LEX Magazine, Issue 7

2024 The War on Academic Freedom

The Scholars Fighting for Abortion Shield Laws

Tabatha Abu El-Haj on Fusion Voting

THE MAGAZINE OF DREXEL UNIVERSITY THOMAS R. KLINE SCHOOL OF LAW

Erwin Chemerinsky on Free Speech on Campus Jed Stiglitz on the Administrative State

Remembering Drexel Kline Professor Alex Geisinger

DE MOCR AC Y A ND ITS DISCON T EN TS

Table of Contents

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Fusion Voting: Rediscovering a Process to Make Parties More Responsive Tabatha Abu El-Haj

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Dean’s Welcome Daniel M. Filler

From the Florida Legislature to the Faculty Lounge: The War on Academic Freedom

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Renaissance Mensch: Remembering Alex Geisinger Nancy J. Waters

U City Digest

Ben Seal News from Drexel Kline Law

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Scholars Out Front: Legal Innovations in the Wake of Dobbs Wendy Gibbons

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Deep State, Indeed: A Q&A with Author Jed Stiglitz

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You Can’t Say That—Or Can You? The State of Free Speech on Campus

Nancy J. Waters

Erwin Chemerinsky

46 Center for Law and Transformational Technology Continues to Grow Under New Director Eamon Gallagher 50 Center for Law, Policy and Social Action Hosts Scholars, Explores Array of Social Justice Issues 54 Drexel Kline Law Cracks US News and World Report Top 75 Inside Back Cover Alumni News

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Cover: Jan Šabach 3: Zave Smith Photography 4–5: iStock/Jan Šabach 6: Adobe Stock 7: Drexel University 8: Danaya Wright 8: Anna Eskamani 9: Yale Law School 11: Kielinski Photographers, LLC/ UPenn GSE 11: UC Davis Law 12–13: Pexels/Jan Šabach 14–15: Adobe Stock 16: Purnell Cropper 19: Michael Will Photographers/ University of Pittsburgh 19: Matt Blumenthal 20: Brian Crooks 22: Cornell Law School 27: Alamy 28: Cambridge University Press 32–33: iStock 34–35: Google Earth 36: Brian Crooks 39: Jan Šabach 40: Zave Smith Photography 41: Jane Scarpellino; Drexel University Communications 42: Jane Scarpellino 43: Alamy 47: Zave Smith Photography 48–49: Purnell Cropper 51–53: Purnell Cropper Back Cover: Brian Crooks

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Democracy and Its Discontents

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Dean’s Welcome

2024 has been quite a year for elections. In democracies such as India, France and the United Kingdom, voters have shown up in large numbers to voice not always predictable preferences and imperatives. Even in Iran, citizens used their limited agency to express their preference that the country go in a more liberal direction.

Over the past two to three centuries, as historians have reminded us, we’ve witnessed a remarkable expansion of democratic institutions across the globe. But as careful observers are also telling us—and as statistics bear out— the last three decades have challenged our complacency about democracy’s inevitable triumph. Autocratic regimes have pushed back (and at times smothered) nascent efforts to develop and institutionalize democratic The challenges norms. Equally worrying: The autocratic leanare daunting, but ings of an expanding cohort of democratically they also present elected leaders. opportunities This November, the United States faces its for renewal and own critical decision with an election offering reimagination of our democratic starkly divergent conceptions of democracy.

We chose the theme of this issue, “Democracy ideals. and Its Discontents,” last year, thinking it an obviously timely topic for an election year, but I don’t think we fully envisioned just how much democracy—and how much discontent—the intervening months would bring!

The foundations of American democratic governance are right now being tested in ways both subtle and overt—and in this issue, we explore aspects of these trials.

These articles span a range of topics, each illuminating a different facet of our current democratic challenges. Ben Seal explores the terrain of academic freedom. As various state legislatures move to restrict what can be taught in universities, we’re confronted with fundamental questions about the role of free inquiry in a democratic society. Seal’s article reminds us that academic freedom is not just about protecting faculty; it’s about safeguarding the process of knowledge creation and dissemination that underlies informed civic participation.

Wendy Gibbons provides an insightful analysis of the rapidly evolving landscape of abortion rights lawmaking in the United States. In the wake of the Dobbs decision, we’re witnessing the greatest divergence between state laws since before the Civil War. Gibbons examines the rise of “shield laws” in 18 states and the District of Columbia, designed to protect both practitioners and patients involved in abortion services. This article not only

highlights the intensifying divisions within our federal system but also showcases an inspiring example of legal scholarship translating directly into legislative action.

In our Q&A with Jed Stiglitz, we delve into the complex relationship between democracy and the administrative state. Stiglitz’s work on “credible reasoning” offers a fresh perspective on why legislatures and the electorate have been willing to delegate significant authority to administrative agencies. At a time when the administrative state faces increasing scrutiny and skepticism and the Supreme Court moves aggressively to curb its authority, Stiglitz’s insights remind us of the crucial role these institutions play in embodying Enlightenment values of expertise, reasoning and transparency.

Then there’s free speech on campus. In this issue of Lex, Erwin Chemerinsky tackles one of the most contentious questions in higher education today. Colleges and universities increasingly struggle to promote free expression while simultaneously protecting students, faculty and staff from harassment and discrimination. Chemerinsky argues for a liberal approach to speech, while acknowledging the ongoing challenge of maintaining open dialogue in an increasingly diverse and sometimes divided academic community.

In her contribution, Tabatha Abu El-Haj examines the little-known process of fusion voting, which she argues offers the promise of reducing political polarization. By allowing candidates to run as representatives of multiple parties, fusion voting presents an intriguing possibility for building stronger, more responsive political parties.

Finally, the Drexel Kline Law faculty lost one of our own last winter with the death of beloved professor Alex Geisinger, remembered in these pages. In everything he did—teaching, practice, research, community building— he embodied a true democratic spirit.

We find ourselves in a moment of flux, with critical decisions being made about abortion rights, the scope of government agencies and the nature of academic discourse. The challenges are daunting, but they also present opportunities for renewal and reimagination of our democratic ideals.

In the spirit of vigorous debate and thoughtful analysis that has always characterized Lex, I hope this issue sparks conversations, challenges assumptions and inspires action.

Welcome to an issue that matters now more than ever. ■ Daniel M. Filler

FROM THE FLORIDA LEGISLATURE THE WAR ON ACADEMIC FREEDOM

TO THE FACULTY LOUNGE

By Ben Seal

The first shot across the bow came in the form of a simple and straightforward denial of a common request.

A political science professor at the University of Florida asked to appear as an expert witness in litigation challenging a piece of voting rights legislation in the state. The denial of his request, which surprised him, stated that activities that create a conflict of interest with the state’s executive branch also create a conflict for the university.

Soon, other denials followed, each with similar language putting scholars on one side of a tense political playing field. On the other side, their institution appeared to be aligned with—or, at least, afraid of upsetting—the state.

The University of Florida (above) has become the epicenter of a national movement to limit academic freedom.

In a report published in the fall of 2021, the University of Florida faculty senate found that faculty members had encountered barriers to research, restrictions on some outside activities that allegedly challenged the political priorities of the state’s executive branch and pressure to alter syllabi to avoid the ire of elected officials. With the state still in the throes of the pandemic, university employees had also been told not to criticize Republican Governor Ron DeSantis regarding Florida’s Covid-19 policies.

If the conflict-of-interest report raised alarms, a second report turned up the volume. This time, the faculty senate in March 2022 found that the hiring of DeSantis’ pick for Florida’s surgeon general, Joseph Ladapo, to a fast-tracked, tenured position in the College of Medicine violated the university’s hiring procedures by sidestepping faculty input.

Those two incidents demonstrated a “heavy-handed” dose of political interference, according to Danaya Wright, the T. Terrell Sessums and Gerald Sohn Professor in Constitutional Law at UF’s Levin College of Law, who chaired the 2023–2024 faculty senate and helped write the first report. Since then, the infringements on academic freedom at Florida have become “much more sophisticated,” she said. Rather than directly targeting faculty speech, DeSantis and the legislature began to threaten university funding, putting institutions between a rock and a hard place.

House Bill 7, also known as the Stop WOKE Act, which DeSantis signed in 2022, limited how race and gender could be taught in public institutions. Katheryn Russell-Brown, director of Levin’s Race and Crime Center for Justice, wrote

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Democracy and Its Discontents

in an article published in 2023 in the NYU Review of Law and Social Change that the law would “drastically reduce race-related instruction” and “delegitimize race scholarship” in the state. The law’s application at the higher education level has been stayed by a federal court injunction.

Academic freedom in Florida took another hit when Senate Bill 266 was signed into law last year. It prohibits the use of state or federal funds to support diversity, equity and inclusion (DEI) programs as well as programs that support political and social activism. The law also removed sociology—which Florida Commissioner of Higher Education Manny Diaz, Jr. said had been “hijacked by left-wing activists”—from the list of courses students can take to meet their general education requirements at UF, echoing attempts to ban gender studies and critical race theory as majors and minors statewide.

At New College, a Sarasota-based public liberal arts college, DeSantis allies now dominate the board of trustees.

A conservative overhaul there has led to a faculty and student exodus, and a ban on gender studies majors is already underway. A separate law signed in 2021 allows students at Florida public universities to record professors and use those recordings as evidence in litigation, giving professors reason to watch what they say ever more closely.

Public universities and their faculty, dependent on legislatures, governors and voters for a significant share of their funding, are afraid to push back for fear of punishment, said Anna Eskamani, a Democratic member of the Florida House of Representatives. They are “proactively censoring,” she said. For example, she said that the University of Central Florida had reportedly deleted a webpage with information about a scholarship for minority teachers after Christopher Rufo, a senior fellow at the Manhattan Institute and a DeSantis-appointed member of the New College board of trustees, publicized it.

Precisely how the new legislation will affect actual classroom teaching remains unclear, but Levin’s Danaya Wright said that “it’s had a very significant chilling effect.”

“People,” she continued, “are scared so they’re responding anyway. And that’s what I think the governor and the legislature want…I talk to many faculty who say they’ve changed their syllabus or taken certain texts out of their courses.”

In late 2021, Christopher Busey, a professor in UF’s College of Education, filed a grievance claiming he was threatened with discipline if he used the phrase “critical race” in his syllabus or course design.

Neil Buchanan, a former Levin tax law professor, said the legislation had created a “nightmare environment” for faculty and students, and also directly threatens principles of academic freedom. Political interference with higher education prompted him to flee Florida, he said. He taught at the University of Toronto on a sabbatical during the most recent academic year and announced that he would retire from Levin in June 2024.

Drexel Kline Law Professor Anil Kalhan called Florida “simply a laboratory” for assaults on academic freedom.

Beyond the Sunshine State In a special report published in December 2023, the American Association of University Professors (AAUP) stated that the sweeping changes and attacks on tenure in Florida, including a new post-tenure review process, represent a “politically and ideologically driven assault unparalleled in U.S. history” that has “dire implications for the rest of the country.” lorida may stand out for its embodiment of the culture war-driven undermining of higher education, but some scholars argue that the changes that have attracted national attention are part of a continuum of growing threats.

Anil Kalhan, a professor at the Drexel University Kline School of Law, organized a symposium at that school last November on democratic erosion and the contemporary assault on education and expertise, and was also a member of the committee that drafted the AAUP report. “Florida,” he said, “is simply a laboratory.”

Recent attempts to “brand normal academic functions as extremist,” said Henry Reichman, a professor emeritus of history at California State University, East Bay, are spiritually reminiscent of 1950s-era McCarthyism. But the direct assaults on curriculum, he continued, are novel.

Reichman, who also serves as chair of the AAUP’s Committee A on Academic Freedom and Tenure, does not limit his concerns to Florida. He suggested that the intense criticism that donors and lawmakers have leveled against university presidents in the wake of campus protests about the war in Gaza are part of the same trend: outside attempts to influence what happens on-campus.

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From the Florida Legislature to the Faculty Lounge

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Danaya Wright is a professor at the University of Florida Levin College of Law and former chair of the faculty senate.

Kathy Hochul, the governor of New York and a Democrat, promised to review the City University of New York’s (CUNY) antisemitism policies, which Reichman called a similarly “chilling” statement from the other side of the political aisle. Kalhan conceded that such efforts are in keeping with the government’s obligation to serve the public, but argued that, by micromanaging higher education, elected officials could curtail the development of “independent and critical perspectives on power.”

At the center of this gathering storm on American college campuses is the question of whether the bedrock principles of academic freedom that have bolstered the world’s foremost system of higher education can withstand an array of mounting pressures in a polarized world.

Academic freedom has come under attack in such countries as Hungary, where Prime Minister Viktor Orbán has shut down Central European University, banned gender studies and stripped the autonomy of the Academy of Sciences. In India, academics have been reprimanded for speaking out against the policies of Prime Minister Narendra Modi. And, in Turkey, thousands of academics have been fired and universities closed as part of sustained pressure on academic freedom since a 2016 coup attempt.

The U.S. has long served as a “moral example” to limit these types of incursions around the world, but “our leadership role is in the balance,” Kalhan said.

Reichman sees the Florida legislation as part of a process that began with significant cutbacks to state funding for education in many states in the wake of the 2008 recession.

“If we continue to go the route we’ve been going,” Reichman said, “the higher education system will be destroyed and what will remain will be a shell of it. We’ll have what we once had: a small system of elite institutions serving mostly the children of the powerful and wealthy.”

Setting Free the Professors

Anna Eskamani is a Democratic member of the Florida House of Representatives.

Although academic freedom has come to be seen as a bulwark of successful research and effective teaching, it is less a legal obligation to which colleges and universities must adhere and more of an ethic to which they have bound themselves over the decades.

