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During his July eulogy for Rep. John Lewis (D–Ga.), a leading figure in the civil rights movement, former President Barack Obama expressed support for eliminating the Senate filibuster, which he called a “Jim Crow relic.” That position contradicted the one Obama took as a senator in a chamber controlled by Republicans, and his historical framing was more than a little misleading.

In its current form, the filibuster prevents a vote on legislation without 60 votes to cut off debate. The maneuver, which was accidentally authorized by a rule change the Senate approved in 1806, was first used in 1837 during the controversy over the Second Bank of the United States. It has been deployed many times since for reasons having nothing to do with government-enforced white supremacy.

Segregationists did use the filibuster to oppose civil rights legislation in the 1950s and ’60s. But just as the principle of federalism does not qualify as a “Jim Crow relic” simply because segregationists invoked it, the filibuster is not inherently a tool of oppression simply because they found it useful. Like other restraints on the majority’s will—including those mandated by the Constitution, such as requiring bicameral approval of legislation and the president’s assent in the absence of a congressional supermajority—the filibuster is an ideologically neutral obstacle that makes it harder to pass laws.

When they are in the majority, senators may complain that the filibuster is undemocratic. But the same could be said of many constitutional provisions that prevent a legislative majority from doing whatever it wants, including the restrictions imposed by the Bill of Rights, not to mention the basic principle that Congress may exercise only those powers it has been explicitly granted.

Senators have used the filibuster for causes as varied as resisting U.S. involvement in World War I, protesting a presidential policy of “targeted killing” by drone, and opposing the extension of federal tax cuts. Both Democrats and Republicans have used or threatened filibusters to block the nominations of judges whose records they found alarming.

That last option was largely foreclosed in 2013, when a Democrat-controlled Senate, frustrated by Republican opposition to Obama’s judicial picks, approved a rule that allowed a simple majority to end debate on almost all presidential nominations. An exception for Supreme Court justices was eliminated four years later, after Republicans regained control of the Senate in 2014 and Donald Trump was elected president in 2016.

Majority Leader Harry Reid (D–Nev.), who had opposed new filibuster limits as a threat to venerable Senate norms when George W. Bush was president and Republicans ran the Senate, switched positions in 2013. So did Minority Leader Mitch McConnell (R–Ky.), who as the majority whip during the Bush administration threatened to make the rule change that Reid was then resisting.

McConnell warned Democrats they would regret their shortsighted move. And presumably they did once McConnell, converting again, greased the skids for Trump’s Supreme Court nominees and the president began reshaping the federal judiciary. As the Cato Institute’s Gene Healy noted in 2013, “Serious political movements shouldn’t try to knock down all the barriers to power whenever they temporarily enjoy it, because nothing is permanent in politics save the drive for more federal power, and the weapons you forge may someday be detonated by the other side.”

When politicians are in the mood to defend filibusters (i.e., when their party is not in charge of the Senate), they often say the tactic helps ensure that the minority’s views receive adequate consideration as legislation is crafted. Former Vice President Joe Biden, who served in the Senate for 36 years, used to think so. But as he contemplated a victory over Trump that looked increasingly likely this summer, he decided it might be time to remove this impediment to presidential agendas. “It’s going to depend on how obstreperous [Republicans] become,” he said.

These filibuster flip-flops could be seen as evidence that the time-honored tradition is nothing more than a tricky maneuver that members of both major parties praise when it’s convenient and condemn when it’s not. But the relevant question is whether that tricky maneuver, on balance, gives us better or worse government. When you think about the gratuitous, pernicious, and blatantly unconstitutional legislation that Congress manages to pass even when the filibuster option is available, it is hard to imagine that eliminating this obstacle would improve the situation.

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Traditional paternalists argue that they know what’s good for you regardless of your own preferences. Prohibition advocates, for example, claimed that people must be forced to stay away from “Demon Rum” no matter how much they like to drink, or how carefully they weigh the costs and benefits of doing so. Over the last twenty years, however, intellectually sophisticated paternalists have largely shifted to a different rationale for restricting freedom of choice: “libertarian paternalism.”

