Our Mr. Ed Principle

|The Volokh Conspiracy |

A reader wrote this to me yesterday:

The Conspiracy is truly declining.

I can't believe there is NOTHING about Barr and Mueller. Barr is a legal genius, in my opinion. You think someone on your crew would be interested in writing about this. No. Facebook, foot voting, and other such drivel make the cut.

I thought this would be a good occasion to remind people about how we see our role. "All the news that's fit to print" is one noted publication's slogan, but ours is more this:

People yakkity yak a streak and waste your time of day
But Mister Ed will never speak unless he has something to say.

Because of our special expertise, there are times when we can add special value beyond what others are already saying. Sometimes it's about foot voting (which Ilya has been studying for decades). Sometimes it's about free speech or Internet law, which many of us have likewise long researched. Sometimes it's about criminal procedure, gun policy, and more. Occasionally it's just something that we think is fun, or that resonates with us personally, though these tend to be an exception: a nice little bit of leavening, I think, but not the core substance.

It's almost never "This is important news, so we must cover it"—and I don't think you should want it to be. You doubtless read other news stories, and have access to many more; let them cover what they are expert in, or what they feel obligated to cover. They presumably have people who are paid to read the Mueller report and Barr's response, and to cover the complicated factual disputes about them. Pay attention to them when they cover what they know, and to us when we cover what we know.

I sent a version of this to my correspondent, and got back a gracious reply that suggests that he sees our point on this. But I wanted to note this for the benefit of other readers as well.





NEXT: It's Time for Charlottesville To Remove Its Confederate Monuments

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  1. Barr is a legal genius, in my opinion

    That says a lot of about this individual’s opinions. And none of it good.

    1. Legal genius? I dunno about that, but he’s sure doing a good job of making Senate Dems and the press look foolish, and keeping Mueller in the back 40, where he belongs.

      1. If Barr’s misleading, unseemly conduct inclines Mueller to testify before Congress — and it likely would require a court order to prevent that testimony if Mueller wishes to speak, because Barr has no apparent control of Mueller’s conduct in this context — that ‘going a good job . . . keeping Mueller in the back 40’ comment would lose steam.

        Mueller does not appear to be quite the polemical partisan and Trump sycophant that Barr has become. Mueller’s character and record might incline him to call Barr to account for any perceived shabby conduct.

        I hope Mueller testifies without a subpoena.

  2. I find it hard to believe that none of you have anything to say about arguably one the most consequential happenings in our lifetime.

    1. No one should hold this blog to a ‘publication of record’ standard, but it also would be wrong to conclude that editorial decisions are motivated by “expertise” — when did learned people begin to refer to themselves as “scholars” or their own “expertise?” — or happenstance.

      Evidence indicates most of the curating is motivated by partisan (attempting to make movement conservatism more palatable in the mainstream) or selfish (eyes on a judicial appointment) factors.

      Against that background, taking on Trump, Barr, Graham, and the like should not be expected, except perhaps by a Prof. Somin (the libertarian) or Prof. Kerr (the less partisan).

      Not that there’s anything wrong with that. At least, not so long as truth in advertising is honored.

      1. The skeptic’s view? This forum finds “something to say” when that something is more congenial to the political sympathies of our hosts. My memory may be faulty, but it seems they more frequently commented on the foibles of the Obama Administration than the dumpster fire of Trump’s. But what do I know? I still eagerly await the publication of David Bernstein’s Lawless: The Trump Administration’s Unprecedented Assault on the Constitution and the Rule of Law. I’m sure it’s coming out any day now…..

        1. Be fair to Bernstein. Did he, or did he not, point out the bad precedents that Obama set (which have been taken up in spades by Trump)?

          And Somin is such a critic of the immigration policy of the Trump admin that he regularly vents, I mean posts, about them.

          1. Bernstein criticized Obama for overreach.

            I’d be curious to know whether he thinks that whatever Obama did now justifies what Trump is doing. Somehow I doubt it, but it would be nice to hear from him, since he does seem to claim expertise in that area.

