Are property rights compatible with environmental protection? Might they actually be essential for effective conservation?
As Garrett Hardin observed in his seminal essay on the "Tragedy of the Commons," those ecological resources incorporated into property institutions tend to be managed better than those resources left in the open-access commons. Yet as Hardin also noted, it is one thing to establish property in land, particularly for purposes like agriculture, and quite something else to establish property rights in other resources.
Whereas most conventional environmental policy presumes the solution to environmental problems lies in government regulation, some researchers focus on ways to utilize property rights and property-based institutions to enhance environmental protection and encourage greater conservation.
As I discuss in my introduction, the papers from the colloquium explore the potential for property-based institutions to preserve environmental values and enhance environmental protection. Through case studies, empirical assessments, and consideration of the institutional constraints that may alternatively facilitate or hamper private conservation efforts, these papers deepen our understanding of the institutional context in which conservation occurs and the potential for property-based approaches to supplement, if not supplant, traditional government management of natural resources and environmental regulation. Together, they aim to enhance the conservation potential of property institutions by looking at how such institutions may be extended and defended so as to maximize property's ecological potential.
The dispute over Harvard's decision to rescind the admission of Parkland shooting survivor/gun rights activist Kyle Kashuv should remind us of the reasons why we should not have given any special status to his views in the first place. The same goes for most others in similar situations.
In a post written last year, I explained why it's a mistake to give special credence to the policy views of victims of horrible tragedies. Surviving a school shooting, or some other awful event, doesn't give you any special insight into the moral and policy questions at stake. Survivors deserve empathy and respect—but not deference to their policy views, except in rare instances where they have genuine expertise on the subject:
But even if students really were disproportionately likely to be victims of gun violence, that would not be a good reason to give special credence to their policy views. Personally experiencing a horrific event or being at disproportionate risk of suffering one, doesn't necessarily give you special insight into how to prevent such tragedies from occurring. A person who survives an awful plane crash does not thereby gain special insight into aviation safety. Similarly, a person who survives a mass shooting does not thereby get much in the way of useful knowledge of gun policy….
Often, the real reason for focusing attention on victims and survivors is not the value of their insights, but the way in which they tug at our emotional heart-strings. Opposition to policies promoted by survivors of a recent horrific event is easy to denounce as callous and unfeeling. Here, we would do well to remember that our immediate emotional reactions to tragedy are rarely a useful guide to policy. All too often, giving in to such feelings results in policies that create more harm and injustice than they prevent. Liberals are quick to point out this out when it comes to terrorist attacks. Conservatives routinely do so in the aftermath of mass shootings. Both are right, and both would do well to heed each other's warnings. As with emotional reactions to terrorist attacks, overreactions to the extremely rare phenomenon of school shootings can easily result in dangerous and unjust policies, as with the "zero tolerance" policies enacted in the aftermath of the 1999 Columbine shootings.
In the same post, I also explain why the views of young people on gun control and other policy issues are not entitled to special consideration and deference. Some young people do indeed have valuable contributions to make to policy debates, as is also true of some older people. But youth, as such, should not be viewed as a source of valuable insight.
The post references pro-gun control Parkland survivors, who were in the news at the time (though I also note conservative uses of victims on other issues, such as terrorism and immigration). But the point applies just as readily to Kashuv's advocacy for the opposing viewpoint.
One caveats to the general rule that survivors' views on policy issues do not deserve special credence is that survivor testimony is sometimes valuable as proof that a crime or other tragedy actually occurred:
Survivor testimony does have important value in some situations. For example, the testimony of Holocaust survivors and victims of other mass murders provides powerful evidence that those atrocities actually did occur (though there is often other evidence, as well, such as the extensive records kept by the perpetrators of the Holocaust). But the experience of being a Holocaust or Gulag survivor does not, in and of itself, give much insight into how to prevent future Hitlers and Stalins from committing similar atrocities. Similarly, surviving a school shooting does not create expertise on gun control.
Another possible caveat is that, if one side in a policy dispute cites survivor activists as proof that anyone who truly appreciates such a horrific event necessarily supports their position, the other can legitimately cite survivors with opposing views as evidence that that's not the case. Had conservative gun rights advocates cited Kashuv only for this limited purpose, they would have been on firmer ground.
But these rationales they do not apply in the vast majority of cases where victims are held up as authorities on policy issues, including this one. Even if he had never made any awful racist comments, Kyle Kashuv should not have been held up as a font of wisdom on gun control issues. And the same goes for mass shooting survivors who oppose his position. They deserve our sympathy and understanding—but not our deference to their views.
As the justices announce their opinions in the big cases of the year, and as presidential candidates announce their plans to reform the Court so that it will be less political, a taste from the conclusion of my new book, Repugnant Laws, which can be found wherever fine books are sold.
Americans sometimes tell themselves a story about the Supreme Court. In this story the justices stand removed from politics, like priests working in a marble temple. Constitutional law imposes fixed limits on the arena of political choice, and the elected members of Congress operate within boundaries marked out and defended by unelected justices who lean against the prevailing democratic winds. This story is sometimes told in a fearful tone, with the people and their representatives subjugated to the will of distant philosopher-kings. It is sometimes told in a more hopeful tone, with the benighted masses and feckless politicians defanged by wise jurists. But in both versions, the justices occupy an Archimedean point outside the world of politics and from there can reshape the course of events.
For better or for worse, we should doubt that the Court is as independent of politics as that story would suggest. The individuals who become justices are socialized into a political world that they share with their contemporaries. The justices are elevated to the bench through a political appointments process that filters out those who are likely to be dramatically at odds with the political leaders who assemble victorious electoral coalitions. The justices live in the world and are buffeted by the same maelstroms of opinion and emotion that affect those around them. Their work sometimes involves matters of arcane knowledge and obscure significance, but it often involves matters of fundamental values and partisan contestation. The justices are not disinterested observers of the political world; they are powerful actors within it. . . .
