Tom Cotton, the Gray Lady’s riot-act-reading bête noire, is back with an op-ed (but at NRO this time) in support of qualified immunity – the well-known judicial doctrine that protects state employees from being sued under a federal statute, 42 USC § 1983, when they violate someone’s rights. Let’s take a dive.

Qualified immunity is essential to effective and diligent policing. It shields good police officers from bankruptcy while still subjecting individual bad actors to personal financial repercussions.

No, QI doesn’t “shield police officers from bankruptcy.” Police officers in just about any jurisdiction in America are indemnified by their employers, meaning they don’t have to pay a cent even if they’re successfully sued for things they did on the job. All QI does is stop a certain kind of federal suit – which is already financially harmless to cops – from getting to the point where the injured party could recover at all for the harm done to them. Continue reading →

I hate Mark Rothko.

A few years ago, I was visiting the Tate Modern in London, a beautiful museum housed in a decommissioned 19th-century power station that thrusts into the sky like the Tower of Mordor. The effect was stark on that winter evening, and I felt a little overawed, but the weather was so blustery that I would’ve been happy to duck inside even if I hadn’t wanted to look at the art.

I soon discovered that the museum has a “Rothko Room,” meant to let the viewer appreciate the artist’s work in a setting close to the one he would’ve wanted. From the Tate website:

In the late 1950s, Rothko was commissioned to paint a series of murals for the fashionable Four Seasons restaurant, in the Seagram Building on Park Avenue, New York. […] However, the murals were darker in mood than his previous work. The bright and intense colours [sic – Britain] of his earlier paintings shifted to maroon, dark red and black. […] Recognising [sic – more Britain] that the worldly setting of a restaurant would not be the ideal location for such a work, Rothko withdrew from the commission. […] This installation includes all nine of the paintings owned by Tate. Perceived, as the artist intended, in reduced light and in a compact space, the subtlety of the layered surfaces slowly emerges, revealing their solemn and meditative character.

Continue reading →

When Cass Sunstein and Richard Thaler published Nudge in 2008, no less a classical liberal hero than George Will raved about the book. He immediately identified what made it special:

Thaler and Sunstein correctly assume that people are busy, their lives are increasingly complicated and they have neither time nor inclination nor, often, the ability to think through even all important choices, from health care plans to retirement options. Therefore the framing of choices matters.^[1] 

This is where the “nudge” comes in: subtle pressure by government that steers people in the direction of a better life. (Think mandatory nutritional information, or automatic enrollment in pension plans.) The emphasis is on framing choices, not denying them. Outright bans on behavior are blunt solutions. They don’t respect people’s autonomy, and make it so that the powers that be overwrite the preferences of individuals with their own idea of what makes for good living. Continue reading →

My (German) dad, who’s a lot smarter than I am, patiently puts up with my claim that not everything in American politics is currently as nightmarish as it seems from the outside. And it’s a fact that a lot of valuable work is done away from the headlines and the outrage.

But if all you had was a media’s-eye view of what’s happening in America, you’d likely have an extremely skewed idea of the state of the nation. From the outside looking in, the obsession of the press with Trumpian scandals and banal palace intrigue is nothing short of ridiculous. And then there’s the constant drumbeat of fear, the mad scramble for something to feel oppressed about, the sense of gloom and impending apocalypse that rules social media. Is it any wonder that if the commentary on America were all you had to go by, as is typically true of us Europeans, you’d conclude that the country was going to hell in a handbasket – as is typically true of us Europeans?

The truth, of course, is that the scandalmongering and outrage so common in the media poorly reflect the reality of life in the States. I speak from experience: Even in DC, if you are working and keep your head down, politics is hardly the dark all-enveloping cloud Twitter users treat it as. For the vast majority of us, following politics is a game, a distraction. Continue reading →

Radley Balko, Washington Post criminal-justice reporter, is an outstanding example of a type of journalist that’s all but vanished at national papers: the “beat reporter,” someone who, despite lacking a top-level credential in the field he covers, researches it so deeply and thoroughly for so long that he becomes the expert.

Better, Balko compounds his knowledge with a rare degree of honesty. Where other “issue” journalists blur the line between reporting and advocacy, Balko consistently refuses to indulge in strawmen. To be sure, he has his perspective – a libertarian one – but he’s well known for the lengths to which he goes to get and accurately report the views of people on the other side of a crimlaw debate. If there’s one thing you can count on Balko to do, it’s report first, provide an analysis second.

