VOLOKH CONSPIRACY

I recently wrote a long and detailed blog post about a new Fourth Amendment case from the Nebraska Supreme Court, State v. Sievers, that permitted the stop of a criminal suspect without reasonable suspicion on the ground that the stop was "information seeking." The Nebraska court applied the reasonableness framework from a U.S. Supreme Court decision on traffic stops of eyewitnesses, Illinois v. Lidster, and extended that framework to the stop of a suspect. The result allowed a traffic stop seeking evidence of crime from a criminal suspect without reasonable suspicion. In my blog post, I wrote about why I thought the decision was "wrong" and "unpersuasive." The decision gutted the reasonable suspicion requirement by taking the exception to that requirement from Lidster out of context: "I don't see how the Lidster reasonableness framework can apply."

Last week, I put my money pro bono time where my mouth is by filing a cert petition in Sievers before the U.S. Supreme Court. Together with my co-counsel from Munger Tolles and the Lancaster County Public Defender, we have asked the Court to grant cert to answer the following question:

Whether Illinois v. Lidster, 540 U.S. 419 (2004), allows the police to stop a criminal suspect in the absence of reasonable suspicion on the ground that the stop is merely "information-seeking."

In addition to asking the Supreme Court to grant the petition for certiorari, we ask the Court to grant cert and summarily reverse the court below.

So U.S. District Court Judge Donald Molloy held today, in Myers v. Fulbright. The Montana statute provides,

(1) Defamatory matter is anything that exposes a person or a group, class, or association to hatred, contempt, ridicule, degradation, or disgrace in society or injury to the person's or its business or occupation.

(2) Whoever, with knowledge of its defamatory character, orally, in writing, or by any other means, including by electronic communication, ... communicates any defamatory matter to a third person without the consent of the person defamed commits the offense of criminal defamation and may be sentenced to imprisonment for not more than 6 months in the county jail or a fine of not more than $500, or both.

(3) Violation of subsection (2) is justified if:
(a) the defamatory matter is true;
(b) the communication is absolutely privileged;
(c) the communication consists of fair comment made in good faith with respect to persons participating in matters of public concern;
(d) the communication consists of a fair and true report or a fair summary of any judicial, legislative, or other public or official proceedings; or
(e) the communication is between persons each having an interest or duty with respect to the subject matter of the communication and is made with the purpose to further the interest or duty.

(4) A person may not be convicted on the basis of an oral communication of defamatory matter except upon the testimony of at least two other persons that they heard and understood the oral statement as defamatory or upon a plea of guilty or nolo contendere.

Judge Molloy held that, applying standard Montana interpretive principles, the law unconstitutionally allows liability for merely negligent falsehoods (see Mont. Code. Ann. § 45-2-103), which makes the statute overbroad under New York Times v. Sullivan and Garrison v. Louisiana. He also noted that the statute seems to put the burden on the defendant to prove truth (see City of Missoula v. Shumway ¶ 14 (2019)), which may also be unconstitutional (see Philadelphia Newspapers, Inc. v. Hepps (1986)).

I think this analysis is right, though I think the Montana Legislature can also easily reenact a suitably narrowed and therefore constitutional version of the statute, just as the Minnesota Legislature did after the Minnesota criminal libel statute was struck down in State v. Turner (Minn. Ct. App. 2015); the Montana Legislature also enacted this version of the statute when the earlier, still broader, version was struck down in State v. Helfrich (Mont. 1996). Of course, the state could also appeal to the Ninth Circuit, but I think it will lose if it does so.

Here is the backstory to the case, by the way, as alleged in Myers' complaint:

In our interview, Elsa Kania and Sam Bendett explain what China and Russia have learned from the American way of warfighting – and from Russia's success in Syria. The short answer: everything. But instead of leaving us smug, I argue it ought to leave us worried about complacency followed by unpleasant military surprises. Elsa and Sam both try to predict where the surprises might come from. Yogi Berra makes an appearance.

In the News Roundup, David Kris explains the Fourth Circuit's decision to turn a hostile spouse-swap dispute into an invitation to screw up the law of stored electronic communications for a generation.

And in other litigation, a Trump-appointed judge dismisses a lawsuit charging Silicon Valley with unlawfully censoring the right. Nate Jones and I agree that, while the decision is broadly consistent with law, it may spell trouble for Silicon Valley in the long run. That's because it depends on an idiosyncratic DC Court of Appeals interpretation of the District's public accommodation law. I speculate that Alabama or Texas or Mississippi could easily draft a law prohibiting discrimination on the basis of viewpoint in public accommodations like,say, Internet platforms.

Nick Weaver and I note the UN report that North Korea has stolen $571 million, much of it in cryptocurrency. I ask whether the US Treasury could seize those ill-gotten bits. Maybe, says Nick, but it would really bollix up the world of cryptocurrency (not that he minds).

I explain that DHS will be rolling out facial scanning technology to a boatload of US airports – and why there's no hidden privacy scandal in the initiative.

And this story kind of makes you wonder about their banks and their chocolate: Nick gloats as Switzerland's proposed Internet voting system follows his predicted path from questionable undertaking to deep, smoking crater.

Elsa Kania and I offer praise for the Navy Secretary's willingness to accept scathing criticism of the Navy's cybersecurity.

And Nick and I close with an effort to draw lessons from the disastrous software and human factor interactions at the heart of the Boeing 737 MAX crashes.

Download the 255th Episode (mp3).

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

Some may find it surprising that the perpetrator of the recent horrific New Zealand terrorist attack that killed fifty Muslim worshipers in two mosques, combined seemingly right-wing nationalism with seemingly left-wing socialism and environmentalism. He hates nonwhite immigrants to Western nations, but also hates capitalism and capitalists, and believes that we must take draconian measures to stave off environmental catastrophe. People who perpetrate "lone wolf" terrorist attacks often have strange and idiosyncratic ideas. But in this case, the terrorist's worldview is less unusual than it might seem. A similar combination of views is evident in many xenophobic nationalist movements, both past and present. Socialists and nationalists have their differences. But they also have much in common, including a zero-sum view of the world.

Anti-immigrant nationalist parties in Europe often combine hostility to nonwhite immigration with support for extensive government control of the economy. That's true of such cases as the National Front in France (now renamed as the "National Rally") and the AfD in Germany. Such parties often also often blame immigrants for real and imagined environmental degradation, just as the perpetrator of the New Zealand attack does. Numbers USA, one of the most influential anti-immigration organizations in the US, has similar views, including advocating coercive population control and blaming immigrants for environmental degradation.

