Tuesday, June 06, 2023

Is the Supreme Court Lying When It Purports To Place Limits on its Extreme Rulings? Third Circuit: Obviously, Yes

Today, the Third Circuit sitting en banc in Range v. Attorney General invalidated federal prohibitions on possession of firearms by convicted felons, at least in cases of non-violent offenders (Range had been convicted of food stamp fraud), but potentially in many other circumstances as well (via). This creates a circuit split with the Eighth Circuit's opinion last week in United States v. Jackson that I discussed here

The issue of felon disarmament under Bruen is interesting. At one level, it's always possible that any gun regulation might fall prey to Bruen's rigid history-or-bust methodology for determining constitutionality under the Second Amendment (though much here depends on necessarily subjective judgment regarding what counts as a proper historical analogy). But at another level, the felon prohibitions are distinct because Bruen (along with the other members of the Roberts trilogy on guns -- Heller and McDonald) were emphatic that these prohibitions should not be questioned under the Court's rulings. As Heller said: "The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons." This was reiterated in McDonald, and confirmed again in Justice Kavanaugh's Bruen concurrence.

How does the Third Circuit get around this seemingly very explicit language? By suggesting the Court cannot be trusted to mean what it says. 

The court in an opinion by Judge Hardiman analogized adhering to the Supreme Court's express declaration that these laws remained constitutional to how the Court talked about the application of means-end scrutiny in Heller. Heller suggested that the law in question in that case would be unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Lower courts, Judge Hardiman continued, universally "overread that passing comment to require a two-step approach in Second Amendment cases, utilizing means-end scrutiny at the second step," an approach the Supreme Court ended up disavowing in Bruen. And so the Third Circuit says, in essence, it won't make the same mistake twice: it must be "careful not to overread" the language suggesting felon disarmament laws remain constitutional "as we and other circuits did with Heller’s statement that the District of Columbia firearm law would fail under any form of scrutiny."

In other words, the basic question is: can we trust the Supreme Court when it says, expressly, "our decisions should not be read to mean felon disarmament laws are unconstitutional"? Or was that a promise the Supreme Court never meant to keep? In fairness to the Third Circuit, given the choice between predicting (a) the Supreme Court will abide by its own expressly-stated doctrinal limits or (b) the Supreme Court will completely ignore its own promises the instant they seem to sanction gun control limits the Court dislikes, I'm hard-pressed to say that option b isn't the safer bet. But there is something discomforting about lower courts openly acknowledging that the best way to interpret the Supreme Court's Second Amendment jurisprudence is to assume that any limits the high court purported to place on Bruen's sweeping protections for guns everywhere-for-everyone-at-any-time are probably just lies.

As a sidenote, I'll also just say that I literally finished compiling my Con Law II course materials on the post-Bruen Second Amendment last night, and immediately had to revise them again to account for the Range decision. Again, spare a thought for the underappreciated constitutional law professor, the forgotten victims of the churn and chaos the Supreme Court has unleashed in our constitutional jurisprudence.

Monday, June 05, 2023

IHRA Cited In Pitch To Ban "Israel Apartheid Week" Displays

One of the more common points of controversy over the "IHRA" working definition of antisemitism is the allegation that it is used to chill free speech. For what it's worth, my sense is that the attempt to censor speech has actually very little to do with IHRA as a text, and is more related to IHRA's perceived symbolic status. If IHRA didn't exist, the claims wouldn't look much different.

In any event, in assessing whether IHRA "is used to chill speech," we could look at one of two things: cases where persons trying to censor speech appeal to IHRA, and cases where persons engaging in censorship justify it by reference to IHRA. The difference between attempt and success, basically. There are undoubtedly more cases of the former than the latter, and one could fairly argue that the former shouldn't "count" both because they did not actually lead to the suppression of speech and because they're functionally impossible to police (any yahoo with a web browser can say "don't allow this speech because of IHRA"; it doesn't mean anything if they're consistently not successful).

Nonetheless, I do think it is notable when semi-prominent actors use IHRA in order to call for censoring speech. Recently, for instance, a group called the "Combat Antisemitism Movement" released a report that called for universities to adopt IHRA and then use that understanding of antisemitism to bar "Israel Apartheid Week" demonstrations (via).

Allowing this virulent form of discrimination to persist under the auspices of academic freedom is simply intolerable during a time where antisemitism is rising. If such hateful displays would not be tolerated when directed at other ethnic or religious minorities, Jewish students should not be an exception.

.... While universities have an obligation to promote a diverse marketplace of ideas, they also must ensure principles of tolerance and respect for diversity are upheld. Given that it would certainly be deemed inappropriate to set up a week-long demonstration on campus calling for the destruction of another sovereign state, such as Italy, then Israel cannot be the outlier.

On the level of free speech and academic freedom, the university indeed must permit "Israel Apartheid Week" demonstrations; just as they regularly do permit displays and presentations that are deemed offensive to other minorities. But beyond that seemingly banal but nonetheless apparently not-taken-for-granted point, much lies in the framing here. There are university demonstrations which target, for example, Chinese atrocities in Xinjiang, Turkish repression of Armenians, American police violence against racial minorities, or Russian aggression in Ukraine, in extremely harsh tones. No doubt the governments of those nations, to say nothing of any nationals present on campus, may find the claims objectionable or unfair. But the university is not permitted, nor should it be permitted, to say that such protests (and "displays" thereto) are "inappropriate" and can be banned from campus. Israel indeed cannot be the outlier.

