Author: paulhorwitz

Right off the bat, let me note my respect for the fact that Howard’s post below offers what kids today (at least, “today” according to Professorial Adjusted Time) call “props” to Lonely Island. After that, I have one major difficulty with the post.

I admit that I’m not sure what “free speech culture” is. I assume that, like “cancel culture,” “the radical left,” “and Christian nationalism,” it is a term that 1) at its core describes an actually existing view, group, or phenomenon, but 2) is subject to capacious definition and a wildly varying membership (it’s a “crowd,” as Howard says), and 3) inevitably becomes something of a mythical antagonist, an opponent in an endless act of jouska, which holds a host of foolish assumed views and takes a variety of dangerous predicted actions, and thus serves as an ideal foil. But I can’t say for sure. So I will refrain from weighing in on what is good or bad about “free speech culture” in general. I would imagine that, if it’s a culture, it is probably both good and bad but, above all, is indefinite, internally contested, and dynamic, not fixed, uniform, and frozen.

Even so, I think I can say with some assurance that the primary issue here is not substantive, but literary. Howard misunderstands the genre of the New York Times story he complains about (with the admittedly “snark[y]” but, even so, odd locution that the paper “required” its reporters to write it). That misapprehension colors all of his reactions to the story. Howard reads it as a “breathless” entry in the heroic genre, in which Jonathan Haidt plays the free speech hero and the students the dangerous villains.

This seems an obvious misreading. The headline I see in my version of the story is “N.Y.U. Students Object to Speaker Who Calls Their Generation Coddled.” I acknowledge that media publications these days engage in the odious practice of A/B-testing their headlines, so maybe Howard got a different one. But this version, at least, signals the literary genre to the reader right from the start. The story isn’t heroic; it’s comic. The writers aren’t even especially subtle about it. I mean, who but a comic writer would give the character of “NYU spokesman” the name of “Wiley Norvell?” Preston Sturges would have cast Rudy Vallee or Porter Hall in the part without a second’s thought. And who but a Sturgesesian comic figure named Wiley Norvell would describe Haidt as “one of the most consequential scholars of the 21st century?” That joke writes itself, on multiple levels.

Every character in the Times story plays the Fool, and the reporter-narrators, serving their own part within the conventions of the genre, sprinkle the piece with ironic grace notes. The students aren’t treated as especially threatening or villainous. They are portrayed as comic figures, simultaneously sweet, hot and bothered, earnest, and ridiculous. I thought that was apparent from the moment in the story when the students were first introduced as “deeply unsettle[d],” and then described as having to go research “Dr. Haidt’s writing and speeches” to decide why they’re deeply unsettled. That is classic comic structure: “This is an outrage!–and if you give me time to look into it, I’ll tell you why it’s an outrage!” It may not be the best Lubitsch I’ve ever heard. But it’s Lubitsch, all right.

The bit where the students insist in sententious tones on a commencement speaker who “more accurately reflect[s] the values and diversity of its graduates,” and then throw out Taylor Swift and David Boies as acceptable examples? Comedy. I mean, clearly. It’s actually pretty good comedy, in an acid-tipped, Billy Wilder-ish sort of vein. It provides a solid comic beat, but with an ironic sting in its tail: The billionaire influencer who conned the rubes into buying all of her albums twice, and the filthy rich lawyer who deployed high-tech PIs on behalf of Harvey Weinstein, are, in fact, reflective of the values and diversity of the typical NYU graduating class.

Holding a graduation ceremony at Yankee Stadium? Comedy. So, if you read it with the right cadence and throw in a little out-of-breath moment at the end, is this laundry-list passage from the letter of complaint: “Many students have reported feelings of disappointment, disgust, unenthusiasm, defeat, and embarrassment.” I could easily imagine Greta Gerwig delivering that line in her only tolerable movie, Whit Stillman’s Damsels in Distress.

That Haidt figures as a comic figure here is both self-evident–no one who has given multiple TED talks could ever be anything but comic–and cued by the reporters, who repeatedly refer to him as “Dr. Haidt.” A professor who is called “Doctor” is automatically a figure of ridicule, straight out of every academic satire. Being saddled by the Wiley Norvell character with the “most consequential scholar” label likewise marks Haidt as a comic target, inviting the reader to view both Norvell and the person he is describing as pompous and puffed up. That portrayal is driven home by Haidt’s use of the phrase “deeply humbled,” a classic contronym.

Worth noting, and wholly consistent with good comic writing, is that while the Times story ridicules everyone (except, of course, the authors themselves), it’s also not terribly unsympathetic to any of them. It recognizes that the seeming antagonists, the students and Haidt, are quickly overshadowed. They ultimately have a bit part in their own controversy. They start the ball rolling. But just about everything after that is all about the grown-ups: the fighting, the back-and-forth about Haidt, the obvious institutional nervousness and ass-covering, and, above all, the excuse it gives every adult with a keyboard–the Times reporters, the online hordes and Substackers, Ken White, Howard, and of course me–to exploit the whole thing, to hang our own preoccupations on it and ride it to glory. The underlying issues exist and are important. (To be more precise, they are every bit as important as college commencement addresses are, which I think is rather a matter of some doubt.) But the story itself is not so much about a free speech controversy as it is about how much everyone enjoys a good free speech controversy.

In the end, the story, rather brilliantly, spotlights two figures, one sympathetically and one with, at best, jaded admiration. NYU itself takes on the latter role. Picking Haidt as the commencement speaker is, in this place and time, a clever, strategic, and deeply cynical move. The administration surely watched the mishegoss at Michigan. And it’s surely constantly aware that it’s in the crosshairs of a regime whose motto is to let no opportunity for selective and excessive punishment go to waste. It must see the choice of Haidt–more or less liberal personally, describes himself as a centrist, codes positively with conservatives, currently focused on a no-devices campaign that scores high across the political and cultural map–as a masterstroke. He’s bold, but banal. He’s got something important and inoffensive to say. And he’s unlikely to foul his own nest. Academics, like golf caddies, spend a lot of time watching the action from just off to the side. We can surely offer up a measure of respect for NYU’s effort to navigate the ball between the sand trap on one side and the water trap on the other and land it squarely on the green. It turns out that the university would have been better off just agreeing to meet Dua Lipa’s fee. Still: one can appreciate the artistry of the attempt.

But the story reserves the zinger, the cherry on top, the Lubitsch touch–that NYU is making student speakers record their speeches in advance, so that it can put them on a screen during a commencement headlined by The No-Screens Guy–for a student. Again I say: comedy. If Howard had read the story according to the correct genre, I think he might have derived a somewhat different message from it. He would certainly have found it funnier.

(As an aside, I found Ken White’s quote odd. Students are, indeed, students. Their role is, in fact, to receive wisdom, subject to the obvious qualifications that professors are only wiser by virtue of their years, not because they are professors, and that a good education provides multiple structured opportunities to ask questions and raise disagreements. Their role in the institutional schema is not that of mere consumers or potted plants. But neither is it one of coequals. Their role is a subordinate one–and quite rightly so. That doesn’t mean they must always shut up and listen; it does, however, mean they must sometimes shut up and listen.)

A recent Washington Post story notes that Justice Gorsuch has a new children’s book on the Declaration of Independence, and that it joins a slew of children’s books published by Justice Sotomayor and one by Justice Jackson. Of course these are just part of the library of recent books that a number of the justices, including both Democratic and Republican appointees, have at least nominally authored and very profitably published.

I confess to a particular fascination with Justice Alito’s forthcoming book. Its subtitle and promo copy promises readers not a mere inspiring life story (bad as that is), nor an appropriately narrow focus on his office, but his “View[s]” on “Our Country”–on “faith, the nature of law, and American culture.” It seems to me punishment enough that we are already made to know the justices’ views on life, the universe, and everything when there is at least an ostensible official justification for it. That they should start inflicting their opinions on us with no good reason or any particular qualifications seems more like cruelty. It’s the kind of wanton behavior which, in the old days, constituted both the definition of the crime itself and the customary custodial sentence for committing it: a twice-weekly newspaper column. But tastes vary. Dozens of people eagerly followed the thoughts of Abe Rosenthal, after all.

