Robert Natelson guest-blogging about leading framing-era thinker John Dickinson

I’m delighted to report that Robert Natelson, long a University of Montana law professor and now, following his retirement, senior fellow in constitutional jurisprudence at the Independence Institute, Heartland Institute and Montana Policy Institute, will be guest-blogging this week about John Dickinson — one of the most influential (though now largely forgotten) American political thinkers of the Revolutionary era. I much look forward to Natelson’s posts.

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Supreme Court agrees to review Microsoft Ireland warrant case

The Supreme Court has agreed to hear the Microsoft Ireland warrant case. As regular readers know, this is the case on whether Microsoft has to comply with a search warrant obtained in the United States that orders Microsoft to retrieve customer files Microsoft has stored in Ireland.

Of course, the court already has pending Carpenter v. United States, a constitutional case on whether the Fourth Amendment protects historical cell-site records. Between Carpenter and Microsoft, it’s shaping up to be a really big Supreme Court term for digital evidence collection.

It’s particularly notable that the court granted cert in both Carpenter and Microsoft without waiting for a circuit split. It’s typical for the justices to wait for lower courts to divide on an issue before they will step in. Relying on splits uses lower-court disagreement as a signal for the kind of difficult and important issues that the justices need to resolve. It’s dangerous to read too much into just two grants. But it’s plausible that the splitless grants in both Carpenter and Microsoft signal a recognition among the justices of the tremendous importance of digital evidence collection. Whatever the right answers are, the justices need to provide them.

As always, stay tuned.

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Finally, a court defends the national injunction

Last month, I criticized a national preliminary injunction awarded in a suit by the City of Chicago. (Chicago is suing to challenge grant conditions imposed by the Department of Justice, conditions that are part of the administration’s “sanctuary city” policy.) I noted that the district court offered only a single sentence of analysis about the injunction’s scope, and I suggested that the one-sentence analysis portended that the national injunction was becoming routine.

On Friday the district court offered a much more lengthy analysis of the question. The new opinion accompanies an order denying the DOJ’s motion for a stay of the nationwide application of the preliminary injunction.

The opinion is impressive for several reasons. One is that it rehearses all of the arguments that have been offered to date for the national injunction. Another is that for the first time a court endorsing such an injunction shows recognition of the counterarguments and the emerging literature criticizing the national injunction. (The critical articles cited are excellent work by Maureen Carroll and Michael T. Morley, as well as my own Multiple Chancellors: Reforming the National Injunction.) And the district court shows a commendable concern with national injunctions becoming ordinary remedies: “Nevertheless, issuing a nationwide injunction should not be a default approach. It is an extraordinary remedy that should be limited by the nature of the constitutional violation and subject to prudent use by the courts” (p. 13).

But the opinion is impressive for one more reason. It shows with utter clarity the logic of the national injunction. The court’s argument boils down to a simple proposition: If the extent of the violation is nationwide, the scope of the remedy should be nationwide. Once that proposition is accepted, the national injunction will have become the norm for all challenges to the validity of a federal statute, regulation, or order. Indeed, that there is no limit to this proposition is clear because of the justification given by the court: Its national injunction is required by the rule of law. In the court’s words, “The rule of law is undermined where a court holds that the Attorney General is likely engaging in legally unauthorized conduct, but nevertheless allows that conduct in other jurisdictions across the country” (p. 14).

The intuition behind this is understandable, and I consider it at length in my article. It is the “someone is wrong on the Internet” theory of the national injunction: “Something unconstitutional is happening somewhere.” We could have a legal system built on the premise that one district judge should try to determine the law for the entire country. But we don’t. We have a legal system where each court is supposed to decide the case and remedy the wrong of the parties. Then gradually, through appeals and precedent, the answer will be settled. But not right away, and not by the first court to decide a case.

Moreover, the court’s reasoning is inconsistent with the very existence of class actions for injunctive relief. Those class actions are based on the premise that the remedy for a class of plaintiffs is broader than the remedy for one plaintiff.

Here is part of the analysis in my article on the national injunction:

In our system of courts — both federal and state, and with the federal courts divided among circuits — the choice has been made to allow some disuniformity in the law. The only way to avoid it entirely is to have a single court for the United States. Failing that, the next closest thing would be to have lots of courts and allow whichever one took the case first to decide it for the nation. Once we are committed to seeking only eventual uniformity, then it is not a knock-out objection that the rule advanced here allows for disuniformity.