            This “Obama set a precedent” argument is BS, by the way. If you accept it you set a one-way ratchet to autocracy, since then the next President will argue that “Trump set a precedent.”

            Besides, bad past bad behavior by X does not excuse current bad behavior by Y. These “precedents” are nothing of the sort.

            I once read where someone referred to this as “precedent pap.” That’s about right.

      2. ” when did learned people begin to refer to themselves as “scholars” or their own “expertise?””

        I suppose they could refer to themselves as “your betters”.

    2. Here’s the problem: To have anything informed and interesting to say about a fact-intensive controversy such as this (not just “anything to say” as such), one needs to invest a lot of effort into learning the facts; and even then, one might not have anything useful to add, if it isn’t in one’s core area of expertise. I for one have not invested any such effort, and my guess is that most of my cobloggers haven’t, either.

      1. Yes, but drama requires facts, whether fake, made-up on the spot, or even both. Think of us — hanging on refresh, hoping — praying — salivating — for just the smidgen of new fake facts, denied, denied, denied!

        Will no one think of the commenters?

  3. This defense isn’t precisely true. EV presumably has quite a bit of expertise on Alex Kozinsky, for example, and could have given the readers here keen insight into the subject of his ouster that few other people could. And yet there was nothing.

    1. This is correct — on the Alex Kozinski matter, the situation was almost the opposite: I’m personally close enough to him that I felt I couldn’t speak objectively about the controversy, so I thought it better to stay silent.

      My guess is that this is not uncommon with newspaper reporters, who I take it aren’t asked to try to objectively cover allegations against very close personal friends of theirs; the analogy between us and reporters is of course not perfect, but in this instance it seems to me to be sound. That is a very rare situation, though, which would apply to controversies involving a tiny handful of people. (I felt comfortable writing about Justices Kavanaugh and Gorsuch, for instance, because though I’m personally acquainted with them — having worked with them back in the day — I’m not as close to them as I am to Kozinski.)

      1. I, and I imagine many others, sympathized with your silence. I don’t begrudge family and friends declining to add their voices to public criticism of an accused loved one. All that remains to them are uncritical, typically passionate defenses, which understandably tend to be dismissed by anyone not already persuaded.

  4. The quality of posts reflects the expertise, whether on free speech law, fourth amendment law, or administrative law, that goes into them. Often tiresome political commentary already abounds, both in the comment threads and in the internet writ large. Stick to what you find interesting and we’ll keep coming back for more.

    In that vein, I’d commend for consideration the recent fifth circuit decision in Doe v. McKesson and its unusual conclusion that a protest organizer whose spoken words encouraged blocking a street can be held liable for negligence in failing to anticipate that police would respond, and that in the ensuing response, an unknown protester, though never encouraged to do so, might behave violently and injure an officer. Is this the return of bad tendency? Are Claiborne Hardware and Hess v. Indiana historical artifacts with no enduring significance?

    1. Thanks — I did blog an excerpt from that case, though without detailed analysis of my own, in part because I’m not sure what to think about it. What do you think of the court’s argument that, when people deliberately organize illegal protests (illegal for reasons entirely unrelated to their content), they are liable for violent acts by third parties that foreseeably stem from the inevitable police response to the illegal action? Seems like a content-neutral and speech-neutral application of normal tort law principles to me, though I can indeed see how it could be abused.

      1. How is that 3rd party’s decision to do something, foreseeable or not, not a novus actus interveniens? And likewise for whatever the police did or did not do. We don’t normally make people liable for the voluntary acts of other people, outside of respondeat superior-type situations.

        (I say without having read anything about the case beyond what’s here in the comments section, and in full knowledge that that’s entirely too much Latin for one sentence.)

        1. In agreement, but I think the better question is what duty did the organizer have to prevent unknown and external unlawful acts of others.

          To put it another way: if the police don’t have a duty to prevent or stop unlawful acts, how does the event organizer have such a duty?