Unlike old-fashioned paternalists, advocates of LP argue that choice must sometimes be restricted in order to enable people to better pursue their own “true” preferences—to do what they themselves would want to do, but for the pernicious influence of ignorance and cognitive biases. LP enthusiasts also contend that policymakers can simultaneously improve decision-making and minimize coercion by using carefully calibrated “nudges” rather than the crude blunderbuss tactics of “hard” paternalists. For their part, critics claim that the behaviorial research underlying LP isn’t as robust as advocates assert, and that the new paternalistic policies have many of the same flaws as the old.

Two recently published books suggest that there may be more room for common ground between defenders and critics of LP than previously assumed.  The first is Too Much Information: Understanding What You Don’t Want to Know by Harvard law professor Cass Sunstein, one of the leading advocates of LP. The second, Escaping Paternalism: Rationality, Behavioral Economics, and Public Policy, by economists Mario Rizzo and Glen Whitman (RW), perhaps the leading academic critics of LP.  Sunstein and RW are longtime adversaries in the academic debate over paternalism. But these two books have so much in common that readers unfamiliar with the authors’ history might assume they are all on the same side.

I. Escaping Paternalism

Rizzo and Whitman’s book is by far the most thorough and insightful critique of “libertarian paternalism” published so far. The first half of the book criticizes paternalists’ arguments that individuals acting in the market and civil society are prone to systematic cognitive errors that justify policymakers in intervening to ensure that their actions better align with their “true” preferences. The second half  assumes that these cognitive problems are real, but offers a wide-ranging critique of paternalistic claims that government regulators are likely to improve the situation rather than make it worse.

In the first part of their book, RW offer a helpful critique of the standard neoclassical economic conception of rationality (or at least more extreme versions thereof) underpinning many paternalist arguments. For example, they dispute the notion that it is necessarily irrational if a person lacks complete and consistent preferences that cover all possible choices that might come before her.  In many cases, developing a complete set of preferences and ensuring that they are all consistent just isn’t worth the cost of doing so, in terms of time and effort.

Similarly, contrary to the assumptions of many scholars and others, there is nothing inherently irrational about “time discounting”—valuing present benefits more than similar future ones. People choose a dollar today over two dollars a year from now are not necessarily irrational, despite moral strictures to the contrary. Thus, we should be skeptical of claims that such preferences justify imposing forced savings of various kinds, as many paternalists argue.

Instead of what they criticize as a narrow “puppet” view of rational behavior, RW advocate a theory of “inclusive rationality,” which takes a much broader view of what qualifies as rational decision-making. Many supposedly irrational behaviors may actually be reasonable under the circumstances, or indications of “nonstandard” preferences. An obese person with an unhealthy diet could be irrational. But he might simply set a high value on eating his favorite foods and avoiding the discomfort of going on a diet—enough to outweigh the potential benefits of improving his health.

RW also summarize evidence indicating that many standard cognitive errors often cited as justification for paternalistic policies are overblown. For example, as the work of  Charles Plott and Kathryn Zeiler indicates, the “endowment effect” (supposedly irrational preference for things you already own over assets of similar value that you might acquire in the future) is actually mostly a combination of flaws in experimental design and largely rational reasons for preferring the bird in hand over one in the bush, in some circumstances.

While there are many good points in the first half of the book, I agree with some of economist Bryan Caplan’s criticisms of it. As Caplan (who is otherwise highly sympathetic to RW) explains, their concept of  “inclusive rationality” at times seems so broad that they seem unwilling to describe virtually any behavior as irrational. RW rightly point out that it can be difficult to separate out rational behavior from the irrational type, because “there is often no clear dividing line” between the two. But that doesn’t mean there are not at least some clear cases of the latter.

That said, even if the first half of Escaping Paternalism isn’t fully persuasive, it offers strong arguments that the cognitive defects identified by paternalists are greatly overstated.

