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I rarely agree with prominent liberal legal scholar and blogger Eric Segall (see, e.g., our debate over originalism and my 2022 appearance on his podcast). But in a recent blog post, he makes some valuable suggestions on improving cross-ideological dialogue and reducing the harmful effects of polarization in the legal world:

[R]eflecting society-at-large, America's law schools are becoming increasingly divided along political lines with both sides retreating to their respective corners. This development is troubling because echo chambers produce, well echoes, not meaningful attempts at compromises and solutions palatable to broad constituencies. But if there's no one in the room arguing for different positions, compromise becomes much more difficult and stubbornness runs rampant.

Evidence of this polarization is all around us.

As to legal education specifically, there are a number of factors increasing polarization inside law schools making it more difficult to break through the echo chamber. One of the the largest causes of this problem is the binary choice offered by the Federalist Society and the American Constitution Society. These two organizations, one conservative/libertarian, the other liberal/progressive, reflect the divisions in our larger society as well as our two-party system of politics. Although at the student level, these two organizations often work together to put on panels and debates, at the national level where it counts the most, both organizations put on highly partisan programs that increase polarization where the two sides barely speak to each other.

Some will respond that both groups invite a few folks from the other side to their national conventions. For example, I was invited to Fed Soc this year for a panel on affirmative action. But these folks are usually a distinct minority and rarely make an appearance at the galas and other big celebrations. Moreover, my understanding is that both conventions are attended almost exclusively by folks whose values are consistent with the leadership of both organizations so that neither convention provides a good environment for across-the-aisle talk.

In addition to the polarization caused by Fed Soc and ACS students, professors, and judges generally staying in their own lanes, the unwillingness of law students (of all people) to hear from people with different views than their own is getting worse every year. At the University of California at Berkeley, nine student groups said they would not invite any speaker who supports Zionism (regardless of the topic of the event). At numerous law schools there have been controversies over who can speak, to whom, and under what conditions. Students retreating to their own corners is not good for legal education, the broader legal community, or society as a whole.

So, I have a few proposals. They are not likely to go very far but, as they say, nothing ventured, nothing gained.

1) Both Fed Soc and ACS should invite justices from the other side to speak at their national conventions, and those justices should show up. Symbolically, this intersection would be of great value and substantively it would be good for each group to pay close attention to how they are perceived by the other side and to hear arguments they do not normally hear. It would also be a positive development for the justices to be exposed to the different ideas and values held by folks who disagree with them.

2) The leadership at every school with Fed Soc and ACS chapters should strongly encourage and incentivize these groups to co-sponsor as many events as possible. We do this at Georgia State and the results are usually wonderful. Not only do students hear more varied arguments but they get to know and even like students in the other group. Such connections can have positive long-term effects.

3) Both groups should sponsor local and national events where they invite one or two people representing the other group to speak with opposing responses coming exclusively from the audiences. This would help people wrestle with opposing arguments in a direct way rather than through a third party.

4) Federal judges, especially the justices, should hire at least one law clerk every year with politics different from their own. I'll never forget my clerkship with a conservative, GOP judge who was genuinely interested in my views on the few highly political cases he faced while I was his clerk. He once told me that it was in those cases specifically where he liked me pushing him to make sure he was making the right decisions. Sadly, on both sides, that attitude is fading fast.

5) The leading legal blogs, including this one. should reach out to folks on the other side and invite them to write posts with different perspectives than the blog usually offers. Years ago, I presented this idea in person to Eugene Volokh and Jack Balkin, who both run highly visible and successful blogs. They rejected the idea out-of-hand saying that legal bloggers do this now simply by responding to experts on other blogs. But that response missed the point of my idea. It is the sharing of space, both physical and virtual, among folks with different views that is important because being in the other side's house reduces both extremism and dogmatism.

I agree with pretty much all of these suggestions! Here are a few additional thoughts and ideas.

First, the situation at some of the institutions Eric mentions is less bad than he suggests. The standard practice in organizing panels at the Fed Soc National Lawyers Convention is to try to have at least two left-liberal speakers on each one (out of a total of four or five participants). I know because I am a longtime member of two of the Executive Committees that organize such panels. But it is true, as Eric notes, that these "oppositional" speakers rarely stay much beyond the time they are on stage for their panel, or participate in other convention events. My impression is that the ACS national convention (where I have been a speaker twicesee, e.g., my talk on race, zoning, and property rights at the 2017 convention) usually has only one oppositional speaker per panel.