          What if I organize a lawful party in the park, with little kids hitting a piñata, and one invited parent decides to take the stick and assault another? Am I liable because I arranged the gathering and brought the instrumentality of the crime, even when it was used for a clearly unintended purpose? (Setting aside one kid accidentally hits another, which might be a theory of negligence, but it not what happened in this case).

        2. IIUC the claim is that McKesson, after organizing the illegal street occupation, incited violence by the protesters. So that’s how.

        3. Martinned: I appreciate your argument, and there’s much to be said for it. But American law has roundly rejected it, for at least a century now. The Restatement (Third) of Torts sec. 19 captures the rule this way: “The conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or permits the improper conduct of … a third party.” This includes criminal conduct, which is why defendants are routinely held liable for unreasonably acting in ways that foreseeably create the opportunity for crime.

          For an older instance of this rule, see Brauer v. N.Y. Central & H.R.R. Co., 103 A. 166 (N.J. App. 1918): One of the defendant’s trains collided with the plaintiff’s wagon at a crossing. The plaintiff’s horse was killed, his wagon was destroyed, and the wagon’s contents—a keg of cider, some empty barrels, and a blanket—were stolen by unknown parties at the scene of the accident. The court held that the railroad was liable not just for the direct injury but also for the theft: “The act of a third person … intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen.” And the same principle has applied even when there was no direct injury by the defendant, but only action that foreseeably helps bring about a criminal attack by a third party.

          Again, your approach might well be better; it’s just not the approach generally taken by American law.

      2. I would very much like to see such liability created. But it would be even more useful and on-point if police who funnel the people on one side of a protest to where they can’t avoid violence by the other side — or worse yet, disarm them before funneling them and stand down afterwards — could be personally sued and/or jailed for the results which are certainly deliberate on their part. This happened in Charlottesville, Berkeley, and Portland too, and it is just not acceptable to handwave the problem away by saying the police must have that level of discretion to do their jobs.

      3. I think the fifth circuit panel overlooks the core of Brandenburg. Incitement becomes unprotected speech if and only if it is intended to and likely to incite imminent violence, and as unprotected speech becomes subject to ordinary tort law. Like Justice But the defendant here is not alleged to have incited any violent conduct, so the free speech clause should trump the common law of torts, just as it has in cases from NY Times v. Sullivan to Snyder v. Phelps.
        I can’t improve on Justice Brandeis’s concurrence in Whitney; the defendant advocated the commission of a non-violent misdemeanor; he cannot be held responsible for the felonious criminal act of someone else.

        1. Oh for an editing option, to remove “Like Justice”

          1. I assumed you were referring to the esteemed Justice But, who also has not been alleged to have incited violence.

        2. “But the defendant here is not alleged to have incited any violent conduct,”

          Apparently he is. From the complaint:

          “Defendant DeRay McKesson was present during the protest and he did nothing to calm the crowd and, instead, he incited the violence on behalf of the Defendant BLACK LIVES MATTER.”

          1. Conclusory allegations are not taken as true under Twiqbal; only factual allegations, of which there are none, are taken as true for purposes of a motion to dismiss. SCOTUS formally junked the “no set of facts standard” for 12(b)(6) motions.

          2. What was the nature of the incitement?

            Did he urge anyone to attack someone else, for example?

      4. I posted some preliminary thoughts earlier, but I’m puzzled by the characterization of the imposition of liability as content neutral. As I understand the panel decision, liability, if proven, flows from his speech (“Mckesson directed the demonstrators to engage in the criminal act of occupying the public highway”), not from any conduct in which he engaged. Isn’t organizing or leading a protest a form of speech? Why isn’t imposing liability based upon that speech a content based imposition of liability? It is only possible to assess whether his speech can be the foundation for liability by knowing what he said (did he direct or not), not simply that he spoke. So it seems to me that a content based assessment of his speech is a necessary, albeit not sufficient predicate for liability on remand.