Of course, one could argue that Israel is not properly compared to China or Russia. It is better thought of, perhaps, as an Italy. But -- leaving aside whether the university would prohibit raucous protests against Italy that were deemed offensive to Italian students (I'm doubtful -- cf. protests against Columbus Day and claims by Italian-American groups that these protests constitute anti-Italian discrimination) -- the problem is that enforcing this norm would require the university to decide as a matter of institutional policy the correctness or soundness of moral appraisals about Israel's status or conduct. This, of course, is the very centerpiece of what academic freedom is meant to avoid. As the University of Chicago's famous Kalven Report argued, "The university is the home and sponsor of critics; it is not itself the critic." It is generally not the business of universities to institutionally affirm or reject a particular political stance, whether popular or unpopular; the university rather is designed to serve as a forum where these issues can be debated and hashed out. 

This does not mean tolerating actual discrimination. But discomfort with speech, even outrageous speech, is not discrimination. To keep on the Chicago theme, the U of C's widely-praised principles of freedom of expression address this very point:

Of course, the ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.


In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose.

And despite the mau-mauing about what is allegedly "not tolerated" for other groups, these principles are the same that explain why Kyle Duncan must be allowed to speak at Stanford, Milo must be allowed to speak at Berkeley, and Christina Hoff Sommers must be allowed to speak ta Lewis & Clark. It's not because there aren't colorable arguments that any or all of these speeches or speakers are hateful. It's not even -- though the Kalven Report might disagree -- that the university isn't allowed to issue its own judgment about the propriety or not of the speech. It's that these judgments cannot, consistent with the basic principles of academic freedom, be used as a vector for prohibiting the speech.

Again, I don't think "IHRA", as a text, is responsible for these calls for censorship. But IHRA is symbol as much as it is text, and its symbolic usage has become increasingly tied to appeals such as this. Those who wish to promote IHRA's utility should think very carefully about standing by and letting it become an avatar of institutional censorship in this way. It does no service to the fight against antisemitism, nor IHRA's role in supporting that fight.

Saturday, June 03, 2023

Bruen's Goose Does Apply to the Gander

I hate on the Eighth Circuit a lot on this blog -- prerogative of a former clerk -- but one thing I do like about it is that it has largely abjured the over-long, meandering, 100-page for every opinion trend of its sister circuits. The typical Eighth Circuit opinion is, as these things go, short, sweet, and easily digestible. Occasionally this means that some important issues or arguments I believe that deserve parsing in detail get short-changed, but more often than not it simply means they're avoiding navel-gazing and padding.

Yesterday, the Eighth Circuit filed an interesting decision in United States v. Jackson* involving the Second Amendment's applicability to restrictions on gun ownership by non-violent felons. Coming in at a compact 16 pages (8 of which are on other issues), it's easily led by the lay person. But what makes Jackson noteworthy, in my view, is that it expressly avoids a pitfall of the post-Bruen Second Amendment world that I've seen afflict conservative courts and commenters alike. Namely: it recognizes that Bruen's prohibition on means-ends analysis, and treatment of history as the be-all-end-all, applies just as much where the history licenses greater gun restrictions as when it licenses fewer such restrictions.

Quite a few conservative actors have, after happily citing Bruen's history-is-all-that-matters test, turned around and been aghast at the idea that a given historical interpretation might license more gun control than they, personally, are comfortable with or think is defensible as a policy matter. These objections have been leveled with respect to laws that bar persons previously subject to mental health orders from owning firearms (without a showing that they are currently mentally ill) and laws which bar persons subject to domestic violence restraining orders from owning firearms (even without a conviction). In both cases, the complaint was that even to the extent there arguably was historical precedent supporting laws like this (not perfect analogues, of course, but Bruen expressly disclaims the need for a "twin"), the practical consequences of applying those precedents to a case like this would be unreasonable or unfair as a matter of gun policy -- precisely the sort of reasoning that Bruen purports to take off the table.

Jackson, which is about prohibitions on gun ownership by non-violent felons, raises similar issues. It may be "unreasonable" to ban persons convicted of non-violent drug offenses, with no showing that they are in a meaningful sense "dangerous", from possessing firearms. But those arguments have no place in a Bruen world, which exclusively asks what the historical record does and does not permit. And unlike many, Jackson gets this right. It observed:

To be sure, the historical understanding that legislatures have discretion to prohibit possession of firearms by a category of persons such as felons who pose an unacceptable risk of dangerousness may allow greater regulation than would an approach that employs means-end scrutiny with respect to each individual person who is regulated. But that result is a product of the method of constitutional interpretation endorsed by Bruen

Indeed, governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny. After all, history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right and are consistent with that right, as the Court said in Heller. By contrast, if courts applied strict scrutiny, then presumably very few gun regulations would be upheld.

Heller v. District of Columbia, 670 F.3d 1244, 1274 (D.C. Cir. 2011) (Kavanaugh, J., dissenting). Cf. Kanter v. Barr, 919 F.3d 437, 465 (7th Cir. 2019) (Barrett, J., dissenting) (concluding before Bruen that Congress cannot dispossess felons based solely on status, and that “a very strong public-interest justification and a close means-end fit” is required before a felon may be subject to a dispossession statute based on dangerousness) (quoting Ezell v. City of Chicago, 846 F.3d 888, 892 (7th Cir. 2017)).

This does not, to be clear, make Bruen a good rule. In many ways, it demonstrates its arbitrariness. But at least correctly applied, Bruen both gives and takes away when it comes to gun regulations. Where the historical record permits a type of gun restriction, legislatures are allowed to impose it no matter how ridiculous or outrageous it might appear. Where the record does not license a type of gun restriction, legislatures are forbidden from utilizing it no matter how essential or necessary it might be. That is not a good rule. But at least its randomness may lash out equally.

