The Volokh Conspiracy

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The Volokh Conspiracy

Environmentalism

Property In Ecology

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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.

In conjunction with the Property and Environment Research Center in Bozeman, Montana, we hosted a interdisciplinary colloquium on "Property In Ecology" at the Case Western Reserve University School of Law. The papers from this colloquium have just been published in the Natural Resources Journal. 

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.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

12 responses to “Property In Ecology

  1. Is it wrong of me, that when somebody says, “Property in ecology”, i hear, “Property in other people’s land.”?

    1. Water rights can work that way, so it’s not particularly crazy.

      1. When what you do on your property affects what people can do on their property, SOMEBODY’S property rights are going to be curtailed.

        Did nobody read the Property textbook far enough to get to the chapter on “nuisance”?

  2. You would do well to look at how the so-called “North American Model” of fish and game management has worked out over the last 120 years. Hunters and anglers have skin in the game – the quarry they pursue and, because of the quarry’s existence, the sports they love – and in large part the management is paid for through their license dollars (and excise taxes on their equipment – a tax hunters and anglers asked the government to impose specifically to facilitate scientific management). Having skin in the game, they are both the strongest advocates for effective management and the loudest voices about whether management is being effective. To be fair, sometimes the ones who are loudest are also the least informed, but they do care. By having professional, scientific management to benefit quarry species, non-quarry species also benefit because they inhabit the same habitats the quarry species do.

    This stands in contrast to the privatized management which takes place in European countries – different models in different countries.

    Here, everyone benefits from our management model. In Europe, the benefits are more limited, accruing more to the owners. In that model, the owners have the incentive to make more profit from their position, exploiting the resource and managing for profit. Here, since the managers largely do not stand to profit, they manage more by science than balance sheet.

    Of late, there have been bills introduced in many state legislatures, largely sponsored or furthered by Big Ag and/or the relevant Farm Bureaus, all of which have been aimed at privatizing the heretofore public resources of wildlife and turning hunting and fishing into a profit-making enterprise. They usually come at it obliquely, stressing property rights and trying to change existing laws governing posting of property, but the objective remains: privatizing a public resource and turning it into a profit center. This has been, to say the least, controversial and contentious.

    I do not know whether the North American model can be extended to the entire “Ecology” (whatever is meant by that), but as a lifelong hunter and angler, I’m sure glad I live here and can both enjoy the fruits of this model and participate in the management, too.

  3. Sigh. I love the hint of private property rights instead of government regulation. But what the hell does “property-based institutions” mean?

    1. It’s not necessarily “private” property that would help, but any form of property rights. Without a commons you won’t see the widespread depletion that’s occurred frequently in the past.

      Right now much of the natural world we’re trying to keep “pristine” is exploitated by people who don’t have to care: slash-and-burn tribes, poachers, over-fishing, and over-hunting. This is especially common in nations that don’t or didn’t have strong property rights: USSR, Indonesia, Malaysia, isolated SA tribes, and corrupt African nations are examples. Much if it is held publicly here but it is still owned and reflected as such.

  4. Whale populations might have done better than they did if the stocks or rights were owned by somebody, private or not. As it was, there was little incentive in keeping track of them outside of season, allowing the Soviets plenty of time to deplete them for little economic benefit. Tragedy of the commons.

    1. Whale populations might have done better than they did if the stocks or rights were owned by somebody, private or not.

      “Might” being a key word here. A standard problem in introductory finance is, “when do you cut down a tree?”

      Answer (given some oversimplified assumptions): When the tree’s expected future growth rate is less than what you can earn by selling the lumber today and investing the proceeds.

      So it would be with whales. If the value of your whale herd is not going to grow faster – if the whales are not going to procreate faster – than the return on selling them now you won’t bother maintaining it.

      I’m no expert, but I don’t think that happens.

      1. Whale carcasses go bad quickly. Soviet whalers were just looking as possible to meet quota; they didn’t actually have much value (most rotted) and they illegally harvested whales (depleted species, calving mothers, calves) that other nations’ whalers deemed more profitable to leave alone. Almost all of the late 20th century whale decline was due to Soviet quotas.

      2. It worked for North Pacific seals, which were hunted by the same nations and in similar manners, so why not whales?

  5. “A standard problem in introductory finance is, “when do you cut down a tree?”

    Answer (given some oversimplified assumptions): When the tree’s expected future growth rate is less than what you can earn by selling the lumber today and investing the proceeds. ”

    Assuming that a tree’s only value lies in lumber. Out here in the west, the timber companies that were used to extensive subsidies from the government got a little put out when the federal government began taking considerations for the value of timberlands as other than standing lumber, and took public lands to use for recreation, and some for natural habitat, instead of selling the trees as lumber to be extracted. Some of the timber companies actually had to start paying market price for raw timber!

    1. That’s one reason I specified “oversimplified assumptions.”

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Democracy

Why We Shouldn't Treat Survivors and Victims as Authorities on Policy Issues

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.

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Kyle Kashuv speaks at an NRA convention.

Over the last few days, controversy has raged over whether Harvard University was right to rescind the admission conservative activist Kyle Kashuv after the discovery of racist comments he made in an online Google Doc in 2017-18. almost everyone else who has commented on the issue, I am divided in my own mind on the question of whether Harvard made the right decision. But, whatever we think of the rescission, it is worth noting that Kashuv became famous in the first place because he was a survivor of the horrific Parkland school shooting, and became an activist on gun rights issues as a result. If not for that history, there probably would be far less controversy over Harvard's decision. The origin of Kashuv's fame highlights a troubling aspect of modern political discourse.