In exercising the power of judicial review of federal statutes across American history, the Court has operated from a political perspective and in alliance with coalition partners elsewhere in the government. The Court has not generally operated as an antidemocratic force obstructing the plans and policies of legislative majorities. It has, on occasion, vetoed important federal policies, but it has more often operated within dominant political coalitions than against them. It has exploited fissures within democratic majorities rather than setting itself against those majorities. It has primarily advanced the values and policies that have won electoral support rather than those that have met electoral defeat.
The justices are best understood as political partners. They are not minions, simply doing the bidding of party leaders. They are allies of coalition leaders, not their agents. As such, they exercise some modicum of independence and discretion. They are able to articulate their own understandings of constitutional values and commitments. Those commitments may well be shared by others, be debated and advanced through party platforms and legislative debates, but the justices give them shape and effectiveness. The justices set their own priorities, and in many cases have their own distinctive set of concerns. . . .
. . . The Court often defies Congress in the name of values to which party leaders are putatively committed. Those decisions might well be persistently controversial, in either the sense that the general public might not overwhelmingly endorse them or in the sense that legislators might be incapable of constructing a majority willing to cast the same vote themselves. The insulation and independence of the Court allows the justices to do things that the elected members of Congress might not be willing and able to do, even if the members of Congress are not implacably opposed either. The Court has rarely stood for universally embraced and historically enduring political principles, in part because there are not very many such principles – or at least not very many such principles that must be deployed to invalidate an action of Congress. Congress rarely violates universally embraced and historically enduring principles. Congress does, however, routinely violate principles that are more contested and less enduring but that nonetheless command substantial political support within a given historical era. When the Court intervenes to vindicate those principles against an errant national legislature, it is often doing the political work that political leaders would like it to do. It is acting as a player within democratic politics, but not simply as a constitutional guardian standing outside of democratic politics.
We're starting to see a lot more casualties in the New Code War between the US and China. Broadcom has issued a $2 billion warning that has shaken the global chip sector. And Hollywood is whistling past the graveyard if it thinks that China is going to stop squeezing US film profits in China. And the adjustment to a divided global tech market keeps finding new pain points. Turns out that even the F-35 depends on a Chinese supply chain.
Speaking of security holes, Nick Weaver breaks down the cause and significance of the Rowhammer exploit and its latest sibling, RAMBleed. And to complete the paranoia segment of the show, Nick explains just how easy it is to use LinkedIn to build a network of people with clearances who can be compromised by a nonexistent woman.
Should Silicon Valley face an antitrust breakup that might produce more viewpoint competition? Mark MacCarthy breaks down a speech given by the Justice Department's antitrust chief, pointing out that conservatives crusading to make viewpoint competition part of antitrust analysis got a little more comfort than usual from the speech.
Or should Silicon Valley lose its immunity under Section 230 of the Communications Decency Act because of its high-handed treatment of conservatives? David Benger tells us that the DC Circuit does see a limit to the Section 230 immunity – but a pretty distant one. Mark points out that Congress might itself cut back on the doctrine – but only, I note, if it's willing to violate the US-Canada-Mexico trade deal.
Finally, Nick and I have different takes on what I call the overhyped breach of the week, in which a Customs and Border Protection subcontractor lost photos of thousands of travelers. Turns out it wasn't much of a breach for the agency, but it was a potentially devastating breach for its subcontractor.
Music-annotation website Genius is accusing Google of stealing lyrics from its website and publishing them in search results … thus breaking Genius' terms of service and siphoning off traffic.
The Wall Street Journal, which first reported the news, said that a Genius employee noticed the first instance in 2016. Rapper Desiigner's song "Panda" had hard-to-decipher lyrics. So, the company had the rapper transcribe the song for them—and then Genius saw their version being displayed on Google.
To show that Google was allegedly doing this, developers at Genius alternated the lyrics' apostrophes between straight and curly styles in a targeted way: When the apostrophes were converted into Morse code, it spelled out the phrase "red handed," the newspaper said. Genius said it notified Google first in 2017 and as recently as April about the practice.
Google states that it gets its lyrics from a third party, so who did the copying (if there was copying) is not clear. Steganography, for those who don't know the term, is (to quote the American Heritage Dictionary),
The deliberate concealment of data within other data, as by embedding digitized text in a digitized image.
The Morse code component, of course, was just a little bit of flair—the steganography, or, if you prefer, the watermark, would have worked regardless of how the curly quote substitution was arranged. Thanks to Prof. Mark Liberman (Language Log) for the pointer.
Today, the Supreme Court issued four decisions in argued cases. All four case split the justices, as is common for this point in the Supreme Court term. Most of the unanimous cases are released earlier as there is (generally) less back-and-forth among the justices over the opinions.
Today's decisions were particularly interesting in that they split the Court in some unusual ways. These opinions suggest the potential emergence of a pragmatist bloc on the Court, and perhaps provided hints at the Court's direction going forward.
Perhaps the most interesting split occurred in Virginia Uranium, Inc. v. Warren, in which a 6-3 Court rejected the argument that the Atomic Energy Act preempts Virginia's prohibition of uranium mining within the state. Although a clear majority of the Court found no preemption, no opinion commanded a majority—or even plurality—of the justices. Indeed, the Court split 3-3-3, rejected a position favored by the business community, and suggested broad preemption claims may face greater Court skepticism going forward.