The second half of the book is even stronger. Even if there are more cases of genuine irrationality than RW are willing to admit, it explains why paternalistic policies are likely to do more harm than good. In Chapter 7, RW explain how paternalistic policymakers often lack the relevant knowledge needed to make their interventions effective. For example, they routinely lack information on what people’s “true” preferences actually are, the size of the cognitive biases they seek to correct, and the way those biases vary in heterogenous populations. If, for example, only a subset of the population eats too much unhealthy food out of cognitive bias, while others engage in self-control or have true preferences that value eating their favorite foods over maximizing health, a tax on fatty foods that applies equally to everyone can easily do more harm than good, based on “libertarian” paternalists’ own criteria.

Advocates of the new paternalism often implicitly assume that policymakers are highly knowledgeable and free of bias. In reality, as RW explain, cognitive biases and ignorance are likely to be even more severe among both voters and politicians than among participants in private sector transactions. Voters have strong incentives to be “rationally ignorant” and to indulge partisan and ideological biases; the low likelihood of any individual vote changing the outcome of an election makes it rational for voters to make little effort to seek out information or correct biases. Politicians have similar biases, and of course must cater to ignorant and biased voters to win elections.

Proposals to get around these problems by empowering bureaucratic experts  have flaws of their own. Experts are unlikely to be free of biases of their own. And they too have little incentive to carefully gauge their interventions to the “true” preferences of the public they are trying to help.

There is much more to RW’s book—so much so that I can’t possibly summarize more than a fraction of it in a review. Almost every page and chapter has valuable insights.  I differ with the authors on some points, especially in the first half of the book. But if you only read one book on “libertarian paternalist” policies, this should be it.

II. Too Much Information

Cass Sunstein is one of the leading advocates of “libertarian paternalism,” and his earlier works come in for a lot of criticism in RW’s book. He is perhaps most famous for advocating “nudges” as a form of paternalistic policy less heavy-handed and coercive than traditional paternalism. One might therefore expect Sunstein to be particularly supportive of paternalistic policies that seek to influence behavior simply by requiring revelation of information. Such  policies are usually considered less coercive and intrusive than direct mandates. For example, instead of banning or taxing unhealthy food, the government can mandate disclosure of calorie counts or potential risks associated with consuming too much food of a particular type.

Interestingly, however, Sunstein’s new book takes exactly the opposite tack from what one might expect. The first half outlines the many dangers of excessive information disclosure requirements intended to inform consumers of various potential risks. The second advocates a major rollback of mandated information-gathering for use by the government itself.

Disclosure of additional information may seem like an unalloyed good. Surely, having more knowledge is always better than less. But, as Sunstein points out, mandated disclosure has real costs. Sometimes, ignorance really is bliss.

Reading disclosures may take up time and effort that are better used elsewhere. In addition, people often actively dislike getting information that they find annoying or unpleasant. Looking at the calorie count for your hamburger may detract from your enjoyment of the meal, for example.

Such “hedonic taxes,” as Sunstein calls them, are especially serious for the many people who don’t change their behavior as a result of getting the information in question. You may like your favorite food so much, that you will continue to eat it in the same copious quantities regardless of the calorie count. Even when behavior does change in response to new information, Sunstein  explains that it is still far from clear that the costs of disclosure outweigh the benefits.

In addition, mandated disclosure might actually divert attention away from other, more important information, and thus actually reduce the quality of consumer decision-making rather than improve it. Human attention is a scarce good, and regulators who divert it onto their preferred warnings might simultaneously be diverting it away from other, more important considerations.

In criticizing mandated disclosure laws, Sunstein often sounds a lot like Rizzo and Whitman. For example, he too emphasizes the importance of policymakers’ inability to discern “true” preferences, and the importance of heterogeneity of preferences. Both books also point out that private precautions (in this case private disclosure and information gathering) often obviate the need for paternalistic policies.