Similarly, the perpetrator of the New Zealand attack argues that environmentalism and immigration restriction "are the same issue [because] the environment is being destroyed by over population, we Europeans are one of the groups that are not over populating the world. The invaders are the ones over populating the world. Kill the invaders, kill the overpopulation and by doing so save the environment." Some influential far-left environmentalists have also advocated coercive population control, including defending China's cruel "one child" policy.

In the early twentieth century, the Nazis promoted an even more extreme form of racial nationalism, and combined that with even more extreme government control over the economy. Hitler advocated extermination of the Jews and the conquest of other European nations primarily because he had concluded that that was the only way Germans could survive and prosper in a zero-sum world.

Racial nationalists and socialist far leftists share a common zero-sum view of the world under which some groups can succeed and prosper only at the expense of others. It is easy to see how that sort of world view often leads adherents to believe that drastic action - including violence - is essential to ensure that the "right" people end up as winners in this crule zero-sum world. I discussed this crucial commonality in greater detail here:

Psychologists find that people are often naturally suspicious of "out groups" different from their own, and therefore more likely to suspect them of nefarious activities of various kinds...

Many Americans worry about our trade deficit with Japan or Mexico in a way that few do about New York's trade deficit with Iowa, or their personal trade deficits with their local supermarket. This, despite the fact that economists across the political spectrum recognize that none of these deficits actually say anything meaningful about our economic performance.

In addition to helping stoke fear of out groups, ignorance also exacerbates prejudice by contributing to the perception that the world is a zero-sum game. As Donald Trump likes to put it, nations like Mexico and Japan are "winning" and the United States is "losing" because they sell more goods to us than we do to them. Similarly, if Group A is doing well, it must be at the expense of B, C, and D. Understanding the fallacy of such thinking requires some knowledge of basic economics, and often also some reasonably careful reflection about the evidence...

The Nazis held a particularly extreme version of the view that the world economy is a zero-sum game. But more moderate – yet still dangerous – versions of the same world-view remain common on both right and left.

Zero-sum thinking need not always lead to racial and ethnic hostility, or xenophobia. It is also often channeled in other directions, such as hostility to the wealthier members of one's own ethnic group or society. In some cases, it leads to a combination of both fear of foreigners and fear of the wealthy.

For example, unexpectedly popular Democratic presidential candidate Bernie Sanders echoes Donald Trump's hostility to international trade, while simultaneously arguing that ordinary Americans can only be economically successful by redistributing vast wealth from "the 1 percent." Until recently, he also expressed considerable hostility towards immigration, denouncing the idea of free migration of labor as a plot by "the Koch brothers" and other malevolent billionaires, which would impoverish the working class and end up "doing away with the concept of a nation state."

Still, zero-sum thinking often leads to fear of out groups, such as foreigners or minorities. If the world is a zero-sum game, we often naturally assume that our only recourse is to ensure that "our" group ends up among the "winners" rather than the "losers," as Trump might put it. Although often associated with the nationalist right, such thinking is not limited to any one side of the political spectrum. In both America and Europe, left-wing political movements have often been susceptible to it, as well – a pattern evident in the hostility of many early-twentieth century Progressives to immigrants and racial minorities, and in the recent rise of left-wing anti-Semitism in Europe.

Fortunately, most nationalists and socialists aren't willing to go so far as to personally commit acts of terrorism. But all too many are willing to advocate large-scale coercion that inflicts great harm on large numbers of people, in order to ensure that they and their preferred causes don't end up as losers in a zero-sum world. Everything from barring migrants fleeing horrible oppression, to separating immigrant children from parents in order to deter them from entering, to coercive population control, to massive expropriation of property, and repression of "capitalists" in order to transfer the nation's wealth to "the people." The list can easily be extended.

There is no easy way to combat zero-sum thinking on either the left or the right. Both have deep roots in a combination of political and economic ignorance and basic human psychology, which makes us susceptible to "in group-out group" hostility. But perhaps the beginning of wisdom is to recognize that most of our economic and social interactions do not have to be zero-sum games in which gains for one group must come at the expense of another.

Far from enriching natives, immigration restrictions often end up undermining their freedom and prosperity as well as that of potential immigrants. Standard economic estimates indicate that free migration throughout the world would double world GDP, with many of the gains going to natives, not just migrants. Natives lose the gains from trade with immigrants, and also suffer from the civil liberties violations inherent in efforts to keep out and deport migrants. Rich and poor are not locked in a zero-sum game either. To the contrary, they can prosper together through mutual exchange, and historically often have.

Pollution and global warming are genuinely serious problems. But addressing them does not require massive coercion or keeping millions of people in poverty. Historically, increasing wealth has actually led to reductions in pollution (after an initial increase early in the process of industrialization), as wealthy societies can more easily afford to invest in reducing pollution. Even when it comes to the particularly difficult challenge of climate change, there are ways to combat that simultaneously increase prosperity rather than stifle it. They include reducing regulatory obstacles to using nuclear power, cutting back on zoning restrictions that make it hard to build denser housing, and offering prizes for the development of new "clean" energy technologies. Where regulation is needed to cut back on carbon dioxide emissions, it should take the the scalpel form of a revenue-neutral carbon tax, rather than the meat cleaver of coercive population control and government takeovers of huge portions of the economy.

It would be naive to imagine that zero-sum games never occur. But they are far less common than either the far left or the nationalist right imagine. The more people come to understand that, the better.

NOTE: Because perpetrators of terrorist attacks often undertake them in large part to gain fame and media attention for themselves and their ideas, I have refrained from mentioning the name of the man who committed the New Zealand attack or linking to his "manifesto." I have instead linked to this helpful summary of his ideas, by James Peron. However, both the name and the manifesto are easily found online, for those who wish to read it for themselves.

Hi all, this should be my last announcement for a conference on Academic Freedom and Free Speech on Campus, to be held from March 21 to March 23, 2019, at the Emory Conference Center (Atlanta, Ga.) -- brought to you by the office of Emory's provost, Dwight McBride, Emory Campus Life, and the Emory University Senate's Committee for Open Expression (which I'm the chair of).

If you're a lawyer, you should be aware that we're offering three credits of Continuing Legal Education (CLE) credit if you attend the conference on Friday, March 22. Ordinary registration fees are $100 (but free for Emory staff and faculty, and for students anywhere); it's an extra $15 if you want the CLE credit.

You can register at this link, but please come even if you haven't registered and stay for as long as you can.

Here's what the conference is about:

Academic Freedom and Free Speech on Campus

Join Emory University for its conference Academic Freedom and Free Speech on Campus March 21-23, 2019 to discuss what academic freedom and free speech mean in the life of higher education institutions today.

