Erica Goldberg

The beauty of the American Chopper meme is that it forces you to crystallize the essence of both sides of an argument and engage with the best versions of both sides. Here's one on an expansive reading of the First Amendment.

Examples of (1) countries where you cannot vote, due to absolute monarchy - Saudi Arabia, Oman, Qatar, Brunei. (2) Countries with one-party rule that monopolizes state power - North Korea, Cuba, China. (3) Theocratic rule - Afghanistan, Iran. (4) Authoritarian regimes that suppress voting - Russia, Myanmar. Exercise your right to vote. Or your right not to vote. Just be grateful to live in a democracy, because billions of people have no say in their government. What was created here, flawed though it may be, is the beautiful exception and a revolutionary change in the historical status quo.

At the end of George Orwell's 1984, the totalitarian party convinced the protagonist, through authoritarian tactics, that 2 + 2 = 5. The ultimate degradation of society is the corruption of truth. I am a moderate politically, but some things I most believe in are truth, democratic legitimacy, and freedom of speech (and our Constitution in general). No matter the outcome in Michigan, and no matter your views on who is the better candidate, AES or MR, Haley Stevens did something worthwhile. She said "no, 2 + 2 = 4." You don't get to campaign with Hasan Piker, who champions Mao and jokingly glorifies political violence, and pretend to care about freedom of speech. You don't get to refuse to speak about the Ayatollah or Iran, so as not to offend certain of your constituents, and pretend to care about democracy or rights. And you don't get to make an ad with Tucker Carlson and pretend to care about equality, or the protection of vulnerable minorities. Essentially, you don't get to run opportunistically and align yourself with some of the worst figures in discourse and claim to be progressive. 2 + 2 = 4. I wish more people in politics, on both sides, would speak the truth.

It takes no courage to pander to the large numbers of people who already agree with you, about issues they don’t understand, especially when both you and your followers are entirely insulated from the logical and historically demonstrated implications of your positions. It takes courage to speak out against the rising tide of populism and anti-intellectualism overtaking the extremes of both parties. Many courageous people are not rewarded in their lifetimes, except with knowing they did the right thing. I appreciate so much those who have been courageous, stood up to their own camps, stood up against the numbers, taken the time to critically think through the issues, and did the right thing.

Happy Tortsoween! I was an ice puddle from two cases where plaintiff slipped. Students were things like the Learned Hand formula (B < BP), flour in Byrne, a jurisdictional split, a shark from Shark Hypo (a practice exam), another professor (!!), the boy from Adams v. Bullock, etc.

Happy Crim Pro-oween! My Criminal Procedure students went as things like Squid Pro Quo, fruit of the poisonous tree, Katz (wearing a cat shirt), Freddy Kruger out on a warrant, and Jake from State Farm. I will reveal my costume later with the Tortsoween crew (although this crew had some funny guesses).

What I hope is exposed next is the - often explicit and dispositive - discrimination on the basis of viewpoint and background that happens when hiring professors at universities and graduate schools. It has undermined the primary academic purpose and has led to a diminution in principles (at law schools it has diminished rule of law principles, separate from one’s desired political result). It has impeded genuine truth-seeking at our institutions of higher learning. If you want to know why universities and grad schools often appear more like political think tanks than true knowledge generators, look to their hiring practices.

Some thoughts on the Cornell 7 civil lawsuit, the criminal investigation, and what discussion of the case reveals about us. inacrowdedtheater.com/2026/1…

I’ve had several students tell me that law school is the first time they were ever challenged educationally. One even told me it’s the first time she ever had to fully read. Prior to that, everything was just placed on slides for her. This is dire. We are raising generations of students who not only haven’t been elevated in their critical thinking skills but may not even realize the joys of true intellectual engagement, which requires effort. The solutions are simple, although they are not easy to implement. Stop the failed policy of meeting students where they are, and start truly caring about students through higher expectations. Assign more homework, so students have to develop the skill of teaching themselves to learn. Stop spoon-feeding material on slides and make students do some work to make connections or learn. Guide them through true understanding, which is more difficult than doing less and just telling them exactly what they need to know and can memorize it. Students need more reading and harder reading and less technology. Many experts in education have failed us with their set of ideological values. It is truly dire and perhaps has been for a while. Education needs a diametrically different approach. I watch my students grow tremendously when assigned reading above their level coupled with difficult subject material and required outside reading. This can be scaled down for any individual grade, and each individual student should be elevated above their starting point. Students need to do more analytical writing even though it is less “fun” than creative writing. Difficult learning can also be fun with the right educators who actually care about the joys of intellectual engagement, rigorous thinking, and the beauty of math and reading. This approach has proven successful because we can’t race to the bottom and cater to those who want to put in the least effort. Our teachers cannot base their popularity on giving students exactly what they want or lowering their expectations. Our students have to pass a competency exam, and they generally do. Our methods should be emulated far more. As it is, we are often doing much of the teaching of difficult reading, writing, and thinking once students get here. I am so concerned for the vast majority of students who do not have the opportunity to get this education in law school.