Other modern judges and justices have navigated the world of books in different ways. I always found Rehnquist’s approach–to apply his dry wit and curiosity to histories of what he thought of as important but decidedly un-current Supreme Court issues–highly creditable. It wasn’t an alleged effort to “bring civic education” to anyone; it was more of a gentleman’s hobby, like painting or taking a mistress. I am likewise inclined to view as more than acceptable Justice Scalia’s extrajudicial writing, which was about current legal issues but focused on legal methodology rather than directly on matters of political or cultural controversy. As with Judge Posner’s writing, although to a far lesser degree, I’m also inclined to excuse Scalia’s books, despite my general reservations about extrajudicial writing, because they were interesting and readable, just as I tended to excuse Justice Breyer’s books because they were neither. What they all have in common, to their credit, is that they were narrower in their focus and stuck with topics within the limited range of their expertise. Above all, they were commendable because they could not fairly have been said to be aimed at a general public readership–A Matter for Interpretation was not the kind of thing you could hawk on the Today show–or to carry much hope for personal enrichment. Not so today.

The modern extrajudicial output of the Supreme Court strikes me as reviving an altogether different model. The model that Alito, Sotomayor, and the others are following reminds me less of Scalia and Rehnquist and much more of William O. Douglas.

Like the current crop of memoirs and unlike Scalia and Rehnquist’s books, Douglas “in his autobiographical writings and elsewhere presented his life to the public as exemplary.” Like the current writing justices, Douglas found the generous salary of a Supreme Court justice–just shy of $300,000 for associate justices, somewhere between four and five times the median income, although historical comparison is difficult because modern justices are more likely to have spouses who make substantial bank themselves–insufficient. He thus landed on a “financial treadmill” in which he “wrote book after book.” And Douglas, in his books as elsewhere, certainly was not shy about sharing his “Views” on life, culture, and politics.

In his classic review of a biography of Douglas, Richard Posner relates one problem with Douglas’s memoirs: their endless self-romanticization was accompanied by flagrant dishonesty and inaccuracy. I don’t think the current crop of memoirs lacks for self-romanticization. While I strongly doubt they are as dishonest, we should acknowledge that this is merely an assumption. Any final word awaits the fruits of careful investigation and the judgment of history. Lots of perfectly respectable people turn out to be minor or major fabulists. We should wait a couple of decades before concluding with any confidence that today’s crop of memoirs, book-length op-eds, and bagatelles for the toddler set is in fact either more truthful or, more generally, worthier than Go East, Young Man or Beyond the High Himalayas. (I can say already that Beyond the High Himalayas is worthier than any children’s book written, or “written,” by any justice. Most celebrity children’s books are gift-shop junk. The justices have no special expertise in writing for children. And given the level of generality at which a children’s book must be pitched, whatever subject-matter expertise they can bring to something like the Declaration of Independence or how to “shine” is irrelevant.) It is more likely that they will all be just as well-remembered as North From Malaya in the fullness of time. But it is passing strange that we live in a time of rampant, bipartisan William O. Douglas revivalism on the Supreme Court.

I have some thoughts on the leak discussions to add to Gerard’s brief and sober comment below. (My thoughts are just as sober–more sober than speculations about finding a hook for a bar complaint against a reporter, certainly–but just possibly not as brief.) In the meantime, something else, perhaps not so removed from that subject after all. At Jotwell, which remains the foremost blog for those seeking information about new and forthcoming legal scholarship, I have this Constitutional Law Section piece up today. It’s principally a discussion of Woodrow Hartzog and Jessica Silbey’s forthcoming article How AI Destroys Institutions. It also touches on a response to that article by (in a manner of speaking) Dean Andrew Perlman of Suffolk.

As I write at greater length, what’s especially valuable about Hartzog and Silbey’s piece is that its focus is not on the usual, often outdated claims about hallucinations and errors. Nor, for the most part, does it rely on faith-based assertions about the unique nature of human judgment and creativity. Instead, the authors focus on the features of civil society institutions–“the invisible but essential backbone of social life”–that they believe AI threatens. Institutions are purpose-driven. But that’s not the same thing as being crudely and immediately output-driven, with university A generating x number of educated students and y number of articles and patents, and church B generating z number of saved souls. They are social and processual things, “bundles of normative commitments and conventions” involving “assigned roles within a hierarchy of authority.” (It’s perhaps an unfair over-generalization, but it’s nice to see an emphasis from, again broadly speaking, the left side of the legal academic literature on the valuable and essential nature of hierarchy. It can’t be overemphasized just how important it is to any vision of working toward a just and harmonious world that we retain not just the ability to, inter alia, tell students to knock it off or they’ll be suspended, news-side reporters that they have no more right to input on what’s published on the op-ed page than the ad staff does, and White House staffers that their mass anonymous letters about Gaza are grounds for instant dismissal whether their views are right or wrong, but the active commitment to doing so. )

Nor are both internal and external legitimacy and trust a matter of successful or efficient outputs either. Rather, to quote from the jot, “The transmission and gradual adaptation of ‘knowledge and practices across generations of people’ cultivates a sense of commitment for those within the institution, and a sense of legitimacy for those who benefit from them.” These are the elements of civil society institutions that Hartzog and Silbey worry may be corroded by AI. Whether one agrees with all of their article or not–and “Perlman’s” response offers some valuable, if possibly ultimately orthogonal, critical points–their decision to focus “less on how AI is remaking everything, and more on what AI is remaking—or killing” is commendable.

I argue in the jot that the article should be seen as a useful contribution to discussion of the “institutional crisis” I’m always banging on about: “Looking at the longer-term corrosion of our civic institutions from the inside, and the decline of trust in them from the outside, would give us a better sense of the ways in which AI both emerges from and responds to these changes. The flattening of hierarchies and lack of commitment to institutional roles and rules that Hartzog and Silbey see as a consequence of AI certainly preexists it.” What the paper “does not and perhaps cannot answer is whether, in simultaneously overemphasizing the ‘autonomy’ of atomized and isolated individuals and undermining the authority and autonomy of institutions themselves, AI is simply expressing a preexisting general will. On this view, AI isn’t a match helping a dangerous minority to ‘burn it all down.’ It’s an accelerant, poured over a house that’s already on fire, in a world full of arsonists.”

Is this really a “constitutional law” jot? The article never mentions the Constitution, after all. My answer is “hell, yes.” Civil society institutions are literally constitutive of our constitutional order, for one thing. For another, they are an essential part of the way we respond to and guard against constitutionally dangerous actions taken by governmental bodies. More broadly still, a society whose “citizens”–and it’s not clear that this is really the right label for such individuals–have, perhaps in a way that is aided or supercharged by AI, lost any interest in or capacity to envision commitment, submission, hierarchy, rules and norms, trust, tradition, and sociality is no longer clearly a constitutional society: “No Constitution can sustain a society that has lost any interest in the very concept of being constituted.” And I do think both that this view has become much more widespread in the past decade or so, and that the tendency is as visible from people inside institutions as it is from people outside them.

Read the whole jot here, if you like. And be sure to check out the pieces by Hartzog & Silbey and “Perlman.”  

…who, in addition to the honor of being the most reliably enjoyable poster on this venerable blog, has been named as a 2026 Guggenheim Fellow. As they say in Indiana, mazel tov!

There have been several interesting conversations about legal scholarship in the past couple of days. They started on blogs, but I understand they have also generated 280 characters at a time of what, given that format, must surely be rich, thoughtful discussion elsewhere. Taken together, they raise some interesting questions. Although most of the posts are about scholarship in general, some of them focus on scholarship and AI, and AI arguably figures as a complicating factor in all of them. I hope to get around to all of them, but rather than try to do it all in one gulp, let me start with just one of those posts.