Justice Gorsuch announced the opinion of the Court, and authored an opinion joined by Justices Thomas and Kavanaugh, finding no preemption. Justice Ginsburg wrote an opinion concurring in the judgment, joined by Justices Kagan and Sotomayor. Although these two opinions reached the same result, they differed starkly in methodology. Justice Gorsuch focused on the statutory text and explicitly rejected relying upon efforts to divine legislative purpose (beyond what's in the text) to answer the preemption question. This approach could make it difficult for business groups to advance claims of field preemption going forward.
While agreeing with the result, it's no surprise that Justices Ginsburg, Kagan, and Sotomayor did not wish to sign on to Justice Gorsuch's opinion, as all three are quite amenable to efforts to divine legislative purpose. Chief Justice Roberts dissented, joined by Justices Alito and Breyer—a trio that stuck together in three of the four cases decided today, perhaps suggesting the emergence of a pragmatic bloc on the Court that eschews formalist analyses. Time will tell.
Virginia House of Delegates v. Bethune-Hill produced another surprising line-up. Justice Ginsburg wrote the majority opinion, concluding the Virginia House of Delegates lacked standing to challenge a lower court opinion concluding Virginia House districts were unconstituitonally gerrymandered along racial lines. Justice Ginsburg was joined by Justices Sotomayor, Kagan, Thomas and Gorsuch. Justice Alito authored a dissent, joined by the Chief Justice and Justices Breyer and Kavanaugh.
The 5-4 Bethune-Hill split is particularly interesting both because it cuts across traditional right-left lines and because several justices adopted a position at odds with their usual approach to standing cases. Justice Ginsburg, like the other liberal justices, is generally quite generous when it comes to standing, and yet she authored the majority. Chief Justice Roberts, on the other hand, is among the most stingy about finding standing, and he dissented. Justices Gorsuch, Thomas, and Breyer, on the other hand, are about where you'd expect them in a standing case.
A third interesting (if somewhat predictable) split occurred in Gamble v. United States, in which the Court, 7-2, refused the invitation to reconsider the dual-sovereignty doctrine, under which state and federal prosecutions for the same offense do not violate the constitutional prohibition on double jeopardy. This was a win for stare decisis, if a loss for criminal defendants. Justice Alito wrote the Court's opinion for the seven-justice majority. Justice Thomas concurred. Justices Ginsburg and Gorsuch each authored dissents.
The least surprising line-up of the day came in Manhattan Community Access Corp. v. Halleck, in which the Court split 5-4 along traditional right-left lines. Justice Kavanaugh wrote for the conservative majority, concluding that the Manhattan Neighborhood Network is not a state actor subject to First Amendment constraints. Justice Sotomayor dissented, joined by the Court's three other liberals.
Although this right-left division is not particularly surprising, it is interesting to see Justice Kavanaugh writing an opinion rejecting a First Amendment claim, as Justice Kennedy was the Court's most speech-protective justice on the Court. This is not to say Justice Kennedy would have disagreed with Justice Kavanaugh's conclusion, however, as this case concerned what entities are constrained by the First Amendment, not the scope of such protections, and Justice Kennedy might also have been sensitive to the broadcaster's own First Amendment interests.)
The Court is expected to release more opinions on Thursday.
There is widespread – and well-justified – concern about the size, scope and intrusiveness of the administrative state. Many feel that the accumulation of regulatory authority within administrative agencies undermines democratic accountability and self-government.
Many critics of the administrative state focus on the Chevron doctrine, and suggest its requirement that courts sometimes defer to reasonable agency interpretations of ambiguous statutory provisions lies at the heard of administrative overreach. For reasons I explain in the new issue of National Review (and have previously noted here),I think the focus on Chevron is misplaced.
While it is certainly true that, in the hand of some judges, Chevron has allowed some agencies to run rampant, faithfully applied within its proper domain, Chevron itself is not much of a problem. As Justice Kennedy noted in one of his final opinions on the Court, some courts grant agencies "reflexive deference" after only "cursory" examinations of the relevant statutory text. This is a problem, but it's one of application, not of the underlying doctrine itself.
Further, insofar as some are (rightfully) concerned about the broad degree of interpretive authority and policy discretion agencies exercise under Chevron, the real blame lies with Congress, not the courts. As I note in NR:
The problem . . . is less that courts sometimes defer to federal-agency interpretations of ambiguous statutes through which Congress delegates regulatory authority and more that the legislature is so profligate with its delegations. . . .
The abdication taking place is less on the federal bench than in the halls of Congress, where our legislators have forgotten that it is their job, first and foremost, to enact the laws that govern the nation.
Unless and until courts are willing to enforce meaningful limits on the delegation of authority to federal agencies — a far heavier lift than constraining Chevron — the underlying problem will remain. If we want Chevron and other deference doctrines to be less important, Congress needs to stop providing so many opportunities for these doctrines to apply, both by drafting legislation more carefully and by regularly revisiting older statutes that might otherwise be used as new sources of agency authority.
Prof. Josh Blackman, who has commented extensively on the Rule 8.4(g) debates, passes this along:
In 2016, the American Bar Association proposed Model Rule 8.4(g). Under the Rule, it is misconduct for an attorney to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." Comment  explains that "conduct related to the practice of law . . . includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law."
Over the past three years, almost every state court that has considered the issue has declined to adopt Model Rule 8.4(g). Several state attorneys general have concluded that the Rule would violate the First Amendment. Only one state—Vermont—adopted Model Rule 8.4(g) as proposed. Recently, Maine adopted a variant of Model Rule 8.4(g) with certain changes to address constitutional concerns. Specifically, Maine modified the comment to exclude conduct at "bar association, business or social activities in connection with the practice of law."
After the rule was adopted, Bloomberg Law sought comments from me and Professor Stephen Gillers (NYU), which I reproduce in their entirety:
"Critics say the rules could be unconstitutional. 'Rule 8.4(g) is well-intentioned, but it has the potential to suppress attorney speech on matters of public concern, if that speech may be viewed as 'demeaning' to others,' Josh Blackman, a professor of constitutional law at the South Texas College of Law in Houston, said in an email. 'The government should not chill attorneys from talking about these important matters.'"
