by Joseph Kimble
Several readers made thoughtful comments on my original post. They deserve equally thoughtful responses, which I’ll try to provide below.
The short references are to the two articles I cited in the original post, one in The Scribes Journal of Legal Writing and the other in the Wayne Law Review.
Most of the comments centered on the Wayne article about overrulings by the Michigan Supreme Court. (Reminder: the 81 overrulings by the Republican majority were 96.3% ideologically conservative.) Few readers addressed the evidence about Justice Scalia’s opinions in the Scribes article: 6 empirical studies (pp. 30–35) and 11 scholarly examinations (p. 35, note 96) that seriously militate against any claim that his textualism was nonideological, politically neutral, objective — the simple product of rule-of-law judging. How much evidence does it take to confirm what (in Prof. Dorf’s words) is “blindingly obvious” to anyone familiar with the tilt of those opinions?
Tuesday, December 05, 2017
Monday, December 04, 2017
Dialing the Shamelessness and Dishonesty Up to Eleven .. Twelve ... Thirteen ...
by Neil H. Buchanan
I am not the only observer who was surprised that the Republicans managed to get out of their own way and actually pass two versions of a relatively large change to the U.S. tax system. (What will happen as they try to agree on a final version is, of course, anyone's guess.) I was not, however, especially surprised by the added degrees of shamelessness and dishonesty that the Republicans were willing to bring to their effort.
After all, anyone who has been paying attention -- and who is not either a partisan Republican or a diehard believer that both parties are always equally to blame -- has seen this coming. Each time a big policy debate has erupted over the past generation, the Republicans have outdone themselves and degraded our political system in ways that were once unthinkable.
I am not the only observer who was surprised that the Republicans managed to get out of their own way and actually pass two versions of a relatively large change to the U.S. tax system. (What will happen as they try to agree on a final version is, of course, anyone's guess.) I was not, however, especially surprised by the added degrees of shamelessness and dishonesty that the Republicans were willing to bring to their effort.
After all, anyone who has been paying attention -- and who is not either a partisan Republican or a diehard believer that both parties are always equally to blame -- has seen this coming. Each time a big policy debate has erupted over the past generation, the Republicans have outdone themselves and degraded our political system in ways that were once unthinkable.
Friday, December 01, 2017
Capitalists Against Capitalism
by Neil H. Buchanan
I have no idea why it still surprises me, but I am always amazed when conservatives who present themselves as the brave defenders of capitalism inadvertently reveal that they have absolutely no idea what capitalism is or how it works. A serial offender is Donald Trump's budget director, Mick Mulvaney, who is now in the midst of a fight to take over the Consumer Financial Protection Bureau (CFPB).
As part of his public relations campaign, Mulvaney announced several days ago that Trump "wants me to get [the CFPB] back to the point where it can protect people without trampling on capitalism." This is more than a bit odd, because Mulvaney has made it clear that he never thought the CFPB was at the point where it was not trampling on capitalism, and he and Trump clearly want to destroy the agency, not bring it back to some golden age of capitalism-friendly consumer protection.
The big point that Trump and Mulvaney are making, after all, is that the agency that has aggressively enforced anti-fraud laws to the benefit of American citizens must be stopped because its efforts to force Wall Street banks to obey the law are an affront to capitalism itself. Notice that this is not even a statement that the underlying laws that the CFPB enforces are anti-capitalist (although I am sure that conservatives oppose those laws as well). Mulvaney and Trump apparently believe that forcing banks not to break the law is itself a problem.
This is what we might call the Dumb Guy's Version of Capitalism. A not-very-bright man hears that rich guys with lots of power say that they like capitalism and that they hate anything that limits their power, especially governments and labor unions. Therefore, anything that rich, powerful guys like must be what capitalism is, and everything they hate must be an assault on baseball, hot dogs, apple pie, and (especially) Chevrolet.
It just so happens that that is completely wrong. It was never true that what's good for General Motors is automatically good for America, and it is now even more important to understand the difference between being in favor of capitalism and being slavishly in favor of everything that business leaders say they want.
Importantly, this applies not just to the relatively small debate over the future of the CFPB but to every aspect of the Republicans' agenda. Trickle-down tax cuts, gutted environmental regulations, weakened consumer and worker protections might lead to record-setting stock prices, but they are bad for capitalism and bad for America.
