This afternoon, the U.S. Court of Appeals for the D.C. Circuit rejected a constitutional challenge to the structure of the Consumer Financial Protection Bureau (CFPB). Sitting en banc, the court concluded that limiting the President's ability to remove the CFPB's Director, even when combined with the agency's rather unique structure, did not create any constitutional problems. Several judges dissented and, as one might expect, the case would seem to be a good candidate for Supreme Court review.
In October 2016, a three-judge panel of the D.C. Circuit had concluded that the agency's unique structure was unconstitutional. The CFPB understandably disagreed, and sought en banc review of this decision. The D.C. Circuit granted the CFPB's petition in February, but then something interesting happened: The new adminstration decided it disagreed with the old. Whereas the Obama Administration had supported the CFPB's unique structure, the Trump Administration did not, and it let the D.C. Circuit know. Like the petitioners, the Trump Administration argued that it was unconstitutional to place such substantial power in an agency headed by a single individual (as opposed to a multimember commission) who is only subject to removal "for cause."
The D.C. Circuit was apparently not persuaded by the Trump Administration's opinion, as the court voted to overturn the original panel decision, 7-3. Judge Nina Pillard wrote the opinion for the court, which five other judges joined. Judges David Tatel and Robert Wilkins each wrote concurrences. Judge Thomas Griffith concurred in the judgment, albeit on grounds that would make it relatively easy for a President to remove a CFPB director who did not toe the line. Judges Karen Henderson and Brett Kavanaugh and Senior Judge A. Raymond Randolph, each wrote a dissent.
Altogether, the opinions in PHH Corporation v. CFPB span a full 250 pages. That's quite a bit to wade through, and I'm not going to try and summarize all of the points made in the various opinions. Fortunately, over at the Notice & Comment blog, Aaron Neilson has posted excerpts from each of the opinions, highlighting the various arguments made.
The primary arguments in the Pillard majority, and the dissents, are largely what you would expect if you've followed the longstanding constitutional debate over the extent to which Congress may constrain the President's removal power. The opinions spar over the meaning of prior precedents, including Morrison v. Olson and Humphrey's Executor. They also cross swords on the extent to which the CFPB's unique structure is legally relevant. It may be true that, up until now, the only agency heads protected by a "for cause" removal limitation are those who are part of multi-member commissions. The quesiton is whether that matters for constitutional purposes.
Judges Kavanaugh and Henderson both argue that constraining the ability of the President to remove the head of an agency like the CFPB unduly constrains executive power. Judge Kavanaugh makes this argument within the constraints of existing precedent, whereas Judge Henderson does not, arguing instead that first principles must control. These dissenters also disagreed on remedy. Following the Supreme Court's lead in Free Enterprise Fund v. PCAOB, Judge Kavanaugh argues the constitutional infirmity is cured by simply eliminating the "for cause" constraint on removal of the CFPB's head. This is not enough for Judge Henderson, however, who argues the CFPB should be invalidated in its entirety.
Judge Griffith's concurring opinion is worth highlighting, as it puts forward a rather distinct way of addressing concerns about the existence of a powerful regulatory agency not subject to Presidential control. As he summarizes his opinion:
I agree that the challenged features of the CFPB do not violate the Constitution, but for different reasons than the majority. My colleagues debate whether the agency's single-Director structure impermissibly interferes with the President's ability to supervise the Executive Branch. But to make sense of that inquiry, we must first answer a more fundamental question: How difficult is it for the President to remove the Director? The President may remove the CFPB Director for "inefficiency, neglect of duty, or malfeasance in office." After reviewing these removal grounds, I conclude they provide only a minimal restriction on the President's removal power, even permitting him to remove the Director for ineffective policy choices. Therefore, I agree that the CFPB's structure does not impermissibly interfere with the President's ability to perform his constitutional duties
This argument is particularly interesting because it would give the Supreme Court a way to reinforce Presidential control over federal agencies without having to strike down portions of the Dodd-Frank law that created the Bureau. According to Griffith, there is nothing in the text of the statute, or relevant precedents such as Humphrey's Executor, that would prevent a President from removing a CFPB head who sought to implement a policy agenda at odds with the President. Among other things, Griffith writes, "an officer is inefficient when he fails to produce or accomplish the agency's ends, as understood or dictated by the President operating within the parameters set by Congress." So understood, the "for cause" removal provision would not impose a significant constraint on the ability of a President to remove and replace the CFPB Director. Although his reasoning is different, Judge Griffith notes that, as a practical matter, his decision would produce a similar ultimate outcome as that urged by Judge Kavanaugh.
Given the magnitude of the question at issue, one would think PHH Corporation v. CFPB is a good candidate for Supreme Court review, particularly since the Solicitor General could be expected to support any petition for certiorari. There is a catch, however. While the D.C. Circuit rejected PHH's constitutional challenges to the CFPB, it upheld PHH's statutory challenge to the CFPB enforcement actions that prompted the suit. As a consequence, PHH might be seen as a prevailing party, and (as a general rule) the Supreme Court does not grant petitions for certiorari from parties that prevailed below.
Whether or not PHH, the SG's office, or another party is able to convince the Supreme Court to review this case, the underlying question will land at One First Street relatively soon. PHH was not the only entity subject to CFPB regulation to challenge the Bureau's structure, and there are other cases working their way throught the court system that could become alternative vehicles for certiorari.
In my view, Supreme Court review of the underlying question will come relativey soon, and the D.C. Circuit's decision is unlikely to prevail. Recent Supreme Court decisions, such as that in Free Enterprise Fund, suggest a majoirty of justices on the Court would like to contain precedents such as Humphrey's Exectuor and are unlikely to bless the CFPB's unique structure. If I am right, this means a mjaority of the Court is likely to embrace the position adopted by Judge Kavanaugh or Judge Griffith, not that laid out by Judge Pillard. Time will tell -- and we will need time to thoroughly review the D.C. Circuit's latest handiwork.
[Note: As originally posted, I inadvertently referred to Judge Robert Wilkins as Gerald Wilkins. I've corrected the post and regret the error.]
I added this problem to the second edition of my First Amendment textbook back in 2005, and news accounts suggest that it's now quite timely:
Within ten or twenty years [of 2005], there will probably be consumer-usable software that can easily overlay people's photographs and voices onto movies that depict someone else. The program would automatically and seamlessly alter multiple scenes in which the character is shown from different angles, with different facial expressions, doing different things. (Of course, one can already do this in some measure with photos, but this hypothetical program would be much more sophisticated.)
The user running the program would give it (1) a file containing a movie, (2) files containing photographs of the person who is to be included in the movie, and, optionally, (3) recordings of the person's voice. The program would use image recognition algorithms to replace all of a given character's appearances with the new person, and would adjust the character's spoken words to simulate the new person's voice. The program would guess how the photographed person's features would likely move, or what the unphotographed parts of the person's body look like. It would also let the user provide input about such unknown items, and may let the user modify the person's appearance in other ways.
A filmmaker could thus easily replace a stuntman's image with the star's. Parodists and artists could merge politicians', celebrities', or actors' faces and voices into existing footage (as in Zelig or Forrest Gump). Parents could place their children and children's friends into kids' movies, which may make the movies more fun for the children. Similar technology could embed human actors into computer-generated movies.
But the most common use of the program would probably be pornography. Consumers would pay to download the program [EV adds today: maybe they won't even have to pay!]; separately buy a pornographic movie [EV adds: buying porn? who does that?]; get nonpornographic photographs and possibly voice recordings of celebrities or of acquaintances; run the program to merge the photographs and voices with the movie; and then watch pornography that "stars" whomever they lust after. Some such merged movies might be sold, but many will be made at home, to fit the user's own preferences.
Naturally, many people, famous or not, will be unhappy knowing that they are depicted without their permission in others' home sex movies. Imagine that Congress therefore decides to prohibit the distribution and use of the computer program that allows such movies to be made.
How would such a law be different for First Amendment purposes from normal obscenity legislation? Do you think the law should be upheld (even if that means changing First Amendment law), and on what grounds?
If you think the law should be struck down, what about laws that
(1) prohibit the use of the software to make such pornographic movies without the photographed person's consent,
(2) prohibit the noncommercial distribution of the movies, whether to a small group of friends or on the Internet, or
(3) prohibit the commercial distribution of the movies?
Don't limit yourself to considering whether such laws are constitutional under existing obscenity doctrine. Consider also whether you think there should be an obscenity exception at all, and whether you think it should be broader or narrower than it now is.
It seems likely that the House Intelligence Committee will soon #ReleaseTheMemo. According to press reports, the memo claims that the FISA application to monitor Trump campaign advisor Carter Page included information sourced from former British intelligence officer Christopher Steele "without adequately explaining to the judge that Democrats financed Mr. Steele's research."
This is a scandal, the argument runs, because it means the application was fraudulent. Because Steele was funded by Democrats, his reports were just unreliable opposition research designed to make Trump and his associates look bad. And if the FISA application was based on Steele's unreliable research, and DOJ never told that to the FISA Court, then DOJ misled the court and the court should not have issued the warrant.
As a Fourth Amendment nerd, it seems to me that the premise of #ReleaseTheMemo is pretty dubious. The apparent idea is that the failure to adequately document the funding behind Steele's work is a huge deal and a fraud on the court. But as a matter of law, that seems pretty unlikely to me. When federal judges have faced similar claims in litigation, they have mostly rejected them out of hand. And when courts have been receptive to such claims, it has been because of specific facts that are likely outside the scope of the memo that will be released.
Here's the context. It turns out that there is lots of litigation on whether warrant applications need to discuss the bias of informants. Franks v. Delaware allows a criminal defendant to challenge a search warrant by arguing that the statement of probable cause that supported the warrants was fatally flawed. Maybe the officer who swore out the affidavit was lying about the basis for probable cause. Or maybe he recklessly included facts that he should have known were false. Or maybe–as is particularly relevant here–he intentionally or recklessly failed to include facts that the judge needed to know in order to pass on whether there was probable cause. Under Franks, a court will void a search warrant if the defendant can establish that the officer who swore out the warrant "knowingly and intentionally, or with reckless disregard for the truth" either included information that was false or excluded information that was true when that information was critical to the probable cause determination.
Franks generates a lot of cases on informant bias. They typically run something like this. The government will get a warrant based in part on the statements or claims of an informant. The affidavit won't give specific reasons to doubt that the informant is credible. Down the road, the warrant will be challenged on the ground that the affidavit failed to tell the judge of good reasons to think the informant was biased and unreliable. Maybe the informant was facing criminal charges and had every incentive to manufacture evidence that others were involved in crimes to strike a better deal for himself. Maybe the informant was the suspect's estranged spouse in the middle of a bitter divorce battle, and she was trying to get him arrested to help get custody of the kids. In each of the cases, the defendant claims that the warrant should be voided because the government failed to disclose the informant's bias. If the government hadn't misled the court, the argument runs, no warrant would have issued because the judge would have seen that the informant could not be trusted.
How has this argument fared? It depends on the case. Most of the time, though, it hasn't fared very well.