The conference is an opportunity to showcase how public and private institutions of higher education continue to be on the forefront of debate, deliberation, and knowledge creation. Emory University is committed to this through its strategic framework, which states that "we practice the values of intellectual rigor, integrity, risk taking, and collaboration. Our faculty and students pursue open inquiry across disciplines—guided by evidence, committed to critical inquiry, fueled by the creative spirit, and dedicated not only to discovery in its own right but to solving problems and serving society." This conference was created to demonstrate this commitment.

The goal of the conference is to generate conversations on ideas, laws, policies, and practices related to academic freedom and free speech on college campuses. It will provide opportunities for faculty, scholars, student affairs professionals and students to interrogate ideas ranging from academic freedom and free speech to safe spaces, and to discuss campus protests and dissent in order to develop practices and policies that promote free speech.

Please join the conversation by attending the conference.

Who's participating? A mix of academics, student-affairs professionals, and others. Here is a (not necessarily complete) list, in no particular order:

• our own co-blogger David Bernstein of George Mason,
• our former co-blogger Jacob Levy of McGill,
• Jonathan Holloway, provost of Northwestern,
• Sigal Ben-Porath, professor of education, philosophy, and political science at Penn,
• Nancy Leong, law professor at Denver,
• Eric Segall, law professor at Georgia State,
• Alex Tsesis, law professor at Loyola University Chicago,
• Greg Lukianoff, president of the Foundation for Individual Rights in Education,
• K.C. White, vice president for student affairs at Kennesaw State,
• Bobby Woodard, senior vice president for student affairs at Auburn,

In addition, we have several participants from Emory, including:

• Deborah Lipstadt, professor of modern Jewish history and Holocaust studies,
• Pamela Scully, vice provost for undergraduate education,
• Michael Shutt, senior director of Campus Life,
• Michele Hempfling, associate dean of Campus Life, Oxford College of Emory University,
• Ed Lee, senior director for debate, deliberation, and dialogue,
• Christa Acampora, deputy provost for academic affairs,
• Steven Sencer, Emory's general counsel,
• Lisa Garvin, acting dean of the chapel and spiritual life,
• Courtnay Oddman, assistant director of residence life,
• Nancy Seideman, vice president of academic communications,
• Bert Buchtinec, captain of Emory Police Department,
• Fred Smith Jr., law professor,
• Julie Seaman, law professor,
• Frank Lechner, sociology professor,
• Karen Andes, professor of global health,
• Dabney Evans, professor of global health,
• Henry Bayerle, classics professor,
• Zach Raetzmann, student,
• and me.

Please come represent the readership of the Volokh Conspiracy, and say hi to me when you're there!

The case is Ramos v. Louisiana, which the Court just this morning agreed to hear.

Here's the basic issue: In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9–3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.)

This partial incorporation is inconsistent both with prior Supreme Court practice and with McDonald v. City of Chicago (2010), the case that fully incorporated the Second Amendment. (McDonald calls an Apodaca-like approach "watered-down" incorporation.) In fact, in Apodaca, only one Justice — Justice Powell — concluded that the Jury Trial Clause required unanimity in federal trials but that this provision shouldn't be incorporated against the states. The other eight would have applied the Jury Trial Clause the same way both to federal and state trials, but four said (incorrectly, in my view) that it didn't require unanimity in either and four said it required unanimity in both. Justice Powell was the controlling vote, and that's how the partial incorporation result was reached.

Back in 2012, I filed a petition with the Court in a case raising the very same issue, Herrera v. Oregon; the Court denied then, and on some occasions since then, but I'm delighted that it has agreed to hear the matter now (whether because there are two new Justices on the Court, or for some other reason). Here's the argument in favor of the historical understanding that the Jury Trial Cause has indeed been understood as envisioning unanimous juries:

[* * *]

The right to a unanimous jury verdict was firmly established when the Bill of Rights was framed. Sir William Blackstone noted it as an essential feature of the right to trial by jury:

[T]he trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law…. [I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. A constitution, that I may venture to affirm has, under providence, secured the just liberties of this nation for a long succession of ages.

2 Blackstone, Commentaries *378–79. Likewise, Blackstone listed the requirement of "unanimous suffrage" on a jury as part of the protection provided by the jury trial to "the liberties of England," and argued that "inroads upon this sacred bulwark of the nation [the jury trial] are fundamentally opposite to the spirit of our constitution." 4 id. *349–50. John Adams took the same view in America, writing that "it is the unanimity of the jury that preserves the rights of mankind." 1 John Adams, A Defence of the Constitutions of Government of the United States 376 (Philadelphia, William Cobbett 1797).

While the Bill of Rights was being ratified, Justice James Wilson — "who was instrumental in framing the Constitution and who served as one of the original Members of this Court," Victor v. Nebraska, 511 U.S. 1, 10 (1994) — stressed the unanimity requirement in his 1790–91 lectures: "To the conviction of a crime, the undoubting and the unanimous sentiment of the twelve jurors is of indispensable necessity." 2 James Wilson, Works of the Honourable James Wilson 350 (Philadelphia, Lorenzo Press 1804); see also 2 id. at 306, 311, 342, 351, 360 (further noting the unanimity requirement).

At the Federalist Society Student Symposium this weekend, Arizona State Supreme Court Justice Clint Bolick recalled the 1984 debate between then-judge Antonin Scalia and Professor Richard Epstein over whether the federal judiciary should take a more active role in protecting economic liberty. Professor Epstein, as one might expect, argued in the affirmative. Then-judge Scalia (who would be elevated to the Supreme Court soon thereafter) urged greater restraint, suggesting it would be dangerous to unleash federal judges in this way.

The debate occurred at a Cato Institute conference on economic liberty and their respective remarks were published in a little pamphlet, currently available for download on the Cato website.

Re-reading the debate today reveals how much the debate has changed -- many more now support Epstein's position than did at the time and the focus has turned from "substantive due process" to the scope of the 14th Amendment's Privileges or Immunities clause -- and how much it has stayed the same -- there continues to be disagreement on the political Right over whether to urge judicial engagement or judicial restraint.

Here is a taste of Scalia's argument:

we, the judiciary, do a lot of protecting of economic rights and liberties. The problem that some see is that this protection in the federal courts runs only by and large against the executive branch and not against the Congress. We will ensure that the executive does not impose any constraints upon economic activity which Congress has not authorized; and that where constraints are authorized the executive follows statutorily prescribed procedures and that the executive (and, much more rarely, Congress in its prescriptions) follows constitutionally required procedures. But we will never (well, hardly ever) decree that the substance of the congressionally authorized constraint is unlawful. That is to say, we do not provide a constitutionalized protection except insofar as matters of process, as opposed to substantive economic rights, are concerned.