I have no idea why it still surprises me, but I am always amazed when conservatives who present themselves as the brave defenders of capitalism inadvertently reveal that they have absolutely no idea what capitalism is or how it works. A serial offender is Donald Trump's budget director, Mick Mulvaney, who is now in the midst of a fight to take over the Consumer Financial Protection Bureau (CFPB).
As part of his public relations campaign, Mulvaney announced several days ago that Trump "wants me to get [the CFPB] back to the point where it can protect people without trampling on capitalism." This is more than a bit odd, because Mulvaney has made it clear that he never thought the CFPB was at the point where it was not trampling on capitalism, and he and Trump clearly want to destroy the agency, not bring it back to some golden age of capitalism-friendly consumer protection.
The big point that Trump and Mulvaney are making, after all, is that the agency that has aggressively enforced anti-fraud laws to the benefit of American citizens must be stopped because its efforts to force Wall Street banks to obey the law are an affront to capitalism itself. Notice that this is not even a statement that the underlying laws that the CFPB enforces are anti-capitalist (although I am sure that conservatives oppose those laws as well). Mulvaney and Trump apparently believe that forcing banks not to break the law is itself a problem.
This is what we might call the Dumb Guy's Version of Capitalism. A not-very-bright man hears that rich guys with lots of power say that they like capitalism and that they hate anything that limits their power, especially governments and labor unions. Therefore, anything that rich, powerful guys like must be what capitalism is, and everything they hate must be an assault on baseball, hot dogs, apple pie, and (especially) Chevrolet.
It just so happens that that is completely wrong. It was never true that what's good for General Motors is automatically good for America, and it is now even more important to understand the difference between being in favor of capitalism and being slavishly in favor of everything that business leaders say they want.
Importantly, this applies not just to the relatively small debate over the future of the CFPB but to every aspect of the Republicans' agenda. Trickle-down tax cuts, gutted environmental regulations, weakened consumer and worker protections might lead to record-setting stock prices, but they are bad for capitalism and bad for America.
Thursday, November 30, 2017
The Four Lies and a Truth at the Heart of O'Keefe's Failed WaPo Sting Attempt
by Michael Dorf
Right-wing provocateur James O'Keefe and his organization Project Veritas were in the news this week, but not in the way that he hoped. O'Keefe sent a woman to talk to Washington Post reporters falsely claiming to have had an abortion as a teenager after she was impregnated by Roy Moore. Presumably, O'Keefe hoped that the Post would run the story, whereupon he would reveal that it was false, and this would show that: (a) the Post has a liberal bias that leads it to cut corners when reporting negative news about conservatives; and therefore (b) prior WaPo reporting on Roy Moore's sordid sexual history is not credible. The Post foiled O'Keefe's plans by fact-checking the woman's story. When it did not check out, the Post did not run her false story, instead running the story of how O'Keefe tried to fool the Post.
There the episode might have ended were it not for the fact that O'Keefe and his acolytes do not just run stings against liberal targets. To use the language of a forthcoming article in the University of Pennsylvania Journal of Constitutional Law by Prof Sid Tarrow and me, they combine stings--undercover reporting aimed at exposing wrongdoing--with scams--misrepresentation of the results of the stings through selective editing. Thus, even after the Post revealed that it was onto him, O'Keefe released a deceptively edited video suggesting that the Post was really just trying to cover up some other form of wrongdoing. This too was revealed by the Post.
Even as Prof Tarrow and I deplore scams, we acknowledge that there should be some protection for stings. We agree with Profs Justin Marceau and Alan Chen, who argue in a recent Columbia Law Review article that the First Amendment ought to be construed to permit some deception by journalists (and others performing journalistic activities) to gain access to persons or property in order to discover matters of public concern. Protecting scammers like O'Keefe may be the cost of protecting real investigative journalism by honest journalists and activists.
Right-wing provocateur James O'Keefe and his organization Project Veritas were in the news this week, but not in the way that he hoped. O'Keefe sent a woman to talk to Washington Post reporters falsely claiming to have had an abortion as a teenager after she was impregnated by Roy Moore. Presumably, O'Keefe hoped that the Post would run the story, whereupon he would reveal that it was false, and this would show that: (a) the Post has a liberal bias that leads it to cut corners when reporting negative news about conservatives; and therefore (b) prior WaPo reporting on Roy Moore's sordid sexual history is not credible. The Post foiled O'Keefe's plans by fact-checking the woman's story. When it did not check out, the Post did not run her false story, instead running the story of how O'Keefe tried to fool the Post.