Sunstein does not advocate anything approaching complete abolition of mandatory disclosure laws. But he does suggest imposing tight limits on them, most notably by limiting them to disclosure of especially important information about potential risks. He also recognizes that, in many cases, we need much more evidence before we can assume that many currently popular mandatory disclosure laws are justified.

The second half of Too Much Information tackles the costs of mandated disclosure of information to the government. Every year, businesses, civil society organizations, and individuals fill out millions of pages of information forms to satisfy the demands of regulators, tax collectors, and other government agencies. Sunstein cites data indicating that federal-government paperwork alone imposes 9.78 billion hours of work on Americans every year. He estimates the economic costs of this burden as at least $200 billion per year, and possibly much higher.

In addition, having to do paperwork imposes significant psychological pain, as for most people it is one of the least-favorite ways of spending time. This point is backed by scientific research, but also by common sense. Just think of how much you enjoy filling out tax forms and other bureaucratic documents! In many instances, paperwork burdens deter people from socially valuable activities such starting new businesses. In that way, paperwork “sludge,” as Sunstein refers to it, harms society as a whole, not just those most directly affected.

As Sunstein recognizes, there may be instances where sludge is a feature rather than a bug, as when we might want to deter frivolous applications for various government benefits (in order to ensure those who apply are genuinely needy). Sunstein suggests the same may be true for certain transactions that we might want to prevent people from undertaking impulsively, such as getting married, having an abortion, acquiring a gun  RW would probably argue  that such policies rely on the dubious assumption that those who want to marry or get a gun quickly are acting on irrational impulses as opposed to appropriate concerns for their security, or justifiable enthusiasm for starting married life as fast as possible. For his part, Sunstein persuasively argues that “sludge” is usually a poor way to sift applicants.

He concludes that “there is a strong argument for a behaviorally informed deregulatory effort aimed at paperwork burdens.” Moreover, that effort should include “radical simplification of existing requirements and (even better) use of default options to to cut learning and compliance costs.” Most of this would likely be warmly endorsed by RW and other critics of libertarian paternalism! I would be happy to see it happen, myself.

While RW sometimes take their critique of paternalism and regulation too far, Sunstein doesn’t always push his far enough. Though he effective describes many weaknesses of information mandates, he only briefly acknowledges the possibility that many such mandates might actually have pernicious purposes, rather than benevolent ones. In reality, government-mandated labeling requirements and information campaigns have a long history of spreading misinformation (as in the case of mandated labeling of GMO foods, which in reality are no more dangerous than “natural” ones), and targeting unpopular groups (such as in the case of warnings against the supposed dangers of gay and lesbian sexual activity). Such practices are predictable responses to the perverse incentives often facing government agencies.

In advocating deregulation of paperwork burdens, Sunstein may be overly optimistic in assuming that large-scale reduction in “sludge” is feasible without major rollbacks of the substantive regulations those paperwork requirements are intended to enforce. In a world where federal and state governments impose extensive regulation on almost every type of human activity, it is virtually inevitable that regulatory bureaucracies will need to collect vast amounts of information in order to determine whether people are complying with their dictates or not. Similarly, the hyper-complicated federal tax code inevitably requires extensive disclosure of financial information to the IRS.

Sunstein is probably right that procedural reforms can nonetheless reduce the paperwork burden significantly. But I am skeptical that real-world governments will have the incentive to adopt such reforms, or that real-world voters will become knowledgeable enough enough of the issue to force them to do so. Moreover, reduction of paperwork burdens in a large and complex state apparatus, may itself require extensive monitoring and paperwork, just to keep track of all the paperwork mandates the reform initiative is supposed to keep under control!

Despite such caveats, Sunstein’s book is an invaluable font of information about the many burdens of disclosing too much information. He packs a great deal of useful arguments and data into less than 200 pages of text. The book is itself a model of the kind of streamlining of disclosure that the author argues for.

Between them, Escaping Paternalism and Too Much Information offer a wide-ranging critique of much of the regulatory apparatus of the modern state. Their many similarities suggest a degree of potential convergence in the previously highly polarized debate over knowledge, paternalism, and cognitive error.