The question should be about the right moment to achieve uniformity — at what point should the uncertainty be liquidated, by what legal actor, and in what posture? With the question posed that way, it is impossible to think the best legal actor is a single district judge selected through forum shopping. Nor is the best posture a decision by the Supreme Court on a motion to stay the preliminary injunction issued by a district court selected thus. The better way to resolve the question is either through the unanimous alignment of lower courts or through disagreement among the lower courts followed by a series of decisions of the Supreme Court. In other words, the way to resolve legal questions for nonparties is through precedent, not through injunctions.

Later, in the conclusion to the article, I raise the choice between resolving legal questions “quickly, comprehensively, and with immediate finality” or resolving them “slowly, piecemeal, and with a resolution that was only eventually final”:

This choice is a deep problem that will never be solved. Each legal system can pick its poison, tending toward the vices of immediate, final resolution or the vices of slow, provisional resolution. In this regard, there is a sharp contrast between the English Chancery and the federal courts. A medieval Chancellor spoke on behalf of God and King; an early modern Chancellor spoke on behalf of conscience and King. These claims of epistemic certainty and political authority fit hand-in-ermine-lined-glove with the existence of a single Chancellor. But the authority of federal judges is different. Power in the American political system is pervasively divided — through federalism, through the separation of powers, and through the sprawling system of federal courts. A legal question is resolved through patience and the consideration of many minds. Which system is better, if starting from scratch, is a difficult question. The question of which system obtains in the United States is easy to answer: a fragmented, many-minds system. In a system like ours, there is no room for the national injunction.

The national injunction could be ended by the Supreme Court or Congress. It should be.

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Can grad students’ conversation about how gays could be executed in Muslim countries lead to discipline at American university?

Gay Star News reports on an accusation made by Alfred MacDonald, a philosophy graduate student at University of Texas at San Antonio (who has since moved to another university); see also this Bruce Bawer (PJMedia) post. MacDonald says he was involved in a conversation with a fellow graduate student that turned to religion:

The student MacDonald was talking to mentioned she was a Christian while her fiance was Muslim.

MacDonald responded by explaining he didn’t have a ‘high opinion of Islam’ because ‘there are Muslim countries where I could get executed.

‘I mentioned that I didn’t have anything against her fiance personally and that I was strictly talking about the religious beliefs themselves.

‘I took this to mean that she wanted to talk about our personal lives, so I mentioned my fiancee and our leanings and we talked about what restaurants she’s worked at….’

MacDonald was then called into the department chair’s office, where she told him that he could be subject to administrative discipline for this speech; he secretly recorded the conversation and put what he says is the audio online here and here (shortened version), and the transcript here. (Secretly recording a conversation to which you are party is legal in Texas, though in some other states it’s illegal without all parties’ knowledge or consent.) Some excerpts:

EVE BROWNING: It’s a confusing comment to me because Muslims do not all live in countries in which bisexuals are executed. Muslims live in the United States … Muslims live in France, Muslims live in every country in the world — it’s the fastest growing world religion.

ALFRED MACDONALD: Yeah, one of my good friends at the university is Muslim.

EVE BROWNING: And do you tell him that you object to his religion because there are places on earth where gay, lesbian and bisexual people are discriminated against, including your own country?

ALFRED MACDONALD: Well, “her.” And my verbiage was “killed” not “discriminated against.” I mean, Death penalty’s pretty severe.

EVE BROWNING: What does that have to do with her being engaged to a Muslim?

ALFRED MACDONALD: Nothing. I wasn’t talking about the engagement to the Muslim. I was talking about Islam in that particular moment.

EVE BROWNING: Well, let me just say that kind of thing is not going to be tolerated in our department. We’re not going to tolerate graduate students trying to make other graduate students feel terrible for [their] emotional attachments…. And, if you don’t understand why that is, I can explain fully, or I can refer you to the Behavior Intervention Team on our campus which consists of a counselor, faculty member, and person from student affairs who are trained on talking to people about what’s appropriate or what isn’t.

ALFRED MACDONALD: I just won’t bring anything up about Islam again. That’s pretty simple. Although I’m not sure what you mean by… so I’ve read the student handbook pretty th–well not pretty thoroughly, but I’ve read it at least twice, and what do you mean by “it won’t be tolerated?” Like I’ll be straight up prevented from registering? Or the team that you mention, the behavior intervention team, they’re going to do something or … what exactly is the penalty for breaking that assuming that I’m in some other situation where I say something that someone else finds offensive and you…

EVE BROWNING: We’d put it either before the behavior intervention team or the student conduct board and ask them to make a recommendation.

ALFRED MACDONALD: Ask them to make a recommendation? What does that mean?