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:

[R]ecent gun control protests draw moral authority not only from the age of the protesters, but from the fact that some of their leaders are survivors of school shootings, such as the one in Parkland, Florida that precipitated the current round of protest activity. Even school-age protesters who have not personally experienced gun violence may be seen as having special moral authority, because they are perceived as facing a heightened risk of suffering such horrible events in the future. In reality, school shootings are extraordinarily rare, and schools are among the safest places in American society. Schoolchildren are far more likely to be killed in accidents while walking or riding their bikes to school than in a shooting at school.

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.

UPDATE: In the original version of this post, I said Kashuv made his racist comments last year. In fact, some of them date back to late 2017, while others did indeed occur early last year. I apologize for the oversight, and have modified the post accordingly.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

71 responses to “Why We Shouldn't Treat Survivors and Victims as Authorities on Policy Issues

  1. I can’t believe this lack of self-awareness from Somin, who let’s us know every opportunity (it seems) what we can learn from survivors of Communism.

    1. I feel like that’s different, because what’s learned from the survivors of Communism is how bad it really is, and what happens with Communism. Not how to necessarily change it.

      For example, with school shooting, no one is arguing “well, maybe we should try school shootings.” Or “Well, they didn’t really do school shooting right in the past, if we do a school shooting this way, it’ll work better and everyone will be better off”. Or “That wasn’t a real school shooting, no one’s quite done real school shooting, and we can do it Right this time”

      1. “no one is arguing ‘well, maybe we should try school shootings.’ Or ‘Well, they didn’t really do school shooting right in the past, if we do a school shooting this way, it’ll work better and everyone will be better off'”

        Not quite true on that second one. One popular approach to talking about school shootings is how different they’d turn out if all the teachers were packing. (Fantasy answer: the good guys shoot the bad guy(s) dead right after the shooting starts, reducing the number of victims. More realistic answer: The good guy(s) with the guns get shot first when the shooting starts, then the bad guys pick off their real targets at their leisure.)

        1. You’re being stupid again.

          1. Sorry to intrude on your turf.

            1. It’s all you buddy. Always has been.

        2. That common “retort” is not backed by any evidence.

          1. “That common “retort” is not backed by any evidence.”

            You’d have to be AMAZINGLY stupid to believe this. It’s you, so you probably do.

        3. “More realistic answer: The good guy(s) with the guns get shot first when the shooting starts, then the bad guys pick off their real targets at their leisure.”

          Yup. Stupid cops. They would have a much easier time disarming mass shooters if they were unarmed.

        4. “The good guy(s) with the guns get shot first when the shooting starts, then the bad guys pick off their real targets at their leisure.)”

          Really, that’s what happens? Then surely, you’ve got sources you can cite, because having a gun in a gun fight seems like a better option than being unarmed.

      2. No one is arguing we should try Communism either, just people calling increasingly ridiculous things socialist and therefore Communist.

        1. Yeah, like Presidential Candidate Bernie Sanders praising socialist Venezuala. How’s that going now?

        2. Good thing nobody’s doing that with Nazism or fascism. Or “concentration camps”.

  2. The difference is that Kashuv isn’t just a victim. He became interested in 2A because of his experience and is fashioning himself into becoming an expert. He isn’t the strongest voice for gun rights, but he’s useful for a counter-narrative. A lot of anti 2A people think we’re gun nuts who, if exposed to the “violence” our 2A creates (absurd notion, but give them the benefit of the doubt) would immediately hate guns and support repealing 2A. Kashuv isn’t the only Parkland student or parent that supports 2A and so his rise to fame was primarily reactionary to get sniveling leftists to shut the fuck up about their appeals to emotion. 2A supporters are waking up and starting to weaponize the tactics of communists against them. Anti 2A doesn’t own the emotional narrative anymore and Kashuv does a great job destroying their arguments.

    1. But if he weren’t a victim, he’d be just another kid with an opinion. No special platform or attention no matter how much expertise he’s developed.

      I agree that Kashuv is useful as a counter to the opposition’s appeals to emotion – but in an ideal world, we wouldn’t be making those logical fallacies in the first place.

  3. There is a basic problem with Ilya’s view, and that he looks at this issue in a black and white manner.

    A victim of an event is much more likely to be motivated to research and understand the causes of that event. Therefore, they are more likely to have something important and interesting to say about its causes. Now, it is entirely possible and even likely that the person’s preferred policy prescriptions are incomplete and flawed. But in that way, they are like 100% of the population.

    I do not think we should defer to the views of victims. But, I also think that we should not defer to the views of “genuine experts” either. A person can be a genuine expert, but their policy views are likely to also be influenced by their ideology. So, if you blindly defer to them because of their expertise, you are also implicitly deferring to their ideology.

    The problem here is not one of deferring to victims, but one of deferring to anyone. It is in essence, a problem of political ignorance. If someone is ignorant about an issue, they are much more likely to wrongly defer to a genuine expert or a victim. In the case of the genuine expert, because of their ignorance the person is less likely to be able to distinguish aspects of the policy proposal that are derived from expertise versus what is derived from ideology. And in the case of a victim, the emotional appeal is very strong. If you don’t know what you want to eat for dinner, someone with a very passionate preference is likely to get their way and you will be fine with that. A person who is politically ignorant is like a person who doesn’t know what to eat for dinner.

    The real problem is not listening to victims. We should continue to do so. I say this as someone who thinks that the vast majority of the Parkland survivors are generally wrong on gun policy. We listen to others because we can learn something from them, even though their views are incomplete and have flaws. Victims do bring a different view to the table. And if you aren’t politically ignorant (you know what you want to eat for dinner), then the chances of victims distorting the public debate are much lower.

    In general, this counsels against making sudden decisions after a tragic event. It does not counsel to not listen to victims.

    1. I was about to reply that climate change should be turned over to engineers to solve. But on second thought, your words:
      “The problem here is not one of deferring to victims, but one of deferring to anyone.” were wiser.

      But the system does not work by wisdom. He who holds the bully pulpit dominates and influences regardless of his reason for being there.

    2. “A victim of an event is much more likely to be motivated to research and understand the causes of that event.”