Part of the problem is that judges figure that of course informants are often biased. Informants usually have ulterior motives, and judges don't need to be told that. A helpful case is United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988), in which the government obtained a warrant to search a house for a meth lab inside. Probable cause was based largely on a confidential informant who told the police that he had not only seen a meth lab in the house but had even helped others to try to manufacture meth there. The magistrate judge issued the warrant based on the informant's detailed tip. The search was successful and charges followed.
The defendants challenged the warrant on the ground that the affidavit had failed to mention the remarkable ulterior motives of the informant. The affidavit didn't mention that the "informant" was actually a married couple that had been in a quarrel with the defendants; that the couple was facing criminal charges themselves and had been "guaranteed by the prosecutor that they would not be prosecuted if they provided information"; and that they had been paid by the government for giving the information. The affidavit didn't mention any of that. A big deal, right?
According to the court, no. "It would have to be a very naive magistrate who would suppose that a confidential informant would drop in off the street with such detailed evidence and not have an ulterior motive," Judge Noonan wrote. "The magistrate would naturally have assumed that the informant was not a disinterested citizen." The fact that the magistrate wasn't told that the "informant" was guaranteed to go free and paid for the information didn't matter, as "the magistrate was given reason to think the informant knew a good deal about what was going on" inside the house.
In some cases, omitted information about a witnesses's bias is irrelevant because there is enough evidence of the crime so that probable cause was not really in question. Consider Smith v. Edwards, 175 F.3d 99 (2d Cir. 1999) (Sotomayor. J.), a horrible case involving alleged abuse of a child. A mother reported that her husband had sexually abused their daughter, and the judge issued the warrant for the husband's arrest. The husband was arrested but the charges were later dropped. The husband then sued the officer who obtained the warrant, claiming that the officer had obtained the warrant only because he had left out critical information in the affidavit. In particular, the affidavit did not inform the magistrate that the mother had instituted divorce proceedings against her husband, and it did not state that she had come to the police only after having tried unsuccessfully to obtain a restraining order to bar him from contacting her or her daughter. In the husband's telling, you needed to understand the wife's bias to know that she had made up the claims about him to get custody of their daughter.
The court held that the failure to disclose this information was irrelevant. The undisclosed information "was not material because there would have been probable cause to arrest" the husband even if the officer had included the omitted information. Even if the affidavit been "corrected" by including the omitted information, "nothing in the outcome of the Superior Court proceedings that would have negated probable cause."
Importantly, that doesn't mean that an informant's bias never needs to be disclosed. It just depends on facts of the case. It depends on how important the informant's information was to establish probable cause, and it depends on how much the alleged bias makes the information unreliable in context. If there are reasons to credit the informant despite the bias, based on the detail of the tip, the informant's history of providing reliable tips, or other information, then the background informantion about bias isn't particularly relevant. But if an affidavit hinged on an informant's claim and bias would have fatally undercut probable cause, then it has to be included in the affidavit.
United States v. Glover, 755 F.3d 811 (7th Cir. 2014), is an example of when an informant's bias has to be disclosed. In Glover, the basis for a warrant to search the defendant's home for drugs was a confidential informant who told the police that the defendant was a gang member and drug dealer who had a lot of guns in his house. The police verified that the defendant had past convictions and lived in the house, but otherwise the case for the warrant was based almost exclusively on the uncorroborated claims of the informant. In particular, the affidavit failed to say that the informant was himself a gang member with fourteen convictions who had lied to the police about his identity and been paid in the past for being an informant.
The Seventh Circuit tossed out the warrant because the affidavit didn't give sufficient reason to think the informant was reliable. The informant's tip was bare-bones and generic. It lacked the detail of someone who had special knowledge. The police hadn't corroborated the claims sufficiently. And the failure to say that the informant was a gang member was part of that, too, as knowing that fact could undercut probable cause.
In particular, the fact that the informant in Glover was himself a gang member raised the concern that the informant had simply made up claims about the defendant's drugs and guns because of gang rivalries. If the police had corroborated the tip or the informant had been reliable in the past, that could assuage concerns that the informant had just manufactured the probable cause from whole cloth. In such a case, "omission of an informant's criminal background and financial motive is not necessarily essential to the probable cause determination." But the absence of that corroboration or reason to trust the informant, and the fact that the informant's credibility was key to the case, made disclosing that informantion essential.
What do we make of these cases in the context of #ReleaseTheMemo? I think a few lessons emerge, at least assuming that the FISC judges approach omissions in affidavits in the same way judges ordinarily do in criminal cases (which seems a fair assumption to me, although I'm open to correction on that).
First, you need to know all of the facts claimed in the Carter Page FISA affidavit to know if disclosing the funding source of the Steele's research was even remotely relevant. My understanding is that FISA applications like this are rarely close calls. DOJ usually gives the FISC way more than probable cause. (At least that's my understanding: I was at DOJ and applied for warrants and a Title III order way back when, but I haven't done any FISC work.) If that's right, it means that Steele's research may have been included in the affidavit amidst a ton of other evidence. And if so, the Steele research itself may have been wholly irrelevant to the application. It's hard to see any significance to whether the funding source of irrelevant research was included. If that's right, the omission was not material, in the language of Smith v. Edwards; including it would not have negated probable cause. And you would need to assess that based on reading the entire affidavit, not just whatever is alleged in the four-page Nunes memo.
Second, even if the Steele research was a major part of the affidavit, whether the funding source would need to be disclosed depends on whether it critically altered the case for probable cause. Some of that would depend on whether the Steele research was corroborated. If the government looked into the Steele memorandum and corroborated some of its claims, it undercuts the need to disclose the funding source.
And some of that depends on identifying just what the narrative is for why the funding source was critical to establishing probable cause. I think that point is really important and too easily ignored. In #ReleaseTheMemo circles, any possible link between the Steele dossier and the Clinton campaign is like an atomic bomb. It completely annihilates any possible credibility the Steele dossier may have, leaving the exposed words of the dossier behind like the haunting shadows of the Hiroshima blast.
But that's not how actual law works. In the world of actual law, there needs to be a good reason for the judge to think, once informed of the claim of bias, that the informant was just totally making it up. As United States v. Strifler shows, that isn't necessarily the case even if the government paid the informant to talk and guaranteed that they would get out of jail if they did. Nor is it necessarily the case just because the informant is in personal feud with the suspect. What matters is whether, based on the totality of the circumstances, the information came from a credible source.
That's a problem for #ReleaseTheMemo, I think. To my knowledge, Steele was not some random person motivated by an ongoing personal feud against Trump or Carter Page. To my knowledge, he was not a drug dealer facing criminal charges who was promised freedom if he could come up with something for the government's FISA application. Instead, Steele was a former MI6 intelligence officer and Russia expert. He was hired to do opposition research because of his professional reputation, expertise and contacts. And his work was apparently taken pretty seriously by United States intelligence agencies. Of course, that doesn't mean that what's in the dossier is true. Maybe the key allegations are totally wrong. But if you're trying to argue that Steele's funding sources ruin the credibility of his research, his professional training and background make that an uphill battle.
At the Cato Unbound website, the symposium on Brink Lindsey and Steve Teles' important new book, book The Captured Economy continues. The book argues that the "capture" of government regulation by wealthy interest groups has slowed economic growth, increased inequality, and reduced opportunity for the poor; it also proposes various potential remedies for the problem. I previously reviewed TheCaptured Economyhere.
Lindsey and Teles' opening essay is followed by response essays contributed by Richard Reeves (Brookings Institution), Henry Farrell (George Washington University), and myself. Lindsey and Teles have now responded to their critics (here, here, and here). I have responded to some of Farrell's and Reeves' criticisms of my arguments (see here, here, and here). The big point at issue between me and several of the other participants is whether and to what extent we need to shrink and decentralize government in order to reduce the incidence of capture. Whereas I argue that Lindsey and Teles underestimate the need to cut back on the role of government, Farrell contends they want to go to far in that direction.
I am grateful to the the other participants in the symposium for their many insights. The discussion is likely to continue for at least a few more days.
Jim Comey has tweeted his support for Andrew McCabe, who is leaving the No. 2 post at FBI early: "Special Agent Andrew McCabe stood tall over the last 8 months, when small people were trying to tear down an institution we all depend on. He served with distinction for two decades." I'm sure Andrew McCabe was an able agent for decades, but I can't join Jim Comey in celebrating the way McCabe did his job over the past year or two. That doesn't mean that all the White House and Congressional attacks on the FBI are justified, simply that we ought to delay McCabe's canonization until the facts are in.
At the time, McCabe was the head of the FBI's Washington Field Office. He announced that he would take no part in his wife's campaign, and he sought ethics advice from the Bureau's compliance officer and its general counsel. The advice had two parts: he should recuse himself from corruption investigations of Virginia politicians, and his future participation in "any investigation that may present an actual or perceived conflict of interest" was to be reviewed by the field office's ethics expert; if an investigation posed even a "potential" conflict of interest, McCabe was to be excluded from all aspects of the case. McCabe may have followed that last procedure for a time, but there's little sign that the procedure survived his rapid promotion in the months that followed. In July 2015, he took the No. 3 position at the FBI, and in February 2016 the No. 2 job.
As deputy director, McCabe took on substantial responsibility for overseeing the Clinton investigation. I can't say for sure whether he kept conducting an "actual or perceived conflict of interest review" of the investigations he supervised, but if he had, it's hard to believe he would have continued to supervise the Clinton probe. I say that because McCabe ultimately did recuse himself from the investigation, but only after guiding it for months, all the way to the conclusion that no charges were justified. He did not recuse himself until the second, lightning-round Clinton investigation, and then most likely because of a Wall Street Journal article that shone a harsh light on connections between McCabe, his wife, Terry McAuliffe, and Clinton.
The Trump investigation was well under way at that point, but not public. Perhaps the Trump campaign probes were never put through the recommended procedure; the protocol could have been formally or informally dropped, either when his wife lost her campaign or when McCabe was promoted. Even so, one would have thought that the experience of unceremoniously exiting the Clinton probe would have sensitized him to the appearance of continuing to investigate Clinton's rival. But McCabe stayed with that investigation, to the point of playing a crucial role in the FBI's interview of Michael Flynn.
Flynn's interview was crucial to the investigators, fatal to him, and consistent with the FBI playbook: Interview the subject in a friendly, disarming context. Introduce issues on which the subject will be tempted to dissemble. Lock the dissembling into a concrete lie. And -- boom! – just like that the bureau has a felony to work with.
The interview with Flynn seems to have fit that mold. Flynn was known to have denied that he discussed sanctions with Amb. Kislyak. But the Bureau apparently had a recording of the call that contradicted those assurances. If Flynn repeated his denials to an FBI investigative team, he'd be toast. But Flynn was unlikely to meet with a criminal or counterintelligence team investigating him without getting legal counsel and perhaps taking a moment to reconsider what up to that point had simply been the sort of lies that are all too common in politics and government. So it was crucial that Flynn not know the purpose of the meeting. Enter Andrew McCabe. According to NBC News:
A brief phone call from the office of Andrew McCabe, the deputy FBI director, to a scheduler for Flynn on Jan. 24 set the interview in motion, according to people familiar with the matter. The scheduler was told the FBI wanted to speak with Flynn later that day, these people said, and the meeting was placed on Flynn's schedule. The scheduler didn't ask the reason for the meeting, and the FBI didn't volunteer it, one person familiar with the matter said.