It comes from Larry Solum, whose post Wednesday at the Legal Theory Blog castigated social-media commentary on recent birthright citizenship scholarship for exhibiting “a very uncharitable attitude towards scholarship with which the poster disagree[s].” He continued:

My view of the role of Legal Theory Blog is premised on the idea that scholarship ought to be viewed as a search for truth and that scholarly debate should be civil and charitable. Attempts to shame or silence scholarship are always problematic and rarely justified. Statements to the effect that the author of a piece is insincere without any evidence should be condemned and have no place in responsible scholarship. What should matter is what Jürgen  Habermas called “the unforced force of the better argument.”

I mostly want to focus on sincerity here, but let me say first that I’m not sure why attempts to “shame” scholarship are “always problematic and rarely justified.” Maybe Larry means that the attempts are problematic because they’re rarely justified. Scholars often overestimate the strength of their criticisms and/or the weakness of their adversaries’ views, and the error rate makes shaming problematic as a practice. I sympathize. But surely there is plenty of bad scholarship in any academic field–bad in intent, bad in design, bad in execution. The direct and indirect harms of bad scholarship are numerous. It enables error to burrow in; it muddies the waters and raises search costs; cumulatively, it devalues good and bad scholarship alike. Not least, because those who do bad scholarship “well” can end up in influential positions, it entrenches and encourages the same bad moves, especially but not exclusively by junior scholars. I would have thought, therefore, that shaming bad scholarship is often problematic but frequently justified. To take one of many possible examples, American law reviews cite plenty of work taken from other fields. Yet neither American journals nor American law professors universally run citations through Retraction Watch. I would think shaming is in order, both because this failure is literally shameful and because the shame might lend support to better individual and collective practices.

I sympathize, too, with Larry’s assertion that calling an author insincere “without any evidence” is wrong and irresponsible. Or at least I mostly sympathize with it. The problem with such accusations isn’t that they’re always wrong, and I don’t read Larry to suggest otherwise. It’s that they are thrown around too casually, given our lack of access to others’ minds.

Accusations of insincerity often rely on the fallacious proposition that one can arrive at a reliable conclusion about someone else’s motives by reasoning logically from a small number of facts and (contestable) premises–e.g., “It’s so sloppily done, or the author is so new to the discussion, that it must be insincere, conspiratorial, etc.” That sort of argument can be described as relying on “evidence.” But it’s weak evidence, and most of the real work in such an accusation is done by the questionable inferences, not the actual evidence itself. Confident accusations of insincerity often ignore mixed motives, and they ignore the reality that people are often imperfectly aware of their own motives. In practice, accusers are often cynical about the motives of their adversaries, but credulous or silent about their own motives or those of writers with whom they agree. This does not make the accuser’s charge of insincerity wrong, but it may affect the accuracy of the general picture of the debate and its participants.

One defense of accusations of insincerity is that they provide an important part of the context for understanding a debate–about scholarship, about politics, or what have you. On this view, if a prim insistence on “civility” demands the exclusion of such charges, then it is effectively legitimating and benefiting bad-faith actors and distorting reality. Against this, and even if one ignores the value of civility as such, is the possibility that the number of errors, faulty reasoning, and corrosive habits that one avoids by barring weakly evidenced charges of insincerity outweighs the epistemic value of permitting those accusations. Some bad actors will get away with their insincerity. But the gains outweigh the costs.

That’s the position I ultimately take and one that I try, with epic levels of imperfection, to apply. Nevertheless, after reading Larry’s post, I find myself perversely doubting this position. Larry confines himself to criticizing charges of insincerity made “without any evidence,” while leaving well-founded accusations of insincerity on the table. My sense is that most people, wherever they come out on the norm that should apply to speculative accusations of insincerity, would agree that criticizing insincere legal scholarship when one has strong evidence for that criticism is at least fine and perhaps obligatory. But despite my own general view, I have to wonder: Why should we care about insincerity at all? A charge of insincerity clearly carries weight in the world. If it didn’t, we wouldn’t bother to make it–or to insist that one not make it without strong evidence. But why should it matter?

Following Habermas, Larry argues, against allowing casual charges of insincerity, that all that matters is “the unforced force of the better argument.” If that’s so, why exactly should we care if an argument is made insincerely, even when there is strong evidence of this? Whether an argument is insincere is wholly distinct from the question whether it has been made shoddily, badly, illogically, without convincing evidence, and so on. Full many an honest and sincere actor has written scholarship that fails all those tests. And surely some number of rotten, corrupt, self-serving, office- or profit-seeking, cause- or ideology-driven, mercenary, and otherwise shitty individuals have written excellent articles for bad motives and without an ounce of sincerity–for fun, or politics, or profit, or tenure (which is the same thing). Whatever the writer’s motives or true beliefs, such an article has the unforced force of the better argument. The argument is not better or worse because its author happens to believe it.

The mercenary, dishonest, insincere writer of a good argument may have written herself one step close to damnation, and the pure-hearted writer of a flawed argument may have written herself one step closer to heaven. Given those high stakes, our concern for the souls of others, and the fact that scholarship and writing are–like everything else–a moral enterprise, we should take that seriously, and maybe we should say so more often. But if our ultimate lodestar is the unforced force of the better argument, shouldn’t we assent to the persuasive argument of the damned writer and reject the flawed argument of the saved writer, and read both arguments as if the truth and persuasion of the work are all that counts and authorial sincerity is irrelevant? If a persuasive article is prefaced with a frank statement from the author that she has written the article because its argument will undermine the government’s position in the birthright citizenship case, or because it will be good for her career, or out of simple perversity, and that nothing that follows should be understood to state her own view, why should that matter if our considered conclusion is that she has given the better argument?

I appreciate that by focusing on the one phrase quoted by Larry, I’m ignoring a lot of relevant background context from Habermas–including, to quote Michael Froomkin, a “good faith commitment to honest [and “nonstrategic[ ]”] debate.” Perhaps those missing ingredients, which I am too ignorant to do justice to here, supply the answer to my question. If they do, I would have thought that we should be more willing to police the requirements of honesty and good faith, and thus less inclined to follow Larry’s restrictive rule concerning accusations of insincerity. Maybe the sheer quantity of American legal scholarship that openly or covertly fails the test of engaging in non-strategic debate makes the whole realm so non-ideal that we should treat American legal scholarship as a plague zone, a failed experiment in honest deliberation and debate. Maybe we would then see an individual’s adoption of a strong assumption against insincerity partly as an effort to model ideal deliberation, regardless of what others are actually doing, and partly as a dogged or desperate attempt to preserve one’s own soul in a sinful world. I find those possibilities interesting and admirable. But in either case, the approach would have little or nothing to do with the actual state of affairs.

The possibility and reality of AI-generated legal scholarship, it seems to me, heightens the question. Roughly put, I understand the position of advocates in this area to be that if the use of AI, in part or even in whole, to create scholarly work results in more and better scholarship, then the search for truth has been advanced and we should treat this as a positive good. To the extent that this is right, and that the AI engine itself has no motives to be sincere or insincere about, why should we care whether the originating “author” is sincere or not? Imagine that the human originator writes, in the (machine-generated) preface to an otherwise convincing article, that he asked the AI engine to find a missing argument in some existing body of literature, choose the side of that argument that is most likely to appeal to the largest number of likely readers (with a weighted emphasis on appealing to lateral hiring committees), and write the best possible version of that argument, which follows. Does the truth of that argument suffer from the multiple layers of lack of genuine feeling or belief that went into producing it? If that human generates one of these every week, sending them into the world out of what he happily admits are purely mercenary motives and with a general indifference to the positions taken, does his sincerity or insincerity matter at all?

I would like to think it does. But I’m not sure I can justify that belief. I might reject the whole enterprise on other grounds, even if it results in more and better scholarship produced more rapidly. There are good reasons to avoid lightly accusing others of insincerity, even if we are certain that some number of academic authors are in fact insincere. But the overarching question whether we should care about scholarly insincerity at all seems like a tougher question to me, and one that will increasingly have little to do with the actual quality of the scholarly work.