* There's no such thing as a "liberal" panel on the Eighth Circuit, but this panel was not an especially liberal one. The opinion was authored by Judge Colloton (viewed for many years as a SCOTUS contender for a Republican President), joined by Judge Benton and Chief Judge Smith. All three judges were Republican appointees (unsurprising, given that only one judge on the entire circuit is a Democratic appointee).

Tuesday, May 30, 2023

Four Thoughts on the CUNY Law Affair

Yes, I've heard about "that" graduation speech at CUNY Law. I'm not interested in parsing it; I have better things to do with my time. But I do want to share four thoughts about some of the broader issues in play and the (expectedly less-than-stellar) metacommentary.

First, CUNY's board of trustees has come out with a statement averring that "Hate speech ... should not be confused with free speech" and declaring that the graduation remarks fall into the latter category. Face palm. In the context of a public university, which CUNY is, "hate speech" most certainly is free speech, and retains all constitutional protections assigned to the latter. It astounds me that we still see statements like this on controversies like this when the constitutional rules are so clear. There is absolutely no cause to argue that the speaker's remarks are anything other than speech protected by the First Amendment, no matter how hateful one does or does not deem them to be.

Second, CUNY Law, probably more than any law school in the country (including Berkeley), is a citadel of the hard left. Its student body and, to a slightly lesser extent, faculty is very much self-selected to fit within this well-to-the-left-of-the-Democratic-Party-median mold. Is that a problem? This raises the classic question of diversity within institutions versus diversity across institutions -- it's okay, or perhaps event valuable, that there exist some law schools that are self-consciously hard left in orientation, so long as it is one option on a larger menu. Maybe CUNY Law is just the Regent University or Liberty University Law School of the left. You want a self-consciously conservative Christian experience, you go to Liberty. You want a self-consciously left-wing activist experience, you go to CUNY. Other schools offer different choices. There is a long and proud tradition of the "liberal" education that tries to draw from as wide a range of views and perspectives as possible; but there's an equally long and proud tradition of an education that is intentionally imbricated within a deep and specific intellectual and ideological framework (a religious college is the most prominent example). At the very least, it is not self-evident that we think the latter sort of initiative is always wrong -- at least so long as the prospective law school applicant has other choices.

Is this actually good? Does it matter that CUNY is a public law school? Does it matter that it's a public law school in a generally liberal city? Does it matter that, even in the context of a generally liberal city, CUNY Law is far off to the left of the mainstream? Open questions, as far as I'm concerned.

Third, CUNY Law's Jewish Law Student Association has strongly come out in defense of the graduate speaker and against the public backlash. This is in accord with the CUNY JLSA's larger orientation on issues like this (anti-Zionist, pro-BDS, and so on), and it seems reasonably clear that it represents the consensus view of Jewish students at CUNY Law (which again, is a very particular and self-selecting bunch). Given this, it is fair to note that there is something very odd about people racing to "protect" Jewish students from "antisemitism" that the students themselves not only don't identify as antisemitic, but actively support. Who exactly is being helped here?

One could answer that by referencing the potential Jewish students who would be interested in a CUNY Law experience but are deterred or forced out because they do find the environment to be unbearable (I am aware of at least some Jewish students leaving CUNY Law, or not applying in the first place, for precisely that reason).* In such a situation, the rump remainder of Jewish students who are perfectly happy with that environment will be all that remains, but the resultant "consensus" is not really properly characterized as innocent. Again, this could be reframed as a diversity-within-versus-across-institutions issue, though: maybe it's good that there is one school where anti-Zionist Jews are the dominant Jewish faction; so long as the Zionist Jewish majority has other options. Or maybe not. I do think the core puzzle of "opposing antisemitism" at a given institution over and against the objection of the Jews who are actually present there is at the very least an oddity that people need to wrestle with.

Fourth, many people are contending that the harshly critical response to the speaker constitutes "Islamophobia." For any individual remark or "criticism", that will of course depend on its content. But insofar as we're talking about, e.g., Rep. Ritchie Torres ("Imagine being so crazed by hatred for Israel as a Jewish State that you make it the subject of your commencement speech at a law school graduation. Anti-Israel derangement syndrome at work.") or Mayor Eric Adams ("I was proud to offer a different message at this year’s CUNY law commencement ceremony — one that celebrates the progress of our city and country, and one that honors those who fight to keep us safe and protect our freedoms.... We cannot allow words of negativity and divisiveness to be the only ones our students hear."), it's really hard to warrant the charge of Islamophobia unless you're willing to endorse a (dare I say it?) IHRA-style understanding of what "discrimination" is.

There's little in the way of evidence that Adams or Torres object to what the speaker said because she's a Muslim (and would have been fine with it if she was Christian). And one can of course already hear the classic retorts, remixed: "Criticism of anti-Israelism is not Islamophobia!" "Don't conflate opposition to Israel with Islam!" Given that, the warrant for the Islamophobia claim, it seems, has to be some version or combination of arguments like (a) taken as a whole, the intensity and vitriol of the blowback are disproportionate to a degree that they can be held to function in practice as a form of anti-Muslim hostility; and/or (b) pro-Palestinian sentiments are sufficiently tied to many Muslims sense of religious identity so as to make attempts at silencing or degrading said views tantamount to silencing an important facet of this speaker's Muslim identity; and/or (c) public "criticism" of this sort is part of a pattern or practice of social conditions which practically speaking operate as policing mechanisms that limit Muslim public participation and license their anti-Muslim harassment and discrimination.

Those arguments may well have purchase. But they're exactly the sorts of arguments which, in the context of IHRA and related debates over antisemitism, are alleged to be "censorial", "conflating", "chilling", and otherwise inappropriate in their alleged failure to distinguish between "criticism of Israel" (whether warranted or not) and "antisemitism." Here, the same failure could be alleged: failing to distinguish between "criticism of anti-Israel" (whether warranted or not) and "Islamophobia". And that alleged "failure" could similarly be met with a rejoinder that this too-pat response overlooks the realities of the situation and the practical impact this sort of speech and conduct has a means of impeding the equal public status and standing of Muslims, just as that rejoinder is leveled in the antisemitism case.