I told some Torts students that I would write a Torts poem, so here is my ode to proximate cause in the form of a sonnet. I tried! An Ode to Proximate Cause Proximate cause will be agreeable, And a judge will not say to plaintiff “tsk tsk,” If the type of harm is reasonably foreseeable Because the harm is within the scope of the risk. Risk refers to breach, of course, so look to the breach. What is the act that made plaintiff careless? That will tell you proximate cause’s reach: A dropped banana peel shouldn't be responsible for a fire that leaves your cat hairless. You need duty too, and but for causation, First plaintiff must convince a jury of breach. If she convinces the jury of factual and legal cause, there will be elation, As money for her damages will be within reach. Proximate cause, you keep liability reasonable, Just like the sun keeps our weather seasonable

I’ve been thinking about why Elizabeth Holmes didn’t just plead the Fifth. She was deposed before the SEC, and she testified at her own criminal trial - she could have pled the Fifth at either. Much of the time, testifying like this is a mistake, especially at the criminal trial where the feds have to prove guilt beyond a reasonable doubt. Maybe this was her best chance at exonerating herself, and likely there was too much evidence of fraud for this to have made a difference either way, but I don’t think testifying helped her. It reaffirms that she either genuinely does not think she was wrong or she thought she could mastermind everyone with her testimony, which are the two themes presented for her in #YouCanSeeEverything as well.

Looking at what's happening in various parts of the world, I think we in the U.S. have forgotten that what makes us great are the principles that were revolutionary a few hundred years ago. No no other place executes these principles as well -- although we are by no means perfect: Freedom of speech (with a stark line between protected speech and unprotected, criminalizable conduct), freedom of religion, anti-establishment of religion, property rights, due process, fair administration of the laws. Both the left and the right seek, in their own ways and sometimes in the same way, to chip away at these principles to force their vision of the good on others, and it is generally a step in the wrong direction.

Potential interpretations of Elizabeth Holmes gleaned from You Can See Everything - factoring in the doc’s incredible Abbott and Costello scene. 1. Holmes is misunderstood. She believes her own righteousness even though there is overwhelming evidence that she told concrete, material lies to investors that harmed patients. It may be impossible for many (myself included) to relate to someone who lies and yet feels no accountability. She was driven by a pure purpose. She is different and her character is worth exploring and trying to understand because the assumptions about her are wrong. But also, she did commit fraud whether she accepts that or rationalizes it away or whatever happened in her mind. In this interpretation, she doesn’t understand the Abbott and Costello routine and actually never understands it, even after it is explained to her. She just pretends to get it after Nathan explains it to her (I have seen that look when people don’t understand things but claim to follow.) 2. Holmes is a self aware mastermind who is cognizant of her own lies and feigns naïveté in order to manipulate people. In this account, she understood the Abbott and Costello routine, understood its import, and therefore pretended not to get it. Her purposeful evasiveness is shown many times throughout the movie. 3. Holmes is a nice Mom who is continually controlled by the people around her. She’s actually the kind of pure of heart person that Billy describes. The justice system failed her. Here, she doesn’t get the routine initially but maybe gets it after it’s explained to her? I think the truth is most likely 1 and least likely 3, but reasonable minds can differ. That’s what is so great about #YouCanSeeEverything I wish the movie would have included more about the actual facts of the case so people can make up their minds based on more accurate information, but then some of the important, more universal themes of the doc would be lost.

I may see the outstanding Nathan Fielder doc again, because, despite the film's postmodern themes, I think Fielder wants you to figure out the truth. My take on You Can See Everything, as a 1st A prof who believes in both truth and complexity. inacrowdedtheater.com/2026/1…

A quick and objective primer on the law surrounding search warrants and malicious/selective prosecutions in light of the search on Representative Ilhan Omar's home. inacrowdedtheater.com/2026/1…

"Because we live in a free society, we have the privilege of discussing these issues publicly. I hope we continue to do so.  Nidal Hasan’s murders have been classified as an act of terrorism, and he is described as self-radicalized.  I fear for what it says about us if we use the tactics of those he admired to carry out his legal death sentence."

This blog discusses the legal and moral arguments for and against the broadcast execution of Nidal Hasan, including a bit of the context for public executions. I express my own opinion but want readers to form their own conclusions. inacrowdedtheater.com/2026/1…

There is an interesting study on how populist attitudes (us v. them, pure people v. rich elite) are correlated with lack of cognitive reflection (deeper thinking beyond initial gut impulse). sciencedirect.com/science/ar… Some thoughts: I have long thought that the literacy crisis contributes to extremism on many political issues. Education could be doing a much better job teaching results-neutral critical thinking and compelling more long form, difficult reading (which teaches both logical reasoning and empathy for various perspectives and flawed characters.) It is manifesting in very problematic ways in our political discourse. Our current vision of education and the mission of schools and universities needs serious re-examination in light of its failings.