      More than whom? The general public? We wouldn’t answer policy questions by asking strangers on the street in the first place.

      The main problem with listening to the victims is that they are more likely to be emotionally attached to the issue. Their interest results from an event in which they cannot separate themselves.

      But you’ve already answered the issue. If a victim is motivated to research the issue… what are they researching? Subject matter experts. And subject matter experts are not likely to be biased about it in the way that a victim is. You wouldn’t ask the survivor to tell you the answers, you’d just look for them wherever you think the survivor is going to gather his “research and understand[ing]”.

      1. ” We wouldn’t answer policy questions by asking strangers on the street in the first place.”

        Many politicians are highly responsive to polls. How is that different?

        1. It’s not. But we’re having a discussion about who people should listen to. Do you think education policy re: creationism should chase public polls? If a majority of general public takes up flat-earthism, should we decide aviation policy on that basis?

          This entire post is about authority. Do you think strangers on the street are authorities on any particular subjects, besides what foods they prefer, for example?

  4. Just FYI, the “awful racist comments” of Kyle Kashuv consist of some trash talking on a Google doc with his other 16-year old friends. They are much less worse than the average rap music song, tens of millions of which are in distribution.

    1. How many rap singers are accepted into Harvard? All of them, right?

      1. How many rap singers are accepted to Harvard, then have the acceptance rescinded because of their lyrics?

        Can you imagine the outrage?

        Should Obama be banned because he used racially sensitive words, and have his degree from Harvard revoked?

        1. “How many rap singers are accepted to Harvard, then have the acceptance rescinded because of their lyrics?
          Can you imagine the outrage?”

          I imagine the outrage would be different depending on which half of the question is causing the problem. But none of it will be MY outrage, because it’s still none of my business.

          1. Oh yeah, there was mad outrage when LL Cool J went to Harvard.

            Oh wait.

            1. “Oh yeah, there was mad outrage when LL Cool J went to Harvard.”

              Which one of his songs is the one with all the N-words in it, again?

              I only know “Mama said knock you out”, which has approximately zero.

              1. Shift them goalposts some more.

                1. They’re, uh, not my goalposts.

                  1. They became yours when you shifted them.

                2. You’re the one complaining that rappers get to use the word without being punished for using it.

                  Asked to name one of these rappers, you offered LL Cool J. So, when and where was he using the word I’m supposed to be outraged about?

                  That’s YOU being squishy, not me. Either point to the person who got in despite using offensive racial epithets, to admit you can’t, ‘K? Pointing out that you can’t isn’t “moving the goalposts”. It’s asking you to observe the goalposts you set up.

                  1. I mentioned Lyrics. You shifted them, saying you didn’t know any and demanded certain words.

                    But here, I’ll meet your shifted lyrics.

                    “Back Where I Belong.” Look it up.

      2. I should hope that Harvard is a little more careful than Michelle Obama:

        Michelle Obama’s Promotion of Misogyny and Date Rape

        Quote:
        Michelle and Barack Obama have openly promoted rap artists who glorify misogyny, sexual objectification of women, and even date rape… In April 2016, the Obamas invited numerous rap artists to the White House … including:

        * Rick Ross’s, “U.O.N.E.O.” glorifies date rape with the lyrics, “Put molly all in her champagne/ She ain’t even know it / I took her home and I enjoyed that/ She ain’t even know it.” .. Ross’ “Same Hoes” is meanwhile not about agricultural implements as shown by its lyrics, which consist primarily of the F word, a variant of the N word, and “hoes.”

        * Jay Z, who proclaims, “I’ve got 99 problems and a b***h ain’t one.”

        * Nicki Minaj: “Hey Mama,” “Make sure mama crawls on her knees keep him pleased rub him down be a lady and a freak” and also “Yes I do the cooking/ Yes I do the cleaning/ Yes I keep the nana real sweet for your eating/ Yes you be the (boss) yes I be respecting.”

        1. Changing the subject so fast, eh?

        2. “* Jay Z, who proclaims, ‘I’ve got 99 problems and a b***h ain’t one.’”

          It’s good to know that his dog is well-behaved.

        3. Really? This is the best you’ve got? 99 Problems is hardly some offensive song. In fact, I’ve heard of law professors using it to teach or test CrimPro. And I have no idea what your objection to Nicki Minaj’s lyrics are. Sure, wouldn’t play it for my 8-year-old, but not worth clutching pearls over.

          Also, I read the lyrics to “Back Where I Belong.” If you think those are bad, it’s best you stay off the internet and near your fainting couch.

  5. Granted victims shouldn’t be treated as authorities, but I do hope you’re aware that reasonable principle isn’t why his invitation was rescinded by Harvard. It wasn’t even an element of why it was rescinded. Likely neither were those comments they unearthed.

    They would have rescinded an invitation to basically anybody on that side of the issue, it was all viewpoint driven. “Oh, he’s a gun rights advocate, we’ll shut him out. Now, what excuse to use…”

    1. The only problem with accepting your paranoid delusion is that he was a gun rights advocate when he was initially accepted. If they wanted to keep him out for being a gun rights advocate, they would have just not admitted him, and he’d be one of thousands of people who applied for, but were not accepted for, admission to Harvard. Instead of that guy who got his ticket pulled.

      I’m sure he can EASILY get an education every bit as effective and respected as what he would have gotten at Harvard at any of the schools where being on your side of the gun rights issue is considered a positive attribute.

      1. They kept him out because a mob showed up and demanded he be kept out. And the reasons they gave, which were pretextual (though certainly harmful to him), were sufficiently offensive to a sufficient number of people that others pre-disposed to disagreeing with him would be able to bludgeon Harvard with it. So Havard made a calculated decision to rescind his offer.

        Had a mob not showed up (say some administrator happened to come across this page without being alerted to it), I doubt they would have rescinded the offer. Harvard can’t police everyone’s prior comments and doesn’t want to set a double standard. But it’s hard to argue with a mob.