To be clear: this is a classic "everyone is a hypocrite" complaint. The anti-IHRA people, when the topic is Islamophobia, are happy to make claims that in the antisemitism context they'd label "chilling", "silencing", or "conflating". And the pro-IHRA people just as suddenly are unwilling to accept logic like this to the extent that it might require seriously reckoning with the prospect that their own speech or conduct can be labeled Islamophobic. If we understand why this speaker could interpret the backlash as Islamophobic, we should be able to understand how Jewish speakers might interpret certain vitriolically anti-Israel speech as antisemitic, and vice versa. For my part, I've long held that it's entirely possible for "dueling" discrimination charges to both be at least in part justified (see this post, and pages 161-63 of "The Epistemic Dimension of Antisemitism" for discussion), and so -- without commenting on the merits of either charge in this case -- it is fully possible in concept both that the way the speaker spoke was antisemitic AND that the way the broader community responded to the speech was Islamophobic (or that neither claim is sustainable, or that only one is).

* When I was on the job market, I did submit an application to CUNY Law in a year where they were looking to hire a constitutional law professor. I did not receive an interview, and, in retrospect, I think CUNY Law would have been a very uncomfortable place for me given my identity and the research that I engage in.

Monday, May 29, 2023

How To Hack The Law

Do you ever idly puzzle through various ideas for a "perfect crime"? It's awkward to talk about -- you don't actually want to do them, you don't actually want to give anyone a bright idea, but they're still so interesting to think through.

The legal community is abuzz with the story of a lawyer who relied on ChatGPT to do his research and submitted a brief filled with entirely invented cases. ChatGPT just made them up out of air -- complete with names, citations and quotes -- and the lawyer dutifully added them to the brief. When opposing counsel tried to read the cases for themselves, they were baffled because they couldn't find any trace of them. The presiding judge went so far as to contact the clerk of the courts where the cases were allegedly filed, confirming their non-existence. Now the lawyer is facing sanctions; he is begging for mercy on the grounds that he had no idea ChatGPT would lie to him like that.

I know of very few lawyers who have sympathy for this lawyer. But imagine a slightly different case. Let's say that LexisNexis developed a glitch where it invented a case. If you typed in the (invented) citation to the case, it would pop up on Lexis the same as any other case -- name, judge panel, court, reasoning, everything. But the case isn't real; it was a complete invention. If a lawyer came across such a "hallucinated" decision on Lexis, I think we'd be very forgiving if she ended up being deceived and relied on the case in her briefs. Indeed, I actually wonder, in a situation, like this, how long it would take the legal community to figure out that the case wasn't real.

For example: the last case contained in volume 500 of the Federal Reporter (3d) is Jacobsen v. DOJ, 500 F.3d 1376 (Fed. Cir. 2007). That case ends on page 1381. Suppose an enterprising criminal hacks the Westlaw and Lexis database* and adds another case, call it Smith v. Jones, cited to 500 F.3d 1382. To further cover her tracks, the criminal "assigns" the case to a panel of judges who are no longer active on the court, to make it less likely one of them will see it and be like "I don't remember that decision." Smith v. Jones, of course, can be about and say whatever the criminal (or the unscrupulous lawyer who hired her) wants it to. Need a precedent that appears to decisively resolve a contested point of law in your favor? Voila -- the new case of Smith v. Jones is there to meet your needs. Indeed, the diligent criminal could add one or two new precedents per volume on a range of topics, providing bespoke "new" precedent to shift the legal terrain on an array of different issues.

If this happened, again I ask: how long would it take for the legal community to figure it out? If the initial hack was undetected, could one get away with doing this? Certainly, there would still be ways to confirm the cases are not real. If one back-checked the cases back to the clerk's office, one would discover they're vapor -- but realistically, that almost never happens. We take Lexis and Westlaw as proof enough; I'm not sure I can imagine a circumstance where I would try to confirm the veracity of a case I saw on Westlaw or Lexis by contacting the clerk's office. There probably would be some other hints that the cases were suspect -- the lack of citations from other cases would be a significant hint that something is shady -- but I can imagine a crime like this slipping by us for some time. And the longer it goes unnoticed, the more these cases have the opportunity to subtly adjust the overall trajectory of law in a new direction.

It's a scary thought, no? We're very reliant on the robustness and reliability of online databases. If they start to falter, we run into seriously trouble very quickly.

* Note: I assume -- and desperately hope -- that this is difficult-to-impossible to do.

Sunday, May 28, 2023

If You Add an "e" and Take Away "alist" That Spells Globe!


If you asked me to write a parody of what folks bleating on about DEI indoctrination sound like, I couldn't do a better job than how Georgia Republican Kandiss Taylor's rants about "globes".

No, not "globalists". Globes. As in, the earth being round. Seriously:

“All the globes, everywhere” Taylor said later in the discussion. “I turn on the TV, there’s globes in the background … Everywhere there’s globes. You see them all the time, it’s constant. My children will be like ‘Mama, globe, globe, globe, globe’ — they’re everywhere.”

“That’s what they do, to brainwash,” she added. “For me if it’s not a conspiracy. If it is real, why are you pushing so hard everywhere I go? Every store, you buy a globe, there’s globes everywhere. Every movie, every TV show, news media — why? More and more I’m like, it doesn’t make sense.”

Listen, she just wants to have a debate. What are they afraid of? 

The Debate Link: Origins

This blog is called The Debate Link.