"But New York University School of Law legal ethics professor Stephen Gillers disagreed. 'The preposterous claim that the First Amendment entitles lawyers to make racist, sexist, and homophobic statements in connection with law practice is an embarrassment,' Gillers said in an email. 'It has come almost exclusively from white men who apparently see some advantage in being able to do so. No case supports it.'"
I was stunned by these comments, so I checked with Gillers to verify their accuracy. He told me they were accurate.
Gillers is profoundly mistaken on several fronts. First, he does not accurately characterize Rule 8.4(g). The rule does not police "statements in connection with law practice." It regulates speech and conduct "related to the practice of law." There is a significant difference between statements made in open court, or during a deposition, and statements made at a bar function or a CLE event. Indeed, Maine addressed this constitutional infirmity by specifically excluding social functions from the comment concerning "conduct related to the practice of law."
Second, Rule 8.4(g) is not limited to "racist, sexist, and homophobic statements." The rule prohibits far more innocuous expressions that may simply be "demeaning" to others. I published an article in the Georgetown Journal of Legal Ethics that considers various debates about same-sex marriage, affirmative action, and other hot-button issues that may be viewed as demeaning.
Third, Gillers' hyperbole—"preposterous" and "embarrassment"—is self-evidently wrong. The positions I have advanced, along with Eugene Volokh, have been echoed by several Attorneys General, state court judges, and bar committees nationwide. Maybe we are right. Maybe we are wrong. But these arguments are well within the bounds of rational discourse. Moreover, there are several cases that support this position, including NIFLA v. Becerra. A recent ABA Section on Litigation publication quoted Professor Cassandra Burke Robertson, who observed that "the biggest question about Rule 8.4(g) has been whether it unconstitutionally infringes on lawyers' speech rights—and after the Court's decision in [NIFLA v.] Becerra, it increasingly looks like the answer is yes." These positions are not "preposterous" or an "embarrassment."
Fourth, Gillers should be embarrassed by his ad hominem attack on those who challenge the law's constitutionality: "white men" who "see some advantage" from criticizing the rule. This sort of discourse has no place in academic dialogue. Both Volokh and I have engaged in respectful debates on this topic in academic forums, without our adversaries resorting to these baseless slurs.
There is some irony to Gillers's statement. He made a statement that people could reasonably find demeaning based on race—that is, white people oppose Rule 8.4(g) so they can gain some advantage by harassing minorities. Had Gillers made this statement in "conduct related to the practice of law," perhaps during a debate sponsored by a bar association, he could be subject to discipline. Of course, I would vigorously oppose such a charge. All lawyers, especially academics, should have the space necessary to make a wide range of statements on matters of public concern, without fear of punishment. But Gillers could be subject to discipline under a fair application of the rule that he defends.
The US Court of Appeals for the Fourth Circuit recently issued a notable decision upholding the constitutionality of a federal Hate Crimes Act prosecution, by concluding that Congress' power to regulate interstate commerce gives it the power to ban the conduct in question. In United States v. Hill, the court issued a divided 2-1 ruling overturning a district court decision that invalidated the conviction of an Amazon employee who assaulted a gay co-worker out of homophobic motives.
The decision is a complicated one. Both the majority opinion by Judge James Wynn and the dissent by Judge G. Steven Agee do an excellent job of outlining their respective positions and trying to ground them in the Supreme Court's Commerce Clause jurisprudence. If you really want to understand all the back and forth arguments, there is no substitute for reading both opinions in full. In this post, I will briefly outline the key issues at stake, and explain why I think the majority opinion sets a problematic precedent.
Homophobic assaults and other hate crimes deserve severe punishment. Perhaps hate crimes should even be punished more severely than otherwise similar "ordinary" violent crime. But, in most situations, the Constitution leaves that task to the states, not the federal government.
Hill assaulted the victim while the two were on the job. He was convicted under Section 249(a)(2)(B)(iv)(II) of the 2009 federal Hate Crimes Prevention Act, which criminalizes bias-motivated assaults (in this case an assault motivated by homophobia) in situations where assault "interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct."
Before considering the decision, it's worth noting two constraints on its analysis. First, for procedural reasons, the court did not address the argument that the Hate Crimes Act is unconstitutional as a whole; it only considered Hill's claim that it was unconstitutional "as applied" to his specific conduct. Second, the government argued only that this provision of the Act is a permissible exercise of Congress' Commerce Clause powers. It did not claim that it was also authorized by Congress' powers under the Thirteenth Amendment (which gives Congress the power to enact laws to suppress "slavery" and "involuntary servitude"). Several court decisions have upheld other federal hate crimes laws under the Thirteenth Amendment (in cases dealing with racially motivated violence, rather than homophobic attacks). I critique this sort of reasoning here.
In cases such asUnited States v. Lopezand United States v. Morrison, the Supreme Court ruled that the Commerce Clause gives Congress the power to regulate almost any "economic activity" as long as it had some substantial "aggregate" effect on interstate commerce. But it also emphasized the need to limit federal power under the Clause, so that it would not turn into an unconstrained general "police power," and noted that, at least as a general rule, Congress cannot use the Commerce Clause to regulate "noneconomic" activity merely because it had an aggregate effect on interstate commerce. Otherwise, Congress would have the power to restrict almost any activity, as virtually anything we do affects interstate commerce in some way (especially in combination with similar behavior by others).
In this case, both the majority and dissent recognize that Hill's assault was not "economic" activity in and of itself. It was not an economic transaction, nor did he have any kind of economic motive for his actions.