The AAUP issued its first declaration of principles in 1915, then published an updated statement in 1940 that outlined three defining elements: freedom to research and publish results, freedom to discuss one’s subject in the classroom and freedom from censorship and discipline when acting as a citizen. More than 80 years later, these remain the standard by which academic freedom is measured, adopted by most institutions in faculty handbooks. The contractual protection this affords is, in most cases, the primary mechanism limiting attempts to curtail academic freedom—and, for those in private institutions, often the only one.

Although the AAUP’s principles are in some ways analogous to the speech protections offered by the First Amendment of the United States Constitution, the U.S.

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Democracy and Its Discontents

Supreme Court has left open the question of whether the First Amendment guarantees some academic freedom protections to public university employees.

In the 2006 Garcetti v. Ceballos case, the U.S. Supreme Court ruled that when public employees speak “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

The ruling left open the door to apply its guidance to the realm of scholarship and teaching, leading to a body of jurisprudence that is poorly theorized and muddled by contradictory decisions, according to Robert Post, the Sterling Professor of Law at Yale Law School, who has written extensively about both constitutional law and academic freedom.

Post points to Meriweather v. Hartop, a 2021 decision in which the U.S. Court of Appeals for the Sixth Circuit extended First Amendment protections to a professor disciplined for refusing to use a transgender student’s preferred pronouns, as one in a series of decisions that “badly understand the nature of free speech rights in an institution like a university.”

According to Brian Soucek, a professor at the University of California, Davis School of Law who recently chaired the entire UC system’s committee on academic freedom, the Meriweather ruling is “a good example of what happens when courts conflate academic freedom with general First Amendment law.” Despite coming down on the side of the professor, the ruling threatens academic freedom, Soucek said, by untethering professors’ free speech rights from their scholarly expertise. Rather than affirming the notion that there are no wrong ideas in the law’s perspective, as the First Amendment does, academic freedom is meant to protect a “zone of expertise” in which the truth is allowed to flourish, he explained.

The Supreme Court’s reversal last year of decades of precedent regarding affirmative action with their ruling in the Students for Fair Admission v. Harvard case underscored that colleges and universities cannot rely on the courts to protect academic freedom, Soucek continued. Past decisions in 1978’s Regents of the University of California v. Bakke and 2003’s Grutter v. Bollinger upheld affirmative action in part on the basis that the selection of a student body is among the academic freedoms afforded to an institution. In striking down affirmative action in 2023, the Supreme Court overrode that standard. “Courts just don’t seem to be showing the same level of deference to universities when it comes to academic judgments as they used to,” he said.

With this messy legal framework as a backdrop, a developing series of legislative and extracurricular assaults could further challenge academic freedom.

But the threats don’t all come from off campus.

Keith Whittington is the former William Nelson Cromwell Professor of Politics at Princeton University and a self-described “right of center” scholar on issues of academic freedom. He recently joined the faculty at Yale Law School, where he will lead a new center on free speech and academic freedom that he said will institutionalize the examination of issues he’s spent years studying.

He cited a rising tide of ad hoc infringements from the political left, including controversies sparked by faculty’s extramural speech—long the greatest source of conflict in the AAUP’s principles.

academic freedom is meant to protect a “zone of expertise” in which the truth is allowed to flourish.

Keith Whittington, a former Princeton political science professor, is leading a new center at Yale Law School on free speech and academic freedom.

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From the Florida Legislature to the Faculty Lounge

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it’s very hard to sustain an open exchange of beliefs, ideas and perspectives when you are being observed by actors—political and otherwise—who do not have your best interest as an institution in mind.

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uch of this tension comes from on-campus sources, he said.

For example, the creation of DEI policies and other administrative structures to respond to student complaints has had a significant effect on the way classes are taught. And in some cases, he said, the opposition of faculty peers has contributed to scholars being blacklisted from conferences or having their research retracted or deemed unfit for publication in the first place.

But the rise of off-campus threats from the political right, in the form of legislative efforts to restrict speech and rethink university governance, has created, Whittington said, “a moment of unusual intensity on this front.”

“I worry,” Whittington continued, “that we’re going to wind up with a much more restricted space for free inquiry, probably both in teaching and in scholarship, and lots more opportunities to punish and fire faculty who say something that the wrong people think is controversial or pursue scholarly projects in ways that the wrong people find unacceptable.”

Contingent faculty often need to cobble together teaching appointments at several institutions to make a living. Consequently, they are fearful, Soucek said, always watching what they say to avoid the risk of angering the wrong person and losing a teaching appointment.

And former Levin professor Buchanan said that he worries that a similar mindset may develop among better-protected tenured faculty under the increased scrutiny from politicians in recent years. Had he been younger and less established in his life and career, he said, he would have completely changed the way he wrote and taught in the wake of Florida’s legislative changes, becoming “incredibly boring and incredibly cautious” along the way.

“In terms of the future of the academy, the whole thing relies on the ability to not look over your shoulder every moment,” he continued. “Once you get to the point where everybody’s contingent, then you’ve really got the ability of the politicians to dictate content.”

Bills that would restrict or ban tenure altogether have been proposed in states including Indiana, Texas, North Dakota and Ohio, while Florida’s new law requires tenured faculty to be reviewed every five years, with the potential for removal if deemed unsatisfactory. Meanwhile, the university accreditation process has drawn the ire of politicians like DeSantis, who has lamented “the inordinate amount of power” outside accrediting organizations have to shape what happens at universities.

Trouble on the Tenure Tracks Central to Whittington’s concern is an issue raised by nearly every scholar in the realm of academic freedom: the future of tenure. Over the past three decades, the portion of contingent faculty in U.S. colleges and universities has risen from 47 percent to 68 percent, according to the AAUP, driven by cost savings—adjunct and non-tenure track faculty are paid substantially less than tenure-track faculty and receive fewer, if any, benefits.

Expertise and Democracy Considered in concert with legislative efforts to dictate what can be taught and how, these institutional attacks on higher education are really targeting something even broader than academic freedom, Yale’s Post said: expertise itself. The mission of universities to create and disseminate the expertise foundational to a healthy society is

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fundamentally threatened by the notion that “knowledge has no special status, and we can politically control what knowledge is,” he said.

And yet, that idea has become part of a political platform. “If that platform wins,” Post said, “universities can’t survive.”

If these questions of professorial privilege and academic freedom seem highbrow and relevant only to what happens on and around college campuses, Sigal BenPorath, a professor of education, philosophy and political science at the University of Pennsylvania’s Graduate School of Education, argues that the implications are far bigger.

Ben-Porath studies the role of schools and colleges as democratic institutions. “It’s definitely more complicated and maybe impossible to run a democratic society where knowledge cannot be produced and disseminated freely,” she said. By considering diverse perspectives and applying evidentiary practices to the pressing questions of the day, universities contribute the foundational knowledge and truth that undergirds society, she continued.

Although she believes the higher-education system is strong enough to withstand the challenges it now faces and uphold the principles of academic freedom that are so integral to its success, Ben-Porath acknowledged that the recent wave of outside interference creates a dilemma that must be resolved.

“It’s very hard to sustain an open exchange of beliefs, ideas and perspectives when you are being observed by actors—political and otherwise—who do not have your best interest as an institution in mind,” she said.

Wright of the University of Florida echoed her concerns. “Where would we be as a species if Einstein’s theory of relativity could not be taught because it was unproven, or if Copernicus’ theory that the Earth revolved around the sun could not be taught because it challenged traditional ways of knowing or made some people uncomfortable?” she asked. “If we restrict what students can learn and the theories they can explore, we doom our society to irrelevance.”

“Democracy depends on having reliable sources of genuine knowledge about matters affecting society,” Soucek of UC Davis said. “And that requires expertise.”

Legal scholars across the country are watching to see if and how political efforts to limit academic freedom will spread beyond Florida and what will become of the laws in that state, where a group of professors was recently found to lack standing to challenge SB266.

At the institutional level, Drexel Kline’s Kalhan argued that faculty should be given a more prominent role in university governance to ensure that decisions about teaching and research are made based on disciplinary expertise, not political considerations. Governing boards and university administration should be insulated from outside

Democracy and Its Discontents

Sigal Ben-Porath, a professor at UPenn’s Graduate School of Education, studies the role of schools and colleges as democratic institutions.

Brian Soucek, a professor at UC Davis Law School, chaired the UC system’s committee on academic freedom.

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From the Florida Legislature to the Faculty Lounge

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Democracy and Its Discontents

PROTECTING THE RIGHT TO RESEARCH, TEACH AND SPEAK ABOUT ONE’S SUBJECT WITHOUT CENSORSHIP IS AN ESSENTIAL PART OF THE FABRIC OF DEMOCRACY. influences—particularly from faculty have,” he said, to withstand rising encroachments politicians and donors—and on academic freedom. their ranks should include Wright of UF Law argued that the most powerful force more faculty members to protest political infringement in Florida is the more than than they currently do, he 400,000 students in the state university system, many of said. With tenure under whom she said would be at a competitive disadvantage if attack, universities invest- their institutions disbanded DEI programs or eliminated ing their resources in more courses because of political pressure. Without meeting tenure-track faculty, while DEI-related standards, programs in medicine, law and eduensuring greater protections cation would lose accreditation, and graduates wouldn’t for those in contingent posi- be able to find licensed work, she said. “We are putting tions, would also mitigate the students at a gross disadvantage by trying to stifle these harm of outside influence in ideas,” she said. higher education, he added.

Wright also pointed to academic disciplines themTo Whittington, the chal- selves and the organizations, such as the American lenge for those on campuses is Sociological Association, dedicated to their advancement, to persuade a rising generation which cross state lines and can strive to maintain their stanof faculty, students and adminis- dards in the face of state-level encroachment. trators that traditional academic Similarly, Buchanan, who was so troubled by what freedom policies deserve protection. he saw in Florida that he left the state, said the power that Legislatures and trustees can adopt states are beginning to exert requires a broader response. A policies that promote academic freedom change in national labor law regarding public and private on campus and curtail efforts to chip away colleges alike could protect one of the few areas in which at it, he said, although that wouldn’t be his first the United States is “the envy of the world,” he said. choice for combatting infringements. The more “I’m really glad my colleagues at the University of important project is to build and maintain a culture Florida have engaged in and continue to fight the good that understands and is committed to these principles, he fight. The problem is they’re outgunned,” Buchanan said. said. “And that has to occur at the campus level and beyond.” “They can and are minimizing the damage, but the damage Soucek agrees that educating more people—both is going to keep getting worse unless we really do get someon-campus and off—about the meaning and purpose of thing going at the national level.” academic freedom will make a difference. He recalled Whatever the solution, scholars who closely examine speaking at a recent workshop for dozens of upper-level the past, present and future of academic freedom said the college administrators and asking them to reference their stakes are high. Protecting the right to research, teach and institution’s academic freedom policies. Many didn’t know speak about one’s subject without censorship is an essenwhere theirs could be found; few had taken the time to read tial part of the fabric of democracy. them; and some worked at schools without an explicit pol“We’re in an information society now,” Post said. icy at all. “Not knowing the protections and responsibilities “Without knowledge, we die. We fall behind. And without that come with academic freedom is a real impediment to the democratic education of students, we can’t have a standing up to outside pressures,” he said. democracy.” ■ To Reichman at the AAUP the answer is straightforward, if challenging. “Organize and unionize,” he said. He Ben Seal is a Philadelphia-based freelance writer witnessed the power of an effectively organized union at whose coverage includes the law, the environment and California’s public universities. “That’s the best weapon academic research.

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Scholars O Reproductive Rights In the Wake of the Dobbs Decision

Out Front

By Wendy Gibbons

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Scholars Out Front

W Drexel Kline Law professor David Cohen and Rachel Rebouché, dean of Temple Beasley Law, began discussing the implications of a possible overturn of Roe v. Wade in spring 2021.

hen Drexel Kline Law p r o f e s s o r D av i d S .

Cohen and his associate and friend Rachel Rebouché, the dean of Temple Beasley Law, s ought refuge from their busy work lives one day in May 2021, they chose Philadelphia restaurant El Vez for what they hoped would be a relaxing lunch meeting.

Finding time to chew over some of the pressing issues keeping them awake at night was a rare treat, Cohen said.

With an anti-choice conservative majority on the Supreme Court and activists promoting bills to severely curtail abortion rights in states such as Texas and Mississippi, Cohen and Rebouché worried that thousands of women and girls would soon lose a right that had been guaranteed to American women for nearly 50 years. As they talked, they began identifying all the legal dominoes that would topple if the United States Supreme Court did indeed overturn the Roe v. Wade decision, which had protected a woman’s right to abortion in the United States since 1973.

“We realized that we were both thinking some of the same things,” Cohen said.

Without federal protection for pre-viability abortions, every state would create its own rules, they predicted, with states that ban the procedure bordering those where it would still be widely available. Would a woman who crossed from one state to the other for an abortion risk criminal conviction when she returned home? Could someone sue a doctor who practiced in both states for providing legal abortions to a woman from a state with an abortion ban?

Over the next few weeks, the two began researching and writing, with Rebouché drawing on her legal expertise in reproductive health, and Cohen examining questions of constitutional law and gender. After they shared their early ideas at the Law and Society Association conference held virtually that spring, another legal scholar, Greer Donley of the University of Pittsburgh, asked to join the project.

Her expertise in Food and Drug Administration (FDA) and telehealth law proved invaluable.

Over the next several months, the three scholars collaborated to envision an entirely new legal mechanism called an abortion shield law. The draft of an article

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Democracy and Its Discontents

they published in the Columbia Law Review was cited by Supreme Court Justice Elena Kagan in her dissent in the 2022 case of Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. And their work inspired state legislatures across the country.

Shield laws are designed to protect doctors and other medical professionals who provide legal abortions to women and girls traveling from a home state that bans the procedure. So, while 14 states now have strict abortion bans in effect and several others have significantly limited access, 18 states and the District of Columbia have safeguarded their own legal abortion procedures by enacting measures that counter any element of a ban that extends beyond state borders.

