Things to Read This Week (3/24)
Appealing Temporary Restraining Orders, by Tyler Lindley with Morgan Bronson and Wesley White. From the abstract: “an examination of the history of TROs and interlocutory appeals reveals that TROs were not appealable solely because of a now-repealed statutory requirement that the appealed-from interlocutory order be issued ‘upon a hearing.’ Even if that requirement applies today, most modern TROs (especially against government defendants) are now issued after a hearing and so should be appealable.” Super timely.
Torts Stories After Bivens, by Garrett West. A response to the Pfander & Alley revisionist piece on the Westfall Act.
Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment’s Citizenship Clause, by Kurt Lash. I haven’t read this yet and I want to read it carefully before commenting.
America Is Watching the Rise of a Dual State, by my colleague Aziz Huq in the Atlantic. A discussion of the relevance of Ernst Fraenkel’s The Dual State, which “explains how the Nazi regime managed to keep on track a capitalist economy governed by stable laws—and maintain a day-to-day normalcy for many of its citizens—while at the same time establishing a domain of lawlessness and state violence in order to realize its terrible vision of ethno-nationalism.”
I've been trying to follow along in the sudden debate about birthright citizenship between lawyers and historians who have been interested and working on this topic for decades and those that have jumped into the fray over the past few months: I'm still eagerly awaiting your take on all these issues!
As it's quite obvious from my framing, I think there is a lot of motivated reasoning going on and I'm extremely wary of arguments made by people who are jumping into a new field on short notice. It sure feels like they are starting with a conclusion and working backwards and not taking careful consideration of evidence, context, practice, history, and scholarship.
I don't think people should be barred in some fashion from participating in new fields, but it worries me that it looks like lots of reconstruction scholars are able to so easily find big issues with this new work and I don't really see much of this new work addressing the criticism.
I'm quite keen to hear your opinion on both the 14th amendment issues, but also the methods and practice issue.