Ben Heath
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jbentonheath.bsky.social
Ben Heath
@jbentonheath.bsky.social
7.2K followers 860 following 1.1K posts
Associate Professor, Temple University School of Law. I post about things that interest me, some of which are about law.
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jbentonheath.bsky.social
Earlier this year he published a long but pretty boilerplate column about how tech is distupting our lives and people should probably stop to go on a hike, read to their kids, or start their own bands or whatever. But could resist being a big freak who denigrates other cultures about it.
November 6, 2025 at 3:46 PM
jbentonheath.bsky.social
Betteridge's law of headlines is an adage that states: "Any headline that ends in a question mark can be answered by the word no." It is based on the assumption that if the publishers were confident that the answer was yes, they would have presented it as an assertion; by presenting it as a question, they are not accountable for whether it is correct or not.
November 6, 2025 at 2:57 PM
jbentonheath.bsky.social
That's probably right. But the baseline is that they already want to use MQD to stop progressive advances domestically. And Kavanaugh made noise in Consumers' Research about a foreign affairs / NatSec exception for MQD, which would be very bad. So is this the best of available (bad) worlds?
In addition, the major questions canon has not been applied by this Court in the national security or foreign policy contexts, because the canon does not reflect ordinary congressional intent in those areas. On the contrary, the usual understanding is that Congress intends to give the President substantial authority and flexibility to protect America and the American people—and that Congress specifies limits on the President when it wants to restrict Presidential power in those national security and foreign policy domains. See Youngstown, 343 U. S., at 635–638 (Jackson, J., concurring); see also Hamdi v. Rumsfeld, 542 U. S. 507, 519 (2004) (plurality opinion); Dames & Moore v. Regan, 453 U. S. 654, 678–679 (1981); Zemel, 381 U. S., at 8–9; Al–Bihani v. Obama, 619 F. 3d 1, 38–41, 48–52 (CADC 2010) (Kavanaugh, J., concurring in denial of rehearing en banc); C. Bradley & J. Goldsmith, Foreign Affairs, Nondelegation, and the Major Questions Doctrine, 172 U. Pa. L. Rev. 1743, 1789–1801 (2024). The canon does not translate to those contexts because of the nature of Presidential decisionmaking in response to ever-changing national security threats and diplomatic challenges. Moreover, in those areas, the President possesses at least some independent constitutional power to act even without congressional authorization—that is, in Youngstown category 2
November 5, 2025 at 6:38 PM
jbentonheath.bsky.social
I'm also troubled that both conservative legal scholars refused to engage the premise of this question. At some point, by constantly lying to and disobeying judges, an admin is no longer entitled to a presumption of regularity. And that can't be decided on the basis of treating all presidents alike.
In Trump’s second term, we’ve seen a lot of situations in which the government and the Justice Department have been called out for making false representations about what the government is doing and why it is doing it. I understand the notion of giving the president a high degree of deference, but should we not be a little bit more skeptical of the representations coming from this government? Squitieri: No, the president was elected president of the United States. The Supreme Court should give this president the same respect it gives any other president. McConnell: I agree with that. But the court did not hesitate to strike down five different major actions of the Biden administration. Trump deserves a great deal of deference as the elected president of the United States, but he does not deserve any more deference than President Biden got.
November 5, 2025 at 3:21 PM
jbentonheath.bsky.social
Interesting. I strongly disagree with what Chad says here. This may be an accurate restatement of Gorsuch-ian originalist doctrine (see the Gundy dissent), but it is both historically incorrect and extremely dangerous. The amicus brief by @timlmeyer.bsky.social, which I signed, makes that clear.
Squitieri: In a very important decision called Curtiss-Wright, the court made clear that Congress can delegate more easily to the president in the foreign affairs context. Also, just looking at the history of the various powers, as Professor McConnell has written in his book, not all of the powers vested in Congress are purely legislative. Some of those powers historically belonged to the king, and the regulation of foreign commerce falls into that camp. The theory on originalist grounds is that those powers can be more easily delegated back to the president, given their historical nature.