Reckoning with the End of Roe Anti-abortion activists, legislators and jurists have been whittling away at abortion rights for decades. Most notably, in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey the Supreme Court affirmed a right to abortion but ruled that states could impose such restrictions as 24-hour waiting periods and require that minors seeking the procedure obtain parental consent. Over the years, states enacted additional restrictions, but many were struck down by lower courts and few made it to the Supreme Court.

The final march toward the death of Roe began in 2018, with the passage of Mississippi’s Gestational Age Act. Based on a model law produced by the Alliance Defending Freedom, a conservative Christian legal advocacy group, this legislation was intentionally designed to produce a legal challenge that would be appealed to the high court, offering an opportunity to overturn both Roe and Casey.

When the law passed, banning most abortions after 15 weeks of pregnancy, the Jackson Women’s Health Clinic, Mississippi’s only remaining abortion clinic at the time, immediately sued Mississippi over the constitutionality of the bill. The Supreme Court granted the petition for a writ of certoriari in Dobbs in May 2021.

When Cohen and Rebouché met for lunch, the two lawyers discussed what could happen if the Supreme Court used Dobbs to return abortion rights decision-making to the states, as Mississippi anti-abortion groups hoped. One of their most pressing concerns was that removing federal protection for reproductive health choices would create a jurisdictional tangle among states, and between states and the federal government. Several states already had laws on the books that would either ban abortions or severely limit

access to them; some of these laws had been in existence before Roe, while others had been passed more recently in anticipation of its overturning.

Other states, however, had clear pro-choice majorities.

The three professors expected that legislators in these jurisdictions would be looking for ways to protect their constituents, especially health care providers caring for both in-state patients as well as patients traveling from states where the procedure had been banned or severely restricted.

By the fall of 2021, Donley, Rebouché and Cohen had begun drafting an article predicting what would happen if Roe were to fall the following spring. They publicized their legal scholarship by giving radio interviews and by writing op-eds and articles in such outlets as The Washington Post, The Boston Globe, The Atlantic and Slate, which they then promoted via Twitter.

“Would abortion law be more workable if it were returned to the states? @dsc250, @RRebouche, and I address that question in the @TheAtlantic. Spoiler alert: we think it will actually become much more complicated.

You can read more here,” tweeted Donley on September 21, 2021 in a post that included a link to the article.

This was more than just the usual law professor Twitter chat. “David and I really used social media as a tool,” Donley said, to get their predictions “out into the ether.” Their goal was to anticipate the public health impacts of the patchwork of state laws that would result if federal protection for abortion rights fell—and offer possible solutions for any possible negative effects. “Public interest was enormous, and there was significant uptake of our ideas extremely quickly,” she said.

On December 1, 2021, the Dobbs case was argued in front of the Supreme Court. Mississippi Solicitor General Scott G. Stewart argued that Roe and Casey prevented states from responding to new scientific findings about fetal viability and fetal pain.

Julie Rikelman argued on behalf of the Jackson Women’s Health Clinic that the existing viability standard was correct and had been clearly and consistently applied by the courts for more than 50 years. Several reporters said that, based on oral arguments, at least three of the justices appeared ready to overturn Roe. As the possibility that the Court might severely curtail abortion rights began to seem more and more like a certainty, a New York Times editor asked Cohen, Rebouché and Donley to write an op-ed sketching out the possible features of a post-Roe legal world. They distilled what had become the draft of a lengthy law review article into a concise and pointed missive aimed at a broad readership. “Joe Biden Can’t Save Roe v. Wade Alone. But He Can Do This,”

Would a woman who crossed from one state to the other for an abortion risk criminal conviction when she returned home?

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Scholars Out Front

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appeared in the January 1, 2022, issue of the Times. “It’s 1,000 words, and it’s in plain English,” Cohen said. “We certainly had the right timing.”

The op-ed described a range of possible ideas for preserving abortion access in the wake of a probable overturning of Roe: leasing federal office buildings to abortion providers in states that prohibited the procedure to limit application of state criminal laws; having the FDA clearly assert federal preemption in regulation of abortion medications such as mifepristone; expanding access to telemedicine and encouraging interstate licensure compacts for medical providers to protect them from prosecution over abortion.

The State House Calls

C

onnecticut state representative Matt Blumenthal read the op-ed in The New York Times and immediately recognized its implications for lawmakers in abortion-rights states. “It was,” he said, “a very sophisticated analysis.”

Blumenthal promptly contacted Cohen, Rebouché and Donley to ask, “What can I do as a legislator?” and within a week they were meeting over Zoom. “We were kind of off to the races,” he said. The partnership proved fruitful. “We gave him ideas from what we were working on,” Cohen said, “and the next thing we knew he was sending us a draft of a bill based on our article. He took the ideas and ran with them.”

The Connecticut State Senate passed the first abortion shield law in the United States on April 30, 2022, and Governor Ned Lamont signed it into law on May 5. The bill provided a novel approach to make a state a “safe haven” for in-state providers and their patients, but also for women and girls traveling to that state for an abortion from any other. Blumenthal designed the bill with anti-abortion legislation in mind to diminish the risks of prosecution for patients from states where abortion access was limited as well as for their Connecticut-based care providers.

Connecticut’s law prohibits state agencies from assisting out-of-state abortion-related investigations or

prosecutions with discovery and extradition. Law enforcement may not serve summonses, court officers are blocked from issuing subpoenas and Connecticut authorities are proscribed from assisting another state’s police if they seek to punish individuals who are alleged to have helped a patient procure a legal abortion in Connecticut. Basically, the law makes Connecticut a “black box” for anyone seeking to attack reproductive health care providers or their patients, Blumenthal said.

Another innovative provision of the Connecticut shield law is that it contains a “clawback” provision allowing providers to countersue for damages, attorney’s fees and other costs if they are sued under antiabortion laws in other states. Lea Brilmayer, the Howard M. Holtzmann Professor of International Law at Yale Law School, helped Blumenthal develop the clawback approach, which is based on international antitrust law. Finally, the law also expands abortion access by allowing licensed advanced practice registered nurses, nurse/midwives and physician’s assistants to carry out medication and aspiration abortions.

The Connecticut law passed just before the Supreme Court’s Dobbs draft opinion was leaked in early May 2022 and only two months before the ruling itself came out on June 24, 2022, with the majority holding that the United States Constitution does not confer a right to abortion. The timing meant that state laws were already in place to blunt any possible impacts from the loss of federal protection.

“We were already on it,” Blumenthal said, “so when the bombshell dropped, we felt shock, but not surprise.”

In the late spring, Cohen, Rebouché and Donley took their experiences from Connecticut and used them to help additional states pass their own versions of shield laws based on the team’s original ideas. The Connecticut law has now provided a model for 17 other states and Washington, D.C. to enact similar shield laws that both protect providers of legal reproductive health care and their in-state and outof-state patients. “That has radically changed the post-Roe landscape,” Cohen said.

The unstoppable progression of Dobbs to the Supreme Court and the Court’s willingness to erase decades of existing legal precedent left many abortion rights activists in a state bordering on shock, Rebouché said. She credited their effectiveness at working together as a team for the success that she, Cohen and Donley achieved in quickly turning their ideas into a framework for abortion rights

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Democracy and Its Discontents

The bill provided a novel approach to make a state a “safe haven” for in-state providers and their patients, but also for women and girls traveling to that state for an abortion from any other. legislation. What would likely have been a full-time job for one person was manageable with three, and their collegiality helped them find consensus when they disagreed. “We each were coming from different backgrounds in different areas of law,” she explained. When Justice Kagan cited their research and scholarship in her Dobbs dissent, the three realized the impact their work was having.

Blumenthal cited the team for both their theoretical insight and their practical knowledge. Cohen, he said, “takes a very global approach to his research,” and can visualize how a new law might “fit into legal narratives at the 30,000-foot level and also at the microscopic level, with the nitty gritty details such as how someone might serve an interstate subpoena.”

Cohen, Donley and Rebouché also helped prepare Blumenthal for public hearings and legislative committee meetings, and Cohen testified in committee hearings.

Cohen’s expertise in constitutional doctrine “gave us confidence that what we were doing was the right thing,” Blumenthal said, and his skill as a litigator helped keep the fast-moving legislative train on track, Rebouché said.

Blumenthal noted that so far, no Connecticut cases have required anyone to use provisions of the shield law, which suggests the legal countermove is doing its job. “Its purpose is deterrence,” he said. Meanwhile, the number of people travelling to the state for abortions has increased by at least 50 percent, he said. “They are taking trips to Connecticut because they feel safe.” Providers, as well, seem to feel comfortable providing abortion services in the state despite the threatening rhetoric coming from abortion foes across the country.

But in some states with anti-abortion majorities, efforts to curtail residents’ access to the procedure even beyond those states’ borders have continued. In April 2023, for example, Idaho passed legislation making it a criminal offense to help a pregnant minor leave the state for an abortion. Missouri’s legislature has also attempted, unsuccessfully so far, to criminalize interstate travel. And, in Alabama, health care providers are suing the state attorney general in Federal Court to prevent him from prosecuting practitioners who help patients obtain out-of-state abortions.

Blumenthal compares these measures to draconian laws of the Antebellum era, including the Fugitive Slave Act of 1850. Such hostile attacks on interstate relationships are “very dangerous, potentially destabilizing, and frankly barbaric,” Blumenthal said. “This is a dark time.”

Greer Donley, a professor at the University of Pittsburgh School of Law, is an expert on laws governing the FDA and telehealth.

Connecticut State Representative Matt Blumenthal drafted the nation’s first abortion shield law.

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Scholars Out Front

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N.D.

Idaho

S.D. Iowa

Neb.

Ind.

Utah

W.Va.

Ky.

Mo. Ariz.

N.C.

Tenn.

Okla.

Ark.

S.C. Miss.

Texas

Ala.

Ga.

La. Fla.

Twenty-two states now ban abortion completely or restrict the procedure to earlier in the pregnancy than the standard established under Roe v. Wade.

Full ban

6 weeks

12 weeks

15–18 weeks

07/1/2024

Alternatives to the Clinic In addition to shield laws, state-level legal mechanisms to protect abortion access have included passage of constitutional amendments. Since Dobbs, amendments have passed in six states, and at least five—and as many as 10—more states will have proposed amendments on their 2024 ballots.

Some states have also passed laws to broaden access to telemedicine and to abortion pills delivered via the mail.

Indeed, another apparent impact of the Dobbs decision has been the growth of medication abortion: By 2023, medication abortions accounted for 63 percent of all abortions, up from 53 percent in 2020, according to the Guttmacher Institute’s Monthly Abortion Provision Study.

Because the FDA regulates prescription drugs at the federal level, Cohen, Rebouché and Donley have argued that state bans that include medication abortions should be held invalid. In early 2022, they began researching the legal questions surrounding the prescription of mifepristone and misoprostol, the two medications typically used in combination to terminate a pregnancy.

In another New York Times op-ed published on March 13, 2022, they argued that the FDA should relax prescription rules for abortion medications. Abortion access could be preserved, they wrote, if providers could meet with patients over the phone and then mail medications to them, regardless of the laws of the state in which they reside.

M

assachusetts was the first state to pass a shield law specifically protecting practitioners who connect with abortion patients remotely (via telephone or computer) and prescribe them mifepristone and misoprostol that is then mailed to them. Seven other states —Vermont, New York, Colorado, Washington, Maine, Rhode Island and California—now have similar laws. “That’s also a direct result of our article,” Cohen said.

The team’s analysis of the legalities of medication abortion culminated in another influential article titled “Abortion Pills,” which was published in the February 2024 issue of the Stanford Law Review. Donley’s expertise in FDA law proved critical in helping the three analyze the ways in which the use of these highly effective and safe medications challenges individual states’ attempts to curtail the availability of abortion by shutting down brick-and-mortar reproductive care clinics. The authors predict—somewhat boldly—that abortion medication will transform the abortion debate and even, perhaps, the definition of what constitutes an abortion. “Pills change the abortion-care dynamic because they are so safe,” Donley said. “The genie is out of the bottle, these drugs are coming in, and criminalizing it doesn’t work.”

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Democracy and Its Discontents

Interstate Conflict In their work, Cohen, Rebouché and Donley identified some destabilizing forces that could come into play as individual states regulate abortion in the wake of Dobbs.

In their Columbia Law Review article, they argued that state relationships could break down and even result in retaliation, causing long-term consequences for “the general fabric of the country’s federalist form of government.”

Devin Caughey, a political science professor at the Massachusetts Institute of Technology, has written about how democracy in the United States helps regulate conflict and creates a “self-reinforcing equilibrium” that resists destabilizing forces. By dividing power between federal and regional governments, federalism, he suggested, can be seen as a “release valve” for pressures that arise when states take actions that are too independent of each other. For example, people should not be able to escape paying debts in one state by moving to another, he said. So, in theory, forcing different states to adhere to the same standard should “turn down the heat” on interstate conflicts, but, he said, “in practice it’s not clear that that actually happens.”

For one thing, it takes more than laws to maintain a federalist balance of power between local and national governments. Federalism relies on comity, a collection of cultural norms that reduce conflict by helping states recognize that cooperation promotes their own long-term best interests, even when they temporarily defer their own short-term goals.

Comity makes it possible for states to function interdependently, Caughey continued. “I think the comity implications [of the Dobbs decision] are really interesting,” he noted. For example, from a conservative perspective, the decision supports democratic goals because Roe imposed a national standard that limited action at the state level.

With power returned to elected state legislatures from nonelected jurists, Caughey added, “You could say that now the stakes of controlling the Supreme Court are lower.”

Comity does not necessarily promote justice, however.

Slavery, for example, managed to survive far longer than it might have if states hadn’t respected each other’s laws or if the federal government had intervened to solve the issue by means short of war, Caughey said. In the United States before the Dobbs decision, he continued, relationships among states weren’t on people’s political radar. Studies show Americans tend to focus more on national politics and pay less attention to local issues. The fallout from Dobbs, Caughey said, could “shake that up.”