There are those who urge reversal of this practice. The main vehicle available—and the only one I address specifically here—is the due process clause of the Fifth and Fourteenth Amendments, which provides that no person shall be deprived of "life, liberty, or property, without due process of law." Although one might suppose that a reference to "process" places limitations only upon the manner in which a thing may be done, and not upon the doing of it, since at least the late 1800s the federal courts have in fact interpreted these clauses to prohibit the substance of certain governmental action, no matter what fair and legitimate procedures attend that substance. Thus, there has come to develop a judicial vocabulary which refers (seemingly redundantly) to "procedural due process" on the one hand, and (seemingly paradoxically) to "substantive due process" on the other hand. Until the mid-1930s, substantive due process rights were extended not merely to what we would now term "civil rights"— for example, the freedom to teach one's child a foreign language if one wishes—but also to a broad range of economic rights—for example, the right to work twelve hours a day if one wishes. Since that time, application of the concept has been consistently expanded in the civil rights field (Roe v. Wade is the most controversial recent extension) but entirely eliminated in the field of economic rights. Some urge that it should be resuscitated. . . .

As should be apparent from what I said above, my position is not based on the proposition that economic rights are unimportant. Nor do I necessarily quarrel with the specific nature of the particular economic rights that the most sagacious of the proponents of substantive due process would bring within the protection of the Constitution; were I a legislator, I might well vote for them. Rather, my skepticism arises from misgivings about, first, the effect of such expansion on the behavior of courts in other areas quite separate from economic liberty, and second, the ability of the courts to limit their constitutionalizing to those elements of economic liberty that are sensible. I will say a few words about each. . . .

And here is a bit of Epstein's response:

When one compares the original Constitution with the present state of judicial interpretation, the real issue becomes not how to protect the status quo, but what kinds of incremental adjustments should be made in order to shift the balance back toward the original design. On this question, we can say two things. First, at the very least, we do not want to remove what feeble protection still remains for economic liberties. Any further judicial abdication in this area will only invite further legislative intrigue and more irresponsible legislation. Yet recent Supreme Court decisions have tended to invite just that. Second, since courts are bound to some extent by a larger social reality, we cannot pretend that the New Deal never happened. Rather, we must strive to regain sight of the proper objectives of constitutional government and the proper distribution of powers between the legislatures and the courts, so as to come up with the kinds of incremental adjustments that might help us to restore the proper constitutional balance.

Judicial restraint is fine when it keeps courts from intervening in areas where they have no business intervening. But the world always has two kinds of errors: the error of commission (type I) and the error of omission (type II). In the context of our discussion, type I error refers to the probability of judicial intervention to protect economic rights when such intervention is not justified by constitutional provisions. And type II error refers to the probability of forgoing judicial intervention to protect economic liberties when such intervention is justified. This second type of error—the failure to intervene when there is strong textual authority and constitutional theory—cannot be ignored.

What Scalia has, in effect, argued for is to minimize type I error. We run our system by being most afraid of intervention where it is not appropriate. My view is that we should minimize both types of error. One only has to read the opinions of the Supreme Court on economic liberties and property rights to realize that these opinions are intellectually incoherent and that some movement in the direction of judicial activism is clearly indicated. The only sensible disagreement is over the nature, the intensity, and the duration of the shift.

At this point, the division of power within the legal system is not in an advantageous equilibrium. If the judiciary continues on the path of self-restraint with respect to economic liberties, we will continue to suffer social and institutional losses that could have been reduced by the prudent judicial control that would result from taking the constitutional protections of economic liberties at their face value.

The whole thing is a quick read, and it is highly recommended.

The costs faced by many municipal recycling programs are skyrocketing, causing some cities to consider waste management alternatives, including burning recyclable wastes in incinerators. The New York Times reports:

Recycling, for decades an almost reflexive effort by American households and businesses to reduce waste and help the environment, is collapsing in many parts of the country.

Philadelphia is now burning about half of its 1.5 million residents' recycling material in an incinerator that converts waste to energy. In Memphis, the international airport still has recycling bins around the terminals, but every collected can, bottle and newspaper is sent to a landfill. And last month, officials in the central Florida city of Deltona faced the reality that, despite their best efforts to recycle, their curbside program was not working and suspended it.

Those are just three of the hundreds of towns and cities across the country that have canceled recycling programs, limited the types of material they accepted or agreed to huge price increases.

Municipalities are discovering that processing recyclables can be expensive, and waste management firms are becoming less willing to treat recycling programs as loss leaders. Another part of the problem is that China is no longer an eager recipient of America's recyclable waste streams, in part due to the problem of preventing contamination when non-recyclable items get intermingled with recyclables. From the NYT story:

While there remains a viable market in the United States for scrap like soda bottles and cardboard, it is not large enough to soak up all of the plastics and paper that Americans try to recycle. The recycling companies say they cannot depend on selling used plastic and paper at prices that cover their processing costs, so they are asking municipalities to pay significantly more for their recycling services. Some companies are also charging customers additional "contamination" fees for recycled material that is mixed in with trash.

In lieu of recycling, some have turned to waste incineration, including at waste-to-energy facilities. In other cases the waste gets sent off to landfills.

Old habits die hard, though, and many are not willing to give up the encouragement of recycling, even if little waste ends up being recycled. The NYT reports the Memphis airport plans on "keeping its recycling bins in place to preserve 'the culture' of recycling among passengers and employees," in the hope actual recycling will resume at some future point.

Many congratulations to our co-blogger and my dear friend Sam Bray, who just received the Federalist Society's Joseph Story Award, which is the successor to the Paul M. Bator Award, "given annually to a young academic (40 and under) who has demonstrated excellence in legal scholarship, a commitment to teaching, a concern for students, and who has made significant public impact in a manner that advances the rule of law in a free society."

Sam joins a long list of illustrious Story/Bator award receipients, including co-bloggers Randy Barnett (1991), Paul Cassell (1998), Eugene Volokh (1999), Jonathan Adler (2004), Orin Kerr (2007), Sai Prakash (2008), Eugene Kontorovich (2012), and Nita Farahany (2013). (Also me, 2017.) By my count, the Volokh Conspiracy sports many more recipients of the award (maybe three times as many?) as any law school.

I'm delighted about this, and also delighted to reproduce Sam's acceptance speech from last night:

I am honored and grateful to receive the Joseph Story Award.

One reason is the august company of previous recipients. I won't regale you with their names, except to say, for all the Harvard Law Students here, that one former recipient is now your dean.