I wrote about it here yesterday. I have one genuine question. Before breaking into a full-on Crit-plus-integralism gallop, the piece defends a “basic tie-breaker rule” for HLS Federalist Society elections: “if Robert’s Rules of Order and the Elections Code failed to resolve a deadlock, the elections chair would appeal to natural law first principles to decide the controversy.” Somewhere along the way, after the nine paragraphs of criticism of Justice Gorsuch’s opinion in Bostock that one naturally expects to see in discussions of student group election procedures, it says:

It will be upon the future Election Chair to decide these issues, although a strong statutory command can be read for these, given the background literature in classical legal theory that provides meaning to the words that the “State exists to preserve freedom,” that the “separation of powers is central to the Constitution,” and that, “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”[26] 

Fine by me. I’m not sure how closely connected it is to the “how do we decide FedSoc election disputes” conundrum, or how the piece manages to proceed from here to an exhortation to learn from King Josiah and engage in a national purge. But, to quote a very wise man, “Forget it, he’s rolling.”

What does puzzle me a little, though, is that footnote:

Joseph Story, Commentaries on the Constitution of the United States, 131 (New Orleans: Quid Pro Books, 2013) (“The aim of every political constitution is, or ought to be, first, to obtain for rulers men, who possess most wisdom to discern, and most virtue to pursue, the common good of society; and, in the next place, to take the most effectual precautions for keeping them virtuous…”); Adrian Vermeule, Common Good Constitutionalism, 59 (Cambridge: Polity Press, 2022) (“In the classical theory, the ultimate genuinely common good of political life is the happiness or flourishing of the community, the well-ordered life in the polis”); Confucius, The Analects, trans. Simon Leys, 2.16 (“The Master said, ‘The gentleman [junzi] understands what is morally right. The petty man [xiaoren] understands what is profitable.’”); Justinian I, The Institutes of Justinian, trans. J.B. Moyle, 7 (Oxford: Clarendon Press, 1913) (“The precepts of the law are these: to live honestly, to injure no one, and to give every man his due.”); 1 Timothy 2:11–12 RSVCE (“Let a woman learn in silence with all submissiveness. I permit no woman to teach or to have authority over men; she is to keep silent.”).

Whether I agree or disagree–as it happens, I would be delighted if virtue and virtue ethics were far more prominent in thinking about constitutional law and politics, not least because of their ability to help us think through things like this and this and this, as well as this and this and, oh yeah, this–I can understand most of these citations. I can understand their relationship to, if not the actual subject of HLS FedSoc election tie-breakers, then all the other stuff the author gets around to discussing. But I am just plumb flummoxed by what significance the passage from 1 Timothy has here. Perhaps someone can enlighten me.

In one sense, this striking piece in The New Digest is an argument that 1) a strong attachment to the value of process and its legitimating role in the rule of law amounts to liberal fetishism; 2) procedure, to offer a tendentious description of the argument, is only good so far as it leads to the results you like; 3) conversely, it is wicked, and “not law,” if it leads to an act of statutory interpretation that requires a government body to “hire a gay man handling children.” (More accurately, that passage should read: “…if it results in government being statutorily prohibited from discriminatorily firing a gay man, albeit a gay man who’s a layperson and not a member of the clergy, who works in a non-child-handling capacity as coordinator of a juvenile court child welfare advocacy program and has helped it win national awards for its work, but who then has the temerity to openly, flagrantly, disgustingly play softball.”)

In another but, I would suggest, equally meaningful sense, the piece is a deployment of wide-ranging, centuries-spanning, “purge”-friendly argument and high-flown language–all in the service of a tussle about who gets to occupy a resume-enhancing position of negligible importance in a student group at an Ivy League law school. Universities, famously, are the place where the arguments are so fierce because the stakes are so small. The saying needs a second part: Ivy League universities are the place where fierce arguments about small stakes get extensive media coverage, and everyone involved in the spat publishes at least one op-ed about it.

It is both pleasing and unsurprising that both senses of the piece–the actual argument it makes, and the relationship of that argument to the actual stakes, which mostly have to do with internecine disputes over the distribution of status goods within the Ivy League–come together, with almost divinely ordered complementarity, in one clear conclusion: The spirit of Critical Legal Studies continues to flourish at Harvard Law School. It’s fitting that this piece appears in The New Digest, because I don’t think anyone currently teaching at Harvard has done more to keep the Crit spirit alive there than Prof. Vermeule.

Donald J. Trump–who most recently broke a streak lasting since Calvin Coolidge embarrassed himself in the same way in 1926, by getting a handpicked committee to agree to put his face on a coin–today issued an executive order purporting to enforce something else that is newly minted: “the policy of the United States that no college football game, specifically college football’s CFP or other postseason games, be broadcast in a manner that directly conflicts with the Army‑Navy Game.”  

A locution that pretends that statements issued by only one branch of the federal government are “the policy of the United States,” especially when the policy is strictly domestic in scope and more properly the province of the legislative branch, is disturbing. It is also, I fear, all too common. It’s a bad habit and one that predates Trump–although, as always, Trump takes our bad tendencies and wallows in them, like a pig in slop, until they’re different in kind as well as degree. Part of our return to sanity will entail Americans becoming more comfortable, not with using or rejecting the phrase “not my president” according to who is in office, but with treating all presidents as holders of an important but limited office that is not the United States incarnate. Its occupants are individuals who demand no awe or obeisance, who wield power but hold no greater share of sovereignty than any other citizen, and who should be spanked when they become naughty or arrogant. America will be a saner, safer, and more healthily democratic place when we reject the abomination of gold coins and fascistic banners bearing a living president, but also forgo the lesser (because unofficial) but still genuine democratic sin of papering the walls with Sheppard Fairey posters.

The executive order itself, as is often the case, is of course milder in fact than it is in Trump’s fantasies of one-man rule. It directs the Secretary of Commerce and the chair of the FCC to “coordinate” with various other players “with the goal of establishing an exclusive window for the Army-Navy Game, during which no other college football game is broadcast.” The problem with this is not simply that the policy is unnecessary. Nor is it simply the silliness of asserting that having to DVR a game because of a scheduling conflict, or to move one’s head two inches in a sports bar to behold a second screen, “detract[s] from a morale-building event of vital interest to the Department of War [sic]” in a way that demands intrusive presidential action. Nor, problem though it may be, is it simply that a president in a nation that is currently at (undeclared) war is so much a creature of impulse and solipsism that he cannot manage to concentrate on issues that actually, and urgently, are of vital interest to the national defense.

I would point to two additional problems. One is that the president is at best unclear about the fact that he has limited powers without Congress, that he must perforce issue limited and aspirational orders like this one, and that he really has no business at all dictating a national American culture, let alone one modeled after his own unspeakably vulgar and pedestrian tastes. (Bear in mind that we still face a possible successor regime under J.D. Vance that would like to do the same thing, only with more blasphemy prosecutions and vague citations to Salic law.) When his executive orders are more modest than his descriptions of them, it may have less to do with his congenital dishonesty, or with presidents’ customary love of exaggeration, and more to do with a genuine belief that his wishes are law, and that text and execution are mere details.

Take Trump’s speech today presenting the Commander in Chief Trophy to Navy, in which, among other divagations–as always, his tight 30-minute set left ample time for Trump to honor himself–he announced the new order. There’s no business about coordinating here: just a flat statement that “I’m going to sign an executive order to ensure that the second Saturday in December is preserved exclusively” for the Army-Navy game and that “nobody else is going to be allowed” to play football during that game. It’s nice, I suppose, that he adds that “if you don’t want to watch football, you don’t have to,” even if it undermines the justification for the policy itself. But “if you want to watch football, you’re only watching one game.”

I like college football, but how it’s scheduled is of little interest to me. It is important to me that Americans, who pretend to reject monarchism and to favor freedom of choice, are in the grips of a regime that wants a dictated national culture. And it matters too that the president, whose speech again brings up the dreaded autopen but whose acquaintance with what he actually signs seems to be mostly of the nodding variety, thinks he can dictate that and has done it through the order.

The second problem is that, given the nature of his regime, he’s not so wrong about that. His order does not depend on the notion that the CFP, NCAA, and “the playoffs’ broadcast and media rights partners” will happily “coordinate” around this issue and arrive at the answer he wants. It depends on the threat that they had better, if they know what’s good for them. More specifically in this case, it depends on his knowledge that FCC chairman Brendan Carr will gladly threaten licenses and mergers to “serve”–or, possibly, flatter and pacify–his president.

