Assignment for Class 3 (Friday)

 Casebook p. 103-113 (Goddard and Eads) 

https://hoorayproperty.blogspot.com/2007/08/carol-rose-on-possession-as-origin-of.html 

Blog Posts For Class Two (Thursday)

 https://hoorayproperty.blogspot.com/2013/01/justice-scalia-on-1l-year.html

 https://hoorayproperty.blogspot.com/2007/08/should-courts-do-justice-or-apply-law.html

https://hoorayproperty.blogspot.com/2016/08/property-and-liberty.html 

https://hoorayproperty.blogspot.com/2013/08/does-label-ownership-have-any.html 

Masks, Liberty, and Personhood (Assignment For Class Number 2)

Masks--both physical masks and the "masks of the law"-- are actually a big part of the law of property. This is a huge social justice issue because legal masks have been used (in both the past and the present) to treat persons as non-persons. Our law school's values encourage us to include social justice issues in our classes so... Let's talk about this issue on Day Two of class. 

There may be sound reasons for mask mandates during a pandemic, but there are costs as well as benefits to such mandates.

David Marcus has this article.

And here is a powerful quotation:

One way to describe societies that decide to scrub away individual liberty is faceless; people are identical cogs without unique features. Here we move from the symbolic to the literal as people hide their faces from the world. The most important thing about these people is now that piece of fabric and the compliance it indicates. There will be no smiling.

Mask mandates seriously (and literally) abridge the freedom of expression.

Imagine emoji faces—frowning, smiling, laughing, angry—now imagine if the law required all emoji faces to be covered by masks. If all emojis were required by law to be masked, there would be no emojis. Just identical, faceless ink blots. 

 

We used to say that a "face to face" meeting is an in person meeting (as opposed to a teleconference); but a zoom meeting without masks is much more face to face than is a masked (literally faceless) meeting.

There are physical masks and there are masks that the law creates--legal fictions--to conceal the person beneath the legal mask.

These masks of the law are used to conceal the humanity of those the law wishes to treat harshly. Slaves were masked as "property" to conceal their humanity. Unborn babies are masked as "potential lives" by Roe v Wade and the abortion liberty. Masks--whether physical or legal--conceal the face (and thus the humanity and individual personhood) of the person behind the mask. 

Here is a video of a CLE I gave last year--at the Nebraska Bar's Annual Meeting--on how the masks of the law can be used to treat persons as nonpersons (as property) when the law wishes to act harshly and unjustly:

https://use.vg/jQuD5e

 In this video (which I am assigning), I discuss how the masks of the law enabled slavery in the past and abortion in the present. The idea is not so much to debate legal abortion as to understand how the masks of the law can be used to obscure the reality and human dignity of human persons. Let's discuss these issues of "persons masked as property" on our second class in Property.

Also read Casebook p. 1-18 (for background) for this class.

Assignment For our First Class: Let's Talk About Diversity, Inclusion, Free Speech, Academic Freedom, Justice, and Courage

I want to start off Fall 2021 with a class discussion about whether diversity includes viewpoint "diversity" and whether inclusion means "inclusion" of everyone, left, right, and center. Meriwether v. Hartrop is especially important because of its powerful protection of free speech on campus and in the classroom. Your first assignment will be to read and think about the following linked blog posts. Here are the links:

https://hoorayproperty.blogspot.com/2021/04/developing-inclusive-leaders-in-law.html

https://hoorayproperty.blogspot.com/2021/04/prof-robert-george-on-slipping-into.html

https://hoorayproperty.blogspot.com/2021/04/meriwether-v-hartrop-compelled-pronoun.html

https://hoorayproperty.blogspot.com/2021/02/social-justice-and-property-law.html

https://hoorayproperty.blogspot.com/2021/02/philadelphia-statement-on-free-and-open.html

Diversity, Inclusion, Freedom of Speech, and Academic Freedom: My Policy

 

 https://hoorayproperty.blogspot.com/2021/05/if-you-are-censored-or-cancelled.html

 

https://hoorayproperty.blogspot.com/2021/05/inclusive-leadership-two-hypos-for-1ls.html

 

https://hoorayproperty.blogspot.com/2021/06/how-inclusive-leaders-can-disagree-with.html 

 

Let's have a great discussion!