Another reason I am honored is the jurist for whom the award is named. Joseph Story was the second most important Supreme Court justice on the Marshall Court. I expect we all know the most important justice on the Marshall Court. Story was famous not only for his opinions, but also for his treatises, what we would now call his legal scholarship. He wrote the most important treatise of the century in four fields—constitutional law, equity, bailments, and conflicts of law. No one else is even close. Three of those subjects are ones I've taught, so I've felt haunted by the ghost of Joseph Story for some time. And there have been times when I've worked on equity, and I've been sure that Joseph Story was wrong, and I've eventually come around to the view that one of us was wrong, and it was not Joseph Story.

Finally, I'm honored to receive this award because it is from the Federalist Society. When I was a law student at the University of Chicago, the Federalist Society was a critical part of the intellectual life of the school and of my legal education. What made the Federalist Society so distinctive was its commitment to debate, to the critical discussion of legal and constitutional ideas that are foundational for our republic. I wish I could say that this commitment to robust debate, though distinctive when I was a law student, has now been so widely embraced that the Federalist Society is no longer needed. I cannot say that.

Indeed, you who are in this room know the state of play better than anyone. You know, with the exquisite sensibility of a courtier in the Versailles of Louis XIV, the things that are not said, the delicate dances, the debates that cannot be had. And you are constantly negotiating the demands of courtesy and the demands of free and open debate.

If this commitment to robust debate and free speech is ultimately going to survive, it has to escape two threats. One is going softly and quietly into the night. I think you will not do that. But the other threat is that we talk about robust debate and free speech, but we offer speakers who are not worthy of it. Speakers who have nothing to say, who peddle their own personalities. Or speakers who are political weathervanes, aligning their legal positions either with or against the politics of the moment. Avoid celebrity. Avoid provocateurs. Avoid law as politics. Go for substance. Invite even those who talk softly, if they carry a big idea.

I know you do, and I know you will. But given the fragility of free speech at this moment in American life, given the threats from the left and the right, given the roiling sea of outrage and agitation in which we are drowning, I feel compelled to say these things. The light of robust debate and free speech can be put out by its enemies. It can also be put out by its friends.

The members of the Federalist Society should be known above all else for this commitment to robust debate and free speech. You can be known not only for takedowns of the foes of free speech, but more especially for your sweet reasonableness, for your own commitment to the conversation even when others choose to leave it.

If that is so, the law schools of the United States will be greatly in your debt. And a decade and a half from now, one of you will be standing at this lectern, expressing your gratitude for receiving the Joseph Story Award, remembering with fondness the work of your chapter to promote debate and discussion, and expressing your hope that future generations will do the same.

One final word. I would like to thank the professors who have been my mentors along the way—Lisa Bernstein, Elizabeth Emens, Richard Epstein, Philip Hamburger, Bernard Harcourt, Andrew Kull, Geoff Stone, Cass Sunstein, Steven Yeazell, and especially that wonderful judge and scholar, Michael W. McConnell. I am more grateful to them than they will ever know.

From State v. Burbank, decided a week ago:

John M. Burbank appeals from a judgment convicting him of operating under the influence [with a blood alcohol level of 0.31] .... Burbank contends that the trial court erred by excluding testimony of [a witness] Burbank had designated ... as [an expert] to testify that at the time of his arrest he had a condition known as "auto-brewery syndrome" [also called "gut-fermentation syndrome"] a phenomenon associated with the production of alcohol within the body itself under certain circumstances. ...

The court first concluded that, although auto-brewery syndrome may well exist as a physiological phenomenon, Burbank's witness was not qualified to testify about it because she had no training or work experience relating to the condition and instead relied only on a limited number of case studies in this area of science, which is still emerging and is not the subject of much literature. The court also concluded that, because significant differences existed between Burbank's purported condition and that of patients with auto-brewery syndrome as revealed in the case studies, the witness's testimony did not sufficiently relate the syndrome to Burbank and to matters pertinent to this case....

Maine Rule of Evidence 702 provides: "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if such testimony will help the trier of fact to understand the evidence or to determine a fact in issue." We review the court's ruling on the admissibility of expert testimony for an abuse of discretion.

For expert testimony to be admissible under Rule 702, "the trial court must determine that the testimony (1) is relevant in accordance with M.R. Evid. 401, and (2) will assist the trier of fact in understanding the evidence or determining a fact at issue." Expert testimony can be relevant only if it is reliable, and so, for the evidence to be admissible, the court must make a preliminary determination that the proponent has presented a sufficient demonstration of reliability. Indicia of reliability include "whether any studies tendered in support of the testimony are based on facts similar to those at issue; ... whether an expert's conclusion has been tailored to the facts of the case; ... [and] the nature of the expert's qualifications." [Footnote moved: Burbank asserts on appeal that "Like 'credibility,' the 'reliability' of evidence is a factual finding" reserved only for the fact-finder. To the contrary, Maine Rule of Evidence 104(a) requires the court to "decide any preliminary question about whether a witness is qualified ... or evidence is admissible"—precisely the issue here.] ...

First, the court did not err by finding that the proffered expert lacked the qualifications necessary to offer an opinion as to whether Burbank was suffering from auto-brewery syndrome. The expert testified that, although she has a Ph.D. in toxicology and physiology, she had not taken any classes on auto-brewery syndrome and had neither performed any studies nor worked directly on matters relating to the syndrome. Instead, her knowledge regarding the syndrome appears to have stemmed entirely from her review of four articles and four abstracts of different articles she cited during her testimony—sources that predominantly consist of individual case studies.

As the court properly observed while addressing the framework set out in Rule 702, because the witness had no hands-on, experience-based understanding of auto-brewery syndrome, in order for her to qualify as an expert witness any expertise needed to be derived from some other informational source, which here were the articles and abstracts in the professional literature. But as the court found with support in the record, the amount of available research material on auto-brewery syndrome is "thin." The court was entitled to determine, as it did, that the witness's review of only a small number of case studies—even when combined with her general qualifications as a toxicologist and physiologist—did not qualify her to provide expert testimony about auto-brewery syndrome.

Second, the court did not err by concluding in the alternative that the evidence was insufficient to demonstrate that auto-brewery syndrome, as it is understood through the literature, has any bearing on this case. In an attempt to make that connection, Burbank presented the court with an offer of proof describing his anticipated trial testimony: he had not consumed alcohol since the beginning of 2016; he has a family history of diabetes and had been found to be pre-diabetic; and at the time of his arrest he was eating a high-sugar diet and had been taking a prescribed antibiotic for two days.

