now, but I think that's what Jerome Frank [I believe] had in mind when referring to Holmes [I believe] as a fully mature jurist [I believe]--in contrast to other less mature judges [say, a substantial majority of the justices now sitting on the Supreme Court]. Whether that's an accurate characterization of Holmes and other justices is another matter; I think it is but it's possible that I may be mistaken.)

Rahimi as a Class Essay

Mark Tushnet

Joey Fishkin probably has said all that needs to be said about the various justices' attempts to do constitutional theory in Rahimi. He may be too subtle, though. So here's the hit-you-on-the-head-with-a-hammer version.

Right-wing op ed writers who think they know something about the Constitution (I'm looking at you, George Will, but there are others) are probably already in print, and certainly will be soon enough, with pieces describing the conservative justices' separate opinions as "brilliant," "careful," "important," and other praise words. Acolytes in the legal academy will follow with similar praise perhaps a bit toned down. 

Were the opinions to be submitted as essays in a decent law school course or seminar in constitutional theory, they'd get something close to the median grade (these days, I suppose, a B+). They demonstrate a reasonable grasp of the fundamental issues, though they overlook some subtleties in the best of the works they refer to. They indicate some awareness of the pressure points on their theories but at best offer promissory notes about what future theoretical development might yield. They demonstrate no awareness whatever of the feebleness of what they do offer as moving the ball forward, with Justice Barrett's Goldilocks line being the best evidence of that.

It's not worth going through the opinions in detail with the kinds of comments I'd make on seminar papers; others will surely do that. Here I simply raise a couple of questions. Given that the proper thing to do is extract a guiding principle from the historical and traditional materials, how do you determine the level of generality at which to state that principle? Justice Scalia offered one answer in Michael M. (the most concrete, least abstract level), but it didn't stick, for good reason (it might work for a handful of problems but couldn't work as a general guide). Roberts's opinion says that "responsible" isn't the right level because its too vague--but that's not right either: the term has a reasonably clear but rather large core meaning, with vagueness at the edges, it's just that the core meaning sweeps more broadly than Roberts would like. That suggests another candidate for determining the level of generality of the principle: choose the level that, with respect to the problem at hand (because the level is likely to vary depending upon the problem), yields the best social policy result. But, of course, the opinions can't say that because the point of the exercise is to prevent judges from relying upon their policy preferences when they decide cases. 

Or, maybe not. Maybe you can't rely directly on your policy preferences to justify a decision but you can do so indirectly, through the choice of the level of generality. They can't say that, though, and sustain their criticism of their liberal adversaries, because those adversaries never relied on policy preferences directly either. Maybe "never" is too strong, but one or two aberrations wouldn't weaken the point, and the most commonly offered example fails. The liberals in Griswold didn't strike the statute down because it was uncommonly silly; they offered an account of a constitutional right to privacy in intimate matters that they found rooted in constitutional text and tradition.  Justice Breyer's typical use of policy arguments, to uphold statutes against constitutional challenges, is Thayerism: "I have no views on the policy issues here but here's a lot of evidence to support the proposition that it's reasonable for a legislature to conclude that this is good policy."

The second question is related: How do you escape the suspicion that you're picking the level of generality to produce results that fit with your sense of good policy outcomes? Understandably, no one wrote an opinion in the vein of Kennedy's in the flag-burning case: "I hate the fact that Rahimi isn't going to be allowed to own a gun, but my constitutional theory dictates that Roberts's principle is at the right level." Indeed, in Rahimi it would be really hard to write such an opinion because Roberts's principle is that you can disarm (temporarily) people who are found by a court to pose a credible threat to the physical safety of others--and it's really hard to disagree with that as a matter of policy. (Or is the suggestion that a ban wouldn't be justified if the determination were made by an administrator rather than a judge [after similarly truncated procedures], or if the threat were to the psychological safety of another, or if the threat were to a class of people rather than "another"? I'd like to see the explanation for those possible limitations on the principle's scope.)

Richard Posner once concluded that it was laughable to think that the justices were the nine best lawyers in the country, or were among the best one hundred. He thought that ten thousand might be the right number. Or, to return to the beginning, B+.

It’s Time for a Rahimi Pop Quiz!

Joseph Fishkin

Question: Can you distinguish real Supreme Court justices doing “history-and-tradition” from parody intended to illustrate how the method turns out, oddly enough, to be precisely the thing it says it’s against—an opportunity for judges to reach preferred results?

Directions: The following text is a mishmash of (a) actual quotes from the Supreme Court’s various opinions in today’s Rahimi case (just that case, no others) and (b) fake quotes, some of which, really, no self-respecting Supreme Court Justice should be caught uttering.  Your task is simple: attempt to tell the difference.  Copy-paste this text and try to highlight the actual quotes.  No peeking at the real opinion.  Sometimes a single sentence will include both (a) and (b).  I didn’t say this would be easy.  Answers after the jump.  Good luck!