Months ago I wrote, and of course I was hardly the first, that the present regime resembles a “semi-organized criminal enterprise, albeit with two key differences: In a well-run mob, the capos are able men who have guts, and the don is capable of occasional dignity, foresight, and good taste.” In such a regime, enforcement officials don’t even get to aspire to the status of Roy Cohn. Carr–along with Pam Bondi and many others–gets to play one role and one only: he’s Luca Brasi.  

I’ve written here before to emphasize that focusing on unitary executive theory, especially with respect to the Trump regime, without discussing how that executive actually manages, is an incomplete if not silly approach. A century of study of corporate management seems to suggest that “the CEO needs to be able to fire subordinates” is hardly the end of wisdom on the topic. It certainly is not inconsistent with additional propositions, like “the CEO shouldn’t hire bad people for important jobs,” “the CEO shouldn’t keep people in important jobs if he thinks they’re bad at them,” and “before embarking on risky undertakings, the CEO should make sure he has competent and trusted people in place to manage those risks.” A theory that arrives at the very first proposition and then stops is not much of a theory. Unitary executive advocates should be writing a lot more about actual unitary-executive management practice, and a lot less about the most general and abstract elements of the theory.

And so to the news, which features yesterday’s resignation of the director of the National Counterintelligence Center, Joe Kent. Kent resigned loudly, with a letter blaming everyone but the president–well, not everyone, so much; mostly just the Jews– for starting the still-undeclared US-Iran War.

This is not, obviously, a brief for Kent or his views. Outside the far left-far right horseshoe, it did not take long for people to realize that whatever doubts they might harbor about the administration of the war did not magically make Kent any less unpalatable. Despite Kent’s twenty years of service in the military and military intelligence, there are good reasons to think that a guy who “has long had a penchant for conspiracy theories,” engaged in years of flirtation and heavy petting with white nationalists and Christian nationalists, and, oh yeah, says it’s all the Jews’ fault should not have been given a serious office in the first place.

What is more remarkable is that the person responsible for that appointment agrees. Donald J. Trump, who admittedly is a voluble but unreliable source on the management of the executive branch, said yesterday about Kent–one of the top officials responsible for the security of the American people–that “I always thought he was a nice guy but weak on security.” The administration then fed to a receptive Fox News reporter the assertions that Kent–who, you may recall, was a top official responsible for counterterrorism–was “a known leaker,” was “cut out of POTUS intelligence briefings months ago,” and “has not been part of any Iran planning discussions or briefings at all.” This led to a back-and-forth of competing leaks to the same reporter from the White House and the Office of the Director of National Intelligence. The White House said it had complained about Kent to DNI Tulsi Gabbard “several times before,” but without telling her to fire him; Gabbard’s office said she would have have fired him if asked, but no one did.

I bow to the wisdom of others with more expertise in this area. But my understanding is that traditionally, people you have “always” thought of as “weak on security” are viewed as bad choices for jobs in…security.

Other verities in that field are that it is bad to have no one in a top security job, although it’s also bad to have someone in that job who can’t manage to pass a polygraph. This is the state of affairs at DHS, itself currently a body without a head. Politico has for months followed the saga of the Cybersecurity and Infrastructure Security Agency, which went on for nine months with an interim chief, who was kept in place despite failing a polygraph and notwithstanding a tenure “so chaotic that it was hampering the agency’s core mission: protecting sensitive government networks from a crush of cyberattacks.”

Kent’s own immediate superior, Director of National Intelligence Tulsi Gabbard, who has presided over vast cuts to our national intelligence staffing, is of course so distrusted by the White House that she was kept out of the loop on planning for our Venezuelan operation, and had to fly to Georgia and indulge the president’s fondness for election conspiracies in an attempt to get back into his good graces. Not to speak of preadolescent sneaker enthusiast Kash Patel’s decision to fire a dozen members of the FBI’s counterintelligence team specifically tasked with monitoring threats from Iran, just days before the non-declaration of the US-Iran War. Presumably those electronic threats will now be countered by the FBI’s cool new UFC fighting moves. These are just a few examples of a security landscape marked by a host of risible appointments and “administration cuts at agencies handling counterterrorism.”

Kent’s is thus not just a simple good-riddance tale of the departure of a conspiracist official, of whom the current regime has no shortage. He is representative of a general staffing policy with respect to, inter alia, counterterrorism and cybersecurity: Get rid of a vast number of responsible officers, but make sure to appoint and retain, almost indefinitely, people you have “always” thought” are “weak on security.” Again, I leave it to the experts to opine on whether this is an approved strategy.

I don’t know whether Kent’s appointment was, in an immediate sense, Gabbard’s choice or Trump’s. The fact that he was serving under Gabbard makes it convenient for the White House now to effectively take a “what was she thinking” line on his tenure. And of course no president, whether their administration advocates a unitary executive or not, is intimately and immediately involved in every staffing decision, which necessarily involves plenty of delegation and political give and take. But what the unitary executive line helpfully makes clear is that all of these decisions–to appoint, to retain, to dismiss-are all ultimately the president’s. Joe Biden probably didn’t have a lot to do personally with hiring this person, but he rightly bore the brunt of political responsibility for that choice nonetheless. (In fairness, that oddball, Sam Brinton, was actually fired for being a thief–unlike, say, Tom Homan, another official tasked with domestic security in the current regime.) And the theory suggests that a chief executive who keeps in place a top security official who is “weak on security” either doesn’t much care about managing his own branch or doesn’t much care about counterterrorism and other key elements of domestic security. Which is it? Well, when asked why Trump would put someone he thought of as “weak on security” in a top security position, his press secretary replied, “The president gave Joe Kent a chance,” and repeated the “good guy” line, as if we’re currently holding eight-month tryouts for leading counterterrorism appointments. I think it’s safe to say the answer is: It’s both.

I would think that for unitary executive theorists, yesterday’s story, along with the others mentioned above, presents a windfall of opportunities for study and commentary. The least interesting question facing them will be whether Trump had the power to get rid of Kent. The interesting questions will be why he hired him, or Gabbard, or Patel or Noem or Miller, or a Defense Secretary colorfully described a few days ago as a “Brylcreem-addicted grandstanding dipsomaniac peacock”; why, despite all the creepy tweets about the sacred trust of keeping the Heimat safe written by the 19-year-old white nationalists who run the government’s social media feeds, he keeps these security officials in place even when he thinks they’re bad at their jobs; why he or his subordinates denude the government of people who are good at those jobs, despite the obvious importance of those tasks in a nation that goes to war every few minutes; and how, despite trumpeting the concept and importance of a unitary executive, he can keep discussing these choices as if they have nothing to do with him.

At present, the president is announcing that “numerous countries have told me they’re on the way” to assist the United States in keeping open the Strait of Hormuz, an important strategic front in the ongoing and unconstitutional US-Iran War. Of course, Donald J. Trump is a liar and a fabulist, and “numerous countries” is awfully close to a contronymic phrase like “many people are saying.” So his statement should probably be given the status of, say, a rumor passed on by a distant acquaintance with a reputation for dishonesty and signs of mental impairment. But no doubt there is some germ of truth to it. He did not name the countries. They do not appear to include Germany, Japan, Australia, and Italy, and nations that have been “noncommittal” so far include France, South Korea, and Britain.

Amusingly, the president did a certain amount of low-level whining about this, complaining that it showed a lack of loyalty and partnership. For example, he told the Financial Times, “The U.K. might be considered the number one ally, the longest serving et cetera and when I asked for them to come, they didn’t want to come.” And he pointed to the help the U.S. has given NATO, as well as to the obvious fact that these nations have a significant interest in keeping oil shipping flowing through the Strait.

I wonder why, exactly, these nations would possibly help the United States in this, risking their own people and resources. At least, why would they help unless they can screw the United States to the wall, taking it for everything they can get as a price of their help? More specifically, why should they do so if we adopt the perspective of our current regime and its understanding of foreign policy and international relations?