        The problem is, empowering the mob just encourages more of them to develop. Now the game is to find someone on your side who said something the pro-gun mob can use as good pretext to get someone you like. At that point, you’ll try distinguishing that situation from this one. So will the liberal administrators, who will need to calculate whether the risk of angering the left is greater than the risk of looking like Harvard has a double standard.

        And around and around we go.

      2. Paranoia is the perpetual cry of bullies who feel entitled to have their victims not learn from experience.

    2. He wasn’t shut out for being conservative. There are conservative student groups at Harvard.

  6. I’m not quite with you on this, Professor Somin.

    Policy should be informed by the experiences of people who witness, or are the victims of horrific events. Their insights should not be controlling, but they’re at least potentially more valuable than what “average Joe” has to say on the subject.

    As an example, let me address the other issue you tangentially referred to. I don’t have to care whether Harvard made the correct choice in rescinding his acceptance, because that’s Harvard’s decision to make and not mine. But if I was going to try to resolve it, I would probably put more credence on the stated opinions of Harvard students, past and present, and Harvard faculty and management, past and present, over the opinions of someone who didn’t attend Harvard or interact with the student body.

    1. Why? I don’t see an argument here. You say “average Joe” should count less than a survivor, then offer as a supporting “example” your own conclusion that you care less about average Joe than Harvard students re: Harvard policy. Besides the fact that the analogy is broken, your argument needs work.

      1. I say “average joe” should count less than someone with direct experience, and then offer an example where I apply this rule.

        You couldn’t follow? Hint: you complained about the analogy, and there isn’t one– just a direct application of the stated rule.

        I think you’re confused.

        1. Offering an example of you applying a rule you created is not an argument. An argument would be: “Other people should adopt my rule because [reasons].”

          1. “Offering an example of you applying a rule you created is not an argument.”

            Oh, noes!

  7. “It is worth noting that Kashuv became famous in the first place because he was a survivor of the horrific Parkland school shooting, and became an activist on gun rights issues as a result. If not for that history, there probably would be far less controversy over Harvard’s decision.”

    On the contrary: if not for Kashuv being a gun rights activist, the racist material would not have been leaked and we wouldn’t know his name. How do I know? Because we don’t know the names of the other immature teenagers who were participating in the racist Google doc incident–only Kashuv.

    This is the same sort of argument that has been bandied about to criticize the DOJ’s decision not to charge President Trump eith obstruction of justice; “he would have been charged, had he not been president!” No… if he wasn’t the president there would never have been an investigation into whether he obstructed justice by trying to have the U.S. Attorney General fire a special prosecutor.

    1. It is unsurprising that public figures demand more attention from the public than people who are not public figures. Did you think this was a big revelation?

    2. “if he wasn’t the president there would never have been an investigation into whether he obstructed justice by trying to have the U.S. Attorney General fire a special prosecutor.”

      Well, duh. If he wasn’t the President, he wouldn’t have had the ability to obstruct justice.

  8. Professor Simon,

    Dare I point out that you yourself and your family are survivors of the Soviet system? And that this fact in many ways colors your thinking, distorts your instincts, and makes you tend to associate anything that seems even remotely socialist with evil and tyranny?

    The fact is there are a lot of countries whose people say they have better quality of life than the US on average, that are somewhat to the left of the United States.

    1. I have never used that fact as a source of authority on public policy issues, including even those related to socialism. My commentary on those issues relies on my actual professional expertise on law and public policy.

      1. Prof., here is a direct quote from your last post about Victims of Communism Day

        “Victims of Communism Day can serve the dual purpose of appropriately commemorating the millions of victims, and diminishing the likelihood that such atrocities will recur.”

        If that’s not advocating for listening to the victims in so many words, that what is?

  9. Should have gone antigun like Hogg and then he could skate by even with abysmal scores. Now because he opened his fat mouth in favor of gun rights they started looking for an excuse to kick him.

    1. abysmal scores

      Making some assumptions about Hogg, and I guess the opposite about Kashuv, eh?

      Gotta keep that ideology clean from messy reality, I guess!

      1. From the NY Post: David Hogg, 17, has so far been rejected by four University of California campuses — UCLA, UCSD, UCSB and UC Irvine, he told TMZ.
        According to the UC site, a minimum 3.4 GPA is required for non-California residents to get in. The Florida teen has a 4.2 GPA and an SAT score of 1270.

        A score of 1270, puts him in the 88th percentile.

        Yet somehow that schmuck gets into Harvard? Just good luck I suppose.

  10. It was a mistake on Harvard’s part. A private document, from a 16 year old, using a racially inflammatory word, not directed at anyone of the skin color, that is nonetheless heard commonly in popular music. A word that the President of the United States used in public. But one that the child cannot. And in fact, if the child’s skin was a different color, there would be no issue.

    If a child cannot repeat a word in private, without consequences that the President of the United States uses in public, what have we come to as a nation?

    1. You really playing from the ‘why can they say that word but we can’t’ playbook?

      1. When the President of the United States uses the word in public, what are children supposed to think? He’s an example. A leader.

        Or are children supposed to evaluate the words people speak based on the color of the skin of the person who says them? Is that the lesson you want to teach out children? “He’s black, so he can say this and do this. She’s white, so she can’t do what the black man does”

      2. Are you really advocating racial discrimination in what people are allowed to say?

    2. ” using a racially inflammatory word, not directed at anyone of the skin color, that is nonetheless heard commonly in popular music.”

      “but they do it, too!” is not an excuse for wrongdoing.
      Your mother should have explained this to you no later than when you were 10.

      1. We learn from our elders and leaders.

        And if our leaders are throwing the word around in public discourse, and it’s not considered wrong, what are the children to think?

        1. “what are the children to think?”