Before speaking at the 2017 ACS convention, I happened to mention I was planning to participate to longtime Fed Soc President Gene Meyer. He said he was happy I was doing it, but asked me to make him one promise: "Don't just give your presentation and then leave," he said, "stay and talk to the people afterwards." I did exactly that, and Meyer was right to suggest it makes a difference. ACS and Fed Soc might think about how to expand opportunities for these kinds of informal interactions.

When it comes to blogs, the Volokh Conspiracy has in fact often had left-liberal scholars as guest bloggers (notable examples include Akhil Amar and Cass Sunstein) or participants in symposia. Most recently, prominent liberal election law specialist Edward "Ned" Foley took part in the symposium I organized for participants in the National Constitution Center "Guardrails of Democracy" project (see his posts here and here). Jack Balkin's Balkinization blog often has conservative or libertarian guest-bloggers as participants in symposia. I have been one of them myself (e.g. here and here). Jack also interviewed me on his blog about my books Free to Move: Foot Voting, Migration, and Political Freedom and The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (see here and here). Way back in 2013, Jack even took me up on the suggestion to do a series of guest-blogger posts on my then-new book Democracy and Political Ignorance: Why Smaller Government is Smarter. I reached out to Jack then (and on some later occasions) precisely for the purpose of engaging in cross-ideological outreach, so that I would not just be presenting my ideas to people likely to already agree with them.

That said, Fed Soc, ACS, and various legal blogs (this one included!) can certainly do more to foster cross-ideological dialogue. For example, as noted above, oppositional speakers at the ACS and Fed Soc national conventions should be more fully integrated into the event as a whole, including informal interactions. It is also true they should make a point of inviting judges opposed to their preferred judicial philosophy.

Like Eric, I too clerked for a conservative federal judge (in this case, one who also has some libertarian leanings) who sometimes has liberal clerks, including one the year I clerked. There is definitely value to having at least one clerk in the chambers who holds significantly different views from those of the judge. Such a person is more likely to catch certain types of errors than more ideologically aligned staff would be. Judges would do well to engage in more such hiring. Supreme Court justices and prominent circuit court "feeder" judges should try to lead by example on this front.

When it comes to law schools, perhaps the single most important thing they can do to improve cross-ideological dialogue is curb ideological discrimination in faculty hiring. There is extensive evidence of hiring discrimination against conservative and libertarian legal academics. As a result, many top institutions have very few, if any, faculty who aren't on the political left. This is particularly true of public law fields, and others that are ideologically contentious. For obvious reasons, faculty play a major role in setting the terms of intellectual debate in any educational institution. Greater ideological diversity on the faculty would improve the quality of discussion at law schools, and increase the range of ideas that get meaningful consideration.

This is not a call for affirmative action for conservative or libertarian academics, which is a terrible idea. Simple nondiscrimination is all that is needed to simultaneously increase ideological diversity and improve faculty quality. Like racial and ethnic discrimination, ideological discrimination predictably reduces quality, as less-qualified candidates with the preferred views often get hired in preference to better-qualified dissenters.

I also do not claim that, absent discrimination, we would have law school faculties that "look like America" when it comes to the distribution of ideologies. Far from it, most likely. For a variety of reasons, left-liberals would still be overrepresented relative to their percentage of the general population. But the proportion of conservatives and libertarians would likely be significantly higher than is currently the case.

Eric's list and my added suggestions are far from an exhaustive catalogue of all that elite legal institutions can do to improve dialogue and curb the harmful effects of polarization. Hopefully, we can stimulate a broader discussion on this issue, including additional suggestions by others.

Excerpt from:
Proposals for Improving Dialogue and Reducing Ideological ... - Reason

Alberta is in the middle of a tight election, the first for United Conservative Party Premier Danielle Smith. She won the partys leadership after former Premier Jason Kenney resigned last May following his poor showing in a leadership review vote. This election is really a battle pitting Smiths UPC against the left-wing New Democratic Party and former Alberta Premier Rachel Notley. But suddenly, a third player has emerged, and it could prove decisive.