November 5, 2025 at 3:21 PM
jbentonheath.bsky.social
🤘This is what democracy looks like 🤘
NYT photo of voter in a Bathory longsleeve. “In Conspiracy with Satan” was on my personal 2016 election playlist.
November 5, 2025 at 12:51 PM
jbentonheath.bsky.social
Chalkboard meme. Don't get involved in hypothetical discussions about AI-generated scholarship on social media.
October 28, 2025 at 3:11 PM
jbentonheath.bsky.social
I’m gonna go out on a limb and say that an “immigration enforcement traffic stop” should never be a thing.
DHS statement saying that agents “were conducting an immigration enforcement traffic stop” in Chicago
October 16, 2025 at 12:00 AM
jbentonheath.bsky.social
This post is excellent, and the best coverage of the "compact" that I've seen so far. @fishkin.bsky.social is the only person I've read so far who understands that the most important part of the compact is this (final) paragraph, which is mostly ignored in the reporting & in the takes.
Adherence to this agreement shall be subject to review by the Department of Justice. Universities found to have willfully or negligently violated this agreement shall lose access to the benefits of this agreement for a period of no less than 1 year. Subsequent violations of this agreement shall result in a loss of access to the benefits of this agreement for no less than 2 years. Further, upon determination of any violations, all monies advanced by the U.S. government during the year of any violation shall be returned to the U.S. government. Finally, any private contributions to the university during the year(s) in which such violation occurred shall be returned to the grantor upon the request of the grantor.
October 6, 2025 at 7:21 PM
jbentonheath.bsky.social
Idk how many of you saw this, but I think this is *exactly* the soothing narrative that three or four justices, including the chief, have talked themselves into.
From PrawsBlawg, by Gerard Magliocca, titled 1933 vs. 2025 "At this stage of the New Deal, the Supreme Court had said nothing about any legislation passed by Congress or the Executive Orders issued by the Roosevelt Administration. There was no emergency/interim/whatever docket. Was that better or worse than today? You might say that was worse because the legality of what was being done was unclear. You could also say that the Court was doing nothing to check illegality or clear the way for duly elected government to operate. On the other hand, that silence also gave room for the democratic process and criticism to play out. Many scholars point out, for instance, that the National Industrial Recovery Act was unpopular by 1935 when the Court invalidated the Act. In 1933, though, that was not true. Maybe more popular feedback before the Court weighs in makes sense." To be clear: I think this post overstates the similarities between then and now. But I think it is exactly the legitimating narrative that some folks are telling themselves. Not the ones who are walking around spewing Newsmax talking points under their breath; the other ones.
September 22, 2025 at 8:39 PM
jbentonheath.bsky.social
Huh.
September 10, 2025 at 2:35 PM
jbentonheath.bsky.social
Whole 🧵. I want to add that we should also focus on the way the threat is being conceptualized here—as transnational & networked. This offers a pretext to connect interstate war, transnational terrorism, illegal migration, and domestic drugs and crime into a single, manufactured security crisis.
First substantial paragraph of the letter.
September 5, 2025 at 7:28 PM
jbentonheath.bsky.social
Imo, the natural law that Brandeis was mad about wasn't really "natural law" in any contemporary jurisprudential sense, but rather the Lochnerian "new natural law" that became the enemy of progressive legal historiography. Here's some slides from an eccentric Erie lecture I give every November.
September 3, 2025 at 8:24 PM
jbentonheath.bsky.social
Anyone in Philly know what this was? I got a subsequent alert saying police “cleared the area.”