I am profoundly skeptical that a physical barrier is the best approach to border security, but what if, instead of a wall, the nation constructed infrastructure that would generate electricity and help address other environmental concerns? A consortium of engineers have proposed just such an idea: an Energy, Water, Industry and Education Park (FEWIEP) that would enhance border security while providing energy and water to the border region. Among other things, the plan anticipates that such a project, once built, would help pay for itself through the generation of electricity.

Here's how Scientific American describes the idea:

Instead of an endless, inert wall along the U.S.–Mexico border, line the boundary with 2,000 miles of natural gas, solar and wind power plants. Use some of the energy to desalinate water from the Gulf of Mexico and the Pacific Ocean and ship it through pipelines to thirsty towns, businesses and new farms along the entire border zone. Hire hundreds of thousands of people from both countries to build and run it all. Companies would make money and provide security to safeguard their assets. A contentious, costly no-man's-land would be transformed into a corridor of opportunity. . . .

The border region receives boundless solar energy, and has significant natural gas and wind resources. It's also suffering from extreme drought, and water shortages are predicted to get worse. Farming is exceedingly difficult. And jobs are often scarce—in part because of lack of water and power. If an energy and water corridor were built, the facility owners would protect their properties. Transmission, gas and water lines would be monitored by companies, states and federal agencies, as many elsewhere are now. And the plants could be integrated with security walls or fences.

I'm skeptical of parts of the plan, particularly the emphasis on water desalination. The problems of water scarcity in the western US are more a policy problem than a problem of physical supply. The expansion of water markets and real water pricing would do much to rationalize water use (and also help address the consequences of climate change).

That said, much of the US-Mexico border would be an ideal place to expand solar power, and such installations would provide something of a physical barrier (insofar as some folks think such a barrier is desirable). Solar power doesn't work well everywhere, but there are parts of the country to which it's quite well suited. And if we're going to have something of a wall -- and Mexico is not going to pay for it -- wouldn't it be a consolation if the "wall" could pay for itself?

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

"Until now, the excessive-fines clause in the Constitution's Eighth Amendment had languished in obscurity, the Rodney Dangerfield of constitutional rights," IJ's President Scott Bullock and Legislative Analyst Nick Sibilla wrote this week in The Atlantic. But after the U.S. Supreme Court issued its landmark decision in Timbs v. Indiana, the clause can finally get some respect. A resuscitated excessive-fines clause, they assert, could rein in civil forfeiture, municipal fines, and other forms of policing for profit. Read the whole thing here.

• Black man convicted of Shreveport, La. murder by all-white jury spends nearly 30 years on death row, in solitary confinement before he's exonerated. Allegation: Law enforcement fabricated evidence, withheld exculpatory evidence, among other misdeeds. (The lead prosecutor has since apologized.) The defendants answer the complaint but later move to dismiss it. District court: It's too late to try to dismiss. Fifth Circuit: And it's too early to appeal that ruling. Go deal with the merits of the case.
• Woman says she was raped by a Shreveport, La. police officer after he asked her to come in to the station. So can she sue the police chief? Fifth Circuit: Not when she didn't give details on how the chief was involved. The only evidence against him was speculation based on a third officer's refusal to testify.
• Motorcyclist twice evades police, flies down US-183 outside Cisco, Tex. at over 100 mph. An officer driving an SUV ahead of the motorcyclist slows down—from 100 mph to 50 mph in seven seconds—to block the way. The cyclist slams into the SUV and dies. Fifth Circuit: And his claim slams into qualified immunity.
• Karnes County, Tex. man goes to rival's granddaughter's elementary school during pickup, pantomimes shooting the rival. He's arrested for harassment. But wait! Maybe it never happened. He says he wasn't at the school that day: The sheriff's department trumped it up for political revenge. So can he sue the head honchos at the sheriff's office? Fifth Circuit: Not when he didn't give details on how management was involved.
• Ohio distributes gov't money to nonprofits to address public health issues, but the money cannot go to any organization that provides or promotes "nontherapeutic abortions." (The money has long been prohibited from directly funding abortions.) Sixth Circuit (last year): Which is not OK, as it requires the surrender of constitutional rights to participate in an unrelated gov't program. Sixth Circuit (en banc): Nay nay. There is no freestanding right to perform an abortion, only the right of a woman to obtain one. Because this law affects only the former, no one is forced to sacrifice constitutional rights to obtain funding, and the law stands.
• Taylor, Mich. officer pulls over driver, decides to go easy on her and tickets her for a non-moving violation. The driver, proving that no good deed goes unpunished, gives officer the finger as she drives away. The officer, proving that no insult to a police officer goes unpunished, pulls driver over again, upgrades ticket to a moving violation. Sixth Circuit: No qualified immunity for the officer; the second stop violated clearly established rights under the First and Fourth Amendments.
• "Hermann Göring, head of the Luftwaffe in World War II, remarked: 'When I saw those Mustangs over Berlin, I knew that the war was lost.'" So begins the Seventh Circuit in its lesson on why, if you suspect someone has stolen your P-51 Mustang fighter, you should sue promptly rather than wait 30 years.
• Indiana law makes it a felony to acquire, receive, sell, or transfer the "tissue, organs, or any other part of an aborted fetus," which Hoosier professors challenge as interfering with their medical scholarship. District court: The words "acquire," "receive," and "transfer" are unconstitutionally vague, as is the phrase "any other part." Seventh Circuit: Which would make much of the legal system invalid, as those words are ubiquitous. The law stands. Judge Hamilton, dissenting: When both the gov't lawyers and the authoring legislators run away from the apparent meaning of statutory language, there's a vagueness problem (which presents both due process and separation of powers issues).
• Thanks to a quirky interaction among the bankruptcy code, the N.D. Illinois' bankruptcy practice, and Chicago parking ordinances, Chapter 13 debtors rack up thousands in parking fines with no way for the city to collect. Seventh Circuit: "Immunity from traffic laws for the duration of a Chapter 13 plan does not seem to us an outcome plausibly attributed to the Bankruptcy Code."
• Illinois requires homeless sex offenders to report to law enforcement weekly, but those with fixed residences need report only quarterly. Tired of weekly updates from homeless people, some Chicago cops instruct them to list shelters as their fixed residences—knowing full well that the registrants don't reliably live there. But a schism lurks! Other police officers dislike that approach and arrest homeless people who list fictitious residences. Caught in the bureaucratic crossfire, one such offender finds himself arrested and jailed for 17 months before being acquitted. And his due process claim is not barred by the statute of limitations, says the Seventh Circuit, so it can proceed.
• Decatur County, Iowa sheriff allegedly sexually harasses staff, resigns. The new acting sheriff fires the former sheriff's wife, who had worked in the department. Can she sue the acting sheriff for violating her First Amendment right to intimate association? The Eighth Circuit says no; he wasn't trying to poison her marriage; he was trying to prevent a hostile work environment.
• Santa Monica, Calif. passes law allowing "home-sharing" (rentals where residents remain on site with guests) but forbidding the sort of short-term rentals pioneered by Airbnb and HomeAway.com. Airbnb and Homeaway.com: The city is requiring us to monitor and remove third-party content from our platforms, hence violating the Communications Decency Act and the First Amendment. District court: Dismissed. Ninth Circuit: Just so. The city is merely restricting the companies' internal booking transactions, which falls outside the CDA. No dice on the First Amendment claim for similar reasons.
• Uniformed Kansas City, Kan. police officers in two separate squad cars activate their roof lights; one officer gestures to man in a parked car to exit his vehicle. Would an ordinary person feel free to leave in those circumstances? The Tenth Circuit says no, so the man was seized and the Fourth Amendment applies.
• Allegation: After a driver is pulled over for speeding and refuses a search of his vehicle, Miami police arrest driver and leave him in intentionally painful handcuffs for more than five hours, leading to permanent nerve damage and loss of sensation. Eleventh Circuit: We've granted qualified immunity in other handcuff-injury cases, but none of those involved injuries this serious to a compliant arrestee. The officer should have known better, so no immunity for him.
• DeKalb County, Ga. deploys 36 officials—some wearing army fatigues and masks—to launch an unannounced, profanity-laced raid on . . . a strip club. At 5 p.m. For the sole purpose of checking the dancers' permits. Which was pretty over the top, says the club—not least because the club's colitis-ridden owner was handcuffed and forced to soil himself. Definitely over the top, agrees a jury: The county violated the Fourth Amendment and must pay over $10k. And we will not disturb that verdict, says the Eleventh Circuit. "Administrative inspections" of strips clubs are constitutional as a general matter, but the jury reasonably found that this particular sh*tshow (paraphrased) was unreasonable in scope and execution.