Take Back Alberta, an ultra-conservative third-party organization, is reportedly working to get Smith to lean in harder to her already libertarian beliefs and to push the UCP father to the right and away from its more centrist policies. The trick? Take Back Alberta must stay within the lines of third-party election rules. Indeed, they claim to actually control the UCP and the premiers office! The battle is an extension of the struggle that led to Kenney losing the leadership after he too could not control or corral the more libertarian sides of his party.

Why does this matter to US-Canada relations? Canada is the largest source of US energy imports, with much of that coming from Alberta. In 2020, the oil-rich province exported CAD$77.5 billion in goods to the US, its primary global trading partner. So who runs the province is material to the energy sector.

Smith who is being hounded this week after an old recording surfaced in which she compared those who got the COVID-19 vaccine to followers of Hitler (Yes, Hitler has become part of the election campaign) supports loose energy regulations and says federal climate policies are an existential threat to the province.

See the original post here:
Two battles at once in Alberta, the home of key US energy exports - GZERO Media

A measure seeking to enshrine abortion protections in the Nevada Constitution passed out of the Assembly on Wednesday on a 28-14, party-line vote, bringing it one step closer to the ballot.

Assembly passage means the measure, which passed out of the Senate in mid-April with all Republicans in opposition, has cleared the first of three significant hurdles the proposed amendment needs to clear before it is codified in the state constitution. It will need to return and pass out of the Legislature again in 2025 and then go before voters during the 2026 general election.

Now that a radical Supreme Court has gutted the right to choose at the federal level, Nevadans should be given the opportunity to decide for themselves whether to protect reproductive freedoms in the state constitution, Senate Majority Leader Nicole Cannizzaro said in a statement following the Senates party-line vote on the measure April 17.

The proposed constitutional amendment, SJR7, would guarantee a fundamental right to reproductive freedom, authorize the state to regulate abortion care after fetal viability with certain exceptions and prevent the state from penalizing or prosecuting an individual exercising their reproductive freedom.

In 1990, nearly two-thirds of Nevada voters approved a ballot measure codifying into state law the legality of abortions within the first 24 weeks of pregnancy timing that mirrored federal abortion protections established under the U.S. Supreme Courts decision in Roe v. Wade.

Passage of that referendum means that only a direct majority vote from the people can overturn the language voters approved in 1990. Neither Nevada lawmakers nor the governor can restrict abortion access earlier than 24 weeks into pregnancy. However, proponents of the amendment say SJR7 would offer the most permanent protections for abortion rights at the state level, making them even harder to repeal.

Republican lawmakers pointed to existing abortion protections as a reason for opposition.

Nothing has changed the legality of access to abortion rights here in Nevada since the Dobbs decision, said Assemblywoman Alexis Hansen (R-Sparks) ahead of the vote. SJR7 is duplicative in regards to certain protections already protected.

Though Nevada is considered a political swing state, there is continued widespread support for abortion access within the state regardless of party registration. Some experts say the Nevada electorates lean in favor of abortion rights may be influenced by the state having one of the highest rates of nonreligious people and a more libertarian streak of wanting less government involvement.

Polling indicates a majority of Nevada voters regardless of party affiliation support legal abortions in at least some circumstances. An April Nevada Independent/Noble Predictive Insights poll also shows that 62 percent of respondents said they would support adding the right for a woman to obtain an abortion to the state constitution.

Read the original here:
Lawmakers pass abortion protections, putting them one step closer ... - The Nevada Independent

This publication is fond of running stories asserting that Canada is in the doldrums. To many, Canada seems broken.

Rather than despair, we should listen to Paul Wells: We must all abandon hope for a brighter past. The question is what any government can do next.

As the resident misfit libertarian, I am contractually obligated to say something about that government part. But I think that Wells characteristically puts his finger on something important.

Id amend it to this: We must abandon all hope of a past that could give us an easy solution now. The question is, Whats next?. When answering that question, theres no getting around politics.

When a normal person says politics, they mean partisan politicscampaigning for offices, donating to or joining a party, standing for electionor pressure campaigns targeting politicians. Unburdened as I am by concerns about normality, I want to expand our idea of politics.