Alert saying there were “demonstrators” this morning on Broad and Norris
August 28, 2025 at 2:31 PM
jbentonheath.bsky.social
The "are you proud of me professor" quote above does capture a certain stereotype of Democrats. But here is an actual politics professor (Carol Nackenoff), actually asking Kamala Harris in 2024, about Harris's actual policies. I can't imagine the response getting an "A" from anyone. 3/4
My question is this. If you could accomplish only one major policy goal that required congressional action, what would it be and why? THE VICE PRESIDENT: Well, there’s not just one. I have to be honest with you, Carol. There’s a lot of work that needs to happen. But let’s — let’s — I think that maybe part of this point that I — how I think about it is we’ve got to get past this era of politics and partisan politics slowing down what we need to do in terms of progress in our country. And that means working across the aisle. I’ve done that before. We did it around — whether it be what we were able to accomplish with the bipartisan infrastructure deal or some of the work that we have done in terms of dealing with gun safety. But we’ve got to work across the aisle, and it is my commitment to work with Democrats, with Republicans, with independents to deal with a number of issues, whether it be what we need to do in terms of housing and creating legislation that creates incentives for that; what we need to do to reinstate the freedom of a woman to make decisions about her own body and not have her government tell her what to do; whether it be what we need to do to actually invest in a substantial way in the industries of the future, in American-based manufacturing, in American-based industries where American workers and union workers have those jobs in a way that is good-paying jobs that gives people the dignity they deserve. All of those areas, I plan on working across the aisle and with Congress, including the issue of immigration, which we’ve got to fix.
August 15, 2025 at 2:02 PM
jbentonheath.bsky.social
This is how the essay describes Dem attitudes toward policymaking, as compared to the more visionary politics of either DSA-adjacent socialists or fever-dreaming neofascists. There's truth here, but it's only one part of the problem. And, more to the point, it doesn't describe 2024 very well. 2/4
A more difficult issue for the party may not just be about how Democrats fight, but about what they might fight for. By embracing a high-minded, technical style of governance, the party has diminished its ability to excite the public with ideas that tangibly affect people’s lives. Meanwhile, campaign promises that do have mass appeal — whether they are from Mr. Trump, Senator Bernie Sanders or the New York mayoral candidate Zohran Mamdani — are often vetted and laughed out of the classroom by the party’s leaders and in-house technocrats. While Democrats dismissed as absurd fantasy Mr. Trump’s promise to build a wall at the U.S.-Mexico border and sanded off the details of their own immigration policy, voters merely heard that Mr. Trump would make the border a top priority. “You get this mishmash of policies that are technically more rigorous than what Republicans offer. But whether it’s Trump or Sanders, the policies are simple and at least I can remember them,” said Timothy Shenk, professor of history at George Washington University and author of “Left Adrift: What Happened to Liberal Politics.” “In real-world politics that counts so much more than the compendium of policies that are so massive you have no idea what’s actually going to happen.” Professor Shenk described the elite Democratic approach to politics as: “We deserve an ‘A’ from politics because we’ve ticked all the boxes. Are you proud of me, professor?”
August 15, 2025 at 2:02 PM
jbentonheath.bsky.social
This is the one that stays with me, about Schechter Poultry:
Krock's coverage of the reaction in Washington to the decision, where he pauses to note that the Attorney General "stopped chewing" his lunch.
August 13, 2025 at 3:06 PM
jbentonheath.bsky.social
It's my earnest hope that, by supplementing the social-science concept of weaponized interdependence with an equally portable legal theory, we can get some purchase on understanding our daily reality of weaponized networks. This is urgently needed when the news looks like this: 5/x
From Wired: How Edward ‘Big Balls’ Coristine and DOGE Got Access to a Federal Payroll System That Serves the FBI Hundreds of pages of records reviewed by WIRED show just how quickly DOGE gained access to systems at the Small Business Administration—and through it, a USDA system that handles payroll for federal law enforcement. From Wired: How to Protect Yourself From Phone Searches at the US Border Customs and Border Protection has broad authority to search travelers’ devices when they cross into the United States. Here’s what you can do to protect your digital life while at the US border.