          “but they do it, too!” is not an excuse for wrongdoing.
          Your mother should have explained this to you no later than when you were 10.

  11. Academia are enemies of the West. Once the new civil war, which will largely be a race war, starts, I’m looking forward to patriots bulldozing Harvard’s campus

  12. “If not for that history {of Second Amendment advocacy}, there probably would be far less controversy over Harvard’s decision.”

    If not for that history, the racist comment would never have come to light in the first place.

  13. 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.

    True enough. But it does give you a moral advantage over gun nuts who evince complete disinterest concerning whether mass shootings happen or not. Comparatively speaking, if I am looking to find a proxy for insight, I will choose the guy with moral advantage ahead of the guy who doesn’t care, every time.

    1. That is silly. No one I have heard of denies that school shootings do and have occurred. The issue in my mind is the relative danger. We are in drowning in mop bucket territory here, with the annual death toll in a country of more that 300 million of single or low double digits for school shootings a year, on average. Kids in this country are probably more likely to be hit by lightening than to die in a mass school shooting. If a school aged kid is going to die from gun violence, it is far more likely from a drive by or gang related shooting out f school.

      1. QED, Bruce. I didn’t say, “doesn’t occur.” I said, “doesn’t care.”

        That seems to be you. Even about the kinds of gun violence you say are worse, you don’t seem to care. You only mention gang shootings to justify ignoring school shootings.

    2. You only claim “doesn’t care” is because they disagree with your suggestions. There have been many suggestions from the pro-gun side including greater campus security, better tracking of police interactions with at-risk students & some improvements to mental health systems.

    3. You’re a fool. It’s not that we don’t care, it’s that we don’t think banning all guns (because that’s obviously what the left desires) is a worthwhile tradeoff to end the rare mass shootings, even accepting the assumption that such a ban would lead to that end.

    4. Our beautiful daughter died after aspirating a peanut. We joined a group for survivors, and we’re trying to pass some common-sense laws to prevent tragedies of this sort.

      Unfortunately, Big Legume is fighting our efforts in order to protect their profits. Their efforts are abetted by peanut fanatics who don’t care about the suffering of families like ours, and who insist that their so-called “right” to salty snacks is more important than the lives of our children.

  14. Now please do movie stars who testify before congress bc they played a part in a film and think that makes them an authority.

Please to post comments

Supreme Court

The Court Swims in Political Seas

Constitutional law is made by a politically constructed institution

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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.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

104 responses to “The Court Swims in Political Seas

  1. “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. ”

    I think “putatively” is the wrong word here, “covertly” might be more to the point. The Court will ‘defy’ Congress by imposing policy choices a faction in Congress privately support, but have to lie about to avoid democratic consequences. That faction then publicly acts to oppose the Court, but takes care to do so ineffectually.

    Thus Congress’ actual intent is accomplished, without suffering the consequences of the voters knowing it.

  2. “filters out those who are likely to be dramatically at odds with the political leaders who assemble victorious electoral coalitions.”

    Somehow the filter doesn’t work for half of GOP picks.

    The Supreme Court generally represents the value of the modern Eastern Establishment, which is hostile to conservative values. Insular and tribal, all coming from the same metropolitan areas, attending the same schools and following the same career paths.

    1. “Somehow the filter doesn’t work for half of GOP picks.”

      Ever considered that about half the GOP political leaders are lying to us about what they really want?

      1. Dang RINOs.

        Or are we talking about CINOs now?

        1. Lying != RINO

          RINO implies they’d be a better fit with Democrats. Lying implies they’d do whatever for personal gain.

          1. Elected RINO often equals lying, though.

    2. So you want . . . diversity!

      You good with a transgender Muslim who follows Sharia law?

      Or does your definition of diversity mean not so many elitist Ivory Tower types and instead more Bubba types?

      1. Well, transgendered means an extremely delusional person so no to that.

        “not so many elitist Ivory Tower types and instead more Bubba types?”

        “Ivory Tower” or “Bubba’. Um, I think there might be some middle ground despite your prejudices.

        Except for Ginsburg’s final year at Columbia, every justice [including her] went to Harvard or Yale. I think we can find at least one or two qualified lawyers who attended a [gasp] state school.

        1. Backwater Bob embraces the Hruska approach to merit and mediocrity.

          (Note for victims of parochial education: former Sen. Roman Hruska.)

      2. To be precise, transgender does not fit into sharia law. Nor does homosexuality, if you want to go there.

        1. To be even more precise, Iran is a center for transgender surgery. What isn’t clear looking in from outside is how many of those “transgender” people are gays who got caught and are facing execution.

  3. Are you implying, Gaea-forbid, that the Chief Justice was dissimulating when he said that judges rise above politics and their personal biases?

    1. There’s a lot of space between robotic umpires and full-on legal realism.

      1. Yes, the space is about the width necessary for policy making by judges and backwashing the legal reasoning later. An inch or a mile, it doesn’t matter.

  4. Maybe we – both within the legal profession and in the political sphere – need to stop treating the Court as a super-legislature that is authorized to override the policy decisions of the legislative and executive branches.

    Maybe we should start treating the court as a co-equal branch of government and not a group of philosopher kings.

    1. Co-equal or not, someone has got to have the final say. If it’s not the Court, you’re throwing the interpretation of Constitution to the political branches. How do you think that would go for the Bill of Rights?

      1. If someone “has got to have the final say” then the branches are not co-equal.

        The court overruling the President and a majority of both houses of Congress should be just as absurd as the President ignoring the Court and Congress, assuming the branches are co-equal.

        The biggest consequence of treating the Court as the final arbiter of the Constitution is the abrogation of that responsibility by both the Executive and Legislative branches. See, e.g., Speaker Pelosi’s “comments” regarding Congress’ authority to pass the Affordable Care Act.

        Maybe if the Court were a bit more circumspect when it comes to defining what the Constitution requires then there would be less of a battle over control of the Court.

