That is the title of my most recent published paper, which appears on pages 316-331 of Volume 18 of the Journal of Law & Public Policy (JLPP). In brief, I build on F. A. Hayek’s classic work “The use of knowledge in society” to propose a new kind of information market in fake news and conspiracy theories and the like. The abstract of my paper is below:
A growing chorus of scholars and policy makers have decried the proliferation of false information on the Internet—fake news, conspiracy theories, and the like—while at the same time downplaying the dangers of Internet censorship. This Article proposes a simple alternative to censorship: a retrodiction market in which participants buy and sell belief contracts.
Update #2 (14 June): An appellate court has put a temporary pause on Judge Breyer’s grandiloquent order (see previous update below) and scheduled an emergency hearing for this Tuesday, 17 June (see here).
Update (13 June): Charles Breyer, an unelected federal judge in Northern California, has “blocked” President Trump’s deployment of local National Guard units in Los Angeles (see here). Really? How will the judge enforce his 36-page order?
My original blog post (12 June): Given the recent events in Los Angeles, California (my hometown), where I will be visiting next week, I am reposting a link to my 2019 paper “Domestic Constitutional Violence“. Among other things, my work provides some general historical background regarding the use of military force inside the United States: I describe how the U.S. Congress, going back to the presidencies of George Washington and Thomas Jefferson, has delegated a specific set of emergency powers to the president to deal with certain classes of domestic dangers. (Nota bene: Due to my travel schedule this weekend, I will resume my series on “AI and critical thinking” on Monday, June 16.)
I will resume my series on “Critical thinking in the age of A.I.” in the next day or two; in the meantime, I want to hit pause to honor the life and legacy of my fellow Californian Brian Wilson, the musical genius who co-founded the legendary Beach Boys. Via the N.Y. Times, here is his obituary, and below is one of my all-time favorite Beach Boys songs:
What impact will large language models like ChatGPT have on higher education? The optimists or “AI bloomers” claim that AI tools will usher in a new era of personalized learning and allow instructors to offload grading and other tedious and time-consuming tasks to ChatGPT, thus freeing up more time for them to devote to their students. Representative of this camp is this paper by Miguel Ángel Escotet, the rector of the Intercontinental University of Business, who predicts that AI-powered “intelligent tutoring systems” (ITSs) will “provide “personalized, adaptive instruction and student feedback based on their assessments and progress.” In other words, ChatGPT will not only meet students where they are; it will make them smarter. (See also Suriano et al. 2025, available here.)
Critics or “AI doomers”, by contrast, contend that ChatGPT poses a dire threat to the central mission of higher ed: the promotion of critical thinking. Representative of this opposing camp is this paper by Michael Gerlich, the director of Center for Strategic Corporate Foresight and Sustainability at the SBS Swiss Business School, who surveyed and interviewed over 600 participants and found “a significant negative correlation between frequent AI tool usage and critical thinking abilities, mediated by increased cognitive offloading.” In plain English, when students turn to ChatGPT for ready-made answers, they are bypassing the mental effort to engage in critical thinking, i.e. the ability to analyze, evaluate, and synthesize information. (See also Lee et al. 2025, available here and here.)
Alas, all of these papers — like most, if not all, academic research on education — are woefully inadequate. Escotet’s paper is just a series of personal reflections, while Gerlich’s findings, as well as those of Lee et al. 2025 and Suriano et al. 2025, are based on surveys and self-reports. But personal reflections (no matter how respected the author) or a mere survey (no matter how many people are interviewed) will not do. In order to draw any reliable or rigorous conclusions about ChatGPT’s impact on higher ed, we would need to conduct a properly-designed experiment, and we would also need to assign students to two different groups: a control group and a treatment group.
The problem, however, is that that type of experimental research usually requires pre-approval by an institutional review board (IRB), and it is unlikely that an IRB would approve experimental research on students directly, especially when a treatment is expected to benefit one group of students over another group of students. (Cf. Rebele & St. Pierre 2015, p. 133 n.3.) So, what is to be done? How can we really measure or “test” the impact of AI tools on higher ed without establishing a control group (students who are not allowed to use AI) separate from the treatment group (students who are allowed to use AI)?
For my part, I will remain agnostic (for now) about the relative merits of these opposing camps — the AI doomers and bloomers — until such an experimental study (or better yet, a series of such studies) is completed. In the meantime, I will take a step back from this great debate in order to address an important preliminary question: what do we mean by “critical thinking” in the first place? After all, before we can even begin to measure something as vague and ambiguous as “critical thinking”, we need to define what we mean by this term. I will take a first stab at a definition in my next post.