Recall that the basic formula that informs its understanding of this area is the one expressed by De Facto Acting President for Domestic Policy Stephen Miller: “You can talk all you want about international niceties and everything else, but we live in a world…that is governed by strength, that is governed by force, that is governed by power.” Friendships, principles, loyalties, alliances, history, debts of fairness–on Miller’s view, these are all irrelevant. From this perspective, the post-World War II perspective that there is value in stability and in sticking by one’s large and small allies is nonsense, a bunch of liberal idealist crap. In reality, as an admirer of this view has opined, our relationships with other nations “are not fixed in stone, but wax and wane based on present-day circumstances.” If Russia invades one of our allied countries, bombs its hospitals, and abducts its children, it is, “to be sure,” tragic, but that’s just how it goes. If a nation has helped us in the past but we then decline to help that nation as a matter of gratitude or reciprocity, concluding that it’s not in our interests, that’s not only not a bad thing; it’s “international law at its finest.”

Of course the European and other nations might choose to help in the Strait of Hormuz, not because of the fact–irrelevant, on the view above–that they have been helped by the U.S. in the past (that’s what waxing and waning means, after all), but because they conclude that the United States will punish them if they don’t. It’s a perfectly credible threat, given that the United States is now perfectly happy to threaten to withhold lifesaving HIV treatment to women and children in Zambia unless that country signs over more access to mineral deposits. (The other day, the president announced his intention to rededicate the country to God in May of this year. Perhaps the reason he’s waiting until May before asking the Lord to take renewed notice of us is that he wants to get the threatening of ailing women and children out of the way first.) But on any sensible application of the power-centered, spare-me-your-untermenschen-sentiments view that Miller enthusiastically trumpets, that is only one part of the calculus.

They will also consider that in Ukraine, the invasion of which is just one part of the general Russian threat to European interests, the U.S. is at best lukewarm and at most sympathetic or supine to Russia. They may also be mindful that in addition to its “why quibble and argue about who invaded who” attitude about Ukraine, the United States is currently trying to prop up the electorally vulnerable regime of Hungary’s Viktor Orban, who is substantially a Russan ally and who is personally so evil that he literally keeps human beings–like Gladden Pappin–as pets. Moreover, any additional forces the European nations sent to Iran to assist with the Hormuz operation would be potentially vulnerable to targeting assisted by Russia–assistance that is greeted with a shrug on Mr. Trump’s part. They may be leery of going to the mat for a nation that seems one golf course in the Urals away from selling Europe out to Russia altogether.

As for threats of a refusal to help NATO in the future, they will factor in the fact that refusal to help NATO in the future is already the official plan. Our policy already “ask[s]—demand[s], really—that Europe polices its own part of the world and, most importantly, pays for it itself.” They may therefore feel that a threat to withhold aid to NATO is in the nature of a mugger’s threat to shoot you twice. Those states will also be aware that despite its official lies to others suggesting that it no longer wishes to give other sovereign states “lectures on how to live and how to govern your own affairs,” its official policy, which was already being implemented well before the formal statement, is precisely to tell European states how to live and how to govern their own affairs, and to actively endorse and support right-wing, reactionary, nativist, racist, and let us by no means omit antisemitic, political parties and groups in Europe, well outside its own borders, Fidesz (“we do not want our own color… to be mixed with those of others”) being just one of many rods in the abhorrent fascist bundle the U.S. is actively encouraging in Europe.

Keeping all this in mind, they will further reflect that Trump is facing quickly approaching midterms in which, quite reasonably, he and/or his political allies lack confidence about their chances. Mindful of the economic costs to their own citizens, they will nonetheless also be aware that the economic cost of having a blocked Strait, both with respect to oil and with respect to the economy more generally, is equally or more politically damaging and embarrassing to Trump. And they will be aware that Russia and China are busily squeezing the United States from both sides while it fights the U.S.-Iran War. Given the Millerian view of power politics, which holds that there’s no point taking any useful lessons from the years 1945-2000 when you can just skim a bad translation of Thuycidides instead, and given the likelihood that they will have to defend themselves anyway, they can view with some equanimity the prospect of sitting back and watching as it happens. After all, if great power politics is all about the power and not at all about the greatness, and if Trump is at pains again and again to draw a moral equivalency between Putin’s Russia and the United States, they need not feel constrained to deal with the U.S. instead of the other two major actors. And while they will factor in Trump’s threats, they surely will also factor in his tendency, in the tough guy realm, to be a kind of Sir Robin with bone spurs.

It seems to me that on this view, one perfectly rational response for nations allied with the United States is to refuse to help Trump and the United States unless and until they can stick it to us for all they can take–every bribe, exaction, concession, removal of tariffs, and act of submission they can nail down. They can do so without any qualms or sense of guilt or lack of reciprocity, knowing that they are acting exactly as the United States thinks they should on a sound, liberal-sentiment-free view of foreign relations. They can do it without worrying about whether it diminishes American trust in those nations, since the “waxing and waning” view of those relationships makes trust meaningless and in any event, having watched the yo-yo-ing of tariffs, along with almost every other foreign and domestic policy, they have little reason to trust the consistency or capacity (or desire) to keep promises of the current regime.

Even a liberal believer in “international niceties” can be perfectly skeptical or cynical about appeals to values in the foreign policy arena; you can be an idealist without being a fool. But suppose those nations feel a pang concerning the possibility that without ramping up their commitment to assist in the U.S.-Iran War, innocent civilians in Iran and elsewhere, such as Israel, will die unnecessarily. On their own sentimental view, this may well be a bad thing. But on the Millerian view, as expressed by others, surely it is simply of the “to be sure, there will likely be tragic losses,” oh-well, let’s-move-on variety. On the Trumpian or Millerian view, there is no moral claim on them as nations to exert any effort to minimize the number of civilian deaths in Iran, Israel, or anywhere else. Deaths like that are mere eggs in the Millerian omelette.

Nor would they be much moved by the hope that with a little extra help, Iran’s regime might more quickly be replaced by a free and democratic state. For one thing, the U.S. has forsworn any interest in that sort of thing, especially in the Middle East. Beyond that, the indications so far in Venezuela, Iran, and Cuba–where Trump’s leading contender to wipe out the memory of Fidel Castro is…Raúl Guillermo Rodríguez Castro, scion of the Castro family and a veteran of the Cuban security services–are that current American policy doesn’t just not insist on replacing these regimes with free and democratic ones; it insists on actively not replacing them with free and democratic ones. The guy who says of Cuba, “I can do anything I want with it,” and whose description of the island suggests that he thinks the most poignant scene in The Godfather, Part II is the one with the gold phone is not a guy who’s especially enthusiastic about bringing democracy and alleviating suffering in Cuba–or Iran. Hell, he’s not enthusiastic about those things in the United States.

At least from the Trumpian view, in short, it would be entirely rational for European and other Western allies to tell Trump that if he wants ships to get safe passage through the Strait of Hormuz, he can damn well do it himself, unless he’s willing to knuckle under to a very long list of demands. Those demands would at least start with getting his grubby little fingers out of European politics and letting the neo-Nazi parties do their own electioneering, letting Orban twist in the wind and go down to defeat, zeroing out his absurd tariffs, signing a quitclaim to Greenland, and growing a backbone long enough to apply it to the Putin regime and its imperial ambitions in Ukraine and elsewhere.

As an American citizen who was born in Canada, I’m not sure how to feel about this. On the one hand, given that Canada is one of many formerly staunch friends and allies that have been abused and screwed again and again by this regime, generally with a strong stench of corruption hanging around it, it seems just and right to me that if these nations have him by the short hairs, they should yank as hard as possible. On the other, as an American, I ought first and foremost to have American interests at heart. (Of course, on the other other hand, only a moron thinks that American interests are served by taking a global wrecking ball to stability and prosperity.)

Then I think of the richest country in the world tying lifesaving HIV aid to mineral resources. And I think, “Yank harder.”