        To be sure if the content of his speech is unlawful incitement within the scope of Brandenburg, the free speech clause affords him no protection; the state is free to punish unprotected speech on the basis of its content. But if he did not run afoul of the Brandenburg standard, and there’s no recitation of facts in the complaint that plausibly reads like incitement of imminent violence, then doesn’t strict scrutiny supersede the common law of negligence? Perhaps the Brandenburg exception is broader; perhaps it permits the imposition of liability for inciting a nonviolent misdemeanor, but I’d argue otherwise.

        I can imagine language that reasonably can be read as intended to and likely to incite imminent violence, but as I noted earlier, the Twiqbal standard should require pleading that language, not simply asserting the conclusion. Drawing an analogy to public figure defamation claims, courts of appeals have held that, per Twiqbal, plaintiffs must plead a plausible factual basis for actual malice; the conclusory allegation of actual malice is legally insufficient. See, e.g., Turner v. Wells, 879 F.3d 1254 (11th Cir. 2018); Lemelson v. Bloomberg L.P., 903 F.3d 19 (1st Cir. 2018).

        Finally, the panel’s recitation of the Conley v. Gibson “no set of facts” standard is bizarre given that Twombley held that it had “earned its retirement” and plays no role in assessing the sufficiency of a complaint.

  5. Still, you have to admit that when the Attorney General of the United States says, in public, that a president can end investigations into himself so long as the president believes he’s being treated poorly, it’s not unreasonable to expect Mr. Ed’s law blog that specializes in constitutional issues might have something to say.

    1. Can you provide the actual quote on this?

      As I remember it, AG Barr said that the President doesn’t have to investigate himself, not that no one could – and since Mueller (eventually) reports to the President, he could tell his subordinate to stop.

      I don’t recall any claim that Congress couldn’t investigate him, even allowing for his recent comments that he won’t help them do so by ignoring all requests (which he also hasn’t carried out, and given past comments I doubt he will carry out – our president doesn’t have a filter between his brain and his mouth).

      1. Well, here’s one of them anyway. How you missed it is on you.

        “If the president is being falsely accused, which the evidence now suggests that the accusations against him were false, and he knew they were false, and he felt that this investigation was unfair, propelled by his political opponents and was hampering his ability to govern, that is not a corrupt motive for replacing an independent counsel.”

        -William Barr

        1. Barr is certainly right unless we overturn the separation of powers.

          If Trump’s opponents believe Trump or someone he’s protecting has broken the law and the House won’t impeach, the proper remedy is for the next administration to investigate him. As Barr should be doing now against the Obama administration.

          1. There was little discussion of the power to oversee, review, or investigate executive activity at the Constitutional Convention of 1787 or later in the Federalist Papers, which argued in favor of ratification of the Constitution. The lack of debate was because oversight and its attendant authority were seen as an inherent power of representative assemblies which enacted public law. Historian Arthur M. Schlesinger, Jr., has noted that “no provision in the American Constitution gave Congress express authority to conduct investigations and compel testimony.

            Oversight also derives from the many and varied express powers of the Congress in the Constitution. It is implied in the legislature’s authority, among other powers and duties, to appropriate funds, enact laws, raise and support armies, provide for a Navy, declare war, and impeach and remove from office the President, Vice President, and other civil officers. Congress could not reasonably or responsibly exercise these powers without knowing what the executive was doing; how programs were being administered, by whom, and at what cost; and whether officials were obeying the law and complying with legislative intent.

            The Supreme Court made legitimate the oversight powers of Congress, subject to constitutional safeguards for civil liberties, on several occasions. In 1927, for instance, the High Court found that in investigating the administration of the Justice Department, Congress was considering a subject “on which legislation could be had or would be materially aided by the information which the investigation was calculated to elicit.”


    2. “you have to admit that when the Attorney General of the United States says, in public, that a president can end investigations into himself so long as the president believes he’s being treated poorly”

      Damn right, man. The day that Trump prematurely stopped the Mueller investigation I was so fucking furious. And I just knew he’d get away with it, too. If only Mueller had been able to finish his investigation and prepare a report, that motherfucker Trump would be in prison. I just know it.