Nonetheless, the majority concludes that the prosecution falls within the commerce power for two main reasons. The first is that the relevant section of the Hate Crimes Act does not permit prosecution of any and all assaults that might affect the economy, but only those that "interfere with commercial or other economic activity in which the victim engaged at the time of the conduct." This, Judge Wynn argues, provides a limiting principle that prevents this part of the Hate Crimes Act from morphing into a justification for unconstrained federal power: "For example, if Defendant had assaulted [the victim] Tibbs at a private residence while Tibbs was not engaged in activity related to interstate commerce, then Defendant would not be subject to prosecution under the Hate Crimes Act."
Judge Wynn's second major point is that what matters is not the nature of the defendant's act, but its effect on interstate commerce:
[I]t is irrelevant that a bias-motivated "punch in the face" is non-economic, standing alone…. It is not the violent act itself, or the motivation behind that act, that triggers Congress's regulatory authority under the Commerce Clause, but the effect of that act on interstate commerce that renders it susceptible to federal regulation.
In my view, Judge Wynn's second argument undercuts his first. If what matters is the "effect" on commerce, and not either the motivation or the inherent nature of the defendant's actions, then the logic cannot be limited to cases where the defendant has disrupted "commercial or other economic activity in which the victim engaged at the time." Even if the victim was indeed just sitting at home and not doing anything "economic," an assault on him could have an impact on commerce. After all, the injured victim might end up buying fewer (or more) products in interstate commerce as a result. Even if that doesn't happen in any given case, it is surely true if we aggregate the impact of all similar assaults.
And Judge Wynn's logic requires us to do just that. That is how he gets around the fact that the evidence indicates that this particular attack had no effect on commerce, because it did not in any way reduce the productivity of the Amazon facility where it took place.
For this reason, I agree with Judge Agee's dissent, where he points out that "[t]his unauthorized Commerce Clause expansion would result in a host of problems including the federalization of commercial property, the regulation of all aspects of employment and workplace conduct, and even the home, should individuals be engaged in work while there." Indeed, the majority's reasoning might even allow Congress to regulate activities in the home even in situations where the person in question does not "engage in work while there." After all, such activities still often have an aggregate effect on interstate commerce.
If, for example, I engage in a "couch potato" lifestyle at home, that might reduce my productivity at work, and in turn reduce the quantity or quality of interstate commerce. The aggregate commercial impact of such behavior may well be at least as great as that of bias-motivated crimes.
This flaw in the majority's logic explains why there is good reason to decry the Fourth Circuit's decision even if we sympathize with the objectives of the Hate Crimes Act (as I do). In the short run, it may make little difference whether the likes of Hill are prosecuted in federal or state court. If found guilty, they likely deserve what they get.
But the same logic that allows this prosecution, could also justify federal regulation of almost any activity that might have an aggregate impact on interstate commerce. Among other things, it would surely justify the proposed Protect And Serve Act, which would make it a federal hate crime to assault a police officer, thereby creating dangers for civil liberties. Liberals who might be tempted to cheer the outcome of this case should consider all the other things the federal government could criminalize using the same legal rationale.
In my view, Section 5 of the Fourteenth Amendment does allow Congress to punish some types of hate crimes in situations where state authorities systematically fail to do so, out of reasons of racial, ethnic, or gender bias. In that scenario, the federal law would simply be countering state-government discrimination. This was an all-too-common problem throughout much of American history, particularly in the segregation-era South, where states routinely turned a blind eye to hate crimes committed by whites against African-Americans.
Today, however, few if any states are unwilling to prosecute hate crimes. Indeed, as the Fourth Circuit ruling explains, the Hill case ended up as a federal prosecution only after state prosecutors turned it over the feds. Virginia prosecutors were more than willing to go after Hill for assault and battery. But they preferred a federal case because the Virginia does not have a specialized hate crime law that covers homophobic assaults, like the federal Hate Crimes Act does. They apparently turned the case over to federal prosecutors because Hill could get a stiffer sentence as a result. Even if you believe that prosecution under a hate crime law is preferable to prosecution for "ordinary" assault, the situation is a far cry from the sort of state-government bias that would justify federal intervention under the Fourteenth Amendment.
If some states do continue to exhibit bias against prosecuting hate crimes against certain groups, the appropriate—and constitutional—response would be a federal law specifically targeting those types of jurisdictions. We should not instead open the door to federal control of a vast range of private activities that in some way affect interstate commerce.
Later decisions could potentially limit the negative impact of Hill. The majority opinion is long and complicated and offers various potential hooks for judges who want to restrict its impact without overruling it. But I don't think they can coherently do it without imposing constraints on the key elements of Judge Wynn's reasoning described above.
I'm investigating what seems to be an interesting and unconstitutional prior restraint on a media outlet imposed by a Guam Superior Court judge. Any of our readers Guam lawyers (or connected go Guam lawyers), Guam media folks, or otherwise Guam-linked? If you are, and are willing to chat with me briefly about this, please e-mail me at volokh at law.ucla.edu. Thanks!
Alice sends nude picture to her ex, Bob. Bob's new girlfriend (or maybe would-be girlfriend) Carol gets it and posts it online. Carol wouldn't be guilty under the state revenge porn statute, the court rules.
In State v. VanBuren (2018), the Vermont Supreme Court held that the state's ban on distributing nonconsensual pornography was facially constitutional, despite the First Amendment; but just last week, it concluded that the statute didn't apply to someone sharing a photo that the subject had "sexted" to someone with whom she had no present romantic relationship, First, the facts:
Complainant sent nude pictures of herself to Anthony Coon via Facebook Messenger, Facebook's private messaging service. Her sworn statement reflects that on October 8, 2015, multiple people contacted her to report that the nude photos of her had been publicly posted on Mr. Coon's Facebook page and she had been tagged in them. Complainant initially tried to untag herself but was unable to. She eventually deleted her account. She left Mr. Coon a telephone message asking that he delete the pictures from Facebook.