This strikes me as remarkable and troubling. Flynn was the national security adviser. He would expect to get all kinds of FBI briefings, and to resolve disputes the FBI might have with other agencies. His routine interface with the Bureau would be with the Director or the Deputy Director. So McCabe's call seeking a meeting for his agents would raise no questions, while a call directly from the investigators would. If NBC News is right, and he did set up the meeting in so surreptitious a fashion, McCabe was not just supervising the investigation, he was an integral part of it. What's more, the tactic worked. Flynn took the meeting, the bureau got the false statements it expected, and not long after that, Michael Flynn was gone.
I can't say I'm sorry. Flynn's judgment, especially on the Russians, was highly suspect. But it's hard to justify McCabe's reported actions. The bureau is allowed to dissemble and even lie in the course of its investigations, but I doubt the bureau would have done the same to Susan Rice, even if a FISA tap had caught her saying one thing to a foreign government and another to a rival US official, something that I suspect happens quite often. It's even harder to believe that the FBI's deputy director would have joined personally in the sting.
In short, it is fair to conclude that McCabe's family ties to Clinton's circle of supporters created at least the appearance of a conflict of interest for McCabe -- whether he was investigating Team Clinton or Team Trump. More pointedly, if McCabe intervened personally to construct a perjury trap for the Trump administration's national security adviser, there's reason to believe that the conflict was more than just apparent. If nothing else, McCabe's blind spot for the apparent conflict – and the understandable mistrust it created in the Trump White House – makes McCabe's departure entirely appropriate.
Jonathan Chait's accusations to the contrary ignore a great deal of the actual libertarian reaction to the president's policies. But some libertarians are indeed too soft on both Trump and right-wing nationalism generally.
The porcupine is often considered a symbol of libertarianism.
In a recent New York Magazine article, prominent political commentator Jonathan Chait argues that libertarians have largely come around to supporting Trump, despite some previous doubts:
When Donald Trump first emerged as a genuine threat to seize the Republican nomination, Charles and David Koch represented the epitome of elite right-wing opposition to the populist interloper….
The latest development in the relationship between the Kochs (right-wing heirs to a business fortune) and Trump (also the right-wing heir to a business fortune) is that the former have thrown the weight of their massive organization unhesitatingly behind the latter. Largely satisfied with Trump's conservative judicial appointments, lax regulation of business, and regressive tax cutting, the Kochs are spending several hundred millions of dollars to protect the Republican majority. Whatever points of contention remain between the two have been reduced to squabbles between friends.
The Koch rapprochement mirrors a broader trend: Among the conservative intelligentsia — where resistance to Trump has always run far deeper than it has among the Republican rank and file — libertarians have displayed some of the greatest levels of friendliness to the Trump administration.
Chait reaches this conclusion only by completely ignoring several of the nation's leading libertarian organizations and intellectuals, and the positions they have taken on the administration. The only libertarian critics of Trump he mentions are those associated with the Niskanen Center, which he describes (with some justice) as having moved away from traditional libertarian positions on many economic issues, and therefore not very representative of libertarians generally.
He does not even discuss the Cato Institute - by far the best known libertarian think tank or Reason (the nation's most prominent libertarian magazine and website). Cato and Reason writers such as Alex Nowrasteh and Shikha Dalmia have been among the toughest and most prominent critics of Trump's attacks on immigration. Others at both organizations have been harshly critical of the administration on trade, government spending, civil liberties, executive power (Gene Healy, Cato's leading expert on this subject, has argued that Trump should be impeached), health care reform, and a good many other issues.
Unlike his father, Rand Paul, in my view, has indeed been overly friendly with the administration on some issues. And he has gotten - and deserves - considerable libertarian criticism for actions such as voting to confirm Jeff Sessions as attorney general. But he has also publicly attacked it on important issues like sentencing, electronic surveillance, marijuana legalization, and others. It is entirely fair to criticize Rand Paul for being too soft on Trump. But it is also important to recognize that he has been at odds with the president considerably more often than most members of Congress typically oppose an administration of their own party.
The main villains of Chait's piece (as of many other recent left-wing attacks on libertarians) are the Koch brothers - the libertarian billionaires who fund a variety of political and social causes. It is indeed true that they plan to spend a lot of money trying to maintain GOP majorities in Congress. I think they are wrong to do so. In addition to imposing tougher constraints on Trump, the return of divided government is desirable from a libertarian point of view, because divided government tends to reduce government spending relative to unified government.
I am obviously not privy to the Kochs political calculations. But it is possible they believe that, given various tensions between the congressional GOP and Trump, supporting the former does not imply supporting the latter, and that continued GOP majorities in Congress won't do much to help Trump on those issues where he is especially odious (immigration, trade, civil liberties). It is also possible they think that - given his record unpopularity - Trump is unlikely to be reelected, and they want to maintain GOP control of Congress as a hedge against what might be a very liberal Democratic president elected in 2020. If these are indeed the Kochs' views, I have considerable reservations about them, for the reasons I noted above. But a libertarian can hold them without "unhesitatingly" supporting Trump, and indeed without necessarily supporting him much at all.
To say that Chait's indictment of libertarians is wrong, is not to say that all is well with the libertarian world. Some libertarians have indeed supported the administration far more than can be justified - in most cases not because of love of Trump, but because of fear of the left. At least for the moment, Bernie Sanders-style left-wing populism is gaining ground in the Democratic party, and it is understandable for libertarians to fear the rise of a movement that seeks to massively expand government control over the economy and society, especially one led by a man notorious for his praise of brutal communist regimes. Unfortunately, such fear leads some libertarians to take it easy on an administration they see as a valuable "enemy of my enemy." It may also account for the Kochs' overly optimistic take on the consequences of maintaining GOP control of Congress. Many libertarians (like many other people) may not realize that the administration's extensive expansion of regulation on immigration and trade increase government control over the economy and society a good deal more than its relatively limited deregulatory actions elsewhere have reduced it.
Even more troublingly, a small but vocal group of self-described libertarians have supported the administration and right-wing "blood and soil" nationalism not as a lesser evil, but as a positive good. In my view, and that of most mainstream libertarian intellectuals, such ideas are utterly inimical to the libertarian tradition, properly understood. But it cannot be denied that they have appeal for some people who think of themselves as libertarians, and that libertarians need to do more to counter their rise.
In sum, Chait is wrong to tar libertarians, as a group, for supposedly being thoroughgoing supporters of Trump. But it would also be wrong for libertarians to become complacent about either Trump, or the more general threat to liberty posed by the kind of nationalism he exemplifies.
DISCLOSURE: The Volokh Conspiracy blog is hosted by Reason, though editorially independent of it; I have written several previous articles for Reason, as well. I am a Cato Institute adjunct scholar (an unpaid external affiliation), and have written a number of papers for Cato, and spoken at many Cato events. I have, over the years, spoken (and sometimes gotten speaker fees) at a number of events sponsored by organizations partially funded by the Kochs, including most recently at a Cornell University panel on Trump's immigration policies that was partly sponsored by the Koch Foundation, where I argued that Trump's travel ban is unconstitutional. I have also spoken about these and other issues at events sponsored by conservative and liberal/progressive organizations, such as the American Constitution Society. If readers wish to discount what I say on these issues because of the above affiliations, they are free to do so. I will only say that I have not hesitated to differ with either the Kochs or other libertarians, over the years, and that I also have an extensive history of being highly critical of both Trump and the GOP generally.
The lower house of the Polish Parliament has passed a bill that would, in relevant part, make it a crime (1) to "publicly and contrary to facts, ascribe to the Polish people or to the Polish State responsibility or partial responsibility" for Nazi crimes, "other crimes against peace or humanity," or "war crimes," or (2) to "otherwise grossly reduce the responsibility of the true perpetrators of those crimes." There would be an exception for "acts that are part of artistic or scientific activity" (an exception that would presumably also cover academic historical claims, but likely not political claims). The crime would be punishable by up to three years in prison, and apparently would apply to such speech anywhere in the world, not just in Poland. (Translation thanks to my father Vladimir Volokh.)
The law is apparently targeted at, among other things, people calling the Nazi death camps in Poland "Polish death camps," or to fault Poles generally for complicity with Nazis. As the Jerusalem Post (Herb Keinon & Lahav Harkov) reports, some have indeed argued that many Poles were so complicit, though of course Poles generally were among the great victims of Nazis as well; presumably this would be a crime if the bill passes.
I'm opposed to laws criminalizing Holocaust denial for many reasons, but one of them is the "censorship envy" -- and the normalization of censorship of historical claims -- that leads such laws to breed many more laws. For other examples, see the French fine against noted historian Bernard Lewis for his statements about the deaths of Armenians during World War I (Lewis had stressed that the killing happened, but argued that it was not part of a deliberate campaign of extermination by the Turks), and the EU genocide denial directive that calls for criminalizing allegedly "denying," "condoning," or "grossly trivializing" various events that are much more historically controversial than the Holocaust.
In any case, there's still time for this Polish proposal to be rejected; I hope that indeed happens, or else it too would likely lead to further censorship creep.
"There is no notary in Fulton County named Amanda Sparks.... The notarization by Amanda Sparks is a forgery.... Connie Hood and Jesse Wood are not real. Connie Hood and Jesse Wood were fabricated in order to obtain a stipulated order of permanent injunction removing criticism of Adam Lynd from the internet.... Howard Marks is not real.... Robert Smith is not real.... Damon Lentz is not real...."
[UPDATE: Here are the final judgments, filed July 30, 2018, based on stipulated admissions to some of the charges and dismissal of others: Kelly and Warner; the stipulated discipline was a reprimand and two years' probation.]
Friday, the Arizona State Bar filed a disciplinary complaint accusing two lawyers of filing libel lawsuits against fake defendants. Why would anyone do such thing, you might ask? How can you get real money (or real compliance with an injunction) from a fake defendant?
Well, say you think some people are libeling you online. You try to get them to take down the libelous material, but you can't find them, or they refuse. You try to get the hosting site to delete the material, but it refuses. (Under the federal 47 U.S.C. § 230 statute, such intermediaries can refuse without fear of liability.)
So you e-mail Google, and ask it to remove the page from Google's indexes, so that Google users won't see it. "We don't know whether it's actually libelous," Google responds, "and we aren't equipped to figure that out. But tell you what: You get a court order against the author that concludes the material is libelous, and then maybe we'll consider deindexing it."
Now you, or the reputation management company you hired, can get a lawyer and bring that lawsuit. Many people do -- but it's time-consuming and very expensive. And maybe you'll lose: Maybe the defendant will defend, and will point out that the statement is just nonactionable opinion, or is factually accurate, or (what often happens) was written long enough ago that the statute of limitations runs. So you might be out the money, and without a remedy.