        1. The alternative to finality is that there is never a final validated policy, as the branches go back and forth forever. Unless you can think of some other indicia of finality that is not institutionally based.

          Of the three branches, only one is chosen from practitioners with their views about the Constitution as a primary metric of vetting. And only that one is insulated from the demos, as the Bill of Rights insulates certain policy areas.

          Your threat that ‘maybe if the Court were a bit more circumspect…’ doesn’t say anything nice about your stand being principled versus sour grapes.

          1. “The alternative to finality is that there is never a final validated policy, as the branches go back and forth forever.”

            Yes, nothing wrong with that. I note that the courts can change their minds too.

            You like judicial supremacy because since FDR, your side has vastly bennefited with few losses.

            1. Takes a lot for a Court to change it’s mind. Just as designed.

              I like the Supreme Court being final for the reasons I outlined above. Reasons that are outcome-neutral. Unlike your counterargument.

              That your arguments against are based on partisan outcomes tells more about your motives for your position than it does about mine.

              1. “Reasons that are outcome-neutral. ”

                Sure, sure. Easy to say you are high minded when you are on a long winning streak.

                Let’s see how you react if Trump replaces Ginsburg.

                1. I hope Trump/McConnell replace Ginsburg next year, during the election cycle, just for that extra bit of sauce on top.

                2. You think I’m thrilled with our current state of jurisprudence?

                  Just because I don’t constantly whine like you doesn’t mean I agree that your side is ever the loser.
                  Death penalty. Abortion squishiness. 4th Amendment shenanigans. Voting rights. Union rights. Antitrust anemia. Lotsa stuff could be better.

                  But just because not every Justice is Brennan, I’m not going to insist that the Court is bad and should be neutered for standing in my way.

                  1. I get some of those points (death, abortion, 4th amendment), but what do you mean about voting rights, union rights, and antitrust?

                    1. A portion of the Civil Rights act that required states to check in, for lack of a better way to put it, with the Feds was struck down, pretty much on the justification that “it’s not 50 years ago” (never mind most of the law itself was a mistake). Further, the court decided that you have a first amendment right to not participate in a union (weaponized free speech as the leftists would say).

                      As for antitrust, some case or another where women had to file more timely suits against employers for supposed pay discrimination. Or was there another one Sarc?

                    2. *Voting rights Act, not Civil Rights Act.

                    3. More or less, m_k. I was trying not to specify specific cases and keep it issue-based, but I think you’ve found what I was hiding.

          2. only one is chosen from practitioners by the political branches with their views about the Constitution as a primary metric of vetting

            This is a way for the political branches to entrench their political views for the life of the chosen candidate.

            This is not necessarily a positive thing. I’m not in favor of a technocracy, especially a political technocracy. I doubt most Americans, if given the choice, would be either.

            Your threat that ‘maybe if the Court were a bit more circumspect…’ doesn’t say anything nice about your stand being principled versus sour grapes.

            I say this as someone who recognizes that there are Supreme Court decisions that are made on both sides of the political aisle. I don’t think either side deserves to have their political views enshrined as permanent law untouchable by the political branches, whether that represents gun rights, free speech, abortion, or quartering of soldiers in my home.

            I’d also note that (currently) only one side of the political aisle believes that there’s value in advocating for packing the court with ideological purists. That may change in the future.

            1. First, you are assuming the only thing Justices do is make policy out of whole cloth. Which is a pretty extreme view to take. And even if it is correct, it’s not a perfect way of entrenchment, as Justices have been proven time and time again to contain multitudes. That’s what the system of advise and consent relies on in fact.

              You seem to be advocating against the Court by going against policy consistency, because that allows too much dead-hand policymaking. Which is a fair point – except when it comes to the Constitution. I’m no originalist, but the Constitution’s steady consistency is definitely more feature than bug.

              I don’t think either side deserves to have their political views enshrined as permanent law untouchable by the political branches, whether that represents gun rights, free speech, abortion, or quartering of soldiers in my home.
              Sounds like you don’t want a Bill of Rights at all then…?

              1. First, you are assuming the only thing Justices do is make policy out of whole cloth

                I’m not sure where you read that, but it wasn’t in any of the comments I posted on this post. There are plenty of legitimate areas where the court is necessary. I just don’t think enshrining political policy is one of them.

                Sounds like you don’t want a Bill of Rights at all then

                Someone might have said that, but it wasn’t me.

                I think the court can get things wrong sometimes, and therefore shouldn’t be the “final authority” on policy decisions. That includes things like the Bill of Rights.

                Maybe “hate speech” laws should be allowed under the 1st Amendment. Maybe Citizens United was wrongly decided, or Employment Division v. Smith. In my opinion leaving it to the court to decide whether, or when, to correct these “mistakes” is a bad idea.

                1. So your discussion of how policies about quartering soldiers not being enshrined away from the political branches wasn’t about the Bill of Rights?

                  Then in your next comment, you put up some rights that you think are good, and argue that the Court is bad because it could go back and change it’s mind.
                  As if getting rid of the Court that recognized those rights would somehow protect them better?

                  You’re all over the map about what the evil you’re purporting to combat even is. The existence of areas that the legislature can’t touch? The obliteration of areas that the legislature can’t touch? Maybe that’s why you are failing to indicate how your purported cure addresses your concerns.

                  1. So your discussion of how policies about quartering soldiers not being enshrined away from the political branches wasn’t about the Bill of Rights?

                    Of course it is. My objection is to you putting words in my mouth. I never said I don’t like the Bill of Rights. In fact, I think all three branches of the government need to have respect for the Bill of Rights, and not pass off that responsibility to the court to decide the issue at its convenience, requiring a litigant with sufficient wealth to take the issue to the Court.

                    Then in your next comment, you put up some rights that you think are good, and argue that the Court is bad because it could go back and change it’s mind.