Such bitter disagreements among states are unusual, Donley noted. “It is generally good for states to cooperate,”

she said, when it comes to supporting each other’s laws.

For example, if someone is wanted for selling marijuana illegally in a state without legal cannabis and then escapes to a state that has legalized it, the second state is unlikely to shield that suspect from the state where the crime took place. But with profound questions of individual human rights and bodily autonomy at the heart of the matter, abortion is an intensely emotionally charged issue. “States usually want to get along with each other,” Donley noted, but “abortion is a unique topic.”

She sees abortion shield laws as a “special remedy for a special need,” rather than a legal mechanism with a broader general application. Trans health care, she added, represents another scenario under which shield laws can be applied; as of June 2024, 14 states and the District of Columbia have passed legislation shielding gender-affirming care for young people.

As individual states grapple with their policies on emergency abortion care, telehealth and medication abortion, abortion opponents unsuccessfully challenged the legality of the FDA’s approval of the abortion drug mifepristone. In the case Food and Drug Administration v. Alliance for Hippocratic Medicine, the Supreme Court ruled unanimously that the plaintiffs in the case lacked standing to challenge the FDA’s approval, effectively (although possibly only temporarily) preserving access to the medicine.

And in April, Cohen, Rebouché and Donley filed an amicus brief in another Supreme Court abortion case, Moyle v. United States. In that case, the Biden administration argued that Idaho’s strict abortion ban does not preempt the federal Emergency Medical Treatment and Active Labor Act (EMTALA). Under EMTALA, which was passed in 1986, hospitals receiving Medicare funding must provide stabilizing treatment for anyone seeking treatment, which can include emergency abortions. In June, the Supreme Court left in place a preliminary injunction from the district court that bars Idaho from enforcing its abortion law when hospitals perform abortions that are necessary to prevent serious harm to a woman’s health.

The effects of the Dobbs decision will continue to reverberate across the country for the foreseeable future, with activists on neither side of this decades-old conflict ready to give up the fight. For proponents of reproductive freedom and women who desperately need safe access to abortions, the bold and creative work of Cohen, Rebouché and Donley blazes a trail forward. ■

Wendy Gibbons is a writer, blueberry farmer and bird bander in Antrim, New Hampshire.

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Democracy and Its Discontents

A Q & A with Author Jed Stiglitz

By Nancy J. Waters

DEEP STATE, INDEED Edward H. (Jed) Stiglitz is the associate dean for academic Agency—where most of the nation’s laws are produced affairs and professor of law at Cornell Law School. His teach- although they are led by non-elected officials—become so ing and scholarship focus on administrative law, with an large, powerful and important? emphasis on the relationship between judicial review and Traditional explanations for the tremendous power the values of trust and accountability in the administrative vested with government agencies have focused on experstate. He also studies legislation and other areas of public tise and simple logistics—as American society became law. He has written on topics ranging from administrative more complex, that explanation goes, legislators could not procedures to party identification and has been published in possibly have been expected to develop the knowledge and numerous law reviews. His book The Reputational Premium skills (economic, technological, medical, environmental, (2012), coauthored with Paul Sniderman, was published by etc.) necessary to effectively administer the modern state.

Princeton University Press.

Employing experiments drawn from behavioral economics, Stiglitz holds a master’s degree in economics, Ph.D. in Stiglitz has developed a novel theory to explain the rise of the political science and JD, all from Stanford University, and administrative state that goes beyond expertise. The agenmuch of his research has empirical and quantitative com- cies’ reliance on procedures that embody what Stiglitz calls ponents. Following law school, he clerked on the D.C. Circuit “credible reasoning,” he argues, builds trust in government Court of Appeals. that not only enables the effective administration of federal In his 2022 book, The Reasoning State, Stiglitz takes law but also accrues major dividends to legislators. both historical and empirical approaches to explain the Lex sat down with Stiglitz earlier this year to discuss development of the administrative state in the United the past, present and future of the American administrative States. How and why, he asks, have administrative agen- state and the role of reason in democratic governance. The cies like the Food and Drug Administration, the Interstate following transcript has been edited for brevity and clarity.

Commerce Commission and the Environmental Protection —Nancy J. Waters

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My first question could not be more basic: Can you define the administrative state and explain how it departs in some essential ways from the vision of representative democracy described in the United States Constitution?

There’s no complete consensus on the definition, but in essence the administrative state refers to the set of governmental structures that have largely arisen since the Progressive Era that develop and interpret delegated authority from Congress. Bodies such as the Interstate Commerce Commission (ICC), the Food and Drug Administration (FDA)—those are Progressive Era agencies. The set of New Deal agencies includes the Federal Communications Commission (FCC). More recently, there’s the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA)— those are from the second half of the 20th century. These are all collectively known as the administrative state—the set of bodies that are making rules for us that sit outside of a narrow vision of the tri-partite structure that people think James Madison envisioned.

They’re not part of the legislature, they’re not part of the judiciary, although they share some functions with those branches. They are typically, if anything, thought about as part of the executive, but they also sit somewhat separate and apart from the executive.

There’s also been some interesting recent historical work that shows that even though there’s no term “the administrative state” in the Constitution, from the very earliest days of the Republic there were instances of delegated authority, giving something like lawmaking authority to non-legislative actors. That might be thought of as sort of a prototype of the administrative state that you see very early in the Republic. But it grew over time and what I submit is that the growth accelerated dramatically in the Progessive Era for reasons that I argue in the book.

What drew you to this topic? I’m guessing—perhaps incorrectly—that most of the scholarly focus has been on the “how” of the administrative state, i.e. how it functions? Why were you so interested in the “why” of the administrative state?

The “why” is one way of thinking about what most of the book is about. Why does the world look the way it does? And should it look the way it does?

There are a couple of common answers for the why question, which is “Why do we have so much delegated authority?” Another way to put it is, “What is the administrative state doing really?” One answer is about expertise.

As the world became more complicated, the basic tripartite structure that Madison might have envisioned was less and less able to process all the information that was necessary to make sensible decisions about matters of public policy.

So, Congress tried to adapt in various ways, for example by building a more robust committee structure and the like. But the expertise-generating capacity of the institution was outmatched by the evolution of the world. So, we have these agencies like the FDA, which employs many scientists and economists and others who have devoted their careers to studying food and drug issues—they’re the ones who decode what a more sensible policy would be within some relatively well-defined parameters that Congress would lay out. We have delegated authority and the administrative state because we are trying to take advantage of the expertise in the FDA, the FCC, etc. that Congress can’t natively develop itself. But that expertise argument is not necessarily my view.

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Democracy and Its Discontents

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But, as you point out, rather than delegating to outside agencies, Congress could have increased its capacity and expertise internally, within the legislature. Can you explain what that would look like? And why hasn’t it happened? In fact, you say Congress has gone in the opposite direction when it comes to embracing expertise among its members. In what ways? And why?

As the country grew, we developed a complicated infrastructure that we had to create some kind of sensible policy for, and so we needed some kind of expertise to reside or interface within our policymaking apparatus. As you pointed out, the conventional response is, “That’s what agencies are doing, providing that expertise.”

One of my responses to that conventional answer is that, acknowledging that some kind of reform was necessary, it’s not obvious that we in fact need agencies if expertise is all we care about. We can imagine other arrangements, as you point out, including integrating more information-processing capacity into Congress itself. That’s one argument that you often see in today’s discourse, that is that Congress should just be doing more. I call the people who make this argument “Article One enthusiasts,” referring to the first article of the Constitution that describes the national legislature.

What that would look like is something like having an expansion of the kinds of Congressional bureaucracies that do exist now. For example, prominent ones include the CBO (the Congressional Budget Office), which helps to score or estimate the cost of various legislative options. The Joint Committee on Taxation is another professionalized, expert-like body within Congress.

WHAT’S INTERESTING ABOUT THE ADMINISTRATIVE AGENCIES IS THAT PRECISELY BECAUSE THEY’RE NOT IN THE CORE OF OUR TRIPARTITE SYSTEM, WE’ VE ALWAYS HAD A LITTLE BIT OF SUSPICION ABOUT THEM.

Deep State, Indeed

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Those offices are highly regarded, right?

They are. The germ of the idea is there. And that makes the puzzle even more profound: If it kind of works and expertise is the constraint, why not just dramatically amplify those kinds of structures? The argument in the book is that the reason is that expertise is a constraint, but it’s not the binding constraint. You need expertise but you also need something else. And the thing that the legislature lacks even the capacity to develop in principle, I argue, is not expertise but, instead, trustworthiness.

If Congress takes some action, we always worry, “Is what Congress is doing in some sense in the public interest?

Or is it a giveaway to special interest groups, to connected parties and the like?” We would have that element of distrust in Congress.

In fact, if you look at surveys of what people think of various professions, lawyers do OK, not great. But the people who do the worst of any professions are members of Congress—and telemarketers!

Your book focuses quite extensively on the role of railroads in the growth of the administrative state. Why were the railroads so important?

Railroads were the first big arena where we had a dramatic need for regulation. Railroads were unique because they became the lifeblood of the economy, moving goods from one place to another in a way that was much more cost efficient than had existed before. But there was a lot of discussion about rates. Many people felt the rates they were being charged were unfair. And that’s because of certain features of the economy of railroads, which made it inevitable that railroads would turn into what we call “natural monopolies.”

Railroads were really big business. They employed a lot of people and generated enormous revenue. The initial forms of regulation often occurred at the state level. The states felt pressure from the public to start to regulate these entities because they were having such a dramatic influence on everybody’s lives.

But the railroads were intelligent actors in this system, and they saw that discretion was being exercised at the legislative level over their business, so what they tried to do then was to influence the legislature. They penetrated legislative bodies with influence, which, I argue, over time

eroded trust in the ability of legislatures to respond to this pressing public problem. This is when we see the development of the term “lobbying.”

A big part of the story here, too, is the rise of investigative journalism, which I think is an underrecognized dimension of the story of the rise of the administrative state. One mechanism that generated distrust in the legislatures was these new journalistic outlets, the muckrakers.

Like Upton Sinclair’s The Jungle directly leading to the passage of the Pure Food and Drug Act, which led to the creation of the FDA? That’s one pretty common story about the FDA. The most famous of the muckraker outlets was McClure’s. These magazines were breaking new ground on what journalism meant, doing investigative reports on government activity that shed light on abuses that to some extent had probably always been there, but that had gotten worse over time. Shedding new light on these worsening abuses also generated distrust in the system.

So the legislature faced great pressure to respond to a changing economic landscape because of railroads and other scale economies. At the same time, they were also being influenced in really novel ways by those concentrated industries themselves and also the public was more aware of this because of the rise of investigative journalism.

That’s the fundamental problem, I argue, that legislatures confronted around the rise of the Progressive Era. The administrative state is in essence the response to that problem.

A central thesis of your book is that what you call credible reasoning helps explain the evolution of the administrative state. What is credible reasoning and how does it explain the administrative state?

It’s useful to think about this as a legislative response to a problem. The legislature is the main actor here. The problem again is there’s a lot of pressure to find policy solutions to a changing world. At the same time, the economic actors at play are trying to influence the legislature, and the public to whom the legislature is ultimately accountable distrusts the legislature largely because of those efforts. So the legislature responds by saying, “We’re not going to make policy directly because when we make policy directly, then we’re

LEX

going to be criticized or doubted by the public. They will not trust what we have done—and for good reason because they know there are interests operating with significant force in the legislature that depart from the voters’ own interests. So what we’ll do instead is create this new kind of body, and we’ll give the authority and discretion to make decisions in some relatively well-defined policy space. But critically, we will also make that body go through steps that we ourselves could not commit to.”

So the first response to the problem of credibility would be, “Why doesn’t the legislature just say to the voters, ‘Look, this is in your best interest because of X, Y, and Z’”? The trouble is that nobody would believe those statements, and the reasoning capacity of the legislature is quite anemic. If you look at the kind of arguments that you see advanced on the floor or in interviews with politicians, they’re quite superficial arguments that it’s hard to take seriously. And there’s no check on them. If they lie, there’s no recourse.

When Congress or a legislature more generally makes a policy and says, “I’m going to do a policy for reasons A, B, C,” and that turns out to be false, the law or policy is not reversed or set aside. It’s just still there. There’s no legal recourse for falsification of the reasons for which legislation was enacted. And that’s because the legislature is a kind of sovereign in our system. There’s no check for truth on a sovereign.

What’s interesting about administrative agencies, I argue, is that precisely because they’re not in the core of our tripartite system, we’ve always had a little bit of suspicion about them actually. What are these entities? That turns out to be something that’s enormously valuable to what they do because that kind of suspicion means that people are quite willing to question and check them. And, as a result, agencies must develop fairly reasoned explanations for what they have done. Unlike the legislature, when an agency makes policy—in almost all cases—they must explain what they have done and why they have done it.

They have to say, “I’m doing X because of Reasons A, B and C.” And a really critical difference between legislatures and agencies is that if Reasons A and B aren’t true or it turns out that they didn’t do it for Reasons A, B and C, they did it for Reasons D, E and F—which aren’t mentioned anywhere as the reason—then, unlike the legislature’s policy, the agency’s policy would actually generally then be set aside.

It would be invalidated.

Democracy and Its Discontents

The growth of the American railroad system in the 19th century, Jed Stiglitz argues, was pivotal to the development of the modern administrative state.

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HOW DOES THE ADMINISTRATIVE STATE SOLVE A PROBLEM FOR THE LEGISLATURE FUNDAMENTALLY? IT REMOVES AN ELEMENT OF DISTRUST FROM THEM.

So what agencies do is attach reasons to what they’ve done and those are consequential reasons, and there’s somebody checking. There’s a third party, generally the courts, that kicks the tires on those reasons. There’s a big debate we can and should and are having about how hard those tires should be kicked, but there’s somebody doing at least some checking, and that is totally foreign to the legislative setting. And it’s those checking functions, those verification functions, that lead to credibility.