That's where the fake-defendant lawsuits come in. Someone -- the plaintiff, the reputation management company, or the lawyer -- decides to file suit against a nonexistent defendant. The complaint is filed in court together with a stipulation from the "defendant" (actually filed by whoever is engineering this on the plaintiff's behalf) agreeing that the statement was false and defamatory, and agreeing to the entry of an injunction ordering the "defendant" to remove the statement. The court sees what appears to be agreement between the parties, and issues the injunction.
In one such case, I saw the injunction issued a blazingly fast four days after the filing. Lovely! The only problem, of course, is that it's a fraud on the court.
Back in Fall 2016, Paul Alan Levy and I wrote about one such scheme that we had uncovered (thanks to a tip from one of the scheme's targets, Matthew Chan). The operation was run by one Richart Ruddie, of a company that had various names, including Profile Defenders.
Ruddie apparently arranged the filing of some such fake-defendant lawsuits; we linked him to several, though I found a total of about 25 lawsuits in various courts that had very similar boilerplate, and 15 of them gave addresses for the defendants -- addresses that didn't seem to correspond to any such defendant, at least based on the public record searches that we ran (with the invaluable help of Giles Miller, a private investigator at Lynx Insights & Investigations). But all these lawsuits were ostensibly filed by the plaintiffs without a lawyer. (I say "ostensibly" because it's possible that the reputation management company filed some of the lawsuits without telling the plaintiffs, and the plaintiffs weren't even aware that the lawsuits were going to be filed -- much less that they were fraudulent -- but were relying on the seemingly reputable reputation management company to just "do something" behind the scenes.)
The Arizona lawsuits, though, were filed by lawyers Aaron Kelly and Daniel Warner of Kelly / Warner Law, a prominent Internet libel law firm (though some were also linked to Richart Ruddie, Profile Defenders, and a company connected to Profile Defenders). One example was Chinnock v. Ivanski, filed by Warner; here's what the Arizona Bar alleges about it, with the most interesting details emphasized (for more, see this March 2017 post on this blog about Chinnock; many thanks to the Lumen Database project at Harvard's Berkman Klein Center for its invaluable help with that research):
[30.] In 2016, Respondent Warner was hired by Joseph Chinnock to remove allegedly defamatory posts about Chinnock from the internet. At that time, Respondent Warner was already aware that Chinnock was accused in Florida of fraud and using a fake identity [because Kelly/Warner Law had earlier gotten the court file in the Florida Kogan v. Chinnock case, in which Chinnock was accused of fraud and impersonation].
[31.] The allegedly defamatory posts were purported to originate from a woman named Krista Ivanski.
[32.] Prior to filing the complaint on behalf of Chinnock, Respondent Warner and others in his firm communicated with an individual identifying herself as defendant Krista Ivanski. All communication was conducted through email. No one from the firm spoke with Ivanski on the phone or in person.
[33.] The email addresses for Ivanski were provided to the law firm by Chinnock. The email addresses were sandrabond249@gmail.com and sarawood7 66@gmail.com.
[34.] In June 2016, Respondent Warner filed a complaint on behalf of Joseph Chinnock …. Prior to filing the complaint, Respondent Warner was aware that Chinnock was accused in Florida of fraud and using a fake identity.
[35.] The complaint in Chinnock v. Ivanski alleges defendant Krista Ivanski defamed Plaintiff Joseph Chinnock by posting 38 false statements about Chinnock on the internet….
[37.] Respondent Warner took no action to determine if the statements were true or false before filing the lawsuit.
[38.] The first URL listed in the complaint (https://bitcointalk.org/index.php?topic=669614.0) routes to a page wherein individuals complain about a scam run by Joseph Chinnock. The page claims Chinnock uses the aliases of Sara Wood, Sara Ward, and Patrick McDowell to run scams.
[39.] Sarawood766@gmail.com was one of the email addresses for Ivanski provided to the firm by Chinnock.
[40.] The complaint states Ivanski resides in Turkey and Chinnock resides in Colorado. The complaint states, "[t]he parties purposefully availed themselves of the benefits of Arizona law," but does not explain how the state courts in Arizona have jurisdiction to hear the matter….
[42.] Respondent Warner knew that Krista Ivanski is not a real person. Krista Ivanski was fabricated to serve as defendant in the matter.
[43.] Respondent Warner knew that Krista Ivanski did not post the 38 allegedly defamatory statements.
[44.] Respondent Warner knew that the 38 allegedly defamatory statements were not posted by the same person.
[45.] Respondent Warner knew that legal action regarding many of the allegedly defamatory statements was barred by the [Arizona one-year] statute of limitations ….
[46.] Alternatively, if Respondent Warner did not know the information in paragraphs 42-45, Respondent Warner failed to investigate the matter prior to filing the complaint.
[47.] In June 2016, Respondent Warner filed a document entitled "Stipulation For Permanent Injunction and Dismissal Without Prejudice," ostensibly signed by Krista Ivanski. Warner knew that Ivanski's signature was forged or failed to investigate the matter prior to filing the document….
[50.] The proposed order is signed by Ivanski and notarized by Amanda Sparks, a notary from Fulton County, Georgia. The Plaintiff's Verification attached to the original complaint and signed by Chinnock was also notarized in Fulton County, Georgia. According to the complaint, neither Ivanski nor Chinnock reside in Georgia.
[51.] There is no notary in Fulton County named Amanda Sparks. A search performed via the Georgia Superior Court Clerk's Cooperative Authority notary search shows no notary in Fulton County named Amanda Sparks. The notarization by Amanda Sparks is a forgery.
[52.] Respondent Warner knew that the notarization by "Amanda Sparks" from Fulton County, Georgia, was a forgery or failed to investigate the matter prior to filing the document.
[53.] In August 2016, Respondent Warner filed a document entitled "Stipulation For Amended Order For Permanent Injunction," ostensibly signed by Krista Ivanski. The address used for Ivanski in the Stipulation For Amended Order For Permanent Injunction differs from the addresses used for Ivanski in earlier pleadings.
[54.] The proposed Amended Order For Permanent Injunction is signed by Ivanski and notarized by "Samantha Pierce," a notary from Colorado. According to the complaint, Chinnock resides in Colorado while Ivanski resides in Turkey.
[55.] There is no notary in Colorado named Samantha Pierce. A notary search performed via the Colorado Secretary of State's website returns "no records found" for notary Samantha Pierce. The notarization by Samantha Pierce is a forgery.
[56.] The notary ID used by Samantha Pierce is 20121234567. The sample notary seal displayed on the Colorado Secretary of State's general notary information page uses notary ID 20121234567.
[57.] Respondent Warner knew that the notarization by Samantha Pierce was a forgery or failed to investigate the matter prior to filing the document.
[58.] The request for an amended order for permanent injunction was granted by the Court.
[59.] Chinnock v. Ivanskiwas a fraudulent lawsuit designed to achieve client Chinnock's goal of removing online criticism without having to prove the elements of defamation.
[The complaint also alleges that Aaron Kelly's Lynd v. Hood case involved a forged notarization and fake defendants: "[The ostensible defendants] Connie Hood and Jesse Wood are not real. Connie Hood and Jesse Wood were fabricated in order to obtain a stipulated order of permanent injunction removing criticism of Adam Lynd from the internet. Respondent Kelly knew that Connie Hood and Jesse Wood were fabricated defendants or failed to investigate the matter prior to filing the complaint…. Lynd v. Hood was a fraudulent lawsuit designed to achieve client Lynd's goal of removing online criticism without having to prove the elements of defamation."
It alleges much the same about Kelly's Gottuso v. Marks case: "Howard Marks is not real. Howard Marks was fabricated in order to obtain a stipulated permanent injunction. Respondent Kelly knew that Howard Marks was a fabricated defendant or failed to investigate the matter prior to filing the compliant."
And about Kelly's Cohen v. Smith case: "Robert Smith is not real. Robert Smith was fabricated in order to obtain a stipulated permanent injunction. Respondent Kelly knew that Robert Smith was a fabricated defendant or failed to investigate the matter prior to filing the complaint."
And about Kelly's Varden v. Lentz case: "Damon Lentz is not real. Damon Lentz was fabricated in order to obtain a stipulated permanent injunction. Respondent Kelly knew that Damon Lentz was a fabricated defendant or failed to investigate the matter prior to filing the complaint." (These are just excerpts -- you can read the Complaint for more details on the allegations, including on the Ruddie connection.)
And it alleges a somewhat different pattern for Ruddie v. Kirschner, a Maryland case filed by Richart Ruddie in order to get some material critical of Dan Warner himself de-indexed (note that it's not clear whether the allegation is that Kirschner just doesn't exist, or does exist but is not the author of the allegedly libelous post):
Kelly/Warner Law has a business relationship with Ruddie. The firm and Ruddie have referred cases/clients to each other for many years. Ruddie and his company Profile Defenders have been clients of Kelly/Warner Law since 2012, and, in mid-2015, the firm employed Ruddie as an expert in a case in the U.S. District Court for the Eastern District of Pennsylvania (Case No. 2:14-cv-05980-GAM [Monarch v. Gorman]).
In June 2015, Respondent Warner initiated a copyright action alleging unauthorized use of Warner's photograph in a post on Ripoffreport.com. The goal of the action was to de-index or remove a consumer complaint hosted at the following URL: http://www.ripoffreport.com/r/DANIEL-WARNER-KELLYWARNER-LAW/DANIEL-WARNER-KELLY-WARNER-LAW-Daniel-R-Warner-Daniel-Warner-Lawyer-FROM-Kelly-Warner-Law-1231611. [EV adds: I think this refers to a Digital Millennium Copyright Act takedown demand sent to RipOffReport, Google, or both, rather than to a federal copyright lawsuit.]
The action did not result in removal of the content.
In November 2015, Richart Ruddie filed a pro per lawsuit in Ruddie v. Kirschner 24-C-15-005620 (Maryland), alleging that Jake Kirschner "posted false and defamatory statements" at: http://www.ripoffreport.com/r/DANIEL-WARNER-KELLY-WARNER-LAW/DANIEL-WARNER-KELLY-WARNER-LAWDaniel-R-Warner-Daniel-Warner-Lawyer-FROM-Kelly-Warner-Law-1231611.
The allegedly defamatory statements that were the subject of the complaint in Ruddie v. Kirschner were the same statements Respondent Warner attempted to remove by filing the copyright action.
The lawsuit filed by Ruddie was fraudulent. Jake Kirschner did not post the allegedly defamatory statements. At least one of the statements was posted by an individual named Charles Roderick.
The allegedly defamatory statements are about Respondent Warner, not about Ruddie as alleged in the complaint.
Ruddie filed a fraudulent lawsuit to remove online criticism of his business associate Respondent Daniel Warner.
Respondent Warner knew that Ruddie filed the fraudulent lawsuit to achieve Respondent Warner's goal of removing the online criticism without having to prove the elements of defamation.