    3. If you wan’t someone in the federal government other than Congress itself to have the power to investigate the president and be beyond the president’s power to fire or at least beyond his power to fire without cause, then congress needs to re-authorize the Independent Council Act, which expired back when Bush Jr. was President.

      Mueller was appointed under the AG’s inherent power, which is constitutionally dubious in the first place, but since the AG’s inherent powers are all derivative of the President’s article II powers, anyone that the AG can appoint for any purpose under his inherent power, the President can legally fire, with or without cause.

    4. “Still, you have to admit that when the Attorney General of the United States says, in public, that a president can end investigations into himself so long as the president believes he’s being treated poorly,”

      Huh? The president is chief executive and can end any investigation he wants, so long as he doesn’t do so “corruptly”. And if there’s no underlying crime and the investigation is interfering with the president carrying out his duties, I’m not sure how you claim that the president is corruptly interfering with the investigation. This claim, repeated ad-nauseam by the fake news media, is one of the less convincing Dem talking points.

      1. ” so long as he doesn’t do so “corruptly””

        I’m not convinced that this caveat is actually constitutionally valid.

        1. “I’m not convinced that this caveat is actually constitutionally valid.”

          I’m not either, but it clearly isn’t a crime for the president to end an investigation if he isn’t acting corruptly. So the Dem bullshit about pretending not to understand Barr’s comments about the president feeling frustrated is still bullshit.

  6. I do wish there was a little more “law” in the blogs (I’m still working on my VC JD).

    But otherwise no problems.

  7. I’m pleasantly surprised that even David Post has decided to keep out of the fray.

  8. I have to agree with your correspondent that “the Conspiracy is truly declining.” But that is really almost entirely attributable to the comments section, not so much the posts. Long ago, before the WaPo sponsorship interlude, this was a very high quality legal blog, and the quality of the comments were almost on a par with the posts. Now, most of the comment threads have turned into rabid, completely irrational political bickering, name calling, and insane ranting. Sad.

    1. That’s not to say that they aren’t fun to read. But Trump Derangement Syndrome, running in both directions (Trump is either Satan in disguise, “literally Hitler”, or he is America’s Savior, utterly without fault and capable of walking on water or turning water into wine) seems to be more virulent and destructive of brain cells on both ends of the political spectrum than Mad Cow Disease, and it’s getting really old and really tiresome.

      Yes, Trump is a deeply flawed man and often acts inappropriately, and often a bald-faced liar. But in those respects, he’s not different from pretty much any politician you can name, just a bit more “in-your-face” about it. Some of his policies are very good, some are very bad, and a few are truly insane. But he was duly elected in accordance with the rules set out in the Constitution, and the refusal of a lot of people to accept that, people who call themselves “Democratic” (are they THAT irony impaired?), makes we truly doubt their sanity.

      1. Only you would look at this comments section and see the problem as too many liberals.

        1. I have no problem at all with true liberals. It’s deranged authoritarian statists that I have a problem with.

          PS. In case you weren’t aware, you fall into the second category, not the first.

          1. At least you haven’t descended into any of that name-calling.

      2. Our HEROIC AND NOBLE PRESIDENT DONALD J. TRUMP doesn’t convert water into wine, he converts it into Diet Coke. Get it right. 😉

  9. I read an article in Human Events that focused on the issue of the obstruction of justice, and the difference of interpretation of the relevant statute, between Meuller and Barr. I would have liked someone to blog about this. The statute is 18 U.S.C. § 1512(c)(2). The article is here:

  10. Part of why I consider the Conspirators authorities and want their opinion on stuff is that they don’t post willy nilly like I do.

    I’ve found some issues with the Conspiracy recently, but this is a pretty silly, if understandably tempting criticism.

    1. I wonder if some of the yearning might be alleviated with some open posts on a topic.

      Though I admit, I may start dreading the topics.

  11. If people only commented on subjects on which they have developed an expertise, it would be the end of the Internet as we know it.