Complainant then received a call from Mr. Coon's phone number. The caller was defendant [Rebekah VanBuren]. Defendant called complainant a pig and said she was going to tell complainant's employer, a child-care facility, about "what kind of person work[ed] there." Defendant said that she had left her "ex" for Mr. Coon. Complainant asked defendant to remove the pictures from Facebook, and defendant replied that she was going to "ruin" complainant and "get revenge." After that call ended, complainant contacted the police.
The investigating officer spoke with defendant over the phone. Defendant admitted that she saw the nude pictures of complainant through Mr. Coon's Facebook account and that she posted the pictures on Facebook through Mr. Coon's account. Defendant stated to the officer, "you think she [complainant] learned her lesson." …
The parties … stipulated that "complainant was not in a relationship with Mr. Coon at the time the photographs were sent to Mr. Coon." Finally, they stipulated that defendant did not have permission to access Mr. Coon's Facebook account, and Mr. Coon believes defendant gained access to his account through her phone, which had his Facebook password saved on it.
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Last week, Texas put an end to one of the state's most bafflingly counterproductive policies: suspending residents' occupational licenses if they defaulted on their student loans. Not only did these suspensions wreak havoc on Texans' finances and livelihoods, but they also made it fiendishly difficult for people to actually repay what they owed. In 2017 alone, state agencies threatened the licenses of more than 4,200 professionals—including cosmetologists, nurses, and teachers—simply for unpaid student debt. Over at Forbes.com, IJ's Nick Sibilla has more.
In 2017, the feds adopt policy that essentially bans unaccompanied minors in immigration detention from obtaining abortions. D.C. Circuit: Can't do that. Dissent: The case is moot, and the class should not have been certified as is because, among other things, it almost certainly includes individuals who think abortion is murder.
Consignment business that sells kids' clothing relies on parents to help set up the sales. In exchange, they get first pick of the merchandise. Labor Department sends a letter informing business that the parent "volunteers," who work one or two days a year, are actually employees. So start paying them or else. D.C. Circuit: Indeed. The volunteers look enough like employees to us. Concurrence: Probably should've called 'em independent contractors.
According to legitimate locksmiths, "scam" locksmiths are tricking search engines into making the scammers appear more geographically available than they actually are. But that doesn't mean the legitimate locksmiths have a claim against the search engines, holds the D.C. Circuit. Congress has made clear that websites are free to publish all the information from third parties that they want.
Allegation: NYC building inspector has it out for Asians in the construction industry, so much so that he visits job sites and issues violations on his own time, while off duty. Second Circuit: Which may very well violate the Equal Protection Clause. It doesn't violate the Due Process Clause, though, because the official's harassment hasn't completely driven the plaintiff out of business.
Without warning or provocation, worker at Amazon shipping facility punches coworker in the face repeatedly. He tells Chesterfield County, Va. police that he "does not like homosexuals, so he punched" the victim. Fourth Circuit (over a dissent): Interstate commerce is implicated, so the feds can prosecute him.
Allegation: Maryland corrections officer is falsely accused of sexually harassing female coworker. In the course of the investigation, the officer reveals that he is gay and HIV positive. The sexual harassment complaint is not sustained, but he's fired anyway. Sexual orientation discrimination? Fourth Circuit: The state hasn't waived sovereign immunity, so his state law claim can't go in federal court.
Uncounseled plaintiff sues the University of Texas for gaslighting him—that is, per dictionary.com, manipulating him by psychological means into questioning his own sanity. Skipping over whether gaslighting is indeed a tort, the Fifth Circuit affirms dismissal. The state hasn't waived sovereign immunity.
Timothy Ivory Carpenter—winner of last year's Supreme Court ruling on Fourth Amendment protections for cell phone location data—will remain in prison. So holds the Sixth Circuit, on remand from SCOTUS. Even though officers violated the Fourth Amendment with their warrantless search of Carpenter's cell phone location data, they acted in good faith. So Carpenter's conviction stands. (Memorious Court-watchers will recall that Justice Alito forecast this result in the closing moments of oral argument.)
Michigan Department of Health and Human Services allegedly collects blood samples from newborns without parents' consent, tests them, then transfers them to a nonprofit corporation, "where they are stored for future use by the state." Parents sue on behalf of themselves and their children. Sixth Circuit: Most of the claims are nonstarters, but Michigan's ongoing storage of the blood samples may violate the kids' Fourth Amendment rights and the parents' Fourteenth Amendment right to direct their offspring's medical care.
Allegation: Drunk driver is taken to Oakland County, Mich. jail, where male guards subject her to a vicious strip search. Guards: But the hood we put on her to stop her from spitting meant she couldn't tell us apart. So we should get summary judgment because "she cannot prove . . . who was the one to twist her arm behind her back, rip her pants off, touch her genitals, etc." Sixth Circuit: That is absolutely not how this works.
Illinois corrections officials institute a "brunch" program, a bougie euphemism for serving prisoners two meals a day instead of three. Prisoner sues, claiming that the program gave him too few calories. Which, says the Seventh Circuit, the undisputed record rebuts. The program's designer submitted an affidavit that the two-meal brunch menu supplied the same number of daily calories as the regular three-meal menu.
"If a federal law-enforcement officer lies, manipulates witnesses, and falsifies evidence, should the officer be liable for damages?" Despite the lede, the Eighth Circuit immediately answers "no." Specifically, a St. Paul, Minn. police officer who allegedly fabricated a sex trafficking conspiracy cannot be liable under Bivens. (No qualified immunity for the officer, though.)