It’s tough to overstate how much credibility this gets him in an era dominated by partisan screeching. It also translates into a lot of access: his first book, Rise of the Warrior Cop, wouldn’t have been nearly as insightful if he’d alienated police by condemning them from afar instead of seeking out their company and making the effort to understand their positions. Continue reading →

One of the joys, and believe me, there aren’t many, of being an observer of American politics is that you get to watch the teams fumble the ball in real time. To recap, Trump, at a Jan 11 Oval Office meeting on DACA, reportedly asked the following question: 

Why are we having all these people from shithole countries come here?

The Washington Post’s scoop on the meeting was completely unsourced, as is unfortunately now par for the course at major papers, but at least one politician who was there, Sen. Dick Durbin (D-Ill.), has since confirmed it happened. Per the original story, the countries to which Trump was referring as “shitholes” were Haiti and several in Africa. What’s more, the WaPo claims he said he’d prefer immigrants from Norway and “Asian countries.”  Continue reading →

Almost a week ago, the people of Alabama, historically, and so on and so forth. Insert your cliché of choice here.

To disclose my bias: I’m delighted Moore lost. Even a body as tainted as the U.S. Senate deserves better than someone who, even if he weren’t most likely a pedophile, would be the most morally and intellectually bankrupt person to run for office in recent memory.

Over at NRO, David French has a handy reminder of Moore’s utterly lawless, tyrannical approach to judging. His conspiratorial antipathies towards Muslims and gay people are a matter of record. When he didn’t duck appearances by giving the worst excuses known to man, he had the stage presence and rhetorical stylings of a frog being hit with a hammer. And when asked to talk about something serious – or worse yet, law – instead of ranting about “reds,” “yellows” and how much better life was under slavery, he’d say things to make a sovereign citizen blush. Continue reading →

Ed. Note: David Meyer-Lindenberg started out to write about free speech, but midway through, realized that this post by Judith Shapiro, president and professor of anthropology emerita at Barnard College, published at Inside Higher Education was, well, unadulterated gibberish that said nothing. David shifted gears.

As those of you who’ve read my previous work know, I don’t write very well. Heck, I barely speak English. But I didn’t realize just how far I was lagging behind until I read this op-ed by Judith Shapiro, a former president of Barnard College, at Inside Higher Ed.

The topic? The purported need for less “free” and more “quality” speech. I think. It’s honestly kinda hard to tell.

In an era of information overload, we face the problem that too much information is equivalent to too little. But we also face a more serious problem: a Gresham’s law of information in which bad information is driving out good information.

Continue reading →

Ed. Note: Following a so-very-Tennessee story about the decisions made by a non-lawyer “judicial commissioner,” the question was posed for debate between David Meyer-Lindenberg and Chris Seaton: Should non-lawyers hold judicial positions? This is David’s argument.

We live in a time of ignorance.[1] This is all the more surprising because, as intellectual tastemakers named Tom keep reminding us, we have more information at our fingertips than we know what to do with.

Nor is the rot limited to the groundlings. Social media, for all its failings, and ongoing access to public figures have done a great thing for American democracy: they showed the country how little those who supply its opinions have in the way of knowledge, consistency and humility. From police spokespeople to pandering politicians, from fraudulent experts to journalists awash in bias, those paid to inform us have done their best to bring public debate into disrepute. We now see credentials with suspicion.

There’s another class of Americans who are, literally, paid to supply opinions. They’re judges, and the backlash against those once considered experts is spreading to the courtroom. The call now is for the professional judiciary, made up of judges who’ve studied law and passed the bar, to make room for laymen on the bench. Continue reading →

Scott’s out of town today – a concert of some kind, old-people music, a trip to Cambridge – and he asked me to look after you guys. Entertain you, maybe.

This is not going to end well.

My usual MO would be to rant about the lack of civil liberties in Europe. And maybe that’s still going to happen. But I couldn’t help but notice you people celebrated Brexit 1.0 a couple days ago, so I thought it’d be a good opportunity for an outsider’s perspective on the United States in the midst of all the doom and gloom on social media.

As Scott puts it, you guys are mourning over the corpse of a great nation. It’s incessant. Either you flagellate yourselves because the United States, despite its egalitarian surface appeal, is racist, sexist and took ninety years to free the slaves, or you flagellate yourselves because the United States, despite its egalitarian surface appeal, is corrupt and elitist, a place where government/immigrants/the media (circle all that apply) have spent the last ninety years selling off the nation’s birthright. Continue reading →