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From Doe v. Rensselaer Polytechnic Institute, decided today by Judge David N. Hurd (N.D.N.Y.):

The Court understands many of the impulses that may cause a school to favor women over men in the context this case presents. After all, claims of sexual assault like Roe’s—and Doe’s—are often difficult to prove. By their very nature, these claims typically involve a level of privacy that undercuts the availability of witnesses, to make no mention of the stigma that attaches so easily to sexual assault victims, the profound psychological trauma that inevitably follows sexual assault, or the age-old stereotypes that call listeners to disbelieve complainants—especially, historically speaking, women. Much work must be done to ensure that sexual predators are called to justice, and the Court does not shrink from that truth.

Instead, it is to this Court’s grudging relief that its task is not to resolve the nettlesome question of how to properly create an environment such that women, who for far too long have been victimized by those stigmas and stereotypes, can feel secure enough to seek justice without allowing an accusation against a man to carry the day on its own. Rather, it is enough to say this: whatever answer may come to the question of how to secure the rights of an accusing woman and an accused man, that answer cannot be that all men are guilty. Neither can it be that all women are victims.

As the facts now stand, Doe has made a showing sufficient to establish a reasonable likelihood that RPI has come down on the opposite side of that truth, no matter how dysphonic their chosen path may be when this Court attempts to harmonize it with plaintiff’s rights under Title IX. As a result, plaintiff has also made a sufficient showing that defendant has threatened his academic future in violation of his rights to equal treatment regardless of his sex, a harm that damages cannot make whole.

Against Doe’s protected rights, RPI’s showing of the equities amounts to hollow portents of rampant sexual assault and the impermissible assumption that plaintiff is already guilty despite not having so much as a hearing on a matter of grave import to his future…. Accordingly, plaintiff’s motion for a preliminary injunction must be granted. Defendant will be enjoined from proceeding in its hearing against plaintiff until its treatment of plaintiff has been tested and this case has run its course….

There’s a lot that leads up to this conclusion, including the question whether the new Department of Education Title IX rules should be applied in this case; you can see it all in the full opinion. Here are the facts:

At all relevant points for this case, Doe has been a student at RPI. Plaintiff alleges he chose defendant because it has a high-ranking engineering pedigree and the various technological assets that ranking brings with it. However, plaintiff did not choose to live on defendant’s campus, instead opting to live nearby in Troy, New York.

In November of 2019, Doe, a senior, and female RPI freshman Jane Roe (“Roe”) met through the online dating application Tinder. Plaintiff and Roe spoke through varied electronic media periodically throughout the end of the Fall 2019 semester and over the winter break in advance of the Spring 2020 semester. Upon returning to Troy in advance of the Spring 2020 semester, plaintiff and Roe met in person and had consensual sex on multiple occasions in January of this year.

One morning after Roe had slept over at Doe’s apartment, Roe alleges that she discovered that plaintiff had been using his cell phone to record video of her as she was dressing. Roe claims she was immediately disturbed by plaintiff’s surreptitious filming, and asked a friend to pick her up from plaintiff’s apartment. That friend then apparently confronted plaintiff about the video, and plaintiff reassured him that the video had been deleted from the phone.

Either late in the night of January 22 or early in the morning of January 23, 2020, Roe invited Doe to her dorm room again. Roe claims that she agreed to discuss with plaintiff her anger at his having filmed her, which was a conversation that she did not feel comfortable having at his off-campus apartment. Plaintiff alleges that he was too drunk to drive, so he walked to her residence hall and joined Roe in her room.

Once there, both plaintiff and Roe agree that plaintiff had multiple drinks of vodka. Plaintiff then alleges, and based on her own eventual Title IX complaint against him Roe does not disagree, that the two of them had consensual sex.