Not everything is politicalin fact, in our frustration at what feels like a broken system, we too often stick politics where it doesnt belong. But non-political social and community activities form the backdrop for our politics.

Identifying a community problem and trying to solve it, either individually or as part of a group, doesnt just address that problem. Individuals and groups trying to solve social problems demonstrates that those problems can be addressed. People learn about the problems their communities face, and theyre armed with skills for tackling those problems. Addressing community problems also builds community and social capital.

Taking a slightly different approach: having hard conversations about important topics and facing when we might be wrong isnt just good for us as individuals. It affects how public opinion is formed because we and the people we talk to are part of the public.

These activities dont have to be purposefully political to change how we think about social problems, how to prioritize them, and how to solve them. And thinking about, prioritizing, and imagining solutions to social problems seems to be where Canadian politics is coming up short. When people look to their political leaders for what to do next, and political leaders are looking at opinion polls for directionwell. Its not surprising if it doesnt go anywhere.

In the U.S., politicians are compensating for a lack of direction with a culture war. We dont have to take that path. Nor do we need a new vision to get behind, and we shouldnt want one. We need solutions to problems. We need to better judge when politics might help and when politics needs to get out of the way.

Here is where I meet my contractual obligation: I dont think we can expect any government to change substantially unless Canadians are willing to put demands for specific goals and accountability for achieving them ahead of their disdain for the other side.

Libertarians believe that governments do the things they do badly. The libertarian solution to unsatisfactory governments is to replace as many of the actions taken by the government with voluntary solutions as possible. But while its uncontroversial to say governments arent doing the things Canadians want, the usual conclusion is that the governments need more capacity, not fewer responsibilities.

We live in a liberal democracy. If libertarians want responsibilities taken away from the government, we have to convince people that responsibilities should be taken away from the government.

Michael Munger, an economist at Duke University (and repeat candidate for government offices), argues that not just libertarians but all people who want the government to work differently face the same problem. The laws and institutions we have exist because people have either pushed for those laws and institutions or are used to them as they are. Its easier to get everyone to agree that things generally arent working well than to agree about reform. For any particular change, some people will show up to defend the part that works well for them. The sum of that opposition makes change hard. Change only happens if people who want change are as motivated as people against it.

The idea that change means motivating a lot of people or changing lots of minds, rather than just convincing a few politicians, feels overwhelming. But things have been worse than they are now, and people made them better. Big, overwhelming problems are made of small parts.

Its the fact that some of the most basic problems arent being solved that makes everything feel so broken. Regardless of whether youre skeptical of government overall, we should be skeptical about whether governments are the only appropriate tools for solving basic problems.

People who exercise their civic muscles by tackling the problems they see in society are more fit for the political action necessary for a working democracy. The urbanist Jane Jacobs wrote, When humble people, doing lowly work, are not solving problems, nobody is apt to solve humble problems. Jacobs observed that people who get involved in their community can become fixtures for more community action, potentially creating a virtuous cycle of participationand public accountability.

Jacobs herself famously lead community opposition to city-level development that would have bulldozed what people wanted for their own neighbourhoods. But in The Death and Life of Great American Cities, Jacobs also talks about humble people solving other problems. For example, English-speaking parents organizing to help the children of immigrant parents with English-language homeworkan initiative Jacobs sister-in-law travelled around the city to help spread. In our own time, community fridges come from ordinary people trying to make sure everyone has enough food. YIMBY groups are a new political force working to change the politics around home building.

Ordinary people can and do address the basic problems facing society.

To join them, we can start small. Join a Janes Walk in your city to learn more about your neighbourhood. Look for volunteer opportunities at your library or food bank. Does your street participate in a neighbourhood yard sale (could it)? Contact the organizers of projects that exist in other cities that you wish could exist where you live.

Get curious about one thing you disagree with and find someone who believes it to help you understand. If youve got a point of view you dont see represented, learn to write an op-edand write one! Dont take things working well for granted. Things that are working well could probably also use your help.

And heres something anyone can do: when you see someone trying something that you dont think will work, dont berate it or tear it down. Try to appreciate good intentions and that people are trying. We need more people trying.