There the episode might have ended were it not for the fact that O'Keefe and his acolytes do not just run stings against liberal targets. To use the language of a forthcoming article in the University of Pennsylvania Journal of Constitutional Law by Prof Sid Tarrow and me, they combine stings--undercover reporting aimed at exposing wrongdoing--with scams--misrepresentation of the results of the stings through selective editing. Thus, even after the Post revealed that it was onto him, O'Keefe released a deceptively edited video suggesting that the Post was really just trying to cover up some other form of wrongdoing. This too was revealed by the Post.
Even as Prof Tarrow and I deplore scams, we acknowledge that there should be some protection for stings. We agree with Profs Justin Marceau and Alan Chen, who argue in a recent Columbia Law Review article that the First Amendment ought to be construed to permit some deception by journalists (and others performing journalistic activities) to gain access to persons or property in order to discover matters of public concern. Protecting scammers like O'Keefe may be the cost of protecting real investigative journalism by honest journalists and activists.
Wednesday, November 29, 2017
Why It's So Hard For The Senate To Purge Offenders
by Michael Dorf
My latest Verdict column explores the reasons for the difference in reaction time to sexual harassment, sexual assault, and other sexual misconduct in the private sector (thus far mostly Hollywood and the media) versus in government. I note that actors, directors, journalists, etc., have been meeting with swift termination, while elected officials have not been. I offer a couple of factors as key to the explanation of the disparity. First, polarization makes people likely to view both the seriousness and truthfulness of the allegations through a partisan lens. And second, even when people accept that "their guy" did the thing and it was bad, it is instrumentally rational to stick with your scoundrel if he will vote as you expect, rather than to jump ship in favor of an upstanding citizen of the rival party.
My latest Verdict column explores the reasons for the difference in reaction time to sexual harassment, sexual assault, and other sexual misconduct in the private sector (thus far mostly Hollywood and the media) versus in government. I note that actors, directors, journalists, etc., have been meeting with swift termination, while elected officials have not been. I offer a couple of factors as key to the explanation of the disparity. First, polarization makes people likely to view both the seriousness and truthfulness of the allegations through a partisan lens. And second, even when people accept that "their guy" did the thing and it was bad, it is instrumentally rational to stick with your scoundrel if he will vote as you expect, rather than to jump ship in favor of an upstanding citizen of the rival party.
Tuesday, November 28, 2017
How Should a Committed Originalist Decide Masterpiece Cakeshop?
By Eric Segall
Next Tuesday, the Supreme
Court will hear the case of the Colorado baker who refuses to allow his
products to be used in same-sex wedding ceremonies or celebrations. Colorado
courts found that his refusal violated a state law prohibiting vendors from discriminating
on the basis of sexual orientation. The baker, Jack Phillips, claims that the
Colorado law, as applied to him, violates the First Amendment’s speech and
religion clauses. This collision between anti-discrimination laws protecting
gays and lesbians on the one hand and opponents of same-sex marriage on
religious and free speech grounds on the other hand is the latest battle in the
national culture wars.
Justices Gorsuch and Thomas both claim to be committed originalists. Since it is likely the four liberals on the Court will rule in favor of Colorado, one more vote for the State should result in its victory. How
should a committed originalist decide this case?
Dementor ideas—and how to survive them
By William Hausdorff
The glimmers of hope from the most recent state and local
elections in Virginia and elsewhere paradoxically made me aware of how thick is
the cloud of gloom that had descended on many of us since the previous US national
election. This gloom that has made many
of us question, for the first time, the very resilience of the US political democracy.
In trying to cope with this, Masha Gessen drew on her previous
life in a gloomy environment
in an excellent essay:
…a decade and a half in
Putin’s Russia taught me something about living in an autocracy. I am familiar
with the ways in which it numbs the mind and drains the spirit.