If a police officer questioned you and then left to investigate a building, you might think you were free to drive away. If that police officer then followed you on the highway for 19 miles, you might turn on your hazards and pull over. And if you feared for your life because you're black and the officer knows you have a concealed weapons permit, you might put your hands outside the driver's side window. Eighth Circuit: While that behavior is entirely consistent with wanting to avoid being shot, it's also "unusual and may be indicative of guilty conduct." Qualified immunity for the officer, who ordered plaintiff out of his car at gunpoint. Concurrence: Sounds like a Fourth Amendment violation but not a clearly established one. So, yeah, qualified immunity.
Acting on an anonymous tip, ICE agents obtain a warrant for employment-related documents at a California factory. In the course of executing this warrant, 100 armed agents descend on the factory, block all exits, prohibit workers from using their phones, and ultimately arrest 130 undocumented workers (which, in fact, was their plan all along). A Fourth Amendment violation? Ninth Circuit: You can't use a search warrant for documents as a pretense to detain, interrogate, and arrest literal busloads of people.
Absent-minded bank robber inadvertently places closed pocketknife on bank counter while providing teller with money bag. (The record is silent on whether the bag sported a dollar sign.) Gov't: That's "armed bank robbery"! Ninth Circuit: Hardly. Armed bank robbery requires "active employment" of a weapon, and there was no active employment here. The district court thus plainly erred in accepting the robber's guilty plea.
Saudi citizen sentenced by Colorado court to eight years to life (for imprisoning, sexually assaulting teenage housekeeper from Indonesia) seeks to serve the remainder of his sentence in Saudi Arabia. Colorado officials deny the request. Tenth Circuit: There is no constitutional right to a hearing before officials make such a decision.
Forfeiture doesn't help police fight crime, but police do use forfeiture to raise revenue—so finds a new IJ study. These findings may not surprise you, dear reader, but proponents frequently tout forfeiture as a key crime-fighting tool while denying critics' charge that forfeiture is used to police for profit. That's why IJ teamed up with Seattle University's Dr. Brian D. Kelly to test these opposing views of forfeiture. The resulting study, titled Fighting Crime or Raising Revenue?, combines local crime, drug use, and economic data with more than a decade's worth of data from the nation's largest forfeiture program. It finds that more forfeiture proceeds do not help police solve more crimes or reduce drug use, but police do ramp up forfeiture activity when local economies suffer. Read the report.
From Peruto v. ROC Nation, a federal district court case decided yesterday by Judge Gerald Austin McHugh (E.D. Pa.):
[1.] In common parlance, when someone regrets words spoken in haste, the speaker of such words often follows up by saying: "I take that back." This is a case that tries to give legal force to that expression, as Plaintiff here seeks to replevy the contents of a recorded interview to keep embarrassing statements he made from being included in a film documentary. Courts have been virtually unanimous in limiting the remedy of replevin to physically tangible property. Putting to one side the profound First Amendment implications of Plaintiff's proposed relief—in the nature of a prior restraint—I conclude on technical legal grounds that replevin is not an available remedy for a dispute of this nature….
This dispute arises out of an interview Plaintiff gave in May 2018 for a documentary series entitled #FreeMeek. Defendants Roc Nation, Amazon Alternative, IPC Television, Josh Miller, Patrick Reardon, Eli Holzman, and Janet Kim are all involved in the production of the documentary. The focus of the series is rapper Robert Rihmeek Williams, better known as Meek Mill. It intends to address, at least in part, Meek Mill's experience with the criminal justice system, including his interactions with Judge Genece Brinkley of the Philadelphia County Court of Common Pleas. Judge Brinkley has overseen Mill's criminal case for more than a decade and became the subject of some controversy when she re-imprisoned him for probation violations. Facing public criticism, Judge Brinkley retained Plaintiff A. Charles Peruto, Jr. as her counsel.
On May 30, 2018, Mr. Peruto sat for an interview related to the #FreeMeek documentary series, which is the source of this dispute. The interview concluded with Peruto explaining why he believes Meek Mill does not represent an example of the problems in the criminal justice system. When Peruto finished, the interviewer and one of his colleagues indicated that they had no further questions. Peruto then said, "Let me tell you something," at which point the camera turned off. The audio, however, continued recording as Peruto went on to say, "That was hard to do because defending this judge is now becoming—why doesn't she just grant this fucking thing?" A conversation ensued—caught on the still-operating lavalier microphone—in which Peruto said critical things about his client and her handling of the Meek Mill case.
The audio recording reflects that, despite his assertions to the contrary in both the Second Amended Replevin Complaint and the Second Amended Wiretap Complaint, Mr. Peruto never instructed anyone to go "off the record," nor did anyone present state that they had stopped the audio recording.
After Mr. Peruto was given the opportunity to hear the full recording as a part of this litigation, he alleged that it had been edited and did not accurately portray the interaction. Accordingly, I ordered the parties to agree upon an expert who could evaluate the authenticity of the recording. A team of two experts, Catalin Grigoras and Jeff Smith, has since confirmed that the recording is authentic. At oral argument, no party disputed its authenticity….
Mr. Peruto obviously did not intend for his disparaging statements to be shared widely, let alone become part of the #FreeMeek documentary series. Unfortunately for Mr. Peruto, his comments were leaked to the press along with portions of the recording….
[2.] Plaintiff brings a novel replevin claim seeking sole possession of the digital version of his oral communications…. Peruto's replevin claim does not seek possession of the equipment originally used to record him or the device on which the recording is stored, but rather possession of the data and files that contain the recordings of his voice…. Plaintiff [cannot establish] a viable claim for replevin by showing [as is required] that (1) the recording constituted a property interest subject to replevin, and (2) he had title and exclusive right to possess the property….