This week, the Minnesota Supreme Court ruled that property owners who assert their innocence are entitled to a prompt hearing after their property is seized. Police seized Helen Olson's car after a traffic stop, and prosecutors kept it for 18 months without giving Helen (who wasn't in the car when it was taken) an opportunity to seek judicial review of the seizure. Not good enough! Said the court: "Due process is not satisfied by a rule that allows a person's property right to turn on the whim of a prosecutor." IJ filed an amicus brief urging the court to take this course of action. Says IJ attorney Jaimie Cavanaugh: "This decision is a victory for the rights of Minnesotans who have done nothing wrong but still see law enforcement seize and hold their cars, cash or other property for months or years. It only makes sense that innocent owners should be granted a hearing within days of law enforcement seizing their property. Because of this result, there will now be additional scrutiny on law enforcement practices that amount to policing for profit."

Cameras will not come to the Supreme Court anytime soon. Testifying before the House Appropriations Subcommittee on Financial Services and General Government, Justices Elena Kagan and Samuel Alito made clear that there is little interest in allowing video recording of the Supreme Court's proceedings, let alone live broadcast.

While televising oral arguments might "allow the public to see an institution working thoughtfully and deliberately and very much trying to get the right answers, all of us together," Justice Kagan observed, it could also alter the conduct of oral arguments in ways that could undermine the Court's work. "If seeing [the court] came at the expense of the way the institution functioned that would be a very bad bargain. And I do worry that cameras might come at that expense," she added.

The justices' reluctance to perform their work in front of TV cameras is understandable, but the refusal to allow greater access and transparency to the Court's work is not. Fortunately, there are steps the Court could take short of televising arguments.

Oral arguments are recorded, and audio recordings are released at the end of each week of arguments. There is no reason for this delay. To increase transparency and mollify those seeking argument video, the Court should begin releasing audio recordings of oral argument the same day such arguments occur.

Transcripts are released daily, but the written transcriptions often fail to capture the flavor of the argument and, as initially released, are prone to typos or errors. They are useful for researchers, but lack the value of an audio recording, both for journalists covering the court as well as those who want to truly understand how the arguments transpired.

One reason sometimes offered for not televising court proceedings is that the prospect of live broadcast tempts activists and others to disrupt court proceedings to gain publicity or attract attention to a particular cause. This is an argument against live broadcast, however, not an argument against same-day release. An hour or two delay offers ample time to excise any such disruptions, thereby reducing the incentive to interrupt court proceedings, without meaningfully limiting public access to the Court's proceedings.

Some justices fear that making the court's arguments more accessible would affect the manner in which cases are presented, and perhaps the manner in which justices ask questions. To whatever degree such concerns are justified, the experience with oral argument audio should allay such concerns.

Audio recording has existed for decades without any apparent effect on the quality or sincerity of the arguments made. More importantly, the Court has occasionally authorized the same-day release of oral argument audio for cases of extreme public interest, such as Trump v. Hawaii (the "travel ban" case) and Obergefell v. Hodges (same-sex marriage), and such releases have occurred without a hitch. If releasing same-day audio for such highly charged cases did not corrupt the Court's work, it is hard to see a problem in same-day release of cases about the application of the federal rules of civil procedure, preemption of state tort remedies, or the interstices of obscure federal statutes.

Journalists, researchers, students and others would like greater access to the Supreme Court's proceedings, without having to travel to DC or line-up outside of One First Street. Whether or not televising arguments is a good way to meet such demands, there is little reason for the Court not to release audio of arguments and opinion hand-downs on the same day that they occur. It's a simple step that should command unanimous agreement.

I close out my visit this week with some thoughts on what we can learn from the analysis of sex in sport about who is a woman for purposes of different women's only spaces and opportunities; and whether these spaces and opportunities can continue to exist if they are not defined on the basis of sex.

Sex segregated spaces remain ubiquitous: bathrooms, locker rooms, dorm rooms, gyms, colleges, shelters, and prisons. Less obvious but still prevalent are sex-linked opportunities in education, employment, and medicine.

They exist as they do for a combination of reasons, some of which are just about tradition and dead or dormant stereotype; others, though, are about inherent differences and still-salient, actively operating stereotypes. Anti-discrimination law as applied to sex is designed to erode the former while retaining the latter. From RBG in VMI:

'Inherent differences' between men and women … remain a cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity.

Sex classifications may be used to compensate women 'for particular economic disabilities [they have] suffered,' to promot[e] equal employment opportunity,' [and] to advance full development of the talent and capacities of our Nation's people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.