                    Once again, I object to you putting words in my mouth. I didn’t say I thought the rights listed were good or bad. I said that people might disagree on whether those rights are good or bad and maybe we should have a political debate on those issues. Because instead of a political debate on the scope of the 1st Amendment we’re having a political debate on the make up of the Supreme Court.

                    If we’re having policy debates then the pro-abortion pro-gun rights voter can support the pro-abortion position and the pro-gun rights position. But with the politicization of the court the voter has to choose: do I value federal protection of abortion over federal protection of guns?

                    1. You continue to be muddy. You object that I put words in your mouth even as you say that you agree with the connection I was drawing about the Bill of Rights. Okay, then. And then you contradict said connection in the next sentence. As I said, all over the map.

                      Do you think the political branches are up to the responsibility of defending the bill of rights? Do you think that would make the Bill of Rights somehow more muscular? Because I don’t see how. Indeed, a political debate on the issues is exactly what the Bill of Rights is meant to short circuit when it comes to certain issues. You like it, but also want to take away it’s purpose.

                      The one step remove from direct debate over certain issues to debate over the constituents of an institution is not some bug – it’s a feature. It creates the semi-independence I discussed above. You advocate that we get rid of this layer of protection and throw rights to the political wolves, but don’t really explain why that’s a better option.

                      Indeed, you continue to be hazy as to how your ‘everyone defends the Constitution co-equally’ plan would operate. Above I’ve contrasted the histories and structural and institutional incentives of the three branches. Only one lines up with the charge you want to give all three. The others are not made to be stewards of anything except the public will. Which ignores the many counter-majoritarian things in our Constitution. Including, once again, the Bill of Rights.

                    2. You object that I put words in your mouth even as you say that you agree with the connection I was drawing about the Bill of Rights.

                      My objection is to your comment “Sounds like you don’t want a Bill of Rights at all then”.

                      Do you think the political branches are up to the responsibility of defending the bill of rights?

                      We already have a political branch that has assumed responsibility for defending the bill of rights. Do you think they’ve done a good job?

                      Do you think that would make the Bill of Rights somehow more muscular?

                      I interpret your question to be whether the protections afforded under the Bill of Rights would be more restrictive on government power. I think it would be a mixed bag. On the whole, probably not significantly worse than the protections we have now (and lack thereof).

                      Indeed, a political debate on the issues is exactly what the Bill of Rights is meant to short circuit when it comes to certain issues.

                      Do you think the Bill of Rights was intended to short circuit the political debate over campaign finance? The President’s ability to block someone on Twitter? Gun rights? Abortion? Same sex marriage?

                      You’re sounding like an originalist. Maybe we need more of those on the court.

                      You like it, but also want to take away it’s purpose.

                      Yes, I like it when political positions I support become permanent law and are removed from the political landscape. I also dislike it when political positions I don’t support become permanent law and are removed from the political landscape.

                      Maybe making political positions permanent law is not the right approach. Or maybe we should limit the political positions that get etched in stone by the court.

                      You advocate that we get rid of this layer of protection and throw rights to the political wolves, but don’t really explain why that’s a better option.

                      Because leaving political issues to the political wolves (1) allows people to support issues rather than politicians; (2) allows for the debate and change of political issues as the opinions of the populace change; (3) affords individuals more input on the direction of the country; (4) prevents short-term political interests from becoming a long-term political consequences.

                      you continue to be hazy as to how your ‘everyone defends the Constitution co-equally’ plan would operate

                      Do you think President Trump should be able to enshrine his political positions for the next 50 years? That’s the situation we have today.

                      I don’t. Nor do I want the political upheaval that comes if the next President decides to pack the court (although I think that is very unlikely, since even Democrats can see the consequence of that step).

                    3. It’s telling that every time I ask how your idea would work you come back with a hypothetical parade of horribles about the current system.

                      Bottom line:
                      The way legal rights operate is Congress shall make no law.
                      That’s not originalism, it’s just bog-standard jurisprudence.

                      You want Congress to be the judge of when they shall make no law. Good luck with that.

                    4. “It’s telling that every time I ask how your idea would work…”

                      The same way it works in every country that doesn’t have judicial review over the legislature. But there’s a simpler way, too. jubulent has complained (quite persuasively, in my view) that too many policy questions are decided by the court. The Court could still decide those matters that were obviously off limits (like Corruption of Blood, for instance) but not close questions that have no obvious constitutional answer. Justices on the court have been doing that for centuries. You could have Holmes/Thayer reasonable doubt test to guide justices. Or Brandeis’s use of standing to narrow SCOTUS review. Broaden the political question doctrine (like Frankfurter). Judicial restraint has a longer legacy on SCOTUS than the alternative. Or we could require SCOTUS to have super-majorities to overturn legislatures. This isn’t some unimaginable utopian world. We lived it.

                      “The way legal rights operate is Congress shall make no law.”

                      (1) That wasn’t the compromise. That’s what the BOR says but it isn’t what it meant in 1791, it isn’t what it meant in the 19th century, and it isn’t what it means today. (2) That isn’t even the way SCOTUS has ever interpreted the BOR. So the idea that you need SCOTUS to enforce “Congress shall make no law” is off-base. Congress shall make laws, so long as they pass [judicially invented test that has nothing to do with the BOR]. (3)

                    5. NToJ – you’re arguing by degrees where jubulent is arguing by extremes. Though I think you’re filling in some gaps because I really find his arguments internally contradictory and hazy in their connection to his purported reform.

                      Always hard to forecast my workday, but probably won’t have time to go around about this with you tomorrow. But the subject will come up again, I’m sure. Always happy to argue optimal political structures in defense of the status quo!

                    6. Sarcastr0,

                      I think jubilent introduced the nuance. See:

                      “Do you think the Bill of Rights was intended to short circuit the political debate over campaign finance? The President’s ability to block someone on Twitter? Gun rights? Abortion? Same sex marriage?”