But doesn’t at least some of the agencies’ credibility arise from expertise, i.e. these bureaucrats are trusted in part not just because someone is watching them and they have to defend their actions, but because they are believed to know what they are doing in their particular arena. Don’t we trust the Centers for Disease Control (CDC) more because they are doctors?

We definitely do, yes. That’s right. My fundamental argument is you generally need expertise, but you need something else. You need also this ability to credibly reason. And going back to my response to the Article One enthusiasts who imagine Congress developing a much more robust

bureaucracy: This is not a response to the problem that the legislature faces because they still—even if they have expertise—would not have the ability to credibly reason.

So that’s why the administrative state is so distinctive. It’s really the combination of the expertise, which I agree is a constraint—we definitely need doctors in the CDC, we need scientists in the FDA—but we also need for that expertise to be hooked up to a reasoning apparatus that is credible. The administrative state does that: It combines those two features, which is a really remarkable thing. These are features that are not commonly combined in any other institution in our system.

Your theory of the advantages conferred by credible reasoning has two important components: In theory, it confers benefits to both electors and elected, i.e. to the public. Of these, you argue that the former is the most important in understanding the rise of the administrative state. On page 122 you wrote, “Recall that though the actions of administrative bodies produce public benefits, it is largely incidental to their development. The motivation for members, instead is to keep their jobs.” How does the administrative state help legislators keep their jobs?

We should think of the legislators as the prime mover here.

They are the ones who are making the decisions, who set up these bodies; they wouldn’t exist without legislative action.

They are the ones who give authority to these bodies after they are created. The EPA without the Clean Air Act—it’s a lot less.

And also the legislature sets up the reasoning rules.

The most important of those is the Administrative Procedure Act of 1946. Although there were antecedents and subsequent laws, that act provides the reasoning architecture for the administrative state, a set of steps that it has to go through to reason credibly. So the legislature is the main actor here.

How does the administrative state solve a problem for the legislature fundamentally? It removes an element of distrust from them. Continuing with the railroad example, instead of having the legislature and the legislators

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be responsible for setting railroad rates, which they did in some states, and then being blamed by people that the rates were too high or too low, instead they give authority to another body that then must reason through what the appropriate rate is and do that in a credible way. So this other entity sets up a set of reasoning constraints around the activity that it is engaged in, which relieves the legislature of some—not all—of the distrust that they face from the public. And that is going to improve their chances of reelection. That’s ultimately what they are trying to do: win popular support and keep their jobs.

Your book offers empirical evidence for your argument. You include two broad types of evidence: case analysis and experiments. First, can you tell me about one or two of the case studies and what they show?

Most of the case studies in the book focus on the Progressive Era, which is a really interesting time period to think about—here is when we see what I would characterize as a qualitative change in the structure of U.S. government.

What I try to show in some of those case studies through a quantitative lens is that when either state legislatures or Congress was delegating authority during this period that it actually was benefiting the members’ reelection prospects or reducing the volatility of elections. There’s a series of case studies around that. For example, one looks at the impact of the Hepburn Act of 1906, which increased the power of the ICC. The second bit of empirical evidence is two chapters focused on experiments.

How did those experiments work? And what did they show?

The first chapter asks whether forcing someone to give reasons for what they have done makes them more trustworthy, that is, deserving of our trust. The second set of experiments looks at the other side of the transaction.

Think of somebody who is observing or on the recipient side of an action—does receiving a reason make you trust what has happened more?

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These are laboratory type experiments, basically adaptations of a very famous game in behavioral economics called the “dictator game.” We generally can’t do experiments with actual agencies for ethical and practical reasons—it’s impossible.

The dictator game involves giving someone a sum of money and telling them, “It’s totally up to you what you do with the money. You can give as much money as you like to your experimental partner.” The partners are randomly assigned. Theory would suggest that people would keep the bulk of the money for themselves because, under the standard assumption, people are just trying to maximize their own well being and don’t care about anybody else.

The reality is that, in fact, people tend to give away some fraction of it, something like 20 to 30 percent, to the other person. That’s understood as a preference for fairness or caring about the other person. There have been thousands of studies that have looked at different variations of the dictator game.

I basically grafted two things onto that set up. The first was a set of instructions about what they should do with the money, which is analogous to the statutory set up where Congress is telling the agency what it should do in some policy area.

The second thing that I manipulated is whether the person who is allocating the money is forced to give reasons for what they have done. If they were forced to give reasons, I also manipulated whether people reviewed those reasons.

That, by analogy, is the kind of reason-giving that agencies engage in and the kind of review that courts engage in.

What the first set of experiments show is that people are much more likely to go against their own self interest— that is, take less money for themselves—when they are forced to explain what they’ve done. And, this is amplified when they know somebody is going to look at the reasons and evaluate those reasons. So, the main conclusion from this chapter is that grafting a requirement to give reasons onto a discretionary choice seems to make people more trustworthy. That is, they are doing what they should be doing in the face of information problems in a more faithful way when they need to give reasons.

The second chapter looks at the people who are either receiving the money or third parties who are observing. For both those sets of parties, if the person who is giving the money has to explain what they’ve done and the person on the receiving end is seeing those reasons, they think that the giver is more honest, they think the outcome is more fair and they are much more satisfied with their overall experience.

This suggests that, if we think of these people as basically voters, when decisions are made by an agency which has to explain what they have done, it’s quite reasonable to think that they are going to receive that in a much better way than if they just saw some policy made without any explanation. Review of reasons amplifies this process. It’s as if someone checks the homework of the agency. So, it’s a trust-building mechanism.

Deep State, Indeed

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WHAT I TRY TO SHOW IN THE BOOK IS THAT THE ADMINISTRATIVE STATE IS A REALLY REMARKABLE SET OF INSTITUTIONS HISTORICALLY.

That again goes to the question of “what is the legislature getting out of all this?” Well, they are getting some trust dividends. It’s obviously not a complete solution because legislatures are highly distrusted still, but if we imagine the counterfactual where agencies didn’t exist and the legislatures were making all the policies themselves, in a qualitative and quantitative sense I would suspect that legislatures would be in an even worse position.

Results of these kinds of experiments can sometimes be counterintuitive, but your results are intuitively what we would expect—and hope for. Three cheers for the Enlightenment and the value of reason!

I think of the administrative state, in particular the independent agencies, as basically our Enlightenment institutions. They are the institutions that best embody the principles of the Enlightenment.

Reason giving is not costless. It’s in fact, quite expensive in the sense that it slows things down, it requires people, you make mistakes, things get reversed. People may not like the reasons. Learning why somebody did something could actually increase distrust.

So, it’s useful to know: Does, in fact, requiring reasons, given that it is not costless, make people more trustworthy?

And on the other side, does it actually increase trust or not? It seems like the answer to both those questions is that it does make people more trustworthy and it also increases trust.

You note in the book that there’s always been some unease about the administrative state because “it is apart from democratic processes.”

Your studies suggest, however, that the role of the administrative state in promoting “credible reasoning” has generally ameliorated these concerns. In recent years, especially under the administration of former President Donald Trump and during the Covid-19 pandemic, distrust of the “deep state” and challenges to agency authority seem to have risen significantly, although studies suggest that, even so, the administrative state is still seen as more trustworthy than the legislative branch. But you caution that “a number of changes in the administrative state itself may have the effects of decreasing trust in the public sector.” What are those changes?

There are two, one of which I discuss in the book. The second one I don’t discuss in the book as much, but I think it’s relevant. One category is agencies’ efforts to move to less proceduralized modes of policy creation—precisely because of the kind of costs we were talking about moments ago. These procedures slow things down, they create opportunities for agencies to trip up, they require resources. All the factors that make these procedures not costless create an incentive for agencies to find a way out of them. And they will try to find ways out of them and in some ways have.

One very prominent example is the increasing use of what are called “guidances” where instead of creating a rule that would have to go through the public comment process, the agency will just issue a memorandum that states “So that you know, regulated public, this is the way we think about some legal question” or “When we’re thinking about enforcement down the road, just so you know, these are the kinds of things that we’re going to prioritize.”

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Does that involve Article III courts?

And those will be outside of the rule-making context. You would not have the reason giving, you wouldn’t necessarily have judicial review, you wouldn’t have any fact development. That erosion of reason-giving from within is a concern to keep an eye on.

The second development—which I would say has been visible for some time but that has accelerated in the last year or two, especially since my book went to press—is that the courts have become increasingly aggressive at both chipping away at the critical features of the administrative state and also aggrandizing the courts themselves.

The Supreme Court has taken actions this term that will hamper the ability of agencies to engage in public reasoning. Perhaps the most prominent case is called Loper Bright Enterprises v. Raimondo, in which the Court overruled Chevron v. Natural Resources Defense Council (1984).

That so-called Chevron doctrine said that courts should defer to reasonable interpretation of statutes given by agencies. Though courts may now give “respect” to agency interpretations, there is no requirement to defer to them.

Removing Chevron threatens to limit the scope of what agencies can do and allows adversarial courts to throw sand in the gears of agency operations.

Another important case this term was Securities and Exchange Commission v. Jarkesy. It’s about the Seventh Amendment, which says that you have a right to a jury trial in many civil cases. Though we have agencies doing adjudicatory activity, we do not have juries in agencies.

If you are in an Article III court—that is a federal court— you have protections under the Seventh Amendment and a right to a jury trial in many civil cases. But sometimes the agency can choose whether to pursue the case internally, and within the agency there are no juries. So, the question was does having these kind of adjudicatory systems within the agencies violate the Seventh Amendment?

The Supreme Court again took power away from agencies, saying that the type of adjudicatory scheme at issue there violated the Seventh Amendment.

Also relevant is Ohio v. EPA, which concerned the EPA’s responses to comments during a rulemaking effort.

The Court ruled against the agency, indicating its response to commenters was inadequate. I have a mixed take on this case. On the one hand, it represents a ringing endorsement of reason-giving as a pillar to the viability of an agency action. That, of course, is key to the reasoning state. On the other hand, as I also argue, nit-picking over reasons doesn’t lead us to a good place—we’ve probably all been in conversations where the other person finds a reason to object regardless of what we say. There is a risk that the Court was that unpleasant conversationalist in this case.

What’s the most important idea from The Reasoning State that you would like to leave Lex readers with?

What I try to show in the book is that the administrative state is a really remarkable set of institutions historically.

There are very few institutions that could combine the ability to credibly reason with expertise and that’s just an amazing thing that we collectively have created. It represents our Enlightenment institution. We should not squander it, either by sidelining reason-giving, or by sidelining agencies through scary references to the “deep state” or by being lost in reveries about what Congress is capable of. ■

THERE ARE VERY FEW INSTITUTIONS THAT COULD COMBINE THE ABILIT Y TO CREDIBLY REASON WITH EXPERTISE AND THAT’S JUST AN AMAZING THING THAT WE COLLECTIVELY HAVE CREATED. IT REPRESENTS OUR ENLIGHTENMENT INSTITUTION. WE SHOULD NOT SQUANDER IT.

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You Can't Say That—Or Can You?

YOU CAN’T SAY THAT

Democracy and Its Discontents

TH E STATE O F F R E E S PE E C H O N CAM PU S

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By Erwin Chemerinsky

Conflicts over free speech in schools have probably existed as long as there have been schools. But they seem particularly salient right now.

In April and May 2024, pro-Palestinian demonstrations at college campuses across the country raised a myriad of free speech issues.

These were the most widespread protests seen on American campuses since the Vietnam War more than a half century earlier, and the spring demonstrations followed months of free speech controversies in the wake of the Hamas terrorist attack on Israel on October 7, 2023 and the Israeli invasion of Gaza that followed it.

I attended college in the Vietnam War era and participated in some of those anti-war demonstrations, and to me this moment seems different. Students then, at least at many schools, were largely united against the war. Now students are deeply divided over what is occurring in the Middle East, and there seems little hope for a bridge between those who believe that Israel should not exist at all, that it should be an entirely Palestinian state, and those who believe the existence of Israel is essential. Also, unlike earlier protests against the Vietnam War and apartheid in South Africa, the current issues relate more closely to some students’ religious and ethnic identities.

At times, there have been expressions that are overtly antisemitic or Islamophobic, although precisely when speech should be regarded as antisemitic or Islamophobic is much disputed.

And all of this occurs against the backdrop of the internet and social media. During the anti-Vietnam War protests, demonstrators needed to capture the attention of a relatively limited number of media outlets. Now events are communicated instantaneously, often by the participants themselves.

Difficult Conversations The current context is dramatic, and very difficult questions concerning free speech on campus are being raised. But the underlying issues are timeless and transcend the events of 2024. Above all, the First Amendment means that all ideas—even deeply offensive ones—can be expressed on a public college campus. Certainly there are views that we all hope never would be voiced, but the central premise of the First Amendment is that it is worse to give the government the power to outlaw particular ideas than to allow them to be voiced. As U.S. Supreme Court Chief Justice John Roberts declared, “speech cannot be restricted simply because it is upsetting or arouses

OR CAN YOU?

You Can't Say That—Or Can You?

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contempt. If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

In the wake of the October 7 attack and the Gaza war, inflammatory statements have challenged the commitment to free speech on several campuses. Immediately after the terror attack, Students for Justice in Palestine called it a “historic win” for the “Palestinian resistance.” A Columbia University professor called the Hamas massacre “awesome” and a “stunning victory.” A Yale University professor tweeted, “It’s been such an extraordinary day” while calling Israel a “murderous, genocidal settler state.”

A professor at the School of the Art Institute of Chicago posted a note reading, “Israelis are pigs. Savages. Very very bad people. Irredeemable excrement…. May they all rot in hell.” A University of California, Davis professor noted that

Indeed, the Supreme Court has been clear that hate speech is protected by the First Amendment, and lower courts have consistently applied this to campuses. In the early 1990s, more than 360 colleges and universities adopted hate speech codes, but every one of these that has been challenged in court has been declared unconstitutional.