United States v. Rahimi

Per Curiam

         As judges charged with respecting the people’s directions in the Constitution—directions that are “trapped in amber”—our only lawful role is to apply them in the cases that come before us.  Perhaps judges’ jobs would be easier if they could simply strike the policy balance they prefer.  In that case it surely would not take 103 dense pages to resolve the question of whether the government may remove guns from domestic abusers.  But judges must act like umpires, and sometimes it takes umpires many pages and several concurrences to distinguish a ball from a strike, especially in the relatively early innings.

         The first stop in this Court’s constitutional decisionmaking is the Court’s precedents—the accumulated wisdom of jurists from Marshall and Story to Harlan and Taft; from Hughes and Black to Jackson and White; from Rehnquist and O’Connor to Kennedy and Scalia; from Warren and Douglas to Brennan and Marshall.  Some may argue that a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy. But we are also mindful of the dangers of approaches based on generalized principles.  Accordingly, in this case we will identify a principle in the Second Amendment that is neither too specific nor too generalized, a perfectly balanced and principled Goldilocks level of generality.

         Unfortunately, some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber. Only the Constitution is trapped in amber. Developments in the world change, facts on the ground may evolve, and new laws may invite new challenges, but the job of the originalist judge is to paper over all of that and make results that are reasonable today appear to flow inexorably from the authority of history itself.  Reliance on history is more consistent with the properly neutral judicial role than an approach where judges subtly (or not so subtly) impose their own policy views on the American people.

            Judges can choose their sources.  But they absolutely must not extrapolate their own broad new principles from those sources. Because then no one can have any idea how they might rule. Courts, which are currently at sea when it comes to evaluating firearms legislation, need a solid anchor for grounding their constitutional pronouncements. That anchor is the Constitution.  Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow.  

         The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen’s madness. By the time this Court decided Bruen, every court of appeals evaluating whether a firearm regulation was consistent with the Second Amendment did so using a two-step framework that incorporated means-end scrutiny. However, that approach involves balancing, and that we shall not do.  The balancing approach requires judges to weigh the benefits of a law against its burdens—a value-laden and political task that is usually reserved for the political branches. And that power in essence vests judges with “a roving commission to second-guess” legislators and administrative officers “concerning what is best for the country.”

         The balancing tests (heightened scrutiny and the like) are a relatively modern judicial innovation in constitutional decisionmaking, entirely unlike originalism. The Court appears to have adopted heightened-scrutiny tests by accident in the 1950s and 1960s.  In contrast, when we adopted originalism in the 1980s, we did it on purpose.  To be sure, today we are less concerned about purpose—or even original public meaning.  What matters is history and tradition.  The balancing approach can be antithetical to the principle that judges must act like umpires. It turns judges into players.  We are not players. We do not play.

         Therefore, the law must comport with the principles underlying the Second Amendment, but it need not be a dead ringer or a historical twin. If not a twin, a cousin?  Perhaps a second cousin once removed who looks more like a principle?  Courts must proceed with care in making comparisons to historic firearms regulations, or else they risk gaming away an individual right the people expressly preserved for themselves in the Constitution’s text.  

         Reasonable minds sometimes disagree about how broad or narrow the controlling principle should be. Here, though, the Court settles on just the right level of generality.  Not so general as to give judges the discretion to reach the result they think is correct in each case, but just general enough to reach the correct result in this case.  Harder level-of-generality problems can await another day.

         One could, of course, argue that laws targeting “dangerous” persons led to the Second Amendment. It would be passing strange to permit the Government to resurrect those selfsame “dangerous” person laws to chip away at that Amendment’s guarantee. But “dangerous” is a category sufficiently broad to encompass the law before us, and not so broad as to sound like we judges are exercising judgment.  Therefore we are going with it. An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment. 

         The judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

On or About January 1979 the World of Legal Scholarship Changed

Mark Tushnet

 A recent workshop paper (and some time on my hands) crystallized a thought about the style of law review writing today. Every article, it seems, must have a road-map paragraph. (Does anyone actually read road-map paragraphs?) When I started writing law review articles in the early 1970s I didn't write such paragraphs and felt no particular need to do so. So, I did a quick and quite informal investigation into the emergence of the road-map paragraph.

I looked at lead articles in the Harvard Law Review to see if they had road-map paragraphs. (There are some classification issues--the spread sheet I developed has a few "sort ofs" and one "No?" in it--but I don't think these problems undermine my core "finding.") I began with the 1960-61 volume, where none of the articles had road maps. Then I skipped to 1970, where one sort of did (out of eleven). Skipping ahead another decade I found that six (of ten) had road maps. So I backfilled, and ended up locating the breaking point in January 1979; before that date road-map paragraphs were uncommon, after it they were regular though not universal features.

Frankly, that's earlier than I had thought. I have no ready explanation for the emergence of the road-map norm (nor, I think, did Virginia Woolf have an explanation for the change in human character she identified). I suspected that it might have something to do with the increasing length of articles but before 1979 there were a fair number of quite long articles without road maps, and--of course--after 1979 there are lots of relatively short articles with road maps (because law review editors now insist on including them no matter what). Maybe there were changes in the way undergraduates were taught expository writing that came to fruition in the mid-1970s and filtered up to law schools.