That's no accident.

I started this blog when I was eighteen, just after graduation, when debate was the activity that most defined my high school experience. It was something I did nearly every weekend for four years, travelling all across the country. I was nationally-ranked. I won tournaments at both the local and national level. I wasn't just a "debater". I was, if I do say so myself, a pretty elite debater.

This blog was in many ways a continuation of that experience, and an attempt to fill its void. Its initial tagline was "The arguments, made by and for the debating public." In fact, here's my very first post, from way back in 2004:

Hey everyone! My name is David, and I am an ex-debater from Bethesda MD. My 4 years of debate has given me a healthy appreciation of the issues that concern America, and a desire to share some of the better arguments on some those issues I've come accross during those years. So hopefully, whenever I come up with a good idea (or stumble across someone else's), I'll post it on here.

See you soon,


(How adorable was I? Seriously.)

It is impossible to overstate the degree to which high school debate was formative in my life. It taught me how to think. It taught me how to write. It generated friendships that persist to this day. It even, indirectly, made me realize I wanted to be a law professor. There are few facets of David Schraub 2023 that are not in some way traceable to David Schraub, high school debater.

High school debate is having a moment in the news, prompted by this article by James Fishback chronicling an alleged takeover of the events by the radical left. I want to comment on his piece and his allegations, as well as on some commentary given by Kristen Soltis Anderson, who I knew and competed against in my generation of debate.

There are few reasons to read Fishback's account with grains of salt, beyond the obvious fact that he is at the helm of an insurgent competitor to the established National Speech and Debate Association (formerly known as the National Forensics League) and so has a vested incentive in undermining it.

First, whenever I read accounts like this about craziness allegedly afflicting student-centered activities, I always ask myself "what are the students saying?" Do the actual students involved share the perception that high school debate is rotting from the inside out? Or is their view that these accounts are misleading, exaggerated, and not reflective of what's actually happening on the ground? I certainly remember from my student days how frequent it was that I'd read breathless accounts about "what was going on" at my school or in my club or on my campus that bore zero relationship to what I actually saw. Once I was no longer a student, I still tried to remember that experience -- how many times have the "adults" parachuted in to "solve" problems at schools or on campus in cases where the actual putative victims have been screaming "you are not helping!" The older I get, the harder it will be to remember that instinct, but for the moment I can still rage against the dying of the light. And to that end, it is notable that Fishback's post contains very little in the way of contemporary student commentary or support indicating that they share his view about either the gravity or ubiquity of the problems he identifies -- a failure which makes me profoundly skeptical of whether he's accurately describing the underlying reality.

Second, I also remember to beware of apocryphal anecdotes. I doubt there has ever been a generation of debaters that didn't have stories about the lurid, ridiculous, extreme-performative arguments that supposedly were winning rounds left and right. In my generation, I distinctly recall a story circulating about a debater who simply wrote "Rwanda. Rwanda. Rwanda." on the board over and over again in their first speech (on any topic) as some sort of commentary on the moral intolerability of engaging in regular debate in the face of genocide. Trading the story across the lunch table, that debater cleaned up at elite tournaments. In retrospect, I can't say I ever recall actually seeing a round that was anything like that -- and I both witnessed and participated in many elite-level debate rounds. Stories are stories.

All of that said, I can't fully accuse Fishback of nutpicking. The "Marxist-Leninist-Maoist" judge that opens his story was a collegiate debate champ, and so can't be dismissed as a complete non-entity. For recent graduates who are looking back on their competition-days, it is very, very easy to miss "having the ball in your hands"; to think on the arguments you would have made now that you're (slightly) older and (arguably) wiser, and live out that saudade for being a competitor by turning the act of judging into "what would I have argued." It's easy, but it's not good, and it takes the event away from the people who are actually competing in it. There's no such thing, in my view, as a debate where only one side is allowed to show up, and judges who functionally make that demand are toxic to the enterprise.

At the same time, the problem in debate of bad judges is an eternal one. And I have sympathy for the NSDA here, because it's actually a really difficult problem to regulate. It's unfeasible for the NSDA at a national level to actually police the judging styles and capacities of hundreds if not thousands of judges at tournaments across the country (which is one reason why the norm has shifted to disclosure -- we can't control if your judge is good, but you can at least know what their paradigm is). And for obvious reasons, the NSDA does not want to open the door to ad hoc challenges of particular judging decisions on general claims of "unfairness" -- that way lies anarchy (particularly when you're dealing with debaters, who always can come up with reasons why their losses are unfair!). In reality, much like Supreme Court ethics rules, there's probably not much that the NSDA can do other than vaguely promote norms of fairness and hope for the best.

Indeed, in many ways the problem with debate judges is not so different than the problem with Article III judges. There's little that's more frustrating than the sense that the judge in front of you has rigid ideological commitments that will prevent them from fairly assessing your arguments no matter what you do. That frustration is multiplied by the fact that, if they do act in that abusive fashion, there's little in the way of recourse -- we can't get rid of bad, biased Article III judges and, practically speaking, we can't get rid of bad, biased debate judges. The same mechanisms that ensure an independent judiciary and facilitate the orderly administration of justice by not allowing every unpopular decision to be second-guessed also provide a near-impenetrable suit of armor for hacks and incompetents alike if they do manage to get through the door. That is, to reiterate, insanely frustrating. But there's no straightforward resolution to it.

The reality is that the political demographics of both the most common participants in debate (publicly-engaged 14-18 year olds) and the most common judges of those debates (publicly-engaged 18-24 year olds) means that debate will almost inevitably slant to the left. Again, that's not something that can easily be fixed short of manually changing people's political opinions. We hold our opinions because we're persuaded by them; so it's inevitable that the arguments we tend to find persuasive are more likely to be the one's resonant with our opinions. That tendency can be checked, but it probably can't be overcome entirely. 