Beyond the First Amendment Of course, the First Amendment applies only to public universities. But other sources of law apply free speech principles to private schools. Tenure protections and assurances of freedom of speech in faculty handbooks contractually limit the ability of schools to punish speech.

We are always tempted to try to censor and punish the speech we don’t like.

It is especially important to resist that temptation in the context of colleges and universities.

“Zionist journalists… have houses w[ith] addresses, kids in school” and noted, “they can fear their bosses, but they should fear us more” before adding emojis of a knife, an axe and three drops of blood.

The United States Department of Education has stated that the failure of a campus to respond adequately to antisemitic or Islamophobic speech can be deemed a violation of Title VI of the 1964 Civil Rights Act. This law prevents recipients of federal funds from discriminating on the basis of race, which has been interpreted to include ethnicity—and explicitly on the basis of religion—and to require that schools not be deliberately indifferent to harassment.

What does this mean for campuses at this moment?

First, the expression of anti-Israel or pro-Israel views is protected by the First Amendment. Although I find them deeply offensive, the statements by students and faculty celebrating the Hamas terrorist attack are constitutionally protected. Likewise, chants which seem to call for the end of Israel—such as “from the river to the sea, Palestine shall be free” and “we don’t want no two state, we want 48” (referring to returning to 1948 before Israel existed)—are safeguarded by the First Amendment.

Also, both public and private schools are genuinely committed to academic freedom, which safeguards the ability of faculty to express their views without reprisal.

The American Association of University Professors says that “Academic freedom is the freedom of a teacher or researcher in higher education to investigate and discuss the issues in his or her academic field, and to teach or publish findings without interference from political figures, boards of trustees, donors, or other entities.” Student handbooks likewise often promise freedom of speech to students, and in California there is a law, the Leonard Act, which prevents private schools from punishing speech that could not be punished in public schools under the First Amendment.

Second, campuses are allowed under the First Amendment and according to academic freedom guidelines to enforce content-neutral time, place and manner restrictions with regard to speech so long as they leave adequate alternative places for communication. Many schools, for example, have a rule against using sound amplification equipment on campus out of concern that the noise will disrupt classes and other university work. There is no doubt that such a rule is constitutional, as are those that prevent demonstrations near classroom buildings while classes are in session or in dormitories at night.

Democracy and Its Discontents

The events of April and May 2024—including the erection of campus encampments that violated constitutional time, place and manner restrictions—posed serious challenges to university administrators. Was it preferable to allow the encampments, even if they were disruptive of campus activities and were perceived as creating a hostile environment by many Jewish students and faculty? Or was it better for administrators to remove the encampments, even using police, and face a backlash for overreacting?

Neither answer has worked well. These events reveal that the answers to difficult issues of free speech on campus are not to be found in the law—both of these approaches are entirely lawful—but instead what is pragmatically and politically best at the time.

Third, speech can reach a point at which it is unprotected by the First Amendment because it constitutes incitement or a true threat or harassment. For incitement,

duties. The United States Court of Appeals for the Ninth Circuit has said that this does not apply to professors, but the Supreme Court has not yet ruled on this. The bottom line is that speech that rises to the level of harassment, whether by students or instructors, violates federal law and creates a requirement for campuses to take action.

Under the law, the key is that they cannot be “deliberately indifferent” to harassment, including when it is by speech.

It must be remembered that there are many things that colleges and universities can do to respond to speech that constitutes harassment and that this does not necessarily entail punishing the expression. Campus officials can condemn antisemitic or Islamophobic expression without directly punishing the speakers. Schools can implement educational programs about the underlying issues and develop trainings for students and faculty about antisemitism and Islamophobia. Universities can ensure that

But that does not mean that all speech at all times must be tolerated on campuses.

it must be speech that is likely to cause imminent illegal activity and that is directed at causing imminent illegal activity. For true threats, it must be speech that is reckless in that there was a conscious disregard of a substantial risk that the speech would be perceived as a threat of violence.

As for harassment, the official standard promulgated by the Department of Education is that campuses must respond when the speech “is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s educational program or activity.” There is no clear principle in the law, however, for how to determine when speech is so severe or pervasive as to materially interfere with educational opportunities.

The speech freedoms accorded faculty and students differ in some important ways, although the speech of both can qualify as harassment. Again, at public universities, the speech of both groups is safeguarded by the First Amendment, and academic freedom typically protects professors’ teaching and writing at all or most institutions, public or private. On the other hand, the Supreme Court has ruled that there generally is no protection for the speech of government employees on the job in the scope of their

speakers on all sides of an issue are invited to speak. And schools can provide support for students, including mental health resources.

Speech by students and faculty members should not be punished based on the idea expressed, even if it is deeply offensive. As the Supreme Court expressed in Keyishian v.

Board of Regents (1967), “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.

That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”

We are always tempted to try to censor and punish the speech we don’t like. It is especially important to resist that temptation in the context of colleges and universities. But that does not mean that all speech at all times must be tolerated on campuses. The difficult challenge—now and always—is about what speech should be regulated and how this should be done. The context of speech on campuses is different today, but the issues are eternal. ■

Erwin Chemerinsky is the Dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law.

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The Case For Fusion Voting

By Tabatha Abu El-Haj

How can we get government to be more responsive and elected officials to be more accountable? What are the limits of free speech and assembly? What is the proper role of money in politics? Americans have debated these questions since the earliest days of the Republic, with competing visions and philosophies finding their richest expression in the work of legal scholars. In the field of constitutional law, abstract questions and theories rooted in interpretation of the Constitution have collided powerfully and productively with the practical challenge of making policy and defending it in the courts. Now, as public frustration with both major parties appears to be reaching new heights, constitutional law scholars are being drawn into a new chapter in this debate: If the two-party system isn’t working well, how should America change it?

Over time, I have become persuaded that political parties really are the only stable structure that’s available to make our politics truly accountable, responsive and efficient—when and if they are working correctly. We do not, however, have to take either the political parties or the party system as they are.

Making Parties More Accountable For decades, the theory of “responsible party government,” which posits that voters hold parties electorally accountable for their performance in office, has dominated much of the discourse among American political scientists. In the 1950s, as scholars considered what had led Europe into authoritarianism, the American Political Science Association convened a group of leading political scientists to study the party system in the United States.

Their conclusion was that the two major parties weren’t ideologically different enough and that if they embraced primaries as a way of choosing their candidates, they’d become more distinct, producing more competitive elections. Competition, in turn, would produce more responsiveness and accountability.

But even if the responsible party government theory could work in some scenarios, in the current system that we have, with its dearth of party competition, it does not.

Today’s political parties are bureaucratic shells, designed more to raise money for national offices and advertising campaigns, hollow at the local level.

Parties lack incentives to move to the center during elections because, for the most part, in congressional elections and state and local elections, there is so little party competition because of the successful partisan gerrymandering of districts as well as the partisan sorting of the electorate. We need different approaches for producing political accountability and responsiveness.

Meanwhile, political scientists are also debating the complex issue of how to regulate money’s role in politics.

One camp in that debate has been calling for loosening the post-Watergate rules that limit how much money donors can give directly to parties to give party leaders more of a central role as compared to independent political action committees—in effect, reviving the days of party bossism. Deregulating campaign finance to shift more money toward such party leaders as Senator Mitch McConnell, however, would just further entrench the power of wealthy interests over the process rather than elevate the concerns of less-well-off voters or return the party to moderation.

Although advocates of the responsible party government thesis are right to seek reforms that strengthen political parties, it is clear that, without real multi-party competition—not the duopoly we have now—the kind of strong parties that build year-round structures and relationships with voters will not emerge.

Political scientist Theda Skocpol has documented how, during much of the first half of the 20th century, Americans were knitted together through associations and experiences that built local, face-to-face connections across class.

In the world before television, she has argued, involvement in dense local social networks helped candidates get elected. And because people’s social networks were built around community organizations such as the Rotary Club or through friendships made during military service, their social connections were more socioeconomically, if not racially, integrated. This helped tie political elites to their communities in ways that are significantly less prominent today when we have fewer membership organizations and increased social and residential segregation by class.

Americans are thus less likely to know people with different views and backgrounds, contributing to the two-party political polarization so prevalent today.

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Fusion voting enables smaller parties not only to bring more competition to the process but also to constructively engage voters without “spoiling” elections.

In 2022, Didi Kuo, a political scientist at Stanford University, and I co-authored an article titled “Associational Party-Building: A Path to Rebuilding Democracy,” which was published in the Columbia Law Review. In the article, we noted the failure of federal legislation advanced by Democrats in 2021 to strengthen voting rights and reform campaign finance. We argued that we can instead achieve the goal of more responsive government by strengthening the role of parties “as organizations with deeper ties to voters.” Noting the long history of democratization in America, from women’s rights to LGTBQ rights, we wrote, “The key to political responsiveness is political organization… Effectively channeling political engagement into responsive governance requires political parties. Political parties are the only institutions capable of political organization at the scale necessary to produce accountability and responsiveness in a nation as vast and diverse as the United States.”

But the kind of party matters. Today’s political parties are bureaucratic shells, designed more to raise money for national offices and advertising campaigns, hollow at the local level. Instead, what is needed, we wrote, is “associational party-building,” built on “sustained linkages with civic groups, professional associations, and labor unions.

Intermittent election mobilization is not enough.”

This kind of close affiliation between voters and parties is different from today’s hyper-partisanship, where people display strong identification with one of the two major parties while feeling animosity toward the other one—without any real engagement with party representatives or structures. The danger of letting today’s hollowed-out parties continue to be the model for American politics is clear: Weak parties unable to deliver on their promises to voters increase citizens’ apathy and disaffection with democracy.

The Perils of Spoilage Political parties are critical to make our politics truly accountable and responsive. At the same time, we live in an era when more and more Americans identify as independents. Are there opportunities to rebuild U.S. politics as a

multiparty system in which more Americans can find their interest valued and represented? One option would be to reintroduce a process known as “fusion voting.” Fusion voting enables smaller parties not only to bring more competition to the process but also to constructively engage voters without “spoiling” elections. (Spoiling occurs when a minor-party or independent candidate without a real chance of winning takes enough votes away from the otherwise winning candidate that the election is “thrown” to the candidate who would have lost a two-candidate race.)

The risk of spoilage is a main reason that most third parties today are so marginal.

But it has not always been this way. Minor parties have played important roles in American politics, even when they did not win a majority of offices. In the 1800s, parties had the ability to cross-nominate, or “fuse” together on the same candidate, which enabled the proliferation of ongoing, minor parties that took their role in the process seriously, frequently parlaying their ability to rally a bloc of like-minded voters into political alliances that changed the course of American history. For example, the Liberty Party, Free Soil Party and Anti-Nebraska Party were critical to the antislavery movement’s success, and the Populists were key to the passage of the direct primary and the initiative and referendum in western states like Colorado. More recently, the Working Families Party and Conservative Party have each won significant policies for their core constituencies by delivering crucial votes in close races. At this moment when American politics is failing, it is foolish to dismiss, out of hand, this history of third-party politics in America. It is also incorrect to suggest that the only role that third parties have played in American politics is a spoiler role.

Smaller parties hold the greatest potential for reform at the state level, which does not diminish their value.

In fact, some of the most consequential policies are still enacted at the state and local levels. For example, for workers paid by the hour, where you live matters greatly. Only five states lack their own minimum wage statute. The same is true of paid sick leave and free college tuition. In the two states where fusion voting remains legal, New York and Connecticut, smaller parties have been critical to the passage of reforms that matter to the sort of people who have real needs and are less preoccupied with politics.

LEX

2020 NYS Sample Ballot Presidential Electors For President And Vice President (Vote for one)

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This illustration of a New York sample ballot from the 2020 presidential election shows how fusion voting works.

D E M O C R AT I C Electors for

Joseph R. Biden For President

Kamala D. Harris For Vice President

REPUBLICAN Electors for

Donald J. Trump For President

Michael R. Pence For Vice President

WO R K I N G FAM I LI E S FUSION

Electors for

Joseph R. Biden For President

Kamala D. Harris For Vice President

C O N S E R VAT I V E FUSION

Electors for

Donald J. Trump For President

Michael R. Pence For Vice President

GREEN Electors for

Howie Hawkins For President

Angela Nicole Walker For Vice President

L I B E R TA R I A N Electors for

Jo Jorgensen For President

Jeremy Cohen For Vice President

INDEPENDENT

The Promise of Fusion In 1997, the United States Supreme Court ruled in Timmons v. Twin Cities Area New Party that minor parties did not have a constitutional right to cross-nominate candidates of major parties, a blow to their ability to build their own identity and constituency. Timmons, in my view, was wrongly decided because it disregards the core right of association so essential to party formation. A handful of existing minor parties have indeed benefited from using fusion, most notably New York’s Working Families Party. That party, which has been in existence since 1998, has built the kind of thick, associational party that can strengthen Americans’ engagement and trust in the process.

In 2023, the New Jersey Moderate Party asked that state’s supreme court to overturn New Jersey’s ban on fusion voting, which has been in effect for roughly 100 years. In 2022, the party sought to nominate then-Rep. Tom Malinowski, a Democrat, but they were blocked by New Jersey’s Secretary of State, who cited the state prohibition. In an amicus brief intervening in the case in support of plaintiffs, I wrote, “a minor party’s cross-nomination can engage voters alienated by the two-party system and provide levers of access to citizens and groups who have been locked out of or alienated by the political process. Indeed, channeling political conflict through representative government is the only means by which our system can survive.”