* A necessary note first. This post is about the first and last sections of law review articles, inspired by two recent articles I wanted to spotlight. I had the title in mind well before yesterday, when a discussion broke out about basic decency versus opportunistic trolling in judicial opinions, occasioned by the oh-so-clever use of the phrase “swinging dicks” in a dissent from denial of en banc review by Judge VanDyke. Allow me to hijack my own post for a while to address that opinion.

In my post’s title, “nuts” refers to the final part of the meal in the old saying. It doesn’t refer to testicles. No crude pun is intended. I’m happy to use frank language where it aids in communication and clears away bullshit (e.g., “dearly departed,” in an otherwise disparaging reference to a dead colleague, and “respectfully dissent,” in a dissent devoid of respect; both instances of bullshit appear in Judge VanDyke’s dissent). I welcome blunt and specific prose that provides clarity in place of fatuous bumper-sticker generalizations–such as the Twitteresque use of tired slogans like “woke regulators,” “woke judges,” and (following an extraneous comma) “woke ‘rights'” in the same dissent. But a cheap pun on “nuts?” Hardly.

It’s not so much that such a pun indicates an immature mind or the lack of a grown-up supervisor, although obviously it does. It’s more that I’m writing for the general public, albeit not in an ostensibly dignified official capacity. (If I were, it would be even more obvious that I ought not write in that fashion.) Also, to quote Judge Owens in his brief but apt rebuke in the same case, I am “better than this.” It’s not a high bar.

If I have occasion to discuss testicles, or penises, and think it important to be understood, I’ll use those words directly and omit crude juvenilia–unless, perhaps, I’m addressing myself to a teenage boy or chief executive. Any writer who thinks it’s impossible to write frankly and clearly for a non-presidential audience without engaging in crude sophomorics, and that any objection to this must be the product of “Victorian sensibilities,” needs another line of work. Incidentally, the historian Gertrude Himmelfarb spent a career defending the Victorian era and its mores from modern criticisms. Her work was celebrated in conservative intellectual circles. But then, VanDyke is no intellectual, and his trolling here is not written for actual conservatives. It’s an attempt to appeal to an anti-conservative movement that celebrates its own moral degradation and, like the current regime, thinks all communication should operate at the vulgar level of social media discourse.

Any argument that VanDyke was “telling it like it is,” or that disapproval of his dissent is a form of hypocritical blindness to the underlying dispute, or that his effort to shock and troll was a necessary element of “truth-telling,” or other such nonsense is frankly stupid. It’s stupid in the same way that categorical dismissals of civility and formality in writing are stupid. Even this accusation illustrates the point. “Stupid” is clear and blunt; writing that such arguments “are, I fear, misguided,” would be polite but obscure. But if I called them “retarded,” or added a crude pun or personal insult, that would merely add offense, not clarity and not “truth.”

VanDyke is, of course, fully aware that it is possible to express his view of the stakes without being deliberately crude or offensive, and he was aware of it even before Judge Lee’s dissent did just that. His Federalist Society bio states that he’s married with children. Would he treat it as a valuable act of “clarity” or “truth-telling” if FedSoc, to better establish that he’s a family man, added a description of the act of coitus–in accurate, enthusiastic, and crude detail? If it defended itself by saying it was just telling it like it is, would anyone take that seriously? Of course not. VanDyke didn’t lower himself because it was needed to call attention to a point. He did it to call attention to himself, perhaps for reasons of ambition; or because it was fun; or, maybe, because he just can’t help lowering himself. It’s hardly surprising that every one of his colleagues either condemned or disregarded him.

***

With that out of the way: This is a slightly belated post to commend a recent piece posted to SSRN. Happily, that delay allows me to be late to the party in commending two pieces posted to SSRN, which may profitably be read together. One deals with the opening sections of law review articles. The other critiques a standard closing section of law review articles.

With skill, economy, and a pleasant discursive tone, Samuel Bray’s Beginning a Law Review Article gives good advice on “what makes a good title, abstract, author note, table of contents, and introduction” to a law review article. “Good” is its lodestar, not “conventional” or “enticing to law review editors.”

In that sense, it is quietly normative and reformist. And so it should be. Articles editors, their gatekeeper status notwithstanding, are not the ultimate audience for law review articles, and those articles should not be written as if they are. Law professors, like other academics, are fond of invoking the importance of having freedom to research and write for non-mercenary purposes. They should not then proceed to write in a mercenary fashion. They should write sub specie aeternitatis, not sub specie Februarii. Tenured law professors like Bray do right to encourage this. Conversely, they do wrong when they advise or encourage junior colleagues to adopt a cunning or whorish frame of mind as writers–or when they adopt this approach themselves. That’s not prudence; it’s prison.

Bray’s advice is simple and sound. Don’t let the title dictate the content. Minimize the length of abstracts: the abstract is a summary note, not a three-page substitute (not least for professors) for reading the article itself. In the opening as in the rest of the article, avoid having “too much wind-up and not enough pitch.” Show rather than tell with respect to novelty. Moving beyond the scope of the title, he advises: Don’t let your background research and literature review swallow your piece. All good. I disagree with his counsel to “cultivate an absolute abhorrence” of tweedy Olympian titles, at least so long as the title still conveys the article’s topic; the modern academy could use more tweed. And I think he undersells the value, and sometimes the novelty, of taxonomical pieces. Those pieces are different from pieces that merely label or, more often, relabel something, generally to no meaningful end other than marketing. Those are common and he’s right to dismiss them. But there will always be disagreement on such matters.

Jocelyn Simonson and K. Sabeel Rahman, coincidentally, recently offered their thoughts on the later portions of law review articles. In The Part IV Problem in Legal Scholarship, they write critically about the habit of providing a final section (save for the vestigial conclusion): a “Part IV” that offers a proposed “fix” or “ending prescription.” It’s a nice bookend to Bray’s piece.

I’m sympathetic to Simonson and Rahman’s general criticism, although I’m ultimately closer to concurrence in the judgment only. I agree that one problem with the expectation that articles include a Part IV is the expectation itself, which either constrains the form or results in a Part IV that bears little relation to the rest of the article and its actual contributions. I agree with the related point that the “fix” section is often mismatched with the rest of the article, because it focuses on “feasible solutions that do not meet the scale or distinctiveness of the problems” the article outlines. The result is often ridiculous. And I agree, perhaps pace Bray, that authors should be more willing to omit such a section altogether and assert that the real “takeaway” of the paper lies in their elaboration of the issue, not a tacked-on fix.

I’m less sure about its overall spirit, which seems, to use the jargon of the day, to be animated by the concern that Part IV sections offer too many reformist prescriptions, too many “tweaks,” and not enough non-reformist reforms. As the old line goes, “You say that like it’s a bad thing.” Lawyers are good at tweaking! They’re not so good at “respond[ing] to…complex and structural phenomena,” or “deeper critiques of power, political economy, ideology and the like,” or “imagin[ing] alternative futures” or “remaking our world.” Why would they be? The authors acknowledge this, noting that sometimes “[the] legal scholar who describes or analyzes a problem is not going to be the source of the best solution.” And they acknowledge, albeit with a certain lack of enthusiasm, that some articles are well-fitted for a “conventional approach to prescriptions.” But they’re clearly on the side of imagination here.

It seems to me that quite often, a mismatch between an article’s ostensibly capacious and “imaginative” bulk and its narrow, technical prescriptions reveals an article that would be stronger if it were less “imaginative.” In some cases, it’s the narrow fix that’s smart and skillful, while the grandiose stuff is just mediocre, or a clumsy application of someone else’s jargon or discipline. Perhaps many of these articles would be better if the authors shed the scope, “everything’s systemic” talk, and panoramic “vision” of the first sections, along with much of their now-pointless length, and confined themselves to proposing small fixes for small problems. Maybe the mismatch shows that more legal scholars need to give up their pretenses of being visionary or of reimagining whole “structures,” and acknowledge that they do their best work as technicians. Conversely, maybe some authors, finding a mismatch in their article between a genuinely imaginative beginning and a weak Part IV, might conclude that their work actually does show real vision, but that it (or the author) belongs in another forum, or discipline.