All this conduct, the complaint alleges, violated various Arizona Rules of Professional Conduct, including 1.2(d) ("A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent"), 3.1 ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a good faith basis in law and fact for doing so that is not frivolous"), 3.3 (requiring candor towards the court), and 8.4(c)-(d) (barring "conduct involving dishonesty, fraud, deceit or misrepresentation" and "conduct that is prejudicial to the administration of justice").
The complaint also alleges a different kind of misconduct involving another Kelly/Warner lawyer, which I'll blog about later -- but for now, I wanted to explain the alleged fake-defendant takedown scheme.
Keep in mind, of course, that the complaint just sets forth the Arizona Bar's allegations; the ultimate decision will be made by the Presiding Disciplinary Judge together with a two-member hearing panel, and could then be appealed to the Arizona Supreme Court. I expect that a major question will be whether Kelly and Warner knew about the alleged shenanigans, and, if they didn't know, how culpable they were in not properly investigating the facts.
Finally, the possibility of such shenanigans (among others) bears on the Hassell v. Bird litigation that is now before the California Supreme Court: The issue there is whether libel takedown injunctions can actually be made legally binding on Internet platforms (such as Google, Yelp, and the like) -- even though the platforms aren't parties to the lawsuits -- rather than just being something that platforms choose whether to follow. The questionable nature of many such injunctions is reason to further insist that the platforms not be legally bound by the results of litigation in which they never participated, and the accuracy of which they never had a chance to probe.
Here is an excerpt from the Kelly / Warner statementresponding to the complaint:
For reasons that remain uncertain, the State Bar of Arizona has decided to continue its investigation by filing a formal bar complaint against Aaron Kelly, Daniel Warner and Raees Mohamed.
Some might say….WOW…and jump to conclusions. However, Kelly / Warner is pleased to have an opportunity to demonstrate publicly that no one at the firm has engaged in any wrongdoing.
Internet defamation attorneys cannot and will not be held to a higher standard of care than normal attorneys. After a quick reading of the ethical rules, the comments thereto, and a case filed by the Texas Attorney General against a reputation management company, it should be evident to any reasonable person that the old saying, "where there is smoke, there is fire" is not necessarily true in the digital age today.
"An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer." ER 3.3 cmt 3 (emphasis added).
"The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. [And] [a] lawyer's reasonable belief that evidence is false does not preclude its presentation to the trier of fact." See ER 3.3 cmt 8. "[A] lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client . . . ." Id. Although the firm practices far within and from "the line," the comments to the ethical rules indicate that "the line" extends rather far.
The Texas Attorney General filed a lawsuit against the Solvera Group, Inc., a reputation management company, for engaging in a scheme to fraudulently remove information from the internet. In the complaint, the Texas Attorney General identified both the consumers and the attorneysasbeing victims who were misled by the reputation management company. See Complaint, ¶ 17.
We, at Kelly / Warner, intend to vigorously defend against all allegations of wrongdoing.
And to all of our loyal clients, we thank you for your support and encouragement; please know that we will never stop fighting for you and defamation victims like you.
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
This week, Alabama legislators introduced a bill that would eliminate civil forfeiture, meaning the state would no longer be able to take property from people acquitted of—or never charged with—a crime. Over at Forbes.com, IJ Legislative Analyst Nick Sibilla has the story.
Among many other indignities that Providence, R.I. firemen heap on female colleague, station cook gives her meals that make her sick. (When she switches plates with another colleague, he gets sick.) She files 40 different written statements complaining of harassment, discrimination, and retaliation to higher-ups. First Circuit: No need to reconsider the jury verdict in her favor or her $700k award.
Despite plentiful plaintive pleas for a speedy trial, Cattaraugus, N.Y. man spends seven years in jail awaiting trial (for large marijuana grow). Second Circuit: Which, so far as we know, is a new record in this circuit. It's also an "egregiously oppressive" violation of the Sixth Amendment. Conviction reversed. He's a free man.
Federal law requires federally licensed handgun dealers to sell only to the residents of the state where the dealer is located. D.C. residents: The sole licensed dealer in D.C. has no inventory, just charges a fee to import guns from other dealers. We want to buy directly from a dealer in Texas. District court: The law is unconstitutional. Fifth Circuit: Reversed. It satisfies strict scrutiny. Can't expect dealers to understand each states' multifarious gun restrictions.
Ohio's requirement that coin and jewelry dealers allow warrantless inspections of their businesses at all times violates the Fourth Amendment, says the Sixth Circuit, as it gives inspectors too much discretion to search whatever they will. (Other provisions authorizing warrantless access to specified records, so as to check trade in stolen property, pass constitutional muster, however.)
After man is acquitted of manslaughter, Franklin County, Ohio sheriff delays his release in order to administer DNA cheek swab. A Fourth Amendment violation? Sixth Circuit (2015): State law didn't require the swab; the sheriff is not protected by sovereign immunity. Sixth Circuit (2018): Though the man has died, the case isn't over; his mother can proceed.
Wilson County, Tenn. probation officer is fired for (allegedly) lying in court. A violation of her First Amendment rights and/or the Tennessee Public Employee Political Freedom Act? The Sixth Circuit says no.
Mentally ill inmate at Marquette, Mich. prison repeatedly swallows razor blades. He's placed in solitary confinement rather than the mental health unit. Were officials deliberately indifferent to his medical needs? Yes, if the inmate's allegations are true, says the Sixth Circuit.
Allegation: Evansville, Ind. and Kentucky state police deliberately coerced false confessions out of teenagers whose uncle's body was found in the Ohio River—near bridge where he'd threatened to commit suicide several times. Later, officers file false reports that corroborate the confessions. (Charges against the niece are dropped. The nephew is acquitted on all counts.) Seventh Circuit: No qualified immunity for the officers.
Arkansas state police relieve truckers of $579k cash at traffic stop. (No charges filed.) The trucking company asserts ownership of the cash, seeks its return. Eighth Circuit: In other circuits that would be enough to initiate a forfeiture challenge. But here claimants must explain in some detail how they came by the cash, which the company did not do to prosecutors' satisfaction, and thus may not pursue the money.
Peoria, Ariz. parents take completely innocent nakey photos of their young children, so in years to come they can reminisce, "look at their cute little butts." Child services take the children without a warrant or court order. The kids spend two days in foster care and a month with grandparents before they're allowed home. (According to news reports, the mother was suspended from her job for a year). Ninth Circuit (with four separate opinions): No qualified immunity for the social workers.
A refresher on jury nullification from the Ninth Circuit: Judges may tell jurors that it is a violation of the law for them to acquit a guilty defendant if they believe defendant's conduct should not be illegal. What a judge may not do is imply that jurors will face punishment for violating the law or that their verdict will be thrown out if they acquit.
Colorado prison officials decline to pay $50 awarded to inmate in 2005. Officials: Because he has failed to report the award to the IRS. Tenth Circuit: That is not a requirement that exists.
Denver physician pays $1mil via credit cards for wine, pays off the balance on the cards. Yikes! The wine seller turns out to be a crook; the physician never receives the wine. Must the credit card companies refund him? The Tenth Circuit says no.
After stealing $5 and a bottle of cologne, 63-year-old San Francisco man is arrested. Bail is set at $350,000, which he cannot possibly pay. California Court of Appeals: Unless the government can show that he's dangerous, they can't keep him locked up merely for being too poor to afford bail.
Pennsylvania motorist arrested for DUI spends nine months in jail (allegedly causing him to be expelled from university) before a state judge reviews dashcam footage and is unable to detect the unsignaled lane changes that police say they pulled him over for. Without probable cause for the stop, the evidence is suppressed and charges withdrawn. The man sues the police in federal court. District Court: The state court ruling does not preclude the officers from arguing in federal court that the stop was reasonable.
And in en banc news, the First Circuit will reconsider its decision that the governor of Maine is immune from a retaliation suit that alleges he threatened to withhold discretionary funding from a public charter school if it hired his political enemy. The Ninth Circuit, however, will not reconsider its decision that a former high school football coach had no First Amendment right to conduct prayers at midfield after games.
In Maryland, it's illegal to sell homemade food except at farmers' markets and special events. But there's precious little evidence that and other restrictions on cottage foods are necessary to protect public health and safety. We say that the state should ease restrictions with no public health justification, so as to encourage entrepreneurship in the industry (which nationally is overwhelmingly made up of rural women with below-average incomes). If you agree, please join us this Tuesday in Baltimore to learn more about the laws and how you can get involved. Click here for more.
That the judge supported the gymnastic victims in being heard should be a cause for celebration, not concern--and ample caselaw makes clear that it was entirely within the boundaries of proper judicial behavior.
Recently the country watched Michigan Judge Rosemarie Aquilina allow crime victims—dozens of them—to testify during the sentencing hearing of Olympics doctor, Larry Nassar. These victims spoke eloquently and emotionally about the terrible harm that Nassar had caused. After hearing from the victims, Judge Aquilina sentenced Nassar to 40 to 175 years in prison, to be served after completion of an already-imposed 60-year prison term. The lengthy sentence appears to have broad public approval as punishment that fits the crime. But a few legal commentators have been carping about the process leading up to the sentence, suggesting that Judge Aquilina somehow stepped outside proper judicial boundaries in providing so much support for the victims. These allegations misunderstand the law governing sentence proceedings. In fact, what Judge Aquilina did was clearly within her judicial role and should be celebrated not criticized.
In this case, the system worked as it was intended, and Judge Aquilina properly gave the victims an opportunity to have their voices heard. Michigan voters amended their state constitution in 1988 to give crime victims rights—specifically relevant in this context, the "right to make a statement to the court at sentencing." What we saw over the last week or so was victims exercising this right to make a statement, specifically giving what is commonly referred to as a "victim impact statement."
Victim impact statements play multiple roles during the criminal justice process, as I have explained at length in my article "In Defense of Victim Impact Statements." One of the most important purposes of a victim impact statement is providing information to the sentencing judge about the full scope of a crime, so that she can impose punishment that fits the crime. The victims' statements over the last few days powerfully demonstrated the long-lasting physical, emotional, and other consequences that followed from Nassar's crimes. Collecting that information was part of Judge Aquilina's job in imposing sentence, not a detour from it.
Another important purpose of a victim impact statement is driving home to the defendant the full consequences of what he has done. It is possible that Nassar's victims were able to cause him to appreciate, at least to some small degree, what he had done to these women. Early in the sentencing process he complained to the judge about being forced to listen to all the victims, but by the end he was apologizing and claiming to have been shaken to his core.
Yet another important purpose of a victim impact statement has been often overlooked in some of the critical commentary. Apart from any impact on the sentencing process or the defendant himself, a victim impact statement can have important therapeutic benefits for victims. I summarized the relevant empirical literature on this subject in my article:
One thorough assessment of the literature on victim participation explained, "The cumulative knowledge acquired from research in various jurisdictions, in countries with different legal systems, suggests that victims often benefit from participation and input. With proper safeguards, the overall experience of providing input can be positive and empowering." Thus, the consensus appears to be that victim impact statements allow the victim "to regain a sense of dignity and respect rather than feeling powerless and ashamed."