Gerlich, M. (2025) AI Tools in Society: Impacts on Cognitive Offloading and the Future of Critical Thinking. Societies, 15(1), 6. https://doi.org/10.3390/soc15010006
Lee, H. P., Sarkar, A., Tankelevitch, L., Drosos, I., Rintel, S., Banks, R., & Wilson, N. (2025) The impact of generative AI on critical thinking: Self-reported reductions in cognitive effort and confidence effects from a survey of knowledge workers. Proceedings of the 2025 CHI Conference on Human Factors in Computing Systems (pp. 1-22). https://dl.acm.org/doi/10.1145/3706598.3713778
Rebele, J. E., & Pierre, E. K. S. (2015) Stagnation in accounting education research. Journal of Accounting Education, 33(2), 128-137. https://doi.org/10.1016/j.jaccedu.2015.04.003
Suriano, R., Plebe, A., Acciai, A., & Fabio, R. A. (2025) Student interaction with ChatGPT can promote complex critical thinking skills. Learning and Instruction, 95, 102011. https://doi.org/10.1016/j.learninstruc.2024.102011
I did not know about this remarkable chapter of North American history until today! You can read about it here or here, or better yet, check out the 11-minute YouTube video below:
My daughter Adys and I are in the Yucatán peninsula this week, where we will be visiting the Temple of Kukulcan (Structure5B18) at the Chichen Itza archaeological site today (9 June) as well as the ruins at Tulum on Tuesday (10 June). When I get back to blogging in the next day or two, I will begin to explore the dire threat that large language models like ChatGPT pose to the central mission of higher education: critical thinking. In the meantime, below are two versions of the iconic Coldplay hit from the early 2000s “Viva la vida”:
“Sabor a mí” is a 1959 bolero by the legendary Mexican musician and composer Álvaro Carrillo. Since then, his iconic and beautiful balad has been reinterpreted by many artists. (Indeed, I featured some of these re-recordings in this 2021 blog post.) The version below is performed by Javier Camarena, featuring Jesús Navarro:
N.B.: The blog post below is based on the last part of my talk this weekend at the 2025 South-North Exchange on Theory, Culture, and Law at the Universidad Autónoma de Ciudad de México (UACM):
Previously, I drew a connection between the doctrine of necessity in law and the “state of exception” in the political arena, between Trump’s ingenious legal strategy in defense of his trade wars — i.e. declare an emergency or “state of exception” and then proceed to suspend ordinary constitutional rules under the pretext of that declared emergency — and the well-established legal doctrine of necessity, a doctrine that can be traced back to the Roman law maxim necessitas non habet legem (“necessity knows no law”).
Today, I want to explain why the doctrine of necessity may also capture the true essence of what I have called “Gödel’s Loophole.” In brief, this supposed constitutional loophole refers to a possible “inner contradiction” in the U.S. Constitution, one that could produce a legalized dictatorship. But what if the loophole is not inside the Constitution but outside out it? Consider, for example, the first sentence of Carl Schmitt’s 1922 book Political Theology (available here): “Sovereign is he who decides on the exception.” In other words, it is the state of exception that defines the legal order, not the other way around, or in the immortal words of Schmitt himself: “The exception is more interesting than the rule. The rule proves nothing; the exception proves everything …”
Although the ideas of this great German legal philosopher are often discounted or swept under the rug because of his subsequent ties with the Nazis (see here, for instance), the contemporary Italian philosopher Giorgio Agamben has shown why Schmitt’s famous dictum (“Sovereign is he who decides on the exception”) is more relevant than ever today. Among other things, Agamben cites Schmitt dozens of times in his 2005 monograph State of Exception (available here) and explains why Schmitt’s dictum presents a double paradox, for a state of exception not only creates a legal vacuum in which actions are not bound by the law; it also suspends or annuls the rule of law in the name of protecting the legal order. The Schmittian sovereign — the person who gets to decide what constitutes an emergency necessitating a state of exception — thus stands outside the law and at the same time is its ultimate source.
For my part, building on the ideas of Giorgio Agamben and Carl Schmitt, I now want to present a new and improved version of Gödel’s loophole. Simply put, if X has the lawful power to declare an emergency or state of exception, then by definition he has the lawful power to suspend ordinary legal and constitutional rules during the duration of the emergency — that is, by definition X is a lawful dictator. I have left open (for now) an important second-order problem: can X’s emergency-declaring power be reviewable by the courts or can it be subject to a legislative veto? However this second-order question is answered, my revised version of Gödel’s constitutional loophole describes Trump’s legal playbook in the tariff cases to a “T” (pun intended): Trump is not only suspending the normal rules of constitutional law under the pretext of his declared emergencies; one could further argue that, as president, he has the inherent authority to do so!