                      If the answers to these questions are “no” then SCOTUS is acting with no more authority than Congress was if the answer was “yes”. Our strange system simply substitutes the political debate over the substantive issues in favor of a political debate over judicial appointments. None of those issues is off limits, but the political process becomes pointlessly attenuated.

                      We can all agree that the Constitution places clear limits on the President and Congress (and SCOTUS). There are plenty of 9-0 SCOTUS decisions.

            2. I’d also note that (currently) only one side of the political aisle believes that there’s value in advocating for packing the court with ideological purists.

              I see Republicans working awfully hard to pack the courts – all of them – with ideological purists.

              So criticizing Democrats for it is ridiculous.

              Wait, I know, all those right-wing nutballs are principled jurists.

              Give me a break.

              1. I’m criticizing Democrats for wanting to expand the number of court seats in order to obtain a political advantage.

                “Packing” is a reference to FDR’s plan to add more justices to the Supreme Court to ensure a favorable majority. This was widely known as the “court packing plan.”

                I’m actually quite surprised that someone who follows a legal blog would be so ignorant of such an important historical event. Are you unfamiliar with the term “Gerrymander” as well?

                1. I know all about it, jubulent.

                  But there are lots of ways to pack courts with ideologues to obtain an advantage, which is exactly what the right is doing. One method is no better or worse than another.

                  1. But isn’t that the normal way? Every party “packs” in judges when they hold both the Senate and Presidency, and then are forced to be more moderate when they’re split.

                    You’d have a useful point of the Republicans are expanding the number of Circuit Court judges (and if they are, then I’m ignorant about it so please enlighten me). Only one party (now) is talking about doing that explicitly so that they can lock in control on an institution.

        2. I rather doubt that the president or Congress would give a shit about keeping within the limits of the Constitution if we removed judicial review, given that the SC has given virtually free reins to both in certain areas (identical to no judicial review) and the two branches have not changed their behavior.

    2. Make the judiciary the “least branch again”! I want a red hat that says MJLBA in white lettering. If asked, I will start quoting Federalist 78 and Bickell.

      1. *least dangerous branch

        heh.

  5. “as presidential candidates lie through their fucking teeth about plans to reform the Court so that it will be less political”

    FTFY. The idea that it is about making the court less political is farcical on its face.

  6. I have the solution: constitutional amendment to change Art III, Sect 1, first sentence, the word “supreme” to “federal.”

    Seems like a lot of people see “Supreme Court” and get either googly-eyed or wobbly-kneed.

    But seriously, government is always imperfect (and I really should say people are imperfect).

    We’ll tweak our government sometimes and things will swing left↔right and that’s all right.

    But all-in-all, I don’t see how things can get substantially better.

    Aren’t we the greatest nation in the known Universe?

    1. “But all-in-all, I don’t see how things can get substantially better.”

      Trump could get enough picks to pack the Federal Bench for two, or better still three decades.

      1. Huh…and I thought that’s exactly what we’re all against here.

        1. Might want to take another look at the comments . . . the court has been way left for decades, seems to me at least some here are looking for balance.

  7. Appoint more Clarence Thomases, that is, judges who keep their personal policy preferences out of their opinions.

    1. Is that what you think he’s doing? He’s an Originalist, and that itself is a personal policy preference.

      1. It is the opposite, unless yuh ou mean choosing not to be guided by one’s personal policy preferences is a personal policy preference.

    2. This is the man who argued that Tinker should be tossed wholesale because it “has undermined the traditional authority of teachers to maintain order in public schools” and not because there’s actually a procedural reason to do so. He argues that there’s no Constitutional backing for Tinker because courts declined to support earlier students’ 1A claims. It’s not a great claim, if only because such a standard applied to war-making would give modern presidents unlimited power in that field.

      1. He’s also wrong on the facts. He pretends that there was some golden age of public schooling before Tinker where “teachers taught, and students listened”, but, speaking about my city’s first public school in the late 19th century, it was just a daycare. Kids ate tallow candles in a big building while their parents were working because people were worried coyotes would steal the kids.

        1. The purpose of mandatory 19th century public indoctrination (ahem, I mean schooling) in America was to get those Catholics to behave like Anglo-Saxon Prods and become good factory workers.

          1. Out east yes, but here in what was almost a frontier we had only 2500 people total, buffalo around, and Sioux scaring people off. The outside world was scarier than Catholics, of which I imagine we had only a few.

            1. You may be correct about schooling in the frontier, but the model that was explicitly adopted from the Prussians and implemented, starting in the northeast (you’re correct, but I can’t remember the state) and moving west with “civilization”, was still based on the aforementioned indoctrination.

              I have to say, though, that indoctrination of the young into the American Ideal, as it were, isn’t necessarily a bad thing. We could benefit from more of it now. I just wanted to agree with you about Justice Thomas.

            2. Only because the outside world was infested with Catholics.

              1. I’ll take the bait, and ask, what do you mean by that? If it’s satire or comedy, it went over my head.

        2. “He pretends that there was some golden age of public schooling before Tinker where “teachers taught, and students listened”

          Its not “pretend”. There was such an age.

          The last compulsory attendance law was not passed until 1918 and for some time afterwards enforcement was spotty, especially in rural areas. Kids dropped out because they could work without a HS diploma.

          After WW2, it became more universal. Teachers then did teach and students listened.

          Now, because of the point of view that inspired Tinker, activist kids walk out of school for gun control and climate change, education be darned.

          1. Do you think school is like constant walkouts and hecklers vetoes nowadays?

            Your unsourced paean to the 1950s as the good old days is not surprising, but not very convincing either.

          2. My 73 year old father-in-law who actually went to a one room schoolhouse doesn’t paint such a wonderful picture in his remembrances. I won’t disagree that in the past there