The Little Red Hen (Folk Tale Classics) (Paul Galdone Classics)

 My all time favorite Property book for children is The Little Red Hen by Paul Galdone. I bought a copy for my grandchildren. This book is more important today than ever!

Here is the Amazon summary:

 

 Little Red Hen is a time-tested cautionary tale about how we reap what we sow. When the hen asks a cat, dog, and mouse for help planting some wheat, she gets no takers: "‘Not I!’ said the cat. ‘Not I!’ said the dog. ‘Not I!’ said the mouse." They won’t water, cut, or grind the wheat . . . or help bake a cake with it, either. So guess who eats the cake by herself in the end? Caldecott Honor artist Paul Galdone’s delightfully detailed ink and wash illustrations—packed with charming details—add plenty of sly humor to the well-loved story that not only offers a sage message but also shows children what it takes to make a cake from the ground up!

Link

Covid Protocols Fall 2021

 I am copying below the new Covid protocols announced today by Chancellor Green.

Since I am fully vaccinated, I will not wear a mask in class. Wearing a mask makes it almost impossible for me to teach to the best of my abilities. However, anyone who wishes to wear a mask (or two masks), is welcome to do so.

Here are the new guidelines:

Use of Personal Protection

As noted previously, our classrooms will return to full in-person capacity this Fall, as will our dining halls, Campus Recreation, Unions, Libraries, and other public spaces.

Those who are fully vaccinated are not required to wear face coverings, but are strongly encouraged to do so indoors. You have likely read that the CDC recently advised fully vaccinated individuals to wear face coverings indoors in areas of substantial or high transmission (which is the current status in Lancaster County). As cases of the Delta variant increase in Nebraska, we will continue to closely coordinate with LLCHD and will adapt if needed and necessary should directed health measures change.

Anyone who is unvaccinated remains susceptible to infection, particularly the highly transmissible Delta variant, and is expected to wear a face covering. If you are unable, or unwilling, to protect yourself and others with a vaccine, it is critically important that you utilize other protective measures.

We know that there are many in our community who have family members who are unable to be vaccinated. Instructors who face these circumstances (e.g., with family members too young to be vaccinated) may request that face coverings be worn in their classes.

People may choose to wear a face covering for a variety of reasons, so no one should assume that someone who wears one is unvaccinated. Respect and grace for each other have been essential elements of our successful management of the pandemic thus far. I ask everyone in our community to continue to show goodwill toward others as we continue to face this challenge together.

 

At the end of the day, the best thing anyone can do to maximize individual liberty and minimize the risks of Covid is to get vaccinated. 

I try to always remember: "People willing to trade their freedom for temporary security deserve neither and will lose both." --Ben Franklin

 

"A Takings Clause Lawsuit Against the CDC Eviction Moratorium"

 Does "social justice" include protecting private property from uncompensated takings? Are the lawyers on both sides litigating for different notions of social justice? We will study constitutional property rights in the Spring Semester.

 Ilya Somin's story at Reason (LINK):

The Centers for Disease Control's enactment of a new, modified version of its eviction moratorium is not the only significant new legal development on this front. Last week, a group of plaintiffs led by the National Apartment Association (a trade association of owners and managers of rental housing) filed a takings lawsuit against the original version of the CDC moratorium. They argue that the moratorium qualifies as a taking requiring "just compensation" under the Takings Clause of the Fifth Amendment. The cover sheet indicates they are seeking an estimated $26 billion in compensation payments.

Prominent takings lawyer Robert Thomas has a helpful summary of the complaint at the Inverse Condemnation blog:

The Complaint alleges a physical invasion taking because it precludes "property owners from excluding [tenants] and leasing the rental homes to rent-paying persons, even as the property owners must continue paying taxes, utility payments, employee salaries, maintenance costs, the cost of capital, and other expenses." Complaint at 10. Alternatively, the property owners allege that the CDC order is an "illegal exaction because the CDC exceeded and contravened its statutory and regulatory authority and as a direct result exacted Plaintiffs' private property and property interests[.]" Id. at 2.

The just compensation sought "includes the amount of rental income Plaintiffs would have received in the absence of the physical occupation and taking or exaction of their property …" Id.

Previous efforts to challenge eviction moratoria on takings grounds have had little success. But, for reasons I summarized here, that may change as a result of the Supreme Court's recent ruling in Cedar Point Nursery v. Hassid:

A key reason why such claims faced bleak prospects is that Supreme Court precedent made it very difficult for property owners to prevail in a takings case if the government imposed a merely "temporary" physical occupation of their land. It was often difficult to tell the difference between a temporary occupation and a permanent one. But the CDC had a strong argument that the eviction moratorium was temporary, because each successive extension of the order included a specific time limit, generally only a few weeks in the future.

Cedar Point changes that. Now, at least a as a general rule, "a physical appropriation is a taking whether it is permanent or temporary." This makes potential takings challenges to the CDC order much stronger. A moratorium on evictions in situations where the property owner would otherwise have a right to remove the tenant pretty clearly imposes at least a temporary physical occupation against the owner's will. And the federal government isn't paying "just compensation" to affected landlords, as the Takings Clause requires.

While this case was filed against the earlier version of the CDC moratorium, it applies just as readily to the new one. The two are very similar. And, of course, the lawsuit against the original version is still valid, given that the plaintiffs are still entitled to seek compensation for losses incurred during the period when it was in effect.

Even after Cedar Point, issue isn't a complete slam dunk. The federal government can still make various arguments to try to avoid liability, such as the claim that the moratorium falls within the "police power" exception to takings liability, due to the fact that it was enacted for the purpose of controlling the spread of disease. But I am doubtful that courts will be willing to extend the police power exception so far, and hope they will not. At the very least, the plaintiffs have a substantial likelihood of success, far greater than before Cedar Point.

Prevailing on the takings claim won't necessarily get the NAA and other plaintiffs the massive $26 billion in compensation they seek. I don't know how they calculated that figure (the complaint gives little indication of their methodology), and it could easily be way off. Compensation will have to be calculated on a case-by-case basis, and may vary widely as between different property owners. Should the courts rule that the moratorium qualifies as a taking, it might take months—or even years—of additional litigation to determine how much compensation is due.

Regardless of the amount of compensation, this may well turn out to be an important case that sets a major precedent applicable to future eviction moratoria, and perhaps other regulations, as well. Anyone interested in takings and property rights issues would be well advised to keep an eye on it.

Social Justice 101: What is the Takings Clause of the 5th Amendment?

 Pacific Legal Foundation, a social justice law firm, explains here

 

And here is a money quotation:

As with so many contemporary legal questions, the origin of the debate over property rights stretches back to the very founding of our nation.

Among the key goals of our nation’s founding documents was to protect individual rights and to place strict limitations on the powers of both the federal and state governments. The Founders well understood that protecting private property rights was of paramount importance in meeting those goals.

While the colonists were still living under British rule, property rights were routinely violated. “Writs of Assistance” subjected colonists to invasive searches and seizures by British troops under the guise of searching for goods that may have been imported illegally and on which taxes had not been collected. This is precisely why the Fourth Amendment came into existence.

Several other key provisions in the Constitution recognize the fundamental purpose of property rights. For example, the Takings Clause of the Fifth Amendment, which limits the power of the federal government, provides that “…nor shall private property be taken for public use, without just compensation.”

Or consider the Due Process Clause of the Fourteenth Amendment, which similarly limits the power of state and local governments by commanding that “…nor shall any state deprive any person of life, liberty, or property, without due process of law.”

These provisions recognize the fundamental nature of the rights we call “property”—the right to tell others“keep out”; the right to develop and use land; and the right to derive income from that property. These rights were critically important, both to the Founders who adopted the original Constitution after the Revolution and the drafters of the Fourteenth Amendment after the Civil War.

And this is where takings come in. The usual situation where the government’s power is limited is when it acquires private property by eminent domain. As the Supreme Court has recognized, all sovereign governments have the power of eminent domain by which they can force the owner of private property to sell it to the government.

But that power is limited: it can be executed only as long as the taking is for “public use,” and the government provides the owner with “just compensation.” If the public benefits from taking someone’s private property, it is only fair that the entire public—and not a lone property owner—bear the cost.

That is exactly how the Supreme Court summed it up more than 50 years ago:

“The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

A half-century later, that assessment remains a sound basis for limiting government power and protecting property owners in disputes over takings.

The typical situation is where private property is taken for some public use, such as a highway, post office, or military base, and the government agrees to compensate the owner. It may not seem fair to be forced to give up property, but at least the owner can be confident they’ll be justly compensated for the loss, thanks to the aforementioned Fifth Amendment guarantee.

Pro Tip for 1Ls: How to Read a Judicial Opinion

 For 1Ls, it can be difficult to learn how to master a judicial opinion. It is critically important that you learn not only the "rule" or "black letter" of the decision, but also the reasoning of the court which led to the holding. 

So, as you approach a judicial opinion, ask yourself "what is the question presented or the problem the court was asked to decide in this case?"

Once you know the question presented, master the court's reasoning, not only the what but the why of their decision. Is the court's reasoning persuasive? Is it based upon legal logic (good) or emotion (not the role of the judiciary)?  If you disagree with the court's reasoning, how would you have explained your reasoning in a dissenting or concurring opinion?

Thinking like a lawyer means asking hard questions and critically analyzing legal arguments and judicial opinions.

Two Books I Recommend for New Law Students

 One is a novel, one a theatrical play:

George Orwell, 1984 (more relevant today than ever; it should be re-named 2021!)

Robert Bolt, A Man for All Seasons (also the wonderful movie version of this play)

Thinking Like a Lawyer Means

Having persuasive reasoning in support of your legal  conclusions.

"What can be asserted without evidence can be dismissed without evidence." Christopher Hitchens.

Don't emote or assert. Reason!

When you read judicial opinions, don't just look for the "rule" and think your work is done. Read and re-read cases until you master them, until you have critically analyzed the court's reasoning and fully understand the arguments of both sides. You may have to read a case 4 or 5 times before you master it.

Meriwether v. Hartrop (compelled pronoun case)

 

 

 

                                     Judge Amul Thapar of the 6th Circuit Court of Appeals

I just posted this for my First Amendment class, but I am sharing it here because it relates to one of the most pressing issues of our time, academic freedom and free speech in the university.

A Professor at a state university was disciplined because he refused to use a student's "preferred pronouns." The Sixth Circuit wrote a wonderful, unanimous opinion protecting academic free speech. Here are a few great excerpts:

1. "THAPAR, Circuit Judge. Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment. The district court dismissed the professor’s free-speech and free-exercise claims. We see things differently and reverse."

2. "“Universities have historically been fierce guardians of intellectual debate and free speech.”  Speech First, Inc. v. Schlissel, 939 F.3d 756, 761 (6th Cir. 2019).  But here, Meriwether alleges that Shawnee State’s application of its gender-identity policy violated the Free Speech Clause of the First Amendment.  The district court rejected this argument and held that a professor’s speech in the classroom is never protected by the First Amendment.  We disagree:  Under controlling Supreme Court and Sixth Circuit precedent, the First Amendment protects the academic speech of university professors.  Since Meriwether has plausibly alleged that Shawnee State violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom, his free-speech claim may proceed."

3. " A decade later, in a case involving a similar New York law banning “subversive” activities, the Supreme Court affirmed that the Constitution protects “academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.”  Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).  It characterized academic freedom as “a special concern of the First Amendment” and said that the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.”  Id.  After all, the classroom is “peculiarly the ‘marketplace of ideas.’”  Id.  And when the state stifles a professor’s viewpoint on a matter of public import, much more than the professor’s rights are at stake.  Our nation’s future “depends upon leaders trained through wide exposure to [the] robust exchange of ideas”—not through the “authoritative” compulsion of orthodox speech.  Id. (citation omitted); accord Sweezy, 354 U.S. at 249–50 (plurality opinion) (“To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”)."

4. " One final point worth considering:  If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity.  A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as “comrades.”  That cannot be.  “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe” such orthodoxy.  Barnette, 319 U.S. at 642." 

5. "The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings.  And a professor’s in-class speech to his students is anything but speech by an ordinary government employee.  Indeed, in the college classroom there are three critical interests at stake (all supporting robust speech protection):  (1) the students’ interest in receiving informed opinion, (2) the professor’s right to disseminate his own opinion, and (3) the public’s interest in exposing our future leaders to different viewpoints.  See Lane v. Franks, 573 U.S. 228, 236 (2014); Sweezy, 354 U.S. at 250 (plurality opinion).  Because the First Amendment “must always be applied ‘in light of the special characteristics of the . . . environment’ in the particular case,” Healy, 408 U.S. at 180 (alteration in original) (quoting Tinker, 393 U.S. at 506), public universities do not have a license to act as classroom thought police.  They cannot force professors to avoid controversial viewpoints altogether in deference to a state-mandated orthodoxy.  Otherwise, our public universities could transform the next generation of leaders into “closed-circuit recipients of only that which the State chooses to communicate.”  Tinker, 393 U.S. at 511."  

6. "Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into “enclaves of totalitarianism.”  Tinker, 393 U.S. at 511."

 I have not assigned this opinion, but I encourage you to read it at some point during your journey through the halls of academia. There has never been a time in my 42 years of teaching when this opinion was more important and more necessary for the preservation of the university as a free and open marketplace of ideas.    

Now consider this statement from Orwell's great novel, 1984: 

"Freedom is the freedom to say that two plus two make four. If that is granted, all else follows."

 Does Orwell's insight apply to Merriwether? How?

UNL Policy on Free Speech and Academic Freedom

 

July 21, 2021

To the Faculty, Staff and Students of the University of Nebraska:

Recently there has been a great deal of conversation across our campuses about academic freedom and its importance to our university. Today we issue the following unified statement in defense of freedom of expression for all members of the University of Nebraska community:

The free and open pursuit of ideas is a cherished principle in higher education, and its preservation is vital for any great university. As our policies and practices make clear, the University of Nebraska is strongly committed to academic freedom. We support and defend the liberties our teachers and learners have to freely discuss ideas in and outside of the classroom.

Our central mission is to educate Nebraska’s future leaders, and in preparing students to be thoughtful and engaged citizens, our instructors expose them to any number of concepts and ideas. Issues around race, equity and the fight against racism are an important part of our country’s story and they have an appropriate place in our classrooms. Our policies guard against the introduction of matters that are irrelevant to the subject at hand. We further expect and believe that in discussing ideas, our instructors make their classrooms places of robust and open debate, where all viewpoints are considered and all may express their opinions freely. That commitment to free expression is at the heart of our work as an institution of higher learning.

 

Ted Carter
President, University of Nebraska System

Jeffrey P. Gold, M.D.
Chancellor, University of Nebraska Medical Center

Ronnie D. Green, Ph.D.
Chancellor, University of Nebraska–Lincoln

Doug Kristensen, J.D.
Chancellor, University of Nebraska at Kearney

Joanne Li, Ph.D., C.F.A.
Chancellor, University of Nebraska at Omaha

How Law Students Should Disagree With Learned Friends in the Law

 This is advice from Prof. Robert George of Princeton:

Summers bring me opportunities to speak with high schoolers in our summer seminars. This year the question that's most on their minds is "Can I be friends with someone I have deep moral and political disagreements with?" The answer is "Yes, of course!" But there's more to say.

 Friends love each other despite disagreements and honor each other's right to freedom of thought and speech. Never demand conformity to your own opinions as the price of friendship. Never submit to someone's demand for conformity to his or her opinions as friendship's price.

 Friends who have differences can respectfully challenge each other's ideas, but each must be willing to be the one challenged and not just the one doing the challenging. They must recognize their own fallibility and each must consider that he or she might be the one in error.

 Friends don't indulge in manipulative rhetoric or attempt to win debates by dictating the terms of the discussion or controlling the language of the discourse. Friends don't try to police each others thoughts or language. Friends let friends make arguments in their own terms.

 If you are an ideologue, a dogmatist, you will have trouble being friends with people with whom you disagree. If you don't have friends who disagree with you on important moral and political questions, you should ask yourself whether you've become an ideologue, a dogmatist.

Everyone *notionally* understands his or her own fallibility. But notionally isn't enough. The test comes when someone disagrees with you about something you regard as profoundly important--when someone dissents from your deepest, most cherished, even identity-forming beliefs.

  When it comes to our deepest personal and political commitments--things that most matter to us--we human beings find it very hard to believe we could be wrong. It takes genuine strength of character--and courage--truly, and not merely notionally, to recognize our fallibility.

 

Inclusive leaders in the law debate divisive issues and ideas respectfully, and treat their classmates as learned friends in the law, not as enemies who must be cancelled or shunned.

Wisdom Concerning Envy, Property and Social Justice

 "At the heart of so much social unrest, hatred, and warfare is the sin of envy...of discontentment with our own estate [and] envying or grieving at the good of our neighbor." --R.C. Sproul

Give this some thought as you view so many issues concerning property, income, and the role of government in taxation, regulation, and spending. Does social justice mean you get to keep most of what you earn (or obtain through consensual transfers)? Or does it mean that you are entitled to the earnings or property of someone else?

Inclusive Leadership: A Few Hypos For 1Ls to Consider

 Among the goals of the law college are building a community of learned friends in the law and  developing inclusive leaders in the law. What does it mean to be an inclusive leader in the law in a community of learned friends who do not always agree? Let’s discuss a couple of hypos to see what we think about what inclusion means in the law school community:

 

Hypo One

You are a secular progressive student in con law class discussing a case that held that the Constitution protects the right to same-sex marriage. In the course of the discussion, Student B (a member of your study group) says she agrees with the dissent and believes that the Supreme Court violated the rule of law when it judicially amended the Written Constitution to require the states to recognize SSM. You strongly support legal recognition of SSM. What should you do?

1. Raise your hand and make your best constitutional argument in support of SSM?

2. Resolve to ask your study group to vote to remove Student B from the group?

3. Raise your hand and tell the Professor you are offended by Student B’s arguments?

4. Go to the Dean’s Office and ask the Dean to call Student B into his office for a scolding?

 

Hypo Two

You are a religious conservative student in con law class discussing a case in which a commercial wedding cake artist has declined to create a wedding cake celebrating same-sex marriage. The issue is whether the First Amendment protects the cake artist’s right to decline to create a message that contradicts his religious beliefs about the nature of marriage. In the course of the discussion, Student B (a member of your study group) says she believes the cake artist is the “H” word and that the First Amendment should not be interpreted to protect him. You strongly believe in religious liberty and freedom of speech and support the right of the cake artist in this case. What should you do?

1. Raise your hand and make your best constitutional argument in support of free speech and religious liberty?

2. Resolve to ask your study group to vote to remove Student B from the group?

3. Raise your hand and tell the Professor you are offended by Student B’s arguments?

4. Go to the Dean’s Office and ask the Dean to call Student B into his office for a scolding?

 

Hypo Three 

You strongly support the reparations movement and, in a conversation in the student lunch area, a classmate quotes Justice Scalia and says: “[U]nder our Constitution there can be no such thing as either a creditor or a debtor race. In the eyes of government, we are just one race here. It is American.”

What should you do?

1. Respond with your best argument in support of reparations?

2. Decide you will shun the classmate in the future?

3. Go to the Dean’s Office and ask the Dean to call Student B into his office for a scolding?

 

In a community in which people believe very different things about the good life and the meaning of social justice, how are diversity and inclusion best served? By silencing and excluding those with whom you disagree? Or by welcoming a rational and thoughtful debate about things that matter a great deal to everyone--right, left & in-between? The gold standard for diversity is viewpoint diversity in a wide open marketplace of ideas.

Suppose someone with a different view of social justice makes a rational argument with which you strongly disagree. Should you scold that person and say "your argument offends me"? Is that response a persuasive argument?  Or is it a power play--an act of social aggression--designed to deprive those with whom you disagree of their best arguments and force them to adopt your narrative? If an idea offends, the problem is not with the idea, but with your response to the idea.

How should inclusive leaders in the law deal with debate on issues that divide us? If you believe an idea is wrong debate it, but never try to censor it or label it as "offensive." Debate is always welcome in this class. But censorship and the cancel culture have no place in a law school committed to reasoned analysis of legal arguments. My advice to you all is to acquire tough skin when engaged in legal debate.

A University committed to true diversity and true inclusion should never--never--scold a student for making an argument that other students don't like. Even if they don't punish you for your thought crime, when a university official chastises you for making a rational legal or policy argument, it has a chilling effect on freedom of speech. It chills freedom of speech by sending the message that you should remain silent rather than risk the wrath of university officials. A university that censors free speech is involved in indoctrination, not education. At Nebraska Law we encourage you to "listen graciously," "speak thoughtfully," "act courageously." and "build community." So listen, debate, and treat those with whom you disagree respectfully as learned friends in the law.