  12. “It’s almost never ‘This is important news, so we must cover it’—and I don’t think you should want it to be.”

    It’s a feature, not a bug. These days, something like the Mueller report will dominate every news cycle, news station, blog, Facebook post, twitter, etc. Once the subject is ‘important enough,’ everyone covers the situation, then covers the coverage, then analyses the reactions, ad nauseum. It becomes its own black hole of media coverage.

    I rather like that the VC covers subjects it finds interesting… because it’s something that isn’t part of the black hole of the moment.

    1. “I rather like that the VC covers subjects it finds interesting… because it’s something that isn’t part of the black hole of the moment.”

      I vociferously concur.

      1. I strenuously concur!

  13. I fully support the blog and its writers ability to talk about whatever they want, whenever they want.

    1. What do you think of this blog’s censorship of comments?

      1. What censorship?

        1. You can’t say *&^^, you can’t say $%#@, and you can’t call someone a @*^%$*%$#@.

          1. Meh. Viewpoint neutral censorship of vulgarity is reasonable and fine.

            I’ve seen far worse censorship. In some forums, it was literally impossible to refer to George W. Bush’s vice president by his commonly used first name, as that would be censored.

            The worst forums were generally the liberal publication ones, where there was an amazing amount of viewpoint-biased censorship. Certain liberal posters would ramp up the vulgarity to 11, and nothing would occur. However, many moderately worded non-liberal responses were censored and eliminated…often because the arguments were good and well reasoned, thus a threat to the forum. A ranting, vulgar, insulting conservative could be tolerated and encouraged, as it was “easy” to write them off. But good reasoning and moderate tones. That needed to be flagged and banned.

          2. you can’t call someone a @*^%$*%$#@

            Is truth a defense?

  14. 1. The popup ads at the bottom are a real pain the in ass. I just hit a “flag” accidentally while trying to close one of those stupid things.
    2. No thread that mentions Mr. Ed is complete without some tie in to our current Commerce Secretary, WIIILLLLLBBBURR!.

  15. EV, I didn’t think you were old enough to know about Mr. Ed??

    Great quote from that show’s theme song.

  16. So when notable topics dominate the news, but involve facts outside the scope of VC bloggers’ knowledge, why not scout up guest bloggers who can plug the gaps? Also, maybe a big hole in the collective knowledge of VC bloggers points to a too-ideological filter which constrains the scope of that knowledge.

    For instance, I have been surprised to watch discussions go on and on about whether using legal counsel to examine witnesses in congressional investigations is peculiar, when it has been commonplace, and a practice of long standing.

    1. You make the mistake of assuming that Eugene & Co., are doing this as a public service.
      They are not.
      What you might want to advocate for as a compromise is the occasional “open thread”.

  17. I would say that a lot of news is not “important” its more like self-important. Newspapers are in the eyeball business, which means that they need to create a spectacle, often out of thin air. A lot of reporting is more about palace intrigue ala Game of Thrones. In many cases, the more rare it is (“shark attack”), the more often its reported, giving people the false impression its common. Multiple person fatal vehicle accidents are actually very common, more common than mass shootings, those hardly ever make the national news.

    Also keep in mind, Mister Ed is the product of 1960s culture. “Better to remain silent and be thought a fool than open your mouth and remove all doubt” However, I am not sure this is true any longer in the 21 century Twitter and Instagram culture, which is more like “hurry up and say something stupid in 144 characters before the thing goes away.”

    1. I was not suggesting btw that the blog adopt the Twitter and Instagram culture of instant dumb comments. I was simply making the observation that people have different expectations in the social media age. Anecdotally, a lot of kids including my daughter tell me they grow tired of the online mob dumbocracy. Only time will tell if (and how) they rediscover the virtue of thinking before you comment. Digital media rewards being first and punishes being late. Fewer people will read this comment than the #1 comment above…

  18. Mr. Ed was, in fact, not a horse; he was a zebra!

    Something something showing stripes fact check yadda dunno.

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