Anyhow, I don't like road-map paragraphs. I do have two suggestions for people who share my view. We should all begin the road-map paragraph that we're being forced to write in this way: "Like a delicate flower hit by the morning's first rays of sunshine, this article unfolds as follows." And we should end it, "The Conclusion concludes."

Justice Thomas Denounces Wealth Taxation – At the Cost of Transforming “Originalism” into a Parody of Itself

Bruce Ackerman

       My Initial Reactions to Justice Thomas' Sweeping Denunciation of Wealth Taxation

    These comments remain provisional, of course, and I would very much appreciate hearing your own reactions – since Moore may well serve only as a preliminary to a more fundamental confrontation by the Court, and the American people,with the constitutional issues raised by wealth taxation in the years ahead:

    Justice Kavanaugh's majority opinion in Moore upholds the very special tax on wealth at issue in this particular case. Yet Justice Thomas' responds with a lengthy and outraged dissent (joined by Justice Gorsuch). He argues that the taxation provisions of the original constitution reflected a "delicate compromise" without which "the Constitution could easily have been rejected," and which the Sixteenth Amendment "only slightly altered" – and that, even in the special case raised  by Moore, the government’s taxation effort is unconstitutional.

          In presenting his sweeping arguments, Thomas cites a key section, at the beginning of Article one, which explicitly states that the tax provisions are only part a larger "three-fifths" compromise guaranteeing the Slave States dramatically enhanced representation in the House of Representatives. Nevertheless, he utterly fails to consider the extent to which the Reconstruction Amendments destroyed the very foundations of his "delicate compromise." Instead, he treats the 13th, 14th, and 15th Amendments as if they were minor modifications of the Original Understanding.

          This is not the first time that Thomas has engaged in the trivialization of the Reconstruction Amendments. But the historical evidence in this case is particularly compelling – establishing that Americans of the 1860s self-consciously repudiated the "delicate compromise” of the 1780s when committing themselves to  transformative principles under which We the People reconstructed their democracy on the basis of political and social equality. In ignoring this fundamental point, Thomas and Gorsuch transform “originalism” into ancestor worship of the Founding Fathers.

          At the very least, they owe it to their readers to explain why the efforts by Radical Republicans to redeem the full promise of Lincoln’s Emancipation Proclamation did not sweep away the Founders’ “delicate compromise.”  Yet they utterly fail to do so. For more elaborate discussions of the constitutional revolutions of the 19th century, see Joseph Fishkin & William Forbath, The Anti-Oligarchy Constitution (Harvard: 2022), as well as volume 2 of my We the People: Transformations, especially chaps. 6-8 (1998).

          All three of us also submitted an amicus brief that confronts other lawyerly efforts to evade the implications of the original understanding of Reconstruction.

Less is Moore

Joseph Fishkin

The Trump Hush-Money Prosecution and Militant Democracy

Jonathan Hafetz

To some, former President Donald Trump’s prosecution and conviction in New York vindicates the principle that no person is above the law; to others, it is a witch-hunt, the product of a “rigged” system. While the case’s critics often grossly distort what transpired in New York, they are not wrong that the prosecution was informed by politics in some sense. But that does not mean the prosecution was improper or shouldn’t have been brought. 

At trial, Judge Juan Merchan afforded Trump all the procedural protections due a criminal defendant, and then some. Any other defendant, for example, would likely have been jailed for contempt the second or third time they violated the gag order; Trump notched 10 contempt citations but received only fines. Critics who complain about certain procedures, such as the jury not being given a written copy of the instructions, are simply ignorant of local practice, as doing so is prohibited under New York law.   

As for the substance, District Attorney Alvin Bragg’s office adopted an aggressive interpretation of the law in attempting to step up Trump’s violation of New York’s falsification of business records statute (a misdemeanor) to a felony by demonstrating it was committed with the intent to commit or cover up another crime (the object offense). The prosecution offered three possible object offenses: violations of federal election, state election, and tax law, although it relied most heavily at trial on the New York election law statute, which prohibits promoting a person’s election by “unlawful means”.  Attempting to step up falsification of business records from a misdemeanor to a felony based on a state election law in a federal election raises novel legal questions, and Trump will have issues to litigate on appeal (though how strong the grounds for appeal are disputed). But prosecutors commonly interpret statutes aggressively, and even if the conviction is ultimately reversed, Bragg had a legitimate basis to interpret the law in this manner.

But the fact that Trump received a fair trial does not negate the fact that larger considerations likely factored into the decision to prosecute him. The choice to criminally charge a former president for the first time in U.S. history was not made in a hermetically sealed vacuum, cut off from the world outside.

Here’s where the “no person is above the law” theme starts to break down: it means that New York should—and would—have prosecuted Trump even if he had not attempted to overturn the 2020 election or, alternatively, if he had done so, but declined to run again. 

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:

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

JB

 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.

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, https://www.chronicle.com/article/a-climate-of-fear-comes-for-scholarship.

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.

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.