Sometime next year, the New Jersey Supreme Court is expected to issue a ruling in that case. If it relegalizes fusion, the American two-party system may begin to change in a significant—and beneficial—new way. Public trust in government institutions is at an all-time low. Authoritarianism is on the rise, as are partisan polarization and unapologetic racism and xenophobia. And the major political parties bear significant responsibility for this state of affairs. This is a time to think big but also be realistic, prioritizing achievable party-centric reforms such as relegalizing fusion. ■

Electors for

Brock Pierce For President

Karla Ballard For Vice President

Tabatha Abu El-Haj is professor of law at Drexel Kline. An expert on the First Amendment and the right of peaceable assembly, Abu El-Haj focuses on the American political process, with a focus on increasing the democratic accountability and responsiveness of government to ordinary Americans through both statutory reform and constitutional law.

Renaissance Mensch r em em ber ing a le x geisinger

By Nancy J. Waters

According to Wikipedia, mensch is a Yiddish word that has “migrated as a loanword into American English,” where it means “a particularly good person…a person with the qualities one would hope for in a friend or trusted colleague.” The Merriam-Webster online dictionary defines mensch as “a person of integrity and honor.” And, according to the Oxford Learner’s Dictionary, the word refers especially to “someone who does something kind or helpful.” By any definition you choose, Alex Geisinger was a mensch.

Democracy and Its Discontents

The family’s trip to Egypt inspired young Michael Geisinger to write a novel, which his father helped him publish.

A founding member of the Drexel Kline faculty, Geisinger died suddenly and unexpectedly in his sleep at the age of 59 on February 27, 2024, on a sabbatical trip to Malaysia.

At Kline, Geisinger taught primarily environmental and tort law, and focused his research on law and social norms, torts and environmental justice. His scholarship was wide-ranging. He published in more than 18 law reviews at last count, with more articles in process and in press at the time of his death. He explored topics ranging from which parties benefit from large development projects to bias in profiling to the role of concepts of nature in the development of international law. In 2010, he was elected to the American Law Institute, where he served as a consulting member to the Restatement Third of Torts.

He also served as Drexel Kline’s associate dean for faculty development and research from 2018 to 2022.

Geisinger was a hugely popular professor and received Kline’s Rosato Teaching Award three times, in 2014, 2018 and, posthumously, at this year’s commencement. He was also posthumously honored by Drexel University with the Christian R. and Mary F. Lindback Award for Distinguished Teaching. The university’s most prestigious faculty award, it is bestowed on full-time faculty members who over the years have demonstrated the highest achievements in teaching.

In her comments announcing this year’s Rosato Award during commencement, Student Bar Association President Deeksha Walia, JD ’24, called Geisinger “not only a professor, but a mentor to so many of our students… He instilled in me that what makes a good lawyer is not our knowledge of the law but our curiosity and willingness to persevere through the ambiguities of the law. His lessons and his famous words of ‘you’ll get there, you always do’ will stay with me forever. His calming and commanding presence will be missed in our law school building for years to come.”

Born to Teach Alex Geisinger lived on Long Island until he was 13, when his family moved to New Jersey. He graduated from Franklin and Marshall College in Lancaster, where he majored in history. He received his JD from the University of Connecticut in 1992. Following law school, he worked

for three years as a litigator with a Hartford law firm and as an instructor at UConn.

In 1996, he received an LLM from Harvard and joined the faculty at the Valparaiso University School of Law in Indiana. He came to the new law school at Drexel University in 2007.

News of his death was met with an outpouring of grief and appreciation on the Drexel Kline campus, with countless current students and alumni alike reporting that Geis, as he was known to many students, fellow faculty and friends, was their favorite professor ever, while more than one faculty member called him their “best friend on the faculty.”

Codi Royall, JD ’25, and several of her classmates convened a small gathering to mourn and remember one of their favorite professors. “Geis,” she wrote later, “struck the perfect balance of being the smartest person in the room and showcasing it, while being the coolest person in the room, too. He had a unique ability to spark curiosity and inspire a desire to learn more about everything. Even though you knew you might never reach the level of intellectual prowess he effortlessly displayed, he managed to instill a sense of aspiration in you.”

Alumni quickly reached out to Dean Daniel Filler to convey Geisinger’s influence on their lives and careers.

Mica Iddings, JD ’16, wrote, “I am heartbroken over this news. I could write paragraphs about the difference Geis made in my legal education and career, but suffice it to say that he was funny, brilliant, undyingly committed to the student body, and just such a mensch. He was instrumental in my decision to attend Drexel for law school and his unyielding support of me on my journey to practicing environmental law helped bring me to where I am now; I will carry that gift with me forever.”

Geisinger’s strengths as a teacher were, said his wife, Jane Scarpellino, simply extensions of what made him an outstanding human being. “He paid attention to people.

He was one of those few people who really listened and really saw people,” she said. “So, he could see when somebody was struggling. He could see if somebody looked like they were having a hard time—not even in school, but personally. And he was very good at saying, ‘Come to my office, come talk to me.’ And he was good at helping students work through it. He would tell them, ‘I know it’s hard, but you are going to get it—if you put the work in, you will get it.’”

Indeed, on a Facebook thread reporting his death, two different students from different years reported that they

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Remembering Alex Geisinger

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Geisinger traveled to Asia during his sabbatical last winter with his wife, Jane Scarpellino, and son, Michael Geisinger.

Japan was one of the highlights of the trip.

were ready to drop out of law school because the work was just too difficult when Geisinger saw they were struggling and took each one aside to assure them that he knew they really understood the material, that they were indeed talented enough to do it and that they would graduate. In both cases, this encouragement did the trick: Those students graduated and have gone on to fulfilling careers.

His wife was herself a beneficiary of his teaching skills.

“When I met him in law school,” she said, “my grades went way up.” He had the ability, she explained, to “come at questions from lots of different ways and find many ways to explain something.”

Love among the Stacks The couple first met in the UConn law library. Scarpellino typically studied in the carrels, where she often snuck in food. Geisinger sometimes sat near her, but they had no classes together and didn’t know each other. One day during their second year, she asked him if he wanted half of an orange that she couldn’t finish.

He was impressed with her kindness (although she has claimed she just didn’t like to waste food). And that was the start of their relationship—she has joked that “he was like a stray. I fed him once and he was my friend.”

After working in private practice for a few years, Geisinger pursued his LLM at Harvard with the goal of entering academia. At Valparaiso he ran a legal clinic and continued to do pro bono work at Kline. “As much as practice was satisfying to him,” Scarpellino said, “I think the teaching and the scholarship were more his strength and interest.”

It was the intellectual challenge, she continued, that most engaged him. “He liked thinking about the law and writing about the law.”

He had a particular interest in environmental law and arrived at Valparaiso determined to build a program in environmental law from scratch. That commitment made all the difference to 2007 graduate Kim Ferraro. As a mother of two young girls in her late 30s with several years’ experience as a litigation paralegal, she arrived at law school as an older, non-traditional student determined to become an environmental attorney and “gravitated toward Alex.”

“I knew that I wanted to do public interest environmental law—that is all I ever wanted to do once I decided to go to law school,” she explained. She took his courses on basic environmental law, hazardous waste and every other course he taught, “taking advantage of every opportunity to get to know him.”

“He was,” she continued, “just delightful.”

Most of the appropriate jobs were in Chicago, but Ferraro’s family couldn’t move. She determined that to do the kind of law she wanted to do in Indiana, her best plan was to launch her own not-for-profit public interest firm.

Geisinger’s connections helped make that a viable option.

“He was instrumental in helping me make connections in the Indiana environmental community,” she said. When she graduated, environmental organizations in the area already knew and trusted her. “They knew me, and I was able to hit the ground running and form my own 501(c)(3) non-profit and immediately started taking on cases.”

Geisinger advised Ferraro on setting up her organization’s board of directors. “Because of his tremendous expertise in that area, he was a mentor throughout my entire professional life,” she continued. “He was instrumental in being a sounding board for me in taking on and pursuing new cases.”

And, years later, when she began teaching and running a legal clinic at the Indiana University Maurer Law School, she consulted with Geisinger again. “He was,” she said, “so gracious in talking me through what it’s like to teach, what I should be thinking about and best practices.”

In addition to teaching, the law and the environment, Alex’s other passions included history, art, languages, travel—and coffee. At Franklin and Marshall, he created his own concentration in cultural history and wrote an honors thesis titled The Cultural Basis of Artistic Change in Post WWI Europe.

He was a particular fan of the Italian Renaissance.

He spent a semester abroad in Florence, became fluent in Italian, and fell so much in love with the city that he took a leave from school the following semester to stay in Florence selling t-shirts in the marketplace.

A college internship at the Metropolitan Museum of Art convinced him that a career in art history was not in his future, so following graduation he got a job as an assistant editor at Cambridge University Press. One of the authors he worked with there was legal scholar and philosopher Jules Coleman, who at the time was on the faculty at Yale Law School. Engaging with Coleman, Scarpellino thinks, crystallized Geisinger’s interest in the law as something worthy of intellectual pursuit and sparked his desire to become a lawyer.

Democracy and Its Discontents

According to Scarpellino, Geisinger was also skilled at languages. Years after he had much occasion to speak either Italian or Spanish, his fluency in those tongues would often convince native speakers that he was one of them.

His wife and several of his friends noted that he also particularly loved coffee and coffee shops. He enjoyed working at cafes, meeting people at cafes and just hanging out at cafes—and he always knew which ones served a proper espresso and macchiato.

He also loved to travel. In recent years, the family had visited Egypt and Scandinavia, and were in the midst of a once-in-a-lifetime Asian adventure during his Kline sabbatical when he died. With Malaysia as their base—he had a friend from Harvard in Kuala Lumpur, he had friends everywhere—they had already visited Japan, Thailand and Cambodia and were scheduled to visit Vietnam the following week.

Scarpellino remembers the visit to Cambodia with particular poignance. “I remember as we were leaving the temple at Angkor Wat, he turned back and looked at me and said ‘Can you believe we are here? This is bucket list stuff.’

I’m so glad he got to see that,” she said.

He was also a notably engaged and involved father.

He spoke often and glowingly of the interests and many accomplishments of his son Michael, who graduated last year with a history degree from Brown University, where he received a prize for his honors thesis.

During a family trip to Egypt, 13-yearold Michael fell in love with ancient history.

He taught himself hieroglyphics and wrote a fantasy novel about two orphaned boys who are adopted by an Egyptian God and travel back in time to save the world. When his parents realized he was serious and that he had actually drafted a full book, they decided to help him publish it. Geisinger recruited graphic design students at Drexel to help with the artwork and cover design, and Scarpellino became his “momager,” traveling with him to book fairs, bookstores and libraries.

(The book, Death of a Pharoah, is available on Amazon and still earns royalties.)

Next year, Michael will pursue a master’s degree in history at Kings College, Cambridge University on a Gates Scholarship, which is similar to the Rhodes Scholarship at Oxford. Geisinger knew that Michael had been accepted at both Cambridge and Oxford, but the family did not learn about the scholarship until some weeks after his death—which made the announcement, Scarpellino said, “bittersweet.”

Alex Geisinger is survived by his wife, Jane Scarpellino; his son, Michael Geisinger; his sister, Gina (Fritz) Braun; his mother-in-law, Beverly Scarpellino; sisters-in-law, Lissa (Marc Guillotte) Scarpellino, Nancy (Joseph) Nadeau and Dacia (David) Fields; his brother-in-law, Michael (Grace Sun) Scarpellino; his nephews, Jacob, Dakota and Harley Braun, Benjamin and Evan Nadeau, and J.D. Fields; and his nieces, Autumn and Giana Guillotte.

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He is also survived and will be long remembered by legions of grateful students, colleagues, clients and friends.

An Enviable Legacy Kline Dean Daniel Filler considers himself blessed to have worked alongside Geisinger for 17 years. To him what stood out most about Geisinger was his commitment to community, whether that community comprised his students, his colleagues, his family or the victims of pollution and other environmental injustices. He called him “a critical player in building the community we now have at Kline.”

“He was always finding different communities where he could make a difference,” Filler said, “whether that was environmental communities or helping draft provisions at the American Law Institute. For him, it was all about how he could activate communities.”

Kline Professor Deborah Gordon, who joined the faculty a year after Geisinger, counted him as a good friend.

They were neighbors and often walked back together from the Drexel campus to their South Philly homes. “One thing that comes across from strikingly different voices,” she said, “was that Geiss always had time for people. He had

The world truly is a better place because Alex was in it.

He built up so many people. He helped people get their careers going who are doing great things in the world because of him. extraordinary empathy and generosity. He was always himself, but he could meet everyone where they were—that made everyone feel special.”

“He always made you feel when you were in his presence that you were the most important person,” said Ferraro. “And that is a true gift. . .”

“The world truly is a better place because Alex was in it,” she continued. “He built up so many people. He helped people get their careers going who are doing great things in the world because of him.”

Royall echoed Gordon and Ferraro in her appreciation. “Hearing everyone share stories of their interactions with Geis,” she wrote, “was fascinating; we each thought it was only us who had such a special relationship with him. However, being in a room full of people who all felt the same way made it clear: it wasn't us who made our relationships so special, it was him.” ■

Nancy J. Waters is the managing editor of Lex.

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U City Digest News from Drexel Kline Law 46 Center for Law and Transformational Technology Continues to Grow Under New Director Eamon Gallagher 50 Center for Law, Policy and Social Action Hosts Scholars, Explores Array of Social Justice Issues 54 Drexel Kline Law Cracks US News and World Report Top 75 Inside Back Cover Alumni News

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Democracy and Its Discontents

Center for Law and Transformational Technology Continues to Grow Under New Director Eamon Gallagher It’s been a mere three years since—in the middle of a

pandemic—Drexel Kline Law

launched its innovative Center for Law and Transformational Technology (CLTT) with the ambitious goal of bringing together experts and leaders from a range of disciplines and arenas to grapple with the biggest questions around new technologies and the law.

U City Digest

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Eamon Gallagher became director of the Center for Law and Transformational Technology last year.

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Under the leadership of inaugural director Jordan Fischer, JD ’13, the CLTT got off the ground running in its first years, with a series of symposia, a Student Research Fellowship Program and the creation of a Student Board.