Judge Aquilina helped the victims through the process of giving a victim impact statement, offering words of encouragement and furthering their efforts to regain their dignity and respect by allowing them to explain what had happened to them. In furthering their healing process, the judge doing nothing more than allowing victim impact statements to work as they were intended to work.
In light of these general purposes of victim impact statements, the general reaction to Judge Aquilina's handling of the sentencing hearing appears to have been positive. But inevitably, rather than celebrating what should have been regarded as an example of an important government process working as intended, a few commentators have appeared to carp about some aspects of the case. For example, writing in Vox, defense attorney Rachel Marshall argued that "[t]hroughout the proceedings, which were televised, Aquilina essentially transformed herself into a champion for a movement. It is understandable to feel empathy for previously voiceless victims, especially ones whose testimony took such bravery. But there are crucial distinctions between judge and advocate, and she traversed those lines repeatedly." Similarly, writing in Time magazine, defense attorney Anne Gowen claimed that Judge Aquilina departed from her judicial role because "[a] judge who reframes the sentence she selects as a personal expression of disgust with the actions of the defendant and the defendant himself has changed the task she was assigned." And, writing for TheNew Republic, Andrew Cohen claimed that "[t]o her discredit, Judge Aquilina abdicated her role as an impartial arbiter and became instead a tribune for prosecutors and the victims. She did this by showing relentless hostility and anger toward Nassar."
These arguments might have some initial plausibility—if Judge Aquilina had been presiding over a trial to determine whether Nassar was guilty or innocent. But she was conducting a sentencing proceeding, in which Nassar had already pleaded guilty and admitted he was a child molester. The proper judicial role at sentencing is much different than an umpire just calling balls and strikes. When sentencing a justly-convicted criminal, the judge is perfectly entitled to be the voice of the community she represents—a community that was no doubt shocked by the magnitude of Nassar's crimes.
The U.S. Supreme Court has considered—and rejected—allegations of judicial "bias" in analogous contexts. In rejecting an argument that a judge should have recused because of negative opinions he expressed about a criminal defendant, the Court explained:
The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task. . . . Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.
Judge Aquilina was sentencing a child abuser who had harmed more than a hundred underage girls. As the Supreme Court indicates, it would hardly be surprising to find that she was, to put it mildly, "exceedingly ill disposed towards" Nassar. But that is not bias—but simply the consequence of a man choosing to commit horrible crimes and then being held to account.
The law in Judge Aquilina's jurisdiction—Michigan—is to the same effect. As long ago as 1989, shortly after enactment of Michigan's victims' rights amendment, the Michigan Court of Appeals rejected a claim of judicial bias arising from the judge reviewing an allegedly "inordinate degree of inflammatory, marginally relevant, prejudicial statements" from the relatives of a homicide victim. In rejecting the claim, the Michigan Court of Appeals emphasized that "[t]he impact of a crime on a victim is a valid sentencing consideration. In view of the enactment of the Crime Victim's Rights Act, with its explicit provision for victim input into the disposition of criminal cases, including sentencing, a contrary conclusion is not tenable. We do not believe that the judge's consideration of the impact of the crime on the victim amounted to a prejudice or bias that deflected him from making a sentencing decision within the scope of considerations recognized in[Michigan caselaw, which allows a just to consider, among other sentencing factors, the disciplining of the wrongdoer, the protection of society, the potential for reformation of the offender, and the deterring of others from committing like offenses]." People v. Jones, 179 Mich. App. 339, 342–43, 445 N.W.2d 518, 520 (1989).
A few years later, in 1992, the Michigan Court of Appeals reiterated the point and went further, making clear that judges can say harsh things about criminals they are sentencing: "Sentencing is the time for comments against felonious, antisocial behavior recounted and unraveled before the eyes of the sentencer. At that critical stage of the proceeding when penalty is levied, the law vindicated, and the grievance of society and the victim redressed, the language of punishment need not be tepid." People v. Antoine, 194 Mich. App. 189, 191; 486 N.W.2d 92 (1992).
Interestingly, several commentators have criticized Judge Aquilina for saying she had signed Nassar's "death warrant" in sentencing him to a multi-decade term of imprisonment. But just last summer, the Michigan Court of Appeals rejected a claim of judicial bias when a Michigan trial judge expressed the "wish" that a defendant has been caught committing a more serious crime, because then "you might not be going to the Department of Corrections for 10 years, you might be getting buried in some cemetery." In rejecting an argument of bias, the Michigan Court of Appeals noted that, "Without question, aspects of this statement reflect a certain level of frustration by the trial court. However, considered in context, we conclude that this statement was not an expression of personal bias or animus toward defendant, but rather was an attempt by the trial court to impress on defendant . . . the serious nature of the consequences that his actions could have had, and of the impact of his actions on the victim." People v. Mitchell, No. 332266, 2017 WL 2607900, at *5 (Mich. Ct. App. June 15, 2017). The Michigan Court of Appeals also noted that the comments were responsive to points made by the victim in a victim impact statement, explaining that the "trial court's comments thus addressed the grievance of society and redress of the victim, and did not demonstrate actual bias." Id.
Nor was there any legal problem with Judge Aquilina stating, at the conclusion of the sentencing hearing, that the victims should do their best to put the matter behind them. In 2015, the Nevada Court of Appeals rejected a domestic violence abuser's attack on sympathetic remarks made by the judge to the victim. In that case, the victim described how she was harmed by the defendant's battery, i.e., that she had panic attacks, her relationship with her husband and children was affected, she suffered from nightmares, and she no longer drove alone because she was afraid. The trial judge had advised the victim to put this matter behind her, suggested she seek counseling from a religious leader, and informed her that the defendant would be going to prison for a long time. In rejecting the defendant's claim that these actions showed bias, the Nevada Court of Appeals explained that the remarks were proper, noting that the "were made at the end of the victim's impact statement—after all of the other evidence had been presented and immediately before he imposed the sentence. We conclude these remarks do not exhibit an impermissible bias or prejudice." Diaz v. State, No. 66589, 2015 WL 3824906, at *2 (Nev. App. June 16, 2015).
Nor was their any legal problem with the judge making comments expressing sympathy for the victims. The North Carolina Court of Appeals considered a case where the defendant complained that, after a judge heard a victim impact statement at sentencing, he commented: "Today is a classic example of why victims need to be recognized and the court system needs to become their friends, not their enemy." The North Carolina Court of Appeals explained: "We do not feel the above statement manifests a bias against defendant. At most, it only illustrates an affinity for the use of victim impact statements, a procedure that is specifically endorsed by our statutes." State v. Hendricks, 138 N.C. App. 668, 671–72, 531 S.E.2d 896, 899 (2000)
Finally, in my home state, in a sex abuse case, the Utah Supreme Court has addressed an allegation very similar to the claim of bias made against Judge Aquilina. The Court rejected any suggestion that judicial anger towards a child abuse defendant was somehow a manifestation of impermissible bias, explaining:
Certainly, we expect our judges to "be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity." But that does not mean that due process or our Code of Judicial Conduct are violated whenever a defendant's criminal conduct and subsequent excuses inspire anger in a judge. Perhaps there is a judge who could remain emotionally neutral when faced with a father who sexually abused his daughter, tended to blame her for the abuse, and then tried to rationalize it by stating that he thought it would have been a good experience for her. But no law requires it.
Some commentators—including Reason's own Robby Soave—have seized on one brief comment Judge Aquilina made to find fault with her performance. As Soave explains, Judge Aquilina said during one of the proceedings, "our Constitution does not allow for cruel and unusual punishment. If it did, I have to say, I might allow what he did to all of these beautiful souls—these young women in their childhood—I would allow someone or many people to do to him what he did to others." Soave identifies these remarks as coming when Judge Aquilina sentenced Nassar, although actually they came a day earlier. Soave, quite properly, finds fault with any suggestion that Nassar should be assaulted because of the assaults he committed. But while the judge's sentiments of disgust with Nassar could certainly have been phrased more appropriately, a single off-hand remark should not be the basis overlooking the tremendous work that Judge Aquilina did over the course of multiple days of emotionally complex testimony.
What we should remember from the sentencing hearing is Judge Aquilina's closing remarks, not to Nassar but to his victims. "Leave your pain here," she said, "and go out and do your magnificent things." That was the human thing to say. And, as the cases collected above make clear, that was the judicious thing to say as well.
A couple of years ago, Virginia was embroiled in a noisy political dispute involving voting rights for ex-felons. All States (except Vermont and Maine) prohibit convicted felons from voting while they are incarcerated. But Virginia (and 10 other States: AL, AZ, DE, KY, IA, MS, NE, NV, TN, and WY), goes further, and permanently disenfranchises convicted felons - permanently, as in forever, even after they have served their time and completed their term of imprisonment and/or probation or parole - unless their rights are restored individually by a gubernatorial "clemency" action. [See the excellent report by the Sentencing Project on "State Felony Disenfranchisement, 2016"] The VA Democratic governor at the time, Terry McAuliffe, was proposing a blanket restoration of those ex-felon voting rights, and there was fierce opposition from the Republican-dominated State Legislature. [The Brennan Center has a good summary of the Virginia dispute here]
In the aggregate, these State laws bar over six million people from voting - around 2.5% of the voting age population in the country. About a quarter of these are people who are currently in prison. But a majority (51%) of the disenfranchised are individuals who have completed all parts of their sentences successfully and are now back in the community, trying, one would hope, to put their lives back together again. [Relevant statistics are here]
Coincidentally, while the Virginia battle was playing out on the local news here in DC, I was working on several constitutional challenges to the provisions in State "sex offender" laws that deprive individuals previously convicted of "sex offenses" of their right to work at certain jobs, or to use certain Internet resources, or to live in certain neighborhoods, or to enter school buildings or parks or other public facilities. [As it happens, this work did bear fruit, ultimately, in last Term's decision in Packingham v. North Carolina].
There's a fairly substantial body of case precedent on these issues as they pertain to sex offender statutes, and I had been digging into it for a while when it suddenly struck me that I hadn't seen any reference in those cases to cases on the constitutionality of State disenfranchisement laws. That seemed odd. Surely there must have been such cases, and, given how widespread disenfranchisement laws still were, the practice must have been upheld as constitutional.
I needed to find those cases, because they could make it considerably more difficult to craft the argument(s) that I was trying to make; if the government can deprive the entire class of ex-convicts of a fundamental right (to vote), that could be a strong basis on which the State could argue that it can constitutionally deprive a subset of the class of ex-convicts - those who had been convicted of "sex offenses" - of their fundamental rights (to assemble with others, to speak, to live where they choose).
I needed to find them, also, because I was straining to imagine how courts could possibly have upheld the constitutionality of State felon-disenfranchisement laws. There is surely no more fundamental right in a republic than the right to vote, and, ordinarily, governmental deprivations of fundamental rights receive the strictest judicial scrutiny: The government must show that it is pursuing a "compelling" interest, that the action it has taken is necessary to achieve its purpose, and that it has been "narrowly tailored" to that end, i.e., that all feasible steps had been taken to minimize the scope and extent of the deprivation.