Roe and Doe’s narratives of their encounter that night and morning diverge at approximately 3:00 a.m. To hear plaintiff tell it, Roe remained sober the entire night while she plied him with excessive amounts of alcohol. He alleges that Roe eventually began to pressure him to have sex with her again, but he refused because he had only brought one condom and did not want to have unprotected sex.

However, Doe eventually gave in and had sex with Roe again. Plaintiff claims that he remembers only pieces of this round of intercourse, but he claims to distinctly remember that Roe asked him to put his hands around her neck, even though this made him uncomfortable. Plaintiff eventually complied, if only briefly. Roe agrees that she requested that plaintiff put his hand on her neck and provide pressure, but she claims that this happened during their first, consensual encounter on that night.

Doe further alleges that Roe then began to pressure him into having anal intercourse with her. He also claims that eventually, despite his recurring protest that he did not wish to engage in intercourse without a condom, he had anal sex with Roe for about ten seconds” before stopping because he felt uncomfortable. Plaintiff claims that after he and Roe concluded their second intercourse, he needed to ask her to get him water because he was too drunk to get out of bed.

Roe agrees that Doe had trouble getting out of her bed at one point during the night of January 22. She also noted during an interview with a Title IX investigator that plaintiff had been “getting kind of weird” and that he informed her he was under the influence of “a couple substances,” which caused him to act “different from usual.”

The next morning, plaintiff left Roe’s room because she needed to go to class.

Plaintiff alleges that the psychological damage from being pressured into sex with which he was not comfortable forced him to take a medical leave from school.

By contrast, Roe alleges in her Title IX complaint that after the initial consensual encounter, she and Doe began to argue. In the midst of this argument, she asserts that plaintiff again put his hand around her neck and squeezed—this time both in a non-sexual context and without her consent—which caused Roe to be afraid for her safety. She further alleges that between 3:00 a.m. and 5:00 a.m., plaintiff rubbed his penis against her back, buttocks, and legs without her consent. At her eventual interview with the Title IX investigator assigned to her case, Roe also said that she may have unwillingly engaged in sexual intercourse with plaintiff because she was afraid he would hurt her if she denied him and in the hope that if she complied he would just go to sleep and the encounter would be over.

But according to Roe, her compliance was not the end of it. At about 9:00 a.m. on January 23, 2020, Roe alleges that Doe again engaged in sexual activity with her without consent. Eventually, Roe complained to plaintiff that the sex was painful, at which point plaintiff apparently continued intercourse while asking her if she would like him to stop. Roe responded that she would, and plaintiff continued for a “couple more seconds longer” before stopping.

On January 27, 2020, Roe’s resident advisor informed RPI that a sexual assault had allegedly taken place on January 23, 2020. On January 31, 2020, defendant notified Doe that it was initiating a Title IX investigation against him as a result of that incident. On June 9, 2020, plaintiff filed his own Title IX complaint against Roe, alleging that he was too intoxicated to consent to sexual activity on the night of January 23. Roe was interviewed by a Title IX investigator concerning her own complaint on February 3, 2020, and interviewed again concerning plaintiff’s complaint on July 17, 2020.

On August 4, 2020, RPI concluded by a preponderance of the evidence that it was more likely than not that Doe violated the school’s August 24, 2018 Student Sexual Misconduct Policy (“the 2018 policy”) by sexually assaulting Roe. As was his right, plaintiff requested a hearing to challenge the initial finding that plaintiff had violated defendant’s sexual misconduct policy.  That same day, defendant dismissed plaintiff’s Title IX complaint against Roe, finding that he had failed to establish his allegations by the same standard.

In particular, RPI found that Doe’s participation in complex conversation, recall of details, ability to leave and re-enter Roe’s residence hall at 2:30 a.m. to smoke, and his failure to prove that he did not willingly consume alcohol or initiate sexual activity with Roe made his complaint insufficiently credible. In fact, plaintiff was recorded on a campus security camera leaving the residence hall at 2:30 a.m., and according to defendant his gait appeared steady on the captured footage, although plaintiff paused while climbing the stairs for an unknown reason.