Following that successful start, Fischer left Kline last fall to return to private practice, handing off the keys to the CLTT to classmate Eamon Gallagher, JD ’13, who has worked to build on and grow the successful initiatives of the center’s first two years.

Gallagher came to Kline following several years practicing entrepreneurial law as a general counsel to several start-up companies, running an innovation program at Villanova University, co-leading a Philadelphia technology meet-up and directing the Innovation Center at 3401 Market, an incubator and co-working space that, over seven years, counted more than 250 companies as members.

He described his job at the CLTT as the perfect fit.

“It ties together my interests in law, technology, community building, being interdisciplinary and working across the university,” he said.

In Gallagher’s first year at the helm, the CLTT hosted Kline alumni and Uber in-house counsel Teagan Allen, JD ’11, and Leah Altman, JD ’14, who met with students to discuss what it is like to represent a large and growing technology business. The center also hosted a researcher from the University of Florence, Carlo Botrugno, to discuss health and genetic data and regulations around the process known as digital phenotyping.

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Democracy and Its Discontents

The CLTT hosted the 2024 Philadelphia Social Justice Hackathon in April.

Also, this year, the center organized and co-sponsored a major conference with Drexel Kline’s Health Law program on innovations in cell and gene therapy, an industry that is a strength for Philadelphia. Conference participants included researchers and practitioners from the Children’s Hospital of Philadelphia (CHOP), the City of Philadelphia’s Commerce Department, the University of Pennsylvania Center for Global Genomics and Health Equity and several departments at Drexel University.

Topics included recent advancements in cell and gene therapy, how the laws around this technology are changing, the regulatory environment and intellectual property strategies.

A highlight of the year was the second Philadelphia Social Justice Hackathon on the weekend of April 5 to April 7. This event was hosted at Drexel Kline Law and organized by the CLTT, Villanova University, the University of Pennsylvania, Temple University and the Philadelphia Legal Hackers chapter.

The goal of the hackathon, Gallagher explained, was to identify and resolve bottlenecks in the provision of legal services to the Philadelphia community. “The idea we went in with,” he said, “was to help groups that

U City Digest

were really having some difficulty at some point in their system to develop solutions using automation to provide their services to more clients.”

In a series of four “Hack Nights” that preceded the Hackathon and over the weekend itself, representatives from community legal service providers such as Philadelphia’s Community Legal Services and Philly VIP worked with technical experts and programmers to describe, systemically, how they work with clients and to identify ways in which automation could improve their systems.

“What we wanted to do,” Gallagher said, “was not just build things that sounded like cool ideas that would go into the ether at the end of the weekend, but to identify specific problems and then find homes for those problems so that those ideas could continue to be developed and worked on and actually get used from a practical perspective.”

The event drew in 80 participants over the course of the weekend. UItimately, six projects came out of the weekend, which culminated in a contest judged by four faculty members from Drexel, Temple and Penn, and a local attorney. The winners were announced by

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Gallagher’s very excited nine-year-old daughter on Sunday evening (although she was admittedly a bit disappointed that she didn’t get to do any actual hacking).

The winning projects represent efforts to address a wide range of community concerns, from redressing the structural damage done to row homes by the vibrations from reckless construction in their neighborhoods to helping minors seeking abortions legally bypass the requirement for parental consent to facilitating community ownership of vacant lots in Philadelphia.

The event was so successful, Gallagher said, that organizers plan to make it an annual event, with the next one tentatively scheduled for fall 2025.

On tap for next year, the CLTT plans to host a symposium on Data and Privacy in October led by the Center’s faculty director, health privacy expert Robert I. Field, who holds joint appointments at Drexel Kline and the Drexel Dornsife School of Public Health. Participants will include Field’s research partners at the University of Rennes, France.

As the power of artificial intelligence grows exponentially and inexorably, so too do worries over the impact of falsified information including “deep fake” photography, video and audio. Drexel University’s Areas of Excellence program has awarded a grant to a multidisciplinary team of researchers at the university including Gallagher as well as faculty from the College of Engineering, College of Computing and Informatics, and College of Arts and Sciences to take a deep dive on the impact of falsified information on society. The project is titled “Defending the Real: Protecting Against Emerging Generative AI Cybersecurity Threats.”

Involving more students and alumni in charting the center’s course going forward is a priority for Gallagher.

He hopes to expand the center’s Student Board, which has openings this academic year for at least two new members and possibly more. And he also encourages alumni and other members of the Kline community to get involved and be in touch. “I want to know what interests them,” he said, “what things they think are particularly relevant in law and tech.” If the interest is there, he added, the CLTT also has the ability to offer Continuing Legal Education credits. “If you have interest in running or building a program,” he continued, “I want to hear from you.”

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Democracy and Its Discontents

Center for Law, Policy and Social Action Hosts Scholars, Explores Array of Social Justice Issues

U City Digest

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Professor Wendy Greene announced an ambitious goal for Drexel Kline Law’s Center for Law, Policy and Social Action (CLPSA) when she took over two years ago as its new director: Bring faculty, students and community members together to not merely envision a more just society but to play active roles in concretely transforming it.

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Drexel Kline Law professor Wendy Greene was named director of the school’s Center for Law, Policy and Social Action in 2022.

reene has plenty of experience in policy transformation. The scholar-activist has become an internationally recognized leader in the contemporary civil rights movement to end race-based hair discrimination. This centuries-old form of discrimination had been mostly legal until Greene and other activists worked to end it by co-drafting and lobbying for such legislation as the CROWN Act, which has been enacted in 22 states, including California, with a federal version reintroduced in Congress in the spring.

Greene is also a legal advisor for human rights legislation in France that would similarly prohibit discrimination on the basis of hair texture, color and style. She traveled to France to advance the bill—the first of its kind in Europe—which was passed in March by the French National Assembly and is slated for introduction in the French Senate later this year.

The efforts of Greene and her allies to eliminate race-based hair discrimination gained additional urgency recently with the revelation of the significant health risks posed by the use of formaldehyde, which is traditionally a major ingredient in the hair straighteners used by generations of Black women to achieve the hair styles that have been deemed acceptable in many workplaces and schools. A study by the National Institute of Environmental Health Science released in 2022 found that Black women who used hair straightening products were two and a half times as likely as those who did not to develop uterine cancer.

Greene was quoted in New York Times coverage of the story, highlighting the role that workplace expectations have played in forcing Black women to go through the uncomfortable—and, as it turns out, potentially unsafe—process of straightening their hair. “You have policies,” she told the Times in June, “that prohibit ‘extreme’ hairstyles or ‘unnatural’ or ‘unprofessional’ hairstyles. That creates a straight-hair expectation or

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Democracy and Its Discontents

The efforts of Greene and her allies to eliminate race-based hair discrimination gained additional urgency recently with the revelation of the significant health risks posed by the use of formaldehyde in hair straighteners.

Rutgers Professor Sahar Aziz visited Drexel Kline as CLPSA’s 2023–2024 Public Lecturer.

SMU Professor Jessica Dixon Weaver (above) and Chicago Kent Professor Cary Martin Shelby (right) joined the center as its 2023–2024 Scholars in Residence.

U City Digest

mandate that affects gaining entry into the workplace or maintaining your employment.”

In her second year at the helm of CLPSA, Greene welcomed guest scholars—two Scholars in Residence and a Public Lecturer—whose research and expertise exemplify the generative policy possibilities she has sought to nurture through the center.

In October 2023, the center welcomed Sahar Aziz, Distinguished Professor of Law and Chancellor’s Social Justice Scholar at Rutgers University-Newark, as its 2023–2024 Public Lecturer. Aziz is the author of the highly acclaimed book The Racial Muslim: When Racism Quashes Religious Freedom. Her address explored the intersectional relationship between race and religion,

53 specifically as it pertains to Muslim identity and experiences of racialized religious discrimination and infringement upon religious freedom in the United States.

In November, Professor Cary Martin Shelby, the Ralph Brill Endowed Professor of Law at Chicago Kent College of Law, came to CLPSA as the fall 2023 Scholar in Residence. As part of her residency, Shelby delivered three presentations.

She guest-lectured in Professor Lauren Katz Smith’s poverty law seminar and also delivered a community presentation co-sponsored with the Drexel Kline Intellectual Life Committee. During both presentations, Shelby shared insights from her forthcoming book, Markets for Black Pain: Law and Marginalization as a Commodity, which will be published by Cambridge University Press.

The book scrutinizes how corporate and securities laws commodify Black suffering.

In her third Kline event, which was co-sponsored with DiveIN, Drexel Kline’s diversity and inclusion initiative, Shelby hosted a discussion for students titled “Building a Mosaic of Academic Success.” In this talk, she drew on her experiences as a Black woman law professor who has experienced both chronic poverty and foster care to describe the unique barriers that students from historically marginalized groups confront as well as ways to optimize their law school experience.

In April, Jessica Dixon Weaver, the associate dean for research and professor of law at Southern Methodist University Dedman School of Law, joined the center as the Spring 2024 Scholar in Residence. Her residency was also co-sponsored by the Drexel Kline Intellectual Life Committee and DiveIN. Weaver is a nationally recognized family law and children’s rights scholar-advocate whose path-breaking work interrogates how slavery and race have shaped the construction of family as well as associated experiences and rights. She joined Professor Pammela Quinn’s Family Law class to discuss her research on uncovering race in family law and led a faculty workshop on that research and on her forthcoming book on slavery and the origins of family law.

In March, Greene was joined by Kline Professor Lauren Katz Smith and former Kline Professor Rachel E. López in Selma, Alabama, at activities commemorating the 59th anniversary of the Selma civil rights marches.

And that same month she was an invited speaker during a Women’s History Month program on Black women in the workplace held at the White House.

Drexel Kline Law Cracks US News and World Report Top 75 Over the past 10 years, the two words that best describe Drexel Kline Law’s performance on the US News and World Report ranking of American law schools would be “going up.”

Since 2015, when the school was ranked 129th on the list of “Best Law Schools,” the climb upward has been nothing but steady. And this year, KIine achieved a major milestone: cracking the US News top 75 by appearing on the 2024 list at number 75, three spots up from last year. This also places the school among the top 40 private law schools in the country.

Notably, the school also scored high in several specialty areas, ranking 8th in trial advocacy, 24th in health care law and 26th in legal writing.

While acknowledging that educational rankings can be very imprecise measures of quality, Dean Daniel Filler said he was pleased to see the school’s rise. “I view US News rankings more as directional information rather than a precise evaluation,” he explained.

“Rankings are volatile, and schools go up and down year to year.”

“But,” he added “our steady and dramatic rise over the past seven years does indeed reflect the transformation of Drexel Kline Law from a new law school into a nationally recognized center for research and teaching.”

Since its founding in 2006, Drexel Kline Law has committed to providing students with all they need to have a competitive edge when entering the workforce, including exceptional mentorship from faculty and real-world experience through professional practice prior to graduation.

“Over the past 18 years, this school has established itself as a go-to destination for prospective law students,” said Filler. “Our graduates have distinguished themselves in the region and around the country. And I’m proud of our faculty, who are national thought leaders and our commitment to an experiential education that is setting the pace nationally for quality and innovation.”

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Democracy and Its Discontents

Celebrating Drexel Kline’s Inaugural Class in Its 15th Reunion Year Kristen L. Behrens, JD ’09 Dilworth Paxson Philadelphia, PA

Kristen is co-managing partner of Dilworth Paxson and sits on the firm’s executive committee. She practices trusts and estates law with a focus on special needs trusts, post-litigation planning, estate planning, estate administration and guardianships. She has spoken at seminars for the Fiduciary Education Foundation, the Pennsylvania Bar Institute, Philadelphia Trial Lawyers and the Special Needs Alliance among others.

She has been a member of the Drexel Kline Law Board since 2021.

Christopher Blaszkowski, JD ’09 Buchanan, Ingersoll and Rooney Wilmington, DE

Christopher is an intellectual property lawyer and shareholder at Buchanan, Ingersoll and Rooney. He co-chairs the firm’s chemical and biotechnology practice group. His work encompasses all aspects of intellectual property law, including procurement and enforcement of patents, trade secrets, trademarks and copyrights. As a Delaware litigator, he serves as local and lead counsel, participating in all aspects of district court and appellate litigation. Following law school, he clerked in the Delaware District of the U.S. District Court.

Mike Lee, JD ’09 ACLU-Pennsylvania Philadelphia, PA

Mike became executive director of the Pennsylvania office of the American Civil Liberties Union in January 2024. He was previously chief of staff for two years to Philadelphia District Attorney Larry Krasner. Prior to that he served in the DA’s office as director of government affairs and supervisor of adult diversion. He is also the founder and former executive director of Philadelphia Lawyers for Social Equity, a nonprofit legal aid firm that addresses discrimination based on criminal records.

Carlos S. Ramirez, JD ’09 United States Army Fort Belvoir, VA

Carlos is a major in the United States Army serving as a Judge Advocate in the United States Army Legal Services Agency. He is currently assigned as a senior expert criminal litigator, where he focuses on the prosecution of national security offenses in courts-martial and complex criminal litigation. He joined the army in 2010, following graduation. He has previously served in a variety of positions, including prosecutor, military magistrate and chief prosecutor at several bases in the U.S. and in Afghanistan and South Korea.

Read more about Drexel Kline Law School alumni at drexel.edu/law/classnotes.

wills, trusts and estates meets gender, race and class Wealth inequality, and all the other forms of inequality that flow from it—social, political, health, educational—has troubled academics, policy makers, economists and others for some years now. Wealth, and its lack, is tied directly to inheritance—that is, the practices, laws and culture that facilitate, or inhibit, the transmission of wealth in all its forms from one generation to the next. Speakers at this conference will address the many ways that inequality is embedded in inheritance law and practiced around the world. They will also discuss ways to make these laws and practices work for all, including for demographics who have traditionally been cut off from successful wealth transmission.