In contrast, I have recently been pondering the Dementors described
by J.K. Rowling in her Harry Potter books:
Dementors are among
the foulest creatures that walk this earth. They infest the darkest, filthiest
places, they glory in decay and despair, they drain peace, hope, and happiness
out of the air around them... Get too near a Dementor and every good feeling,
every happy memory will be sucked out of you. If it can, the Dementor will feed
on you long enough to reduce you to something like itself... soulless and evil.
You will be left with nothing but the worst experiences of your life.
While it’s tempting to consider Trump the Dementor-in-Chief,
a simple thought experiment reveals he is not the sole source—if he were
removed from office tomorrow, even if a cause for great celebration, would the
gloom lift overnight? We would still
have white nationalism, Pence, the Tea Party Congress, etc. True dementors are much more insidious and
subtle.
Monday, November 27, 2017
Of Magic Asterisks, Time Bombs, and Other Republican Deceptions
by Neil H. Buchanan
The Republicans' attempt to sell their damaging and regressive tax plan is proceeding pretty much as one would expect. They are making unsupportable economic claims while endlessly repeating an up-is-down-freedom-is-slavery-everything-will-be-different-this-time big lie, claiming that their proposals are all about improving the lives of middle class people. This has become standard operating procedure for Republicans in the twenty-first century.
Although we have long since become accustomed to most of this, we must constantly remind ourselves that it is a very sad state of affairs when we find ourselves saying, "Sure, one of the two major political parties cannot make an honest case even for its most fervently held policy goal, but what are you gonna do?" Even so, at this point it would barely be worth writing yet another column on this topic if there were not some new aspect to the Republicans' relentless, pathological dishonesty.
And as it happens, there is something new going on in late 2017. The Republicans have openly embraced not only fantasy economic forecasting but fantasy political forecasting as well. They have decided to rest their political case on the assertion that the future tax increases for lower- and middle-class people that are necessarily built into their scheme will never happen, because today's Republicans just know that a future Congress will never let them happen.
This is even worse than it sounds. Indeed, it represents an effort by Republicans to ignore very recent evidence about how the political process can go off the rails. They are telling non-rich Americans to trust them, even though these same Republicans have shown no ability to predict their own future actions.
Remember the "sequester"? That was the set of future automatic spending cuts that were included in a 2011 spending bill but that supposedly would never happen, because we all knew (or thought we knew) that everyone would find them so unacceptable that they would be repealed before they ever happened. And then they happened.
Republicans apparently have conveniently forgotten all about that mess. To understand why that matters so much today, we first have to expose the latest clumsy sleight of hand that is embedded in the Republicans' current strategy.
The Republicans' attempt to sell their damaging and regressive tax plan is proceeding pretty much as one would expect. They are making unsupportable economic claims while endlessly repeating an up-is-down-freedom-is-slavery-everything-will-be-different-this-time big lie, claiming that their proposals are all about improving the lives of middle class people. This has become standard operating procedure for Republicans in the twenty-first century.
Although we have long since become accustomed to most of this, we must constantly remind ourselves that it is a very sad state of affairs when we find ourselves saying, "Sure, one of the two major political parties cannot make an honest case even for its most fervently held policy goal, but what are you gonna do?" Even so, at this point it would barely be worth writing yet another column on this topic if there were not some new aspect to the Republicans' relentless, pathological dishonesty.
And as it happens, there is something new going on in late 2017. The Republicans have openly embraced not only fantasy economic forecasting but fantasy political forecasting as well. They have decided to rest their political case on the assertion that the future tax increases for lower- and middle-class people that are necessarily built into their scheme will never happen, because today's Republicans just know that a future Congress will never let them happen.
This is even worse than it sounds. Indeed, it represents an effort by Republicans to ignore very recent evidence about how the political process can go off the rails. They are telling non-rich Americans to trust them, even though these same Republicans have shown no ability to predict their own future actions.
Remember the "sequester"? That was the set of future automatic spending cuts that were included in a 2011 spending bill but that supposedly would never happen, because we all knew (or thought we knew) that everyone would find them so unacceptable that they would be repealed before they ever happened. And then they happened.
Republicans apparently have conveniently forgotten all about that mess. To understand why that matters so much today, we first have to expose the latest clumsy sleight of hand that is embedded in the Republicans' current strategy.
Subscribe to:
Posts (Atom)
Posts