Doe timely appealed RPI’s determination on August 11, 2020, requesting a hearing as to his claim’s dismissal. In particular, he argued that defendant: (1) overlooked facts in Roe’s July 17, 2020 interview establishing that he had consumed alcohol and smoked marijuana before arriving at Roe’s dorm, drank vodka “many times” while in her room, and “had trouble getting off” Roe’s bed; (2) erroneously relied on the irrelevant determination that there was insufficient evidence that plaintiff was supplied alcohol against his will; and (3) erroneously relied on the irrelevant determination that plaintiff failed to prove he did not initiate sexual activity.  Defendant denied plaintiff’s appeal on August 25, 2020, claiming that plaintiff had failed to demonstrate an error in the denial that would merit a hearing….

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Today the Court heard oral argument in Torres v. Madrid (the subject of the Harlan Institute Virtual Supreme Court competition this year). This case presents the question whether there is a “seizure” for purposes of the Fourth Amendment if the police shoot a fleeing suspect, but the bullets do not stop her. The Court allowed the United States to participate as amicus curiae. Rebecca Taibleson, an Assistant to the Solicitor General, presented oral arguments.

There was one exchange that was special. Taibleson clerked for then-Judge Kavanaugh and for Justice Scalia. And Justice Kavanaugh asked his former clerk one question: was Justice Scalia correct about the original understanding of the Fourth Amendment? The answer has to be, “Yes, the boss was right?”

JUSTICE KAVANAUGH: Thank you, Chief Justice. And good morning, Ms. Taibleson. On your brief in Hodari D., the solicitor general’s brief said that the historical evidence defined the term “seizure” as requiring actual control over the person or thing seized. And the brief said, as a matter of original understanding, one could not be arrested or seized until he was in the physical custody of the seizer and within his control. The Court in Hodari D., as you point out, did not adopt that position. But was the Court wrong about the original understanding? In other words, who’s correct about the original understanding: the solicitor general’s brief or Justice Scalia’s opinion for the Court?

MS. TAIBLESON: Well, Your Honor, our brief in Hodari D., to support that rule, cited many common law sources involving the seizure of goods, such as ships, in which the seizure was consummated with control over the item. And what Hodari D. said was that that is not quite the right source of law to look to in analyzing the seizure of a person, which is the arrest. And it’s true that even in our Hodari D. brief, we cited some sources indicating that an arrest could be complete at the point of mere touching. So, at this point, we –we take Justice Scalia’s opinion in Hodari D. at its word, and –and we’re not asking the Court to revisit the original meaning of a seizure under the Fourth Amendment.

JUSTICE KAVANAUGH: I just want to make sure. Are you saying Justice Scalia was -it’s not only precedent, but Justice Scalia was right, or are you not saying that?

MS. TAIBLESON: I’m saying I –I think Justice Scalia drew a distinction between the common law sources that is accurate and -and that you could even potentially see in our Hodari brief if you –if you blink. So, yes, I think he was right.

JUSTICE KAVANAUGH: Thank you.

I’m sure Justice Kavanaugh was smiling during this exchange. And somewhere else, Justice Scalia was smiling.

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In 2006, the San Francisco Public School system named an elementary school after Senator Dianne Feinstein. Now, the government seeks to remove her name from the school. Her offense? When Feinstein was mayor in 1986, she “reportedly replaced a vandalized Confederate flag, one of several historic flags flying in front of City Hall at the time.” Unbelievable. Even DiFi is not woke enough for San Francisco. No one is safe. And of course, the City will also cancel George Washington, Abraham Lincoln, and everyone else.

Poor Senator Feinstein. Lindsey Graham must have given her the hug of death.

I really can't get over what a betrayal this moment was to the thousands (millions?) of progressive activists who have worked their asses off fighting Barrett's confirmation tooth and nail. Feinstein should be ashamed, and she should step down immediately. https://t.co/uPVDeQgrlC

— Mark Joseph Stern (@mjs_DC) October 15, 2020

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