Last week, men's lifestyle magazine GQ published this photo of Silicon Valley executives including LinkedIn founder Reid Hoffman and Dropbox CEO Drew Houston from their pilgrimage to a small village in Italy to visit Brunello Cucinelli, a luxury designer famous for his $1,000 sweatpants.
But if you think something looks a little off in this photo, you're right: A BuzzFeed News "investigation" reveals that two women CEOs, Lynn Jurich and Ruzwana Bashir, were photoshopped into what was originally a photo featuring 15 men.
Obviously not a big deal by itself, but a reminder not to believe everything we're shown, whether it's in GQ, on CBS, in a documentary, or shared by your Facebook friends.
From Judge Joseph Rodriguez, writing in Rodgers v. Laura & John Arnold Found. (D.N.J. June 11, 2019):
New Jersey's Criminal Justice Reform Act … moved pretrial release decisions away from a resource-based model heavily reliant on monetary bail to a risk-based model. Consistent with [a] constitutional amendment [passed by the voters], the statute expressly requires courts, when making pretrial release decisions, to impose pretrial conditions that will reasonably assure: (1) the defendant's appearance in court when required, (2) the protection of the safety of any person or community, and (3) that the defendant will not obstruct or attempt to obstruct the criminal justice process. The CJRA provides a hierarchy of pretrial release conditions and requires courts to utilize the least restrictive options necessary to achieve the three goals noted above. The major difference between the new system and the old system is that judges must first consider the use of non-monetary pretrial release conditions, which has resulted in a significant reduction in the use of monetary bail.
In order to assess risk, the CJRA utilizes a Public Safety Assessment ("PSA"). In particular, the State adopted a PSA developed by Defendant the Laura and John Arnold Foundation. The PSA is a data-based method that helps courts assess the risk that the criminal defendant will fail to appear for future court appearances or commit additional crimes and/or violent crimes if released pending trial. After scores are assessed, a decision-making framework proposes pretrial conditions to manage the risk. Although the trial judge must consider the PSA scores and pretrial conditions recommendations, the court makes the ultimate decision on conditions of release or detention after considering a variety of factors besides the PSA.
The Complaint alleges that in the first six months of 2017, New Jersey courts granted 3,307 motions for pretrial detention and approximately 18,000 individuals were released on non-monetary conditions…. Plaintiff claims that on April 5, 2017, Jules Black was arrested by the New Jersey State Police and charged for being a felon in possession of a firearm. Plaintiff alleges that Black was released on non-monetary conditions the following day because he had a low PSA score. Three days later, Black allegedly murdered Christian Rodgers. At the time of his death, Rodgers was 26 years old and is survived by his mother, Plaintiff June Rodgers, who brings this lawsuit both individually and on behalf of her son….
The New Jersey Products Liability Act (PLA) requires plaintiffs suing under the PLA to prove "by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it[:]
"a. deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or
"b. failed to contain adequate warnings or instructions, or
"c. was designed in a defective manner."
The Restatement (Third) of Torts includes in the definition of product non-tangible items such as "other items":
"For purposes of this Restatement: (a) A product is tangible personal property distributed commercially for use or consumption. Other items, such as real property and electricity, are products when the context of their distribution and use is sufficiently analogous to the distribution and use of tangible personal property that it is appropriate to apply the rules stated in this Restatement. (b) Services, even when provided commercially, are not products. (c) Human blood and human tissue, even when provided commercially, are not subject to the rules of this Restatement."
The Court finds that the PSA is not a product as defined by the PLA. It is neither a tangible product or a non-tangible "other item" as contemplated by section 19 of the Restatement of Torts and it is not distributed commercially. The Court has considered Plaintiff's argument that the PSA, as a matter of policy, should be considered a product analogous to approaches of the First and Fifth United States Court of Appeals, which are "moving toward liability of technological systems." Plaintiff's arguments are misplaced, however. Plaintiff cites Lone Star Nat. Bank, N.A. v. Heartland Payment Systems, Inc., 729 F.3d 421 (5th Cir. 2013) (whether economic loss doctrine barred negligence claims against a bank that had its security software breached by computer hackers), and Patco Constr. Co. v. People's United Bank, 684 F.3d 197 (1st Cir. 2012) (whether a bank's security procedure was commercially reasonable under the UCC), neither of which are products liability cases.
Rather, the PSA constitutes information, guidance, ideas, and recommendations as to how to consider the risk a given criminal defendant presents. The PSA essentially is a nine-factor rubric that uses "information gathered from [an eligible defendant's] electronic court records" to "measure the risk [he or she] will fail to appear in court and the risk he or she will engage in new criminal activity while on release," in an effort to provide New Jersey judges with objective and relevant information that they can use as one factor—among several—in making decisions about pretrial-release conditions. As such, the PSA does not "thwart" the role of judges and prosecutors, as Plaintiff contends.
Under the First Amendment, information and guidance such as that reflected in the PSA are not subject to tort liability because they are properly treated as speech, rather than product. See Restatement (Third) of Torts § 19 cmt. d (noting that courts "express[ ] concern that imposing strict liability for the dissemination of … information would significantly impinge on free speech"). Accordingly, Plaintiff's claims of products liability fail at the outset.
While the Court need go no further, Plaintiff also has failed to plausibly allege proximate causation required for products liability claims. Importantly, the discretionary decision of a judge on whether or not to detain an accused individual, in every case, creates an obstacle for finding proximate cause. By New Jersey statute, the judge is required to consider many different pieces of information in addition to the PSA score; the judge then has complete discretion to reject the recommendation to which the PSA contributes. That is, the PSA does not supplant judicial decision making but merely informs a judge's decision of whether to release or detain a defendant pending trial. This obviates Plaintiff's argument that the PSA was defective in that it omitted risk indicators of firearm possession and sex-crimes….