But to some extent, the focus on "liberal" versus "conservative" ideas in high school debate to my mind reflects a fundamental misunderstanding of what debate is -- and overlooks one of its most valuable features. 

It's natural for an outsider to think that high school debate, insofar as it touches on politically salient issues, naturally divides itself into contemporary liberal and conservative divides. If the topic is a resolution on, say, foreign aid, one participant will lay out roughly what you might hear on the subject from a Democratic Senator, the other, from a Republican House member. But, at least when I was competing, this was rarely what happened. Debate tackled issues from a multitude of different perspectives and angles that rarely, if ever, neatly tracked contemporary partisan divisions. Despite the seeming binary imposed by pro/con, affirmative/negative, the lived reality of debate transcended these narrow divisions.

And this is a good thing. The purpose of debate is not to give competitors a working understanding of and fluency in what arguments are currently circulating in the halls of Congress. Debaters are not there to parrot the arguments that one most commonly hears on CNN or Fox News. The purpose of debate is to give competitors the tools to think creatively about their own arguments, to try to make those arguments as strong as possible, and to assess and defend them against any range of potential responses. It is perhaps a sad commentary on politics that a focus on strong arguments means that the resulting product will typically have little bearing on the actual contemporary disputes over liberal versus conservative politics. But that's how it goes. Moreover, it is entirely possible to have a productive, valuable debate round where both competitors basically accept liberal, or conservative, or Marxist priors and then argue "what's the best way of doing X from within that framework?" That sort of debate also teaches people how to critically assess and defend positions, just as effectively as debate rounds that more expressly cut across classic ideological paradigms. It is far too narrow, and constrains the vision of young debaters, to try to limit them to thinking purely within the well-worn grooves of American party politics.

And that brings me, in conclusion, to some of Kristen's comments. Kristen admits that, in contrast to Fishback's presentation, it does not seem like (in her recent experience) conservative ideas have been locked out of high school debate. And even when it comes to the specific conservative bugaboo of the day -- DEI initiatives -- much of the content the NSDA is promoting is entirely reasonable and salutary. Kristen remembers judges criticizing her and other female competitors for their "shrill" or "squeaky" voices; I remember a major tournament official repeatedly and openly -- as in, when making public announcements of awards -- engaging in homophobic taunting of one of my friends (he would repeatedly mispronounce the name of the student -- who was a regular top-tier competitor and absolutely known to the organizer -- so one of the syllables in his name was spoken as "gay", when the syllable in question was pronounced "guy"). If those sorts of practices are being arrested, it's all for the better.

But Kristen is concerned about some of the things that are listed as potential examples of DEI-related debate topics (inside the NSDA website's section on inclusivity). To be clear, it seems evident that the NSDA is suggesting that tournaments include some of these topics as part of the tournament's overall package, not to exclusively draw from them. But within this subcategory, Kristen thinks that the questions possess a liberal slant -- a problem even if (as is naturally the case in a debate context) people will inevitably be encouraged to take both "pro" and "con" positions.

Reading these topics, I understand why they're thought to be coded as liberal. At the same time, for at least a good quotient of them, it makes me sad that they are coded as liberal. Consider the question "Why are there so few startups founders who identify as women in the United States?" On the one hand, I get why this question seems to be "liberal". On the other hand, why is this question coded as liberal? Can it really be the case that conservatives don't have thoughts on this matter -- or at least thoughts they're not embarassed to share? When did conservatives decide that the only thought a conservative is permitted to think on this sort of question is "don't ask it"?

The students who answer this sort of question are not, overwhelmingly, thinking in terms of "how do I slot this in to a liberal or conservative ideological frame." They're going to be thinking practically about what sorts of factors or conditions lead to disproportionately fewer women founding startups. The reason why this codes as liberal, though, is that the very act of thinking through a question like that with any degree of seriousness (i.e., not just smirking "it's because women are for making babies!") has been coded as something that only liberals do. That, to my mind, is tragic -- but that's not a DEI problem or a NSDA problem, that's a conservative problem. Conservatives absolutely should have thoughts on why there are relatively few women founding startups. They also should have thoughts on questions like "How can the federal government do more to promote Latino/a/x entrepreneurship?" and "How can the US government increase participation rates of gender minorities in STEM fields?" These are important social problems which all of us should be tackling. Perhaps those thoughts will be radically different than what liberals have to say. Perhaps they'll be surprisingly resonant (think about cross-ideological coalitions forming around YIMBY zoning reform, or relaxing occupational licensing requirements). But to the extent that even trying to work through "how can we increase the representation of underrepresented minorities" is viewed as an inherently liberal endeavor; well, I think that's a tragedy.

More broadly: the point, again, of high school debate is not to give teenagers the opportunity to parrot the shibboleths of Democratic or Republican talking heads, and so high school debate does not fail when it forces a student to develop thoughts on a question that Democratic or Republican talking heads don't have thoughts on. So ultimately, I think it's a mistake -- and not reflective of high school debate as I remember it -- to ask whether or not students are presenting "liberal" or "conservative" views on a given question. Overwhelmingly, that entire framework is a projection by adults; it is not the approach taken by the competitors, nor should it be. Institutionally-speaking, debate should be about prompting students to think about interesting questions. The answers we get rarely will fully map on to contemporary political factions -- and that's a very good thing.

Friday, May 26, 2023

Being Perpetually at the Mercy of the Arbitrary Negligence of the State is a Punishment

At the moment, we're seeing two somewhat orthogonal trends developing in conservative legal jurisprudence, both lawless, but in distinctive ways.