EVE BROWNING: Whether they would refer you for counseling; whether they would recommend that you be academically dismissed; they would assess the damage. They would probably try to speak to the students who are complaining and the faculty that are complaining and make a recommendation. In any case …

ALFRED MACDONALD: And this is over … I thought that UTSA was a public university with first amendment protections? So I could be dismissed for stuff like that? Just …

EVE BROWNING: Making derogatory comments? Yes.

There is other material in the audio that suggests that MacDonald had had other friction with other faculty members in the past, so he might have been a difficult student in other ways — I can’t speak to that. I should also acknowledge that even implicitly faulting someone’s loved ones for their ideology will often lead to tension and is generally not the most effective way of dealing with such things. If someone told you that she’s marrying someone who was involved in the local Trump campaign, that’s probably not the best time to bring up how bad President Trump’s ideology is; you’re just not going to win converts that way.

Nonetheless, it seems to me that college and graduate school students have to be free to discuss such matters, including in ways that bear on the ideas believed by the other person’s friends and family (and even when prompted by mention of the friends and family), without the fear of administrative discipline for “making derogatory comments” or “mak[ing] other graduate students feel terrible for [their] emotional attachments.”

If I say that I’m a Scientologist or a conservative Christian or a Catholic or a Muslim or a Trump supporter or a Sanders supporter, or that my friends or family are that, classmates shouldn’t be punished for using that as occasion to criticize Scientology, conservative Christianity, Catholicism, Islam, Trumpism or Sandersism. (Perhaps if I’m repeatedly approaching them about a personal topic after they’ve told me to stop, the university might enforce that, but there’s no reason to think this was so here.) Indeed, a student should be free to speak to classmates about such matters in any department, but that’s especially clear in philosophy, which is supposed to be all about people trying to find difficult truths.

Nor do Browning’s remarks, at least those on this recording, reveal any clear limiting principles about what sorts of criticisms of Islam are permissible. Would MacDonald be in trouble for criticizing Islam in the future whenever the student with the Muslim fiancee is in earshot? What about criticizing Islam in a group in which he has reason to know some classmates are Muslim, or have Muslim family members? What if someone not only says that her fiancee is Muslim, but that she thinks it’s a lovely religion; does he have to remain silent, or can he point out that several countries that adhere to the religion would potentially criminally punish — or even execute — gays?

I emailed Browning to ask for her side of the story but haven’t heard back from her. Gay Star News reports that it also emailed her, and she declined to respond substantively, saying, “The number of threats I am receiving (due to threads the student has started on Reddit) makes this a subject I would not feel safe discussing even very generally.”

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Can we trust government to correct our cognitive biases?

Can these guys be trusted to correct our cognitive errors? President Barack Obama and Donald Trump meet in the Oval Office, Nov. 10, 2016. (Jabin Botsford/The Washington Post)

Economist Richard Thaler recently won the 2017 Nobel Prize in economics for his important work documenting widespread cognitive errors in human decision-making. All too often, people fail to act as rationally as conventional economic models assume, and at least some of those errors are systematic in nature. Such errors can lead to mistakes that greatly diminish our health, happiness, and welfare.

Thaler and many other behavioral economics scholars argue that government should intervene to protect people against their cognitive biases, by various forms of paternalistic policies. In the best-case scenario, government regulators can  “nudge” us into correcting our cognitive errors, thereby enhancing our welfare without significantly curtailing freedom.

But can we trust government to be less prone to cognitive error than the private-sector consumers whose mistakes we want to correct? If not, paternalistic policies might just replace one form of cognitive bias with another, perhaps even worse one. Unfortunately, a recent study suggests that politicians are prone to severe cognitive biases too – especially when they consider ideologically charged issues. Danish scholars Caspar Dahlmann and Niels Bjorn Petersen summarize their findings from a study of Danish politicians:

We conducted a survey of 954 Danish local politicians. In Denmark, local politicians make decisions over crucial services such as schools, day care, elder care and various social and health services. Depending on their ideological beliefs, some politicians think that public provision of these services is better than private provision. Others think just the opposite. We wanted to see how these beliefs affected the ways in which politicians interpreted evidence….

In our first test, we asked the politicians to evaluate parents’ satisfaction ratings for a public and a private school. We had deliberately set up the comparison so one school performed better than the other. We then divided the politicians into two groups. One group got the data — but without any information as to whether the school was public or private. The schools were just labeled “School A” and “School B.” The other group got the exact same data, but instead of “School A” and “School B,” the schools’ titles were “Public School” and “Private School.”

If politicians are influenced by their ideologies, we would expect that they would be able to interpret the information about “School B” and “School A” correctly. However, the other group would be influenced by their ideological beliefs about private versus public provision of welfare services in ways that might lead them to make mistakes….