What is the compelling interest being served by depriving people who had felony convictions of their right to vote? How could the States' meat-ax approach of disenfranchising all felons alike - bank robbers, murderers, car thieves, drug sellers, con artists, embezzlers, counterfeiters, etc. - have been adjudged "narrowly tailored" to achieve its purpose? What is its purpose?
I quickly discovered that there had indeed been cases challenging the constitutionality of felon disenfranchisement, and they turned on one of those Constitutional provisions hardly anyone ever looks at or thinks about.
Everyone knows (or at least knows of) Section 1 of the Fourteenth Amendment: "No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." But I suspect that many fewer have ever read through Section 2 of that Amendment, which reads in full:
"Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."
In Richardson v. Ramirez, 418 US 24 (1974), the Supreme Court held that the language in Section 2 italicized above assumes that States can deny its citizens the right to vote, inasmuch as it specifies the consequences in the event they do so: Their representation in the House of Representatives (and the Electoral College) will be correspondingly and proportionately reduced by the number of people so deprived of the right, unless the disenfranchisement is for "participation in rebellion" or "other crime," in which case the State's numerical basis for its representation is not reduced.
The purpose of Sec. 2 was to given States of the former Confederacy an incentive to provide full political rights, including the franchise, to freed slaves. The first sentence repeals the notorious "three-fifths clause" of Art. I Sec. 2 (which counted slaves as 3/5 of a person for purposes of determining representation in the House). This would substantially increase the relevant size of the southern States, and Radical Republicans were concerned about that, and about the likelihood that the southern States would not permit those freed slaves to vote. Hence the second sentence: States could disenfranchise people for reasons other than their participation in rebellion "or other crime" - e.g., race, or property qualifications - but if they did so, they would not be able to count those individuals in determining their share of the House.
The conclusion seems inescapable: At least at the time of passage of the 14th Amendment, felon disenfranchisement would not have been deemed a violation of the Equal Protection or Due Process Clause because, as the Court put it in Richardson, "those who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in § 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by § 2 of the Amendment."
Wearing my advocate's hat, I was relieved; voting, it turns out, is different from other fundamental rights. Because of Sec. 2, a different rule applies to deprivations of the right to vote, which would not receive the "strict scrutiny" that would be applied to deprivations of other fundamental rights. (Which explains why there were no citations to the disenfranchisement cases in the cases involving abridgements of sex offenders' rights to live and work and speak and assemble.)
But as a citizen, I found it disheartening. Whatever Congress' views of the constitutionality of State felon disenfranchisement laws were in 1865, in my own personal constitutional universe I like to think that all government action that impinges on truly fundamental rights should be given "strict scrutiny" - and the Court's unwillingness to do so, for whatever reason, does not relieve us of our obligation as citizens to do so. And as I said, I cannot imagine a persuasive argument that would convince me that felon disenfranchisement serves some compelling government interest, or that it has been carefully and narrowly tailored to minimize its rights-destructive impact.
Which brings me to Florida. The numbers from Florida are particularly appalling. It has, by far, the highest disenfrachisement rate in the country; around 1.7 million adult Floridians cannot vote in federal, state, or local elections under Florida's disenfranchisement law, amounting to approximately one in every ten adult Floridians (up from one in 50 in 1980), and approximately one in every five adult African-Americans. Florida alone accounts for more than a quarter (27 percent) of the disenfranchised population nationally, and its nearly 1.5 million individuals who are disenfranchised after completion of all sentencing requirements account for nearly half (48 percent) of the national total of individuals in that category.
It's disgraceful, and a group called Floridians for a Fair Democracy announced, on January 23, that their "Florida Second Chances" campaign had surpassed the 766,200 signature threshold to place an amendment to the Florida constitution that would to restore voting rights to most (though alas, not all) ex-felons on the 2018 ballot.
It's not all that complicated, to my eye. People who commit crimes should be punished. Their punishment can include depriving them of cherished and fundamental rights - that's the price they pay for criminal behavior. But once it has been paid, the full panoply of their constitutional rights should be restored. That should be the law. I used to think, naively, that that was the law. I sincerely hope that Florida voters agree with me.
My new Penn Regulatory Review article explains why widespread claims that Trump is a deregulator are undermined by his immigration policies, which include increases in regulation that outweigh reductions he may have achieved elsewhere.
The University of Pennsylvania Regulatory Review has just published my article on how the widespread belief that Trump is a deregulator is contradicted by his immigration policy. The article is part of the Regulatory Review's symposium on "Regulation in the Trump Administration's First Year," which also includes contributions by Hawaii Attorney General Douglas Chin, Texas AG Ken Paxton, and law professors Dan Farber (UC Berkeley), Cary Coglianese (University of Pennsylvania), Richard Pierce (George Washington) and Mark Nevitt (Penn). Here is an excerpt:
If there is one thing that most commentators agree on about President Donald J. Trump's economic policies, it is that he promotes deregulation. American Enterprise Institute President Chris DeMuth lauds him for being a "full-spectrum deregulator." Susan Dudley, a leading academic expert on regulation, similarly concludes that Trump has made "undeniable" progress on the deregulation front. Most liberal commentators agree that Trump has been a deregulator, even if they differ from DeMuth and Dudley in their normative evaluation of his actions.
But the near-universal belief that Trump is a deregulator is in need of serious revision. His Administration's immigration policies are nothing of the kind. Not only do they increase regulation, but they likely do so far more than Trump's other policies decrease it…
The impact is by no means limited to immigrants. American citizens also face substantial costs, both narrowly "economic" and otherwise. American businesses and consumers obviously suffer from losing the productivity of those excluded or deported by the Administration. American citizens also obviously suffer from being cut off from family members who are deported or banned from entering the United States.
In addition, expanded efforts to deport undocumented migrants also harm American citizens. Shockingly, the federal government probably detains or deports several thousand American citizens every year, on the assumption that they must be illegal aliens. Once arrested by immigration authorities, these people are "swept into the Kafkaesque nightmare of the immigration system, [where] they are effectively assumed illegal until proven otherwise," as immigration expert Shikha Dalmia puts it….
There is an interesting synergy between my article and Cary Coglianese's forthcoming contribution to the same symposium, which argues that Trump's deregulatory record elsewhere is not nearly as extensive as it is cracked up to be (I did not have an opportunity to see his essay before completing my own).
Here are my upcoming speaking engagements for the next few months. All are free and open to the public unless otherwise noted.
January 25, 7:30 PM, Hampden-Sydney College, Bortz Lecture Hall, Hampden Sydney, VA: "Democracy and Political Ignorance: Why Smaller Government is Smarter." Tak based on my book of the same name. Discounted copies of the book will be available for sale at a book signing afterwards. More information on the event here. Sponsored by the Center for the Study of Political Economy.
February 1, 6:30 PM (tentative time) Federalist Society Lawyers Division Chapter, Portland, OR: "Federalism and Sanctuary Cities." This event is likely to be open only to Federalist Society members and guests.
February 12, 12:10-1:10 PM, Columbia Law School, New York, NY: "The Free Market Conservative Case for Open Borders Immigration." Sponsored by the Columbia Law School Federalist Society.
February 13, 12:30-2:30 PM, Fordham University School of Law, New York, NY: "Why Trump's Travel Ban is Unconstitutional" (debate with Ilya Shapiro of the Cato Institute, who will defend the legality of the travel ban). Sponsored by the Fordham Law School Federalist Society. This will be the second-ever Ilya vs. Ilya debate. For a video of the first one (sponsored by the Reason Foundation), see here. Though the other Ilya and I agree on many things, we often differ on constitutional issues related to immigration. Sponsored by the Fordham Federalist Society.
February 15, 1:30-3:30 PM (followed by reception), Law Department, Hitotsubashi University, Tokyo, Japan: "Free to Move: Foot Voting and Political Freedom" (based on my next book, which I am currently working on) There will be comments by three Japanese scholars, followed by a brief reply from me, and questions from the audience (proceedings will be in English, since sadly I do not speak Japanese). This event may be primarily for students and faculty at the university, though arrangements could potentially be made for other interested attendees.
February 27, 11:15-12:30 PM, New York University School of Law, New York, NY, panel on "The Free Movement of Labor," Symposium on "Freedom vs. Fairness: The Tension Between Free Market and Populist Ideals on Labor": The other participants in the panel will be Kit Johnson (University of North Dakota), Michael LeRoy (University of Illinois), and Lori A. Nessel (Seton Hall University). Professor Mario Rizzo of NYU will moderate. Sponsored by the NYU Journal of Law and Liberty. For a complete schedule of the symposium, see here.
March 1, 9:30-11 AM, Hofstra University, New York, NY, Spring 2018 Donald Sutherland Lecture: "Democracy and Political Ignorance: Why Smaller Government is Smarter." Invited lecture based on my book of the same name. Discounted signed copies of the book are likely to be available for sale.
March 5, exact time TBA: George Mason University, Center for Narrative and Conflict Resolution, Founder's Hall: Arlington, VA, Conference on "Public Journalism and Deliberative Democracy: Exploring the Role of Narrative." My talk will focus on "Political Ignorance and Deliberative Democracy."
The relative dearth of Supreme Court opinions this term was beginning to worry some court watchers. As I noted here, Adam Feldman's research indicates the Court was issuing opinions at its slowest pace in over 100 years. Whether spurred by the critical commentary or (more likely) because opinions were simply ready to issue, the Court handed down decisions in three cases yesterday, lessening the drought.
The Court was unanimous in National Association of Manufacturers v. Department of Defense. This is the so-called "WOTUS" case, concerning legal challenges to the Obama Administration's regulation re-defining "Waters of the United States" under the Clean Water Act. The WOTUS rule was controversial because the Obama Administration adopted an expansive interpretation extending federal regulatory jurisdiction quite broadly. This decision was not about the lawfulness of the WOTUS rule, however, but about whether challenges to it should be filed in circuit or district court.
In a unanimous opinion by Justice Sotomayor, the Court agreed with NAM and the other petitioners that WOTUS challenges should be filed in district court. This is no surprise. This is an outcome amply supported by the relevant statutory text and that was clearly indicated at oral argument. What this means is that pending challenges to the Obama Adminstration's rule -- and expected challenges to the Trump Administration's attempt to revoke it -- will proceed in district court.
In a second opinion, also unanimous in the judgment, the Court held that police officers had probable cause to arrest partygoers because the "totality of the circumstances" sugggested the partygoers lacked permission to be in the house. Justice Thomas wrote the opinion in District of Columbia v. Wesby. Justice Sotomayor wrote an opinion concurring in part and concurring in the judgment, and Justice Ginsburg concurred in the judgment in part.