N.B.: Below is part 2 of my upcoming talk this weekend at the 2025 South-North Exchange on Theory, Culture, and Law at the Universidad Autónoma de Ciudad de México:
Is there a link between Gödel’s Loophole and President Trump’s tariffs? To explore this possibility, we first have to take a step back and take a closer look at Trump’s legal strategy in defense of his trade war. To the point, as of today (see here, for example) President Trump has signed 21 executive orders, four memoranda, and three proclamations related to trade and tariffs since he re-assumed the office of president earlier this year. On each of these occasions, Trump has officially declared a “national emergency” and has claimed legal authority for his trade war policies under the International Emergency Economic Powers Act (IEEPA).
In other words, a clear legal pattern has emerged: President Trump’s legal theory in support of his trade war is to invoke the IEEPA by declaring a national emergency and then claim that he is acting under the authority of that law. Of course, this strategy is a risky one: the Congress could, in theory, amend or repeal the IEEPA, or a court could declare one or more of Trump’s executive orders — or even the IEEPA itself — unconstitutional, but with every passing day it looks like that is a calculated gamble or strategic risk Trump is willing to take. In the meantime, until Congress acts or until the Supreme Court joins the fray, Trump’s tariff playbook reminds me of the common law defense of necessity in ordinary civil and criminal cases.
In brief, the necessity defense allows you to break the law when you are confronted by an emergency: it operates as a justification or an excuse of an otherwise illegal action when taken to avoid a greater harm. (Consider, for example, the two famous trolley problems in moral philosophy.) But does the doctrine of necessity operate as a blanket justification, i.e. does it “legalize” an otherwise illegal act? Or does it operate as a mere excuse, i.e. the bad act in question is still illegal but the actor cannot be punished for taking it during the emergency? What interests me here, however, is not the underlying rationale of the necessity defense, i.e. whether it operates as a justification or an excuse. What interests me is how Trump’s tariff playbook — invoking a national emergency to bypass both judicial and legislative checks on his trade policies — sheds light on a deep constitutional puzzle called Gödel’s loophole. I will explain why next …
N.B.: Below is an excerpt (part 1 of 3) of my upcoming talk this weekend at the 2025 South-North Exchange on Theory, Culture, and Law at the Universidad Autónoma de Ciudad de México (UACM). The theme of this year’s meeting is “New scenarios in the dispute of rights: authoritarianism, polarization, and democracy.”
Is President Donald J. Trump carrying out an autogolpe or “self-coup” in order to assume full dictatorial powers during his remaining time in office? After all, like the great Franklin D. Roosevelt (FDR) in the 1930s and 40s, Trump has for all practical purposes been ruling by decree since he re-assumed the office of president in January of this year. As of today, for example (see here), Trump has signed no less than 157 executive orders (#14147 through #14303) during the first few months of his second term, but which one of these 157 decrees is the most dangerous or legally dubious one? For me, it’s the first round of tariffs he announced on 1 Feb. 2025, when he signed Executive Order #14193 (“Imposing Duties to Address the Flow of Illicit Drugs Across our Northern Border“). Let me explain:
Although this presidential decree attempted to impose an across-the-board tariff of 25% on nearly all goods imported into the U.S. from Canada and Mexico (I say “attempted” because Trump soon backed down), the tariffs themselves are not (from a purely legal perspective) what I found most objectionable about this executive order. No, what I found even more worrisome was that Trump’s decree purported to abrogate a standing treaty, the US-Mexico-Canada Agreement (USMCA). Although President Trump backed down (he postponed the enforcement of the tariffs against Canada and Mexico on two separate occasions and then removed those tariffs altogether from his “Liberation Day” decree on 2 April), his initial instinct was to use the pretext of an emergency (drug smuggling) to effectively abrogate an entire treaty in all but name!
Next, I will explain why President Trump’s attempt to annul the USMCA and his subsequent rounds of worldwide tariffs remind me of a deep puzzle in constitutional law known as Gödel’s Loophole, a supposed “inner contradiction” in the U.S. Constitution that was discovered by the logician, mathematician, and analytic philosopher Kurt Gödel …
prior probability 