This is exactly what we found. Most politicians interpreting data from “School A” and “School B” were perfectly capable of interpreting the information correctly. However, when they were asked to interpret data about a “Public School” and a “Private School” they often misinterpreted it, to make the evidence fit their desired conclusion.

Even when presented additional evidence to help them correct their mistakes, Dahlmann and Petersen found that the politicians tended to double down on their errors rather than admit they might have been wrong. And it’s worth noting that Denmark is often held up as a model of good government that other countries should imitate. If Danish politicians are prone to severe ideological bias in their interpretation of evidence, the same – or worse – is likely to be true of their counterparts in the United States and elsewhere.

Politicians aren’t just biased in their evaluation of political issues. Many of them are ignorant, as well. For example, famed political journalist Robert Kaiser found that most members of Congress know little about policy and “both know and care more about politics than about substance.” When Republican senators tried to push the Graham-Cassidy health care reform bill through Congress last month, few had much understanding of what was in the bill. One GOP lobbyist noted that “no one cares what the bill actually does.”

Given such widespread ignorance and bias, it is unlikely that we can count on politicians to correct our cognitive errors. To the contrary, giving them the power to try to do so will instead give free rein to the politicians’ own ignorance and bias.

But perhaps voters can incentivize politicians to evaluate evidence more carefully. They can screen out candidates who are biased and ill-informed, and elect knowledgeable and objective decision-makers. Sadly, that is unlikely to happen, because the voters themselves also suffer from massive political ignorance, often being unaware of even very basic facts about public policy. And like the Danish politicians in Dahlmann and Petersen’s study, voters also tend to be highly biased in their evaluation of evidence.

Significantly, both voters and politicians tend to be much more biased in evaluating evidence on political issues than similar evidence about other matters. The politicians surveyed by Dahlmann and Petersen had little difficulty in evaluating data on the performance of “School A” versus “School B,” but were highly biased in considering the performance of private schools as compared to public ones. The latter is a controversial political issue, while the former is not.

This is not a surprising result. Making rational decisions and keeping our biases under control often requires considerable effort. Voters have very little incentive to make such an effort on political issues because the chance that any one vote will make a difference to the outcome of an election is extraordinarily small. As a result, it is actually rational for them to be ignorant about most political issues and to make little or no attempt to evaluate political information in an unbiased way. By contrast, private sector decisions are more likely to make a difference. This creates stronger incentives to both acquire information and evaluate it objectively, though obviously few of us avoid bias completely. It is no accident that most people spend more time and effort seeking out and evaluating information when they decide what TV or smartphone to buy than when they decide who to vote for in a presidential election – or any other election.

Politicians arguably have stronger incentives to learn about politics than voters do. Their decisions on policy issues often do make a difference. But because the voters themselves are often ignorant and biased, they tend to tolerate – and even reward – policy ignorance among those they elect. Politicians have strong incentives to work on campaign skills, but relatively little incentive to become knowledgeable about policy. It is not surprising that most do far better on the former than the latter.

Far from working to correct voters’ ignorance and bias, politicians often try manipulate it to their advantage. Donald Trump is just an extreme case of a common phenomenon: a political leader who effectively capitalizes on voter ignorance, while being poorly informed about policy himself. More conventional politicians – including Trump’s predecessor Barack Obama – often use similar tactics, even if not quite to the same extent.

Some behavioral economics scholars – including Thaler’s frequent coauthor Cass Sunstein – argue that instead of relying on the normal democratic process to address cognitive bias, we should delegate more power to expert bureaucracies. Bureaucratic experts may be more knowledgeable than voters and elected officials.

But expert regulators have significant knowledge limitations of their own, and the ignorance and bias of voters and politicians often create perverse incentives for bureaucrats and exacerbate their shortcomings. Moreover, bureaucrats are far from free of cognitive biases of their own.

Critics have found evidence that some of the cognitive biases identified by behavioral economists are not as severe as is often claimed, or may even be artifacts of flawed experimental methods. Nonetheless, as Thaler and others have effectively shown, cognitive bias is often a genuine problem. Few if any people are as systematically rational as homo economicus or the Vulcans of Star Trek. But if we rely on government to try to fix our biases, we can easily end up exacerbating the very problem we set out to correct.

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‘I was fighting with temptation/ But I didn’t want to win’

I was just reminded a few minutes ago of the Leonard Cohen lines (“On The Level“),

I was fighting with temptation
But I didn’t want to win
A man like me don’t like to see
Temptation caving in

Of course, he was talking about forbidden love — in my case, it was (literally) a doughnut.

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