Women's sport is an example of a sex classification that is based in inherent differences and that is used to promote equal opportunity and the full development of females' talents and capacities. Thus, from Sex in Sport, "It would be a mistake to assume that [sex] can be read out of elite sport policy without causing a lot of important harm because biology determines competitiveness in this institutional space which is precisely about competition."

So is a STEM-related employment or educational opportunity set aside for females as a way to make up for past subordinations and exclusions and to grow their numbers going forward. Because females were subordinated within and excluded from these fields on the basis of sex and of false stereotypes about the cognitive aptitudes and capacities of females compared to males, it would be a mistake to assume that sex can be read out of the definition of "woman" for these empowerment opportunities if they are to be successful vehicles toward their designated ends.

In contexts like this, where the classifications continue to be necessary or useful as designed, it is right that females are privileged as against transgender women, or that there is a rebuttable presumption that "woman" for purposes of these spaces and opportunities means females. In these contexts, it is not right that if you identify as a woman you are a woman case closed. The classification "women" is not a catch-all or code for male gender non-conforming people. (Deconstructing sex can take you there if you let it.)

Rebuttable presumptions are, by definition, rebuttable. And so transgender girls and women are girls and women for purposes of these spaces and opportunities when their inclusion can be obtained without defeating the classification or category.

The way elite sport currently regulates women's events is again illustrative. Instead of categorically excluding male-bodied athletes from female events, it conditions their inclusion—and thus their classification as "women"—on dropping their T levels into the female range. This levels the playing field precisely according to the single trait that justifies the classification. Elite development sport also approaches the definition of "girls" this way.

(Education-based competitive sport can do the same for pubertal and post-pubertal males who identify as girls and women. See, e.g., the NCAA's eligibility rule. It could also consider unconditional inclusion of transgirls—no physical transition requirement—with offsets that ensure that no otherwise eligible females are themselves excluded as a result. Examples of offsets could be adding a spot to an otherwise numerically restricted team or event that will include a transgirl; and awarding two championships if a transgirl beats a female for the highest prize.

I would agree with the argument that offsets could dilute or at least change the value of the position, lane, or medal somewhat for both athletes; but this effect doesn't go to the core of the institutional mission, and it seems right to me that we should value inclusion in the education space more highly than any incidental discomfort that could arise from this policy choice. This equation would come out differently in the elite sport space since the signaling and economic values associated with being the visible single winner are part of the mission and more than merely incidental.)

In contrast, where inherent differences are not factually relevant, or where the false stereotypes about females derived from those differences have been (at least mostly) vanquished, there is no compelling reason to privilege females over transwomen. For me, these include girls' and women's public restrooms, locker rooms, dormitories, gyms, and prisons.

Exclusions in these categories are primarily justified by tradition and related concerns about privacy and safety. Safety for females in relation to male-bodied people is no small matter, but without a sound evidentiary basis for concluding that trans girls and women are more likely to be problems than other females—for example, more than "the mean girls who have always used [restrooms and related settings] as their safe bullying space"—we can't justify reading them out.

In contrast, physical privacy is a legitimate concern because reasonable expectations are based in community norms and sex-segregated public restrooms and like spaces remain the norm. But this just means that the switch is not cost-free, not that it is cost prohibitive. Having to retrofit restrooms to provide individual spaces won't affect institutional ends.

I do question whether women's only spaces and opportunities can continue lawfully to exist under current doctrine if they are not defined directly or indirectly on the basis of female sex. For example, can they continue to exist if, as some argue, it's no longer acceptable even to speak about female body parts when we define "woman" because doing so is "inherently reductionist and exclusive"? Can they continue to exist if, as the Obama Administration recommended, sex is erased from sex discrimination law and replaced by identity, defined as "[a]n individual's internal [but not necessarily biologically-based] sense of gender"?

I've heard the legal argument derived from these positions, that sex discrimination jurisprudence has evolved away from any (even indirect) focus on inherent differences; that it is now primarily focused on the mutable aspects of gender and the individual's autonomy related to their gender identity. That's not how I read the cases, in no small part because it would require conceiving of VMI as relic.

I'll end with this. If VMI were relic, if there were nothing left to sex in law, I'm not sure that identity—"which may be male, female, neither, or a combination of male and female, and which may be different from an individual's sex assigned at birth"—could automatically take its place, at least not as a protected class. Imagine the Olympic podium with three male-bodied athletes in the three medal positions in a women's event. If I'm right, set asides for "women" untethered from female biology would be difficult if not impossible to justify.

On Wednesday, my friend and Scalia Law School colleague and office-neighbor Neomi Rao was confirmed by the Senate to a seat on the D.C. Circuit Court of Appeals. (Yay!)

Rao's nomination had hit a bump in the road when Senator Josh Hawley of Missouri publicly suggested that he was weighing whether to vote in her favor. Hawley questioned whether Rao was "pro-life," and also whether she believed in the doctrine of "substantive due process," the use of the Constitution's Fifth and Fourteenth Amendment's Due Process clauses to protect substantive liberty rights.

As various commentators noted, Hawley's raising of the substantive due process issue was odd. First, Hawley could have, but did not, ask Rao about this issue during her confirmation hearing. Second, there was nothing in Rao's writings suggesting that she had anything but the usual conservative skepticism about "inventing rights" via substantive due process. And third, Hawley's remarks suggests that he was entirely opposed to using the Due Process Clauses for substantive purposes, but every modern conservative Justice except for Justice Thomas has accepted substantive due process as the mechanism to "incorporate" the Bill of Rights into the Fourteenth Amendment, and even Justice Scalia accepted a role for due process in protecting a very narrow category of unenumerated substantive rights. And as a lower-court judge, Rao would be obligated to follow Supreme Court precdent on the matter in any event.

In any event, Hawley's concerns were eventually satisfied, and he joined his unanimous Republican colleagues in voting for Rao.

I took a special interest in this saga, not only because it involved my friend and colleage, but because Hawley and I had an exchange about the intellectual origins of substantive due process in the Texas Law Review originating in an article he wrote as a law professor at the University of Missouri. Hawley's article offered, in his words, "a thoroughly revised account of the modern doctrine's beginnings, development, and meaning. The core of the story is this: modern substantive due process depends on a coherent and thoroughly modern notion of liberty, grounded in the ideas- of personal authenticity and self-development."

I responded that Hawley provided "an incomplete account of the development and abandonment of pre-New Deal due process jurisprudence, and a somewhat idiosyncratic or perhaps tendentious account of the development of modern due process jurisprudence that almost certainly overemphasizes the role of philosophers in inspiring modern due process jurisprudence."

You can read each article at the links above, and decide for yourself whose take is more persuasive.