The unanimity did not continue, however. In Artis v. District of Columbia the Court split 5-4 over the question of what it means to "toll" state law claims under 28 U. S. C. §1367(d). Justice Ginsburg wrote the majority and Justice Gorsuch wrote the dissent. This was not the usual 5-4 opinion, however, as the role of swing justice was played not by Justice Anthony Kennedy but by the Chief Justice, who joined the more liberal justices.
Interestingly enough, the division in Artis was foreshadowed in a recent Chris Geidner article suggesting the Chief Justice has "moderated" his jurisprudence in important respects. If Geidner is correct, this line-up could be a sign of things to come.
The Court also issued order yesterday, and granted certiorari in the Endangered Species Act case I previewed here. Of note, the attorney for the petitioners in that case (Tim Bishop) also argued the WOTUS case.
More than a decade ago, linguist Geoff Pullum (Language Log) coined the terms "linguify" and "linguification":
To linguify a claim about things in the world is to take that claim and construct from it an entirely different claim that makes reference to the words or other linguistic items used to talk about those things, and then use the latter claim in a context where the former would be appropriate.
His example:
A writer named Alexis Long apparently wanted to say that bisexuality was increasingly being seen by mainstream news media as fashionable. But what he actually wrote (in an Australian newsletter for bisexuals) was: "It's difficult to find a piece of writing in the mainstream press which mentions the word 'bisexual' without finding that it is immediately followed by the word 'chic'."
Now here he recognized that the linguification was meant to be jocular -- no-one really thinks that it's hard to find mainstream writing which uses "bisexual" without adding "chic." (I omit the possibility that the author meant "bisexual chick," a phrase that actually seems to have 8 times the Google hits of "bisexual chic.") But it occurs to me that the recent posts about the word "right" (inconceivable, superscript -1, rights vs. powers) as well as about "republic" and "democracy" are actually responses to serious examples of linguification:
People have a plausible claim about a morally significant distinction or principle (e.g., that governmental claims of right are often importantly different from individual claims of right, or that negative rights are often importantly different from positive rights).
But instead of casting these claims as moral, legal, or philosophical claims, or arguing about how certain terms should be defined, they cast those claims as claims about what the words actually mean. They set forth a definition of the word and claim that anyone who departs from the definition is actually misusing the word, or is a postmodernist, or is denying reality.
And these linguified claims are provably wrong, if one understands English words as meaning what actual English speakers have long used them to mean, and if one understands American legal or political terms as meaning what actual American legal or political figures, speaking to the American public, have long used them to mean.
Indeed, to accept those linguified claims, we have to conclude that the linguifiers actually are more authoritative explainers of American legal and political language than are Chief Justice Marshall, Alexander Hamilton, the drafters of the Articles of Confederation, and many more. And while we should always be open to the possibility that even an anonymous commenter has a better argument than Chief Justice Marshall, we should be skeptical of claims that an anonymous commenter is entitled to redefine a word in a way that makes Chief Justice Marshall's usage -- together with the usage of many people both before and after -- "wrong."
Just say no, friends, including friends from the libertarian and conservative movement (in many ways my ideological home, and yet the place where I have seen a disproportionate share of such linguification). Just say no to weakening your possibly valid substantive arguments by recasting then as patently invalid linguistic arguments. Explain what you think is normatively or legally right, and why you think it's right, without claiming authority over the definition of words, authority that you cannot possess.
Whether they call it the fitbit or the "Ohsh*t!bit" governments are learning that the exercisers' internet of things is giving away their geospatial secrets at a rapid clip. Nick Weaver walks us through what most in the US government would call a security disaster – and how it could become an intelligence bonanza. As an example of what can be done, Jeffrey Lewis highlights Taiwan's secret cruise missile command center.
Of course, as soon as authoritarian governments learn to use fitbits to oppress their people, we can expect the European Union and the Wassenaar export control group to slap export controls on them. Meredith Rathbone reports on the effort to persuade Europe and Wassenaar not to throw the security industry out with the bathwater. Turns out that progress is being made on both fronts.
Nick and I talk through the latest stories on Russian cyberspying. Meduza and Buzzfeed have a persuasive and dispiriting story about how Eugene Kaspersky might have been forced to cooperate with the Russian FSB. Looking at questions being raised about US firms allowing the Russians to inspect their source code, we conclude that Balkanization of cybersecurity products is a near certainty, with the only question being how many markets there will be. Speaking of Russia, a recent story claims that the Dutch, not prominent among hacking intelligence agencies until now, have apparently counted cybercoup on the Russians.
Meredith and I dig into the latest round in the European Court of Justice between Max Schrems and Facebook. We call it a draw, with special props to Facebook for creativity in arguing that Schrems is no longer a consumer because he's obviously turned suing Facebook into a profession.
And, in an overdue event, jackpotting is coming to an ATM near you.
Finally, in the interview, we talk to Tim Maurer, co-director of the Cyber Policy Initiative and author of the new book, "Cyber Mercenaries – The State, Hackers, and Power." Tim tells us the story behind his book's title and then jumps into a fascinating comparative study of how different governments try to control (or don't) the hackers they recruit. Because it turns out that they all recruit hackers, just in very different ways. Tim points out an increasing fad for having hackers from one country move to another country to ply their trade (North Koreans to China; Chinese to Africa) and the additional deterrence options this offers the US government.
As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.
As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.
In this guestless episode, Michael Vatis, Markham Erickson, and Nick Weaver join me to explore the intense jockeying that led to passage of S. 139 and gave section 702 of FISA a new lease on life. The administration team responsible for shepherding the bill did well, weathering the President's tweets, providing a warrant process for backend searches that will likely be used once a year if that, and -- almost without anyone noticing -- pulling the unmasking reform provisions from the bill and substituting an ODNI rule. Why? My guess is that dropping unmasking from the bill was a bargaining chip that made it easier for Dems to vote yea; if so, it worked.
And just in time, as the days after passage brought new whiffs of scandal, from the four-page House Republican memo alleging improprieties in the FBI's application for a FISA wiretap on a Trump campaign hanger-on to two cases in which the FBI and NSA destroyed evidence they were supposed to be preserving. Michael Vatis and I cross sword over whether the FISA abuse memo is worth taking seriously or just partisan flak.
Nick and I delve into the gigabytes of hacked data mislaid by another player in the phone hacking game – Lebanese intelligence. Nick wonders if the data was obtained by EFF or Lookout violating the Computer Fraud and Abuse Act. I suspect it may have been, but that EFF ain't talking because it doesn't want to legitimize such hacking for those whose motives aren't Certified Pure by Civil Society (TM).
The first known death by SWAT-ing has yielded charges; the egregious SWAT-er for hire, SWauTistic, has been charged with involuntary manslaughter. Hard to argue with that.
Scariest news of the week? Electric system malware is getting remarkably sophisticated, and common.
The Microsoft Ireland case will be argued next month, and there are dozens of amici briefs, including one by our own Michael Vatis, who lays out his direct appeal to Justice Gorsuch's property-based view of the fourth amendment.
Matt Green (and Nick Weaver) have some questions for Apple about moving its China iCloud data to a third party Chinese cloud provider. I've got one too. If treating Taiwan as a separate country from China leads to humiliating penalties for Western companies, and it does, has China prohibited Apple from storing Taiwanese and Hong Kong user data outside China?
And, for once on the podcast: a sweet life-long love story, spelled out cryptographically.
As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.
A right is an inherent moral claim the exercise of which does not require anything of another party. It seems that the definitions currently at play are infected with postmodernism.
Here's the problem: Whatever the reader might want the word "right" to be limited to, the word as it is actually used in American legal and political discourse has long extended much more broadly.
[1.] For instance, the word has extended beyond inherent moral rights to include rights that everyone understood as political decisions within a particular political system or a political tradition. Consider, for instance, the Articles of Confederation provision,
The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war.
There is no reason to think that anyone saw this as involving an inherent moral claim.
Were the drafters saying, for instance, that it's immoral for states to determine peace and war? No. Were they saying that it would be immoral for the power to be lodged elsewhere, for instance with the President signing and the Senate ratifying a peace treaty (the system Americans implemented a dozen years later in the U.S. Constitution)? No. They were just setting up a particular political settlement of a particular political decisionmaking authority.
Or consider the Virginia Declaration of Rights of 1776, which provided,
That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty.
No-one viewed the right as an "inherent moral claim"; indeed, when Madison proposed the federal Bill of Rights, he recognized that the right to trial by jury wasn't a "natural right," but was a "positive right[], which may seem to result from the nature of the compact" (referring to the decision of "the people in forming and establishing a plan of government"). Certainly the requirement that there be 12 jurors couldn't be an inherent moral assertion. Rather, the right was a political decision established by English legal traditions.
[2.] Likewise, the word has long extended to include claims on other parties. For instance, the Pennsylvania Declaration of Rights of 1776 provided,
That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary, or an equivalent thereto.
A right to protection is a right that does require something of another party (here, the government, or at least the rest of society). Yet it was easy to label it as right (though here, I suspect, one that was being recognized as a solemn political obligation but not a judicially enforceable one). Similarly, from the same document,
But if any man is called into public service; to the prejudice of his private affairs, he has a right to a reasonable compensation.
That is a right to be paid by taxpayers (though there too the expectation was that the right would be secured by political decisions, rather than by judicial ones).
[3.] And we can likewise see "right" used to include judicially enforceable demands on other parties -- and demands to get someone to do things, rather than just demands that others leave you alone. The Contracts Clause, for instance, was seen as securing important private rights, but these were rights to get the government to enforce your contracts. Thus, from Chief Justice Marshall in the Darmouth College case (1819) agreed with the proposition that "state legislatures were forbidden 'to pass any law impairing the obligation of contracts,' that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himself." Likewise, later in the opinion Marshall writes about "the rights possessed by the trustees"; yet rights of the trustees of an institution are, practically speaking, all about being able to require various actions or various other parties.
Or if you want to go back earlier, try Justice Chase's opinion in Calder v. Bull (1798): "By the existing law of Connecticut a right to recover certain property had vested in Calder and wife (the appellants) in consequence of a decision of a court of justice, but, in virtue of a subsequent resolution or law, and the new hearing thereof, and the decision in consequence, this right to recover certain property was divested, and the right to the property declared to be in Bull and wife, the appellees." A judicially vindicated right to recover property is necessarily a right to call on the aid of others in this recovery. And the list could go on.
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As you might gather, I don't think any of this can be laid at the door of "postmodernism." Rather, it simply reflects the fact that "right" isn't a term that you or I can simply redefine at will in a particular narrowly limited way. It is a word of the English language, which has the meaning long understood by the community of English users -- or, in legal contexts, the meaning long understood by users of legal English, though in this instance there seems to be little or no difference between lay and professional usage.
It generally refers to a wide range of claims, some moral, some legal, that can be asserted on behalf of some people or institutions against others. It can refer to constitutional rights, statutory rights, common-law rights, or others. It can refer to entitlements to be free of private action or government action. It can refer to entitlements to positive action by private entities or governmental entities. And it's not "postmodernism" to treat an English word as referring to what English speakers have long used the word to actually mean, rather than ceding authority over it to some self-appointed redefiner.