Brokenness feels big. These things feel small. But they flex important social muscles that are weak, maybe especially weak since the pandemic. They prepare us for when we will need to be even stronger than before.

Link:
There's no getting around politics - The Hub

These days it seems a lot of people cant tell their left from their right.

That would include Bill Spadea of radio station NJ 101.5 and Kelsey Grammer, formerly of the TV show Cheers

Spadea is traveling around the state pushing the idea that opening up New Jerseys Depression-era liquor licensing system will somehow make it more difficult for New Jerseyans to find neighborhood bars like the one featured in that TV show starring Grammer.

A recent post on the radio stations website was titled Local community bars under assault from far-left Murphy.

Technically, this is what we in the news business call a lie. The proposal by Gov. Phil Murphy would permit a gradual transition to the issuance of more liquor licenses. More liquor licenses mean more neighborhood bars, not fewer. Right now the licenses in a lot of towns tend to be bought up by national chains like Applebees and Outback Steakhouse.

And although the governor is generally left-wing, on this issue hes showing a libertarian streak, said former state assemblyman Mike Carroll of Morris County, who is one of New Jerseys leading conservatives,.

In Carrolls view, conservatives should oppose business licensing.

Licenses are just a barrier to entry, he said. Theyre just a means of restricting competition.

Of course, restricting competition is the point for those who oppose opening up the alcoholic-beverage market.

That includes Grammer. Spadea had Grammer, who grew up partly in Colonia, on his show recently. When asked by Spadea about Murphys plan to open up the licensing, Grammer replied, Its poorly thought out, think.

Whats poorly thought out is Grammers opposition to reform. More liquor licenses means more outlets selling beer like the beer that Grammer himself brews.

Its called Faith American Ale and its brewed in New York State and shipped to New Jersey, among other places. According to a 2020 article in Forbes, Grammer introduced the beer at a grand opening in 2019 of what he describes as a casual seasonal tavern with an outdoor patio at his place in the Catskills.

That sounds inviting. But if Grammer had wanted to open a brewpub in New Jersey back in the days he was acting in that barroom comedy, he couldnt have done it. Brewpubs here werent legalized until 1994, the year after Cheers ended.

That was the first loosening of the license system in the modern era. But brewpubs are still regulated within an inch of their existence thanks to the efforts of the powerful liquor lobby.

They dont want any competition, said Dave Hoffman of Climax brewing in Roselle Park. But this country was built on competition.

At least thats what we conservatives believe. What we get instead is what economists call captive regulation. Thats what happens when business interests use regulation as a means of enriching themselves by eliminating competition.

That may be good for the businesses but its bad for the public. A coalition of 90 mayors recently sent an open letter to legislators arguing that economic growth in their towns has been held back by a paucity of licenses.

Given the exorbitant costs for a license, coupled with the lack of availability and the existing population cap for municipalities, the present system favors the economically advantaged while hampering mom-and-pop businesses and towns with smaller populations, the letter stated.

The signers included the mayor of my town, Bay Head. In Bay Head, if youre looking for a place where everybody knows your name, try the surf shop. Because of its small population, Bay Head has just one restaurant that serves alcohol. But as in a lot of Shore towns the population swells in summer. It could easily support a few more drinking spots.

If this reform legislation passes, it will be the towns rather than the state that will set the limit on licenses.

Thats known as home rule, another tenet of conservatism.

I wanted to ask Spadea how he could call himself a conservative when he opposes home rule and free markets, but he didnt respond to my emails.

I also wanted to ask if hes getting paid by the liquor lobby to push their agenda.

If so, it wouldnt be the first time. A few years ago when I was covering a campaign event for a Republican candidate, I was surprised to see Spadea acting as the emcee. The candidate told me Spadea was paid for his performance.

Taking money from politicians violates every journalistic code of ethics in the book. Station management didnt get back to me when I emailed to inquire about what ethics policies they have, if any.

But I guess theres a free market in radio talkers.

Now if only we had a free market in beer.

More: Recent Paul Mulshine columns.

Paul Mulshine may be reached at pmulshine@starledger.com.

Follow him on Twitter @Mulshine. Find NJ.com Opinion on Facebook and on Twitter

Excerpt from:
Conservatism goes down the hatch at radio station NJ 101.5 | Mulshine - NJ.com