Nor am I convinced by the authors’ claim that “[t]he Part IV problem is more pronounced than ever in our current moment,” which calls for broader and more capacious “reimaginings.” Perhaps it does–although, again, some of those reimaginings are bound to be mediocre and some of the more excellent work of that kind may really belong elsewhere. I have no quarrel with the claim about the importance of the current moment. But it’s possible that it calls for more fixers and technicians than it does ostensibly revolutionary rethinkers. When all your boats are sinking, it’s important to redesign them, and a lot of people will probably want to see themselves as brilliant boat designers. The pay’s better, for one thing. But you can probably give that task to just a few people. It might not even be a design problem in the first place! Meanwhile, you still urgently need a hell of a lot of people to bail water.

Disagreements aside, it’s a fun article and, as I said, even more fun as a bookend with Bray’s paper, which admittedly is very different in nature. One hopes we’ll see future articles dealing with Parts II and III and with conclusions.

Another item, if I may, for the working agenda of the Religious Liberty Commission. If there is some tongue-in-cheekiness in that, or a world-weary sense that that body might not be entirely eager to take on this item, there is also plenty of genuine disgust here, and a sense that there would be no shortage of agreement from most of the Commission’s members, in principle and in some cases in private, on the basic point. It has to do with two members of our House of Representatives and their fearless feckless elected leader, Speaker Mike Johnson, and with public and legal efforts to anthematize the Muslim religion. The members first.

No doubt Rep. Andy Ogles (R-Tenn) is in some measure stupid like a fox. But, first and foremost, he is stupid like a stupid person. Appropriately enough for someone with a BS, his public record is a running list of half-truths and lies. His greatest legislative hits include a proposal to amend the Constitution, tailored to allow Donald J. Trump but not Barack Obama to serve a third term as president, and a bill directing the Interior Secretary to deface Mount Rushmore.

He also hates Muslims.

This is unsurprising from an avowed Christian nationalist. Check out the Instagram post at the bottom of this post in which Ogles, or some equally gormless staffer, has ordered AI to kit him out in historically inaccurate cosplay-Crusader finery. (I don’t use Instagram and am ostentatiously disapproving of social media and its degrading effects on public discourse, but you take your evidence where you find it.) Ogles’s anti-Muslim bigotry was on full display this week, as he trumpeted to the public that “Muslims,” apparently including those Muslims who are as American as he is, “don’t belong in American society,” and that “pluralism is a lie.”

The race to the bottom is the fiercest race there is, and Rep. Randy Fine (R-Fla) was not about to be outdone by Ogles. Fine’s list of fancy credentials perhaps prejudices me into thinking, in my elitist way, that he’s so smart that both his cynical cunning and his genuine racism must be fully and completely of his own making. His is a fairly classic, almost Vancian, American tale of “get me the hell out of here” advancement. A childhood in the great American heartland of Kentucky led to service as a congressional page, then to Harvard (twice), McKinsey, a teaching fellowship at Harvard, and generally to “please, God, anywhere but the great American heartland of Kentucky.” As a state legislator in Florida, Fine was said, on good evidence, to have “used threats to pull or withhold state funding…to strike back at political rivals and retaliate over perceived slights,” a penchant so ingrained and so petty that his potential victims included the Special Olympics. You will no doubt be surprised to hear that Fine is a strong supporter of Donald J. Trump (Chairman for Life™, Board of Peace), the Michelangelo of the art of pettiness. (Also like Trump, Fine–who jumped directly from high school to his college in Boston-well-near-Boston–has an enthusiasm in martial matters that is unstained by actual military service.)

Fine is also a hater of Muslims, and this week he opined–via social media, naturally–that all Muslims should be deported. The fact that he spends a good deal of his time calling for various Muslim American citizens to be denaturalized and turfed out, and that he has, you know, said so explicitly, suggests he was not just referring to Muslim aliens, illegal or not, but to all Muslims in America. (Although “deport all specifically Muslim aliens” is also a despicable position.) This was something of a don’t-try-to-top-me-bro callback to another recent tweet by Fine. Displaying the sort of devastating wit that only two Harvard degrees can produce, Fine’s earlier tweet compared Muslims universally and unfavorably to dogs.

I note incidentally that while Ogles belongs to the Protestant (but in actuality increasingly pagan) wing of Christian nationalism (whose dominant notes these days generally sound in paganism), Fine is a devout Jew. So much for “pluralism is a lie!” (Surprisingly, for one who would later go on to support the building of no-bid-contracted American concentration camps, he has also accused other Jews of being “Judenrats.” )

This week Speaker Mike Johnson was asked about all of this. He showed both the political courage and the loyalty to the Constitution we have seen in all his recent dealings with the president on behalf of the legislative branch. He told the press that he had spoken with Ogles and Fine about “our tone and our message,” but then carefully and bizarrely pivoted:

“Look, there’s a lot of energy in the country, and a lot of popular sentiment, that the demand to impose Sharia law in America is a serious problem,” Johnson said at a news conference during the House GOP policy retreat at the Trump Doral resort. “That’s what animates me.”

Hence the title of this post, “Jews” and “Muslims” here being synonymous with “objects of government regulation and public officials’ invective who are identified and singled out solely by their religion, ethnicity, or any other impermissible category.” You may recall the frequently quoted line from Barnette that one’s right to freedom of religion “may not be submitted to vote” and “depend[s] on the outcome of no elections.” Contrast this with the Johnsonian rules of both constitutional fact-finding and constitutional law: Where religious practices are concerned, a problem, whether it exists in any meaningful sense or not, may be said to exist and to “animate” legislators and their actions where there is “a lot of energy” and “a lot of popular sentiment” to that effect. So: Watch your tone–but where minority religious practices are concerned, gauge the polls and then fire away.

That Ogles and Fine are not serious judges of whether a “serious problem” of policy exists may be seen from Fine’s publicly retailed fantasy that Zohran Mamdani–of whom I am no fan, not that it matters–is just itching to establish the Big Apple as the First American Caliphate. (Look, the guy opposes both gifted and talented programs and charter schools. You think he wants to start a bunch of madrasas? We should be so lucky.) That the nationwide make-all-of-America-Sharia movement is not a serious problem, outside of Twitter and Texas campaign literature, may be seen from, well, reality. That addressing the actually existing uses of Sharia, without also infringing or eliminating the use of things like religious arbitration by every other faith as well, is unconstitutional can be seen from the legal history of efforts to do just that. (Hence the presence of Jewish groups, among others, as amici in past Sharia-law litigation.) That neither the facts nor the law are subject to change because of “a lot of popular sentiment” is the lesson of Barnette, among other cases, as well as the lack of text indicating an “unless there’s ‘a lot of energy'” qualifier in the Bill of Rights.

Jews are not unfamiliar with the present direction of the polling, and the intensity of sentiment, with respect to antisemitism in the United States. We also know that “popular sentiment” is not the legal measure of religious freedom. With what I suppose is the exception of Rep. Fine, we’re downright glad about this, if for no other reason than that. I hope to G-d that’s not the only reason we’re glad, but it’s sure as hell one reason. Knowing those numbers, we join all other literate and sensible people in understanding that the Speaker’s response to his members’ flagrant bigotry–which they are eagerly seeking to enact in law–is not, shall we say, great for the Jews, or for any other religious minority. What these, if I may, members want may not be submitted to vote, notwithstanding the political competition, especially in Texas, to prefight the Great Make-Believe Second Battle of Hattin.

Johnson notwithstanding, plenty of people of all political stripes have more clearly condemned the remarks of these two bigots. Equally, plenty of people of all political stripes recognize the anti-Sharia drive as pure electoral garbage, a sled moving toward cheap electoral victory and driven over the backs of a religious minority. Given the educational mission of the Religious Liberty Commission, its official charge to “identify[ ] current threats to domestic religious liberty,” and its official belief, pace Rep. Ogles, in the value of “America’s peaceful religious pluralism,” this seems like both an easy and an urgent item for its agenda, notwithstanding any minor hiccups. The commissioners are even free, with my blessing, to describe it as a threat to American Muslims and their religious liberty that is also a threat to Jews and theirs. Because it is.

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