The first is an increasing indifference to textualism -- being perfectly happy to manipulate or flatly ignore statutory or constitutional language in order to achieve desired results. Yesterday's Clean Water Act ruling, where the Court held 5-4 that "adjacent" doesn't mean "adjacent" because, well, they don't want it to, is a prominent example. The "major questions" doctrine is another, including the invalidation of OSHA's COVID vaccine-or-test mandate despite the fact that it fell cleanly into the clear statutory language, is another. The Court's recent voting rights jurisprudence, featuring Shelby County's entirely-invented "equal sovereignty of the states" rule, is another. The Court's recent Second Amendment jurisprudence, which has functionally decided the first half of the Second Amendment's text may as well not exist, is a yet another.

The second, by contrast, is a sort of hyper-literal textualism that zooms in so tightly on individual words that it ends up blitzing past how people actually read texts. The opinion striking down mask mandates on planes is one example here; some of the opinions striking down the eviction moratorium fit as well. Though styled as "textualism", this sort of analysis really is a dangerous confluence of putative textualists being bad at reading texts.

Slotting into the latter category is a concurring opinion by 11th Circuit Judge Kevin Newsom in Wade v. McDade, arguing that the Eighth Amendment does not forbid any level of "negligent" treatment of prisoners by prison staff --  not negligent, not gross negligence, not even criminal recklessness.  Judge Newsom's argument is deceptively simple: the Eighth Amendment forbids cruel and unusual punishments. But a punishment, he says, can by definition only be imposed intentionally. There's no such thing as a non-intentional punishment. And negligence, in all of its species, is something less than intentional. Hence:

The undeniable linguistic fact that the term “punishment” entails an intentionality element would seem to preclude any legal standard that imposes Eighth Amendment liability for unintentional conduct, no matter how negligent—whether it be only “mere[ly]” so or even “gross[ly]” so.... So on a plain reading, the Cruel and Unusual Punishments Clause applies only to penalties that are imposed intentionally and purposefully.

At one level, I appreciate Judge Newsom for saying the quiet part out loud here, because normally I'd spend time pointing out that Judge Newsom's position would warrant even the most grotesque acts of wanton disregard for the lives and wellbeing of prisoners. But Judge Newsom is quite happy to endorse (further) converting our prison system into a miniature gulag archipelago, so I guess I can skip that part and move to the textual question: is Judge Newsom's interpretation an "undeniable" inference from the term "punishment"?

And the answer, I think, is clearly "no".

At the outset of his opinion, Judge Newsom analogizes the negligent treatment of prisoners to that of parents and children: "Just as a parent can’t accidently punish his or her child, a prison official can’t accidentally—or even recklessly—'punish[]' an inmate." But in law, "accidental" and "intentional" are not an exhaustive binary. The whole purpose of the negligence and recklessness categories is to account for cases that lie between the pure accident and the specifically envisioned and desired consequence. And that makes sense, because while law contains different levels of "intent", legal fact patterns nearly always blend several of them together. 

Take a case where a speeding driver strikes a pedestrian with his car. Did the driver act "intentionally"? On one level, he was likely intentionally speeding (his foot wasn't literally glued to the gas pedal). On another level, he likely did not intend to hit the pedestrian (he did not seek to mow him down). Negligence captures the interstitial position where the driver intentionally acted in a fashion which foreseeably placed the pedestrian in danger (even if converting the danger into reality was not the driver's motivation). In this, negligence is very different from the pure accident not because it lacks intention, but precisely because of its intentionality.

Swap back to punishment. Imagine a more pre-modern society where we outsource punishment to private actors. I catch you stealing tools from my garage. As a consequence, I strip you of your clothes, take all the possessions you have on you (to make sure you have nothing you could attack me with), and drop you off in the middle of the woods without food or water which I can't be bothered to acquire for you, safely away from my house. You tell me "my pills are in my bag; if I don't take them each evening I might die!" I say "I don't care if you live or die. Oh, and watch out for the forest-dwellers -- they aren't always friendly." You do, in fact, have a seizure overnight and die. Are the actions I took "punishing" you?

Plainly, it seems the answer is yes. And this is so even if I genuinely was apathetic to whether you lived or died. Like the driver striking the pedestrian, my conduct is a mix of the purely intentional (I took your possessions, I dropped you off in the woods) and negligent/reckless (I do not care whether you have a stroke, I do not care if the forest-dwellers attack you). Being intentionally placed in a position where one's custodians do not care whether you live or die is obviously a punishment. Indeed, the fact that it's a "punishment" is the only thing that distinguishes it from pure sadism, abuse, or kidnapping. The fact that the seizure was not specifically intended doesn't change the fact that what happened to you in no way could be described as an "accident". It was the result of intentional actions, and the reason I acted in the way that I did -- with reckless disregard for your life or safety -- was very much tied to my desire to punish you.

In most prison litigation cases, there is similar "intent". The failure to, e.g., give a prisoner necessary medication isn't a wholly-accidental whoopsie-doodle (and if it is, then there isn't even negligence). It is an intentional choice. Indeed, a large part of what prison is, and what makes it such a terrifying prospect, is that it is a place the state sends you where the people who have control of your life do not and perhaps need not care if you live or die. Everything about that is intentional. Or put another way, the pervasive, heartless lack of intention is the intention -- being placed in such a situation is entirely the product of intentional choices at every step of the process.

There's a lot to dislike about the "deliberate indifference" standard which has taken over prison abuse litigation, but one thing it gets right is that indifference is absolutely a choice, not an accident. To fail to treat a person in your custody with requisite care is a choice, and it doesn't stop being a choice just because its foreseeable consequences were not expressly desired.

So what makes Judge Newsom go astray here? He seems to think we should chop up "punishment" into each potential negative experience one might have in prison. Being locked up, and being restricted from the yard, and being deprived of medication, and being placed in solitary, and being put into a cellblock with white supremacists liable to stab you -- each of these are separate (potential) "punishments" whose status as a "punishment" must be assessed atomistically. But this approach defies common sense. When someone is sentenced to prison for a crime, we don't think of it as a loose cluster of twenty or so discrete "punishments". It's one punishment. The punishment is being a prisoner and being subjected to the prison experience. Everything that happens in prison is part of the overall context of being punished. There is no need to parcel out individual moments and ask "but is this particular action a separate punishment", any more than we need to ask whether swinging bats in the on-deck circle or jogging out into the outfield is part of "playing a baseball game." It's all part of the game, and the hyper-zoomed-in focus on each discrete moment misses the forest for the trees.

In other words, while it may be true that something must be a "punishment" to fall under the auspices of the Eighth Amendment, all prisoners by definition are being punished. They pass that threshold categorically; none of them have been placed in jail by accident. At that point, the relevant question is whether the set of challenged actions or behaviors or what have you suffices to make that punishment into a "cruel and unusual" one. And certainly, being put in an Arkham City terrordome should qualify even (especially!) if the overseers assiduously do not care if you live or die. Perpetual, ongoing, systematic negligence (to say nothing of recklessness) towards persons who are helpless and in your care is one of the cruelest acts imaginable. Where that is part of the punishment, the punishment is cruel and unusual.

Judge Newsom concludes his opinion with the following:

Maybe it makes sense to hold prison officials liable for negligently or recklessly denying inmates appropriate medical care. Maybe not. But any such liability, should we choose to recognize it, must find a home somewhere other than the Eighth Amendment. We—by which I mean the courts generally—have been ignoring that provision’s text long enough. Whether we like it or not, the Cruel and Unusual Punishments Clause applies, as its moniker suggests, only to “punishments.” And whether we like it or not, “punishment[]” occurs only when a government official acts intentionally and with a specific purpose to discipline or deter.

This "whether we like or not" language is reminiscent of my Sadomasochistic Judging article. Judge Newsom seems to recognize the cruelty inherent in his position. But he leverages that cruelty into an argument for textual fidelity; the avoidance of cruelty is the hint that his colleagues have been led astray from the strictures of law. As I've demonstrated above, this isn't true; the text does not demand the cruelty Judge Newsom ascribes to it. But the pleasure of the pain of causing pain is too tempting to pass up. It's not good textualism that's motivating Judge Newsom. It's the ecstasy of bad textualism leading to bad results, whose badness is paradoxically metabolized as the purest and most faithful instantiation of textual loyalty.

Getting Out in Front on Antisemitism

A few weeks ago, when the New York City Council was debating a resolution combating antisemitism, we had a bit of awkwardness when various lefty groups (and a few lefty councilmembers) expressed concern about aligning themselves with the undeniably right-wing actors who were the primary movers behind the underlying campaign. Six councilmembers ultimately declined to vote for the resolution, resulting in some absolutely expected negative headlines and bad press as the right seized the opportunity that fell into their laps.

In response to that own-goal, I wrote the following:
Look: Brooke Goldstein is an undeniably toxic actor. I totally get why a progressive wouldn't want to touch anything she's within ten feet of. But here's the thing: you don't *have* to wait for her to draft an anti-antisemitism resolution. You can draft your own!
NYC progressives have nobody to blame but themselves that they let Goldstein get out in front of them. If you don't want to vote for "her" res, write and submit your own first. Who knows, maybe [Republican city councilwoman Inna] Vernikov will pale at associating with you and you can turn the screws on her a bit!

But if you aren't writing these resolutions and you aren't frontloading the fight against antisemitism, you can't get too chippy that other people fill in the gap you've left. It's a problem entirely of your own making. 

As the day of the Biden administration's big antisemitism action plan rollout comes to a close, doesn't it feel nice to be on the right side of that lesson?

The Biden administration didn't wait on antisemitism. It didn't hold back, it didn't stay quiet and do nothing until some Matt Gaetz style yahoo created a "plan to fight antisemitism" that they had to reject while awkwardly insisting that of course they oppose antisemitism but they just can't oppose it this way.

The Biden administration wrote their own plan, on their own initiative, in their own words. And what was the result?
An array of Jewish organizations from the left to the center-right echoed those sentiments in welcoming the plan with enthusiasm, marking a change from recent weeks in which they had been split over how the plan should define antisemitism. Still, a handful of right-wing groups blasted the strategy, saying that its chosen definition of antisemitism diluted the term.
The Jewish left seems happy. I've seen naught but praise from groups like the JDCA, J Street, JFREJ, and so on. The Jewish center seems happy. The ADL and AJC clearly are taking this as a win. The Conference is happy. Groups like JIMENA are thrilled that the document expressly acknowledges and represents Sephardic and Mizrahi Jews. A rapid consensus has already emerged across a broad swath of the American Jewish community that this document is an example of true allyship from the White House.

And the right? Well now it's their turn to feel uncomfortable. They're still trying to stomp their feet about Nexus getting 15 words of modest praise. They're awkwardly trying to figure out how handle MAGA darling Rep. Lauren Boebert (R-CO) calling the proposed campaign against antisemitism a means of "go[ing] after conservatives" and comparing it to Soviet repression. They're on their heels, reeling from the fact that the biggest national program to fight antisemitism is being conducted and they're struggling to even board the train.

Right now, the fight against antisemitism is a coalition of left and center, with the right bickering on the sidelines. It's not just a win for the Jews (though it is), it's a great political coup as well. And it's all because the Biden administration took the very simple step of getting out in front.

Learn that lesson, and learn it well.