July 30, 2025 at 9:11 PM
jbentonheath.bsky.social
New paper! This essay takes a step toward developing what I call a "jurisprudence of weaponized interdependence.: Building on @himself.bsky.social & @abenewman.bsky.social's groundbreaking work, I develop an account of the legal processes that facilitate the weaponization of networks. 1/x
The phenomenon of weaponized interdependence, as defined by political scientists Henry Farrell and Abraham Newman, is a powerful tool for understanding today's global economic conflicts. But to date its uptake in the legal literature (including by this author) has been largely superficial, limited to the observation that economic interdependence coming under increased strain from the growing use of sanctions, export controls, investment screening, and similar measures. The real epistemic power of weaponized interdependence is to make political science nimble—able to identify and analyze similar dynamics across seemingly unconnected issue areas—remains largely untapped. This essay sketches an approach for developing a jurisprudence of weaponized interdependence, focusing on what Farrell and Newman term the "panopticon effect." It identifies four legal processes—herding, enclosure, legibility, and jurisdictional politics—which create the conditions for weaponizing a network. The essay develops an account of these four processes by reopening the case study of the SWIFT financial messaging system, which also figures prominently in Farrell and Newman's own work. The history of the SWIFT network, this essay argues, shows how law—defined broadly and understood across many sites of lawmaking—intervenes at critical points to create the conditions for weaponization. In developing this account, this essay also serves as a proof of concept for a broader jurisprudence of weaponized interdependence, which could make lawyers similarly nimble in confronting the manifold challenges of a politicized global economy in times of rapid technological change and rising authoritarianism.
July 30, 2025 at 9:11 PM
jbentonheath.bsky.social
Submitting a revised manuscript for publication, and going through the totally normal, nothing-to-see here boilerplate of affirming I'm not subject to US/EU sanctions and the ideas in my paper aren't export controlled. Sanctions infrastructure is already primed for an economic war on academia.
Now-standard questions when submitting a manuscript: Sanctions * Are you or any of your co-authors named on the following lists relating to trade sanctions: the OFSI Consolidated List, the US Specially Designated Nationals or Blocked Persons list, and/or the EU Consolidated List? Yes No * Are you or any of your co-authors employed by an institution or entity which is named on the following lists relating to trade sanctions: the OFSI Consolidated List, the US Specially Designated Nationals or Blocked Persons list, and/or the EU Consolidated List? Yes No * Does your article contain military or defense-related or other controlled technical information which is restricted from publication by applicable export control laws? Yes No
July 21, 2025 at 6:51 PM
jbentonheath.bsky.social
This is wild.
For instance, if you take the vector for “uncle” in the embedding layer and subtract the vector for “woman,” it is quite close to the vector for “aunt.” Something similar holds for behavior. Researchers recently found that if you train a model to output insecure computer code, it becomes evil—telling users to kill themselves, praising Hitler, etc. That surprised the researchers, but on reflection it makes perfect sense. By training it to do one antisocial thing, they inadvertently activated the whole complex of antisocial associations in the model.
July 17, 2025 at 4:42 PM
jbentonheath.bsky.social
Also excited for this. I've learned a lot from @ositanwanevu.com, but the thing that stays with me most is this post:
https://bsky.app/profile/ositanwanevu.com/post/3lml74snwxc2v
July 16, 2025 at 7:37 PM
jbentonheath.bsky.social
The White House, playing the hits.
July 15, 2025 at 7:53 PM
jbentonheath.bsky.social
I teach the second half of the class chronologically. Last year, the Trump 1.0 unit came before the final two classes on "anti-administrativism" in the courts. In retrospect, this was *way* too rosy a picture of where we might be headed. Going to have to revise this memo a bit.
July 15, 2025 at 3:46 PM
jbentonheath.bsky.social
I mean, this is basically already the thesis of my course.
July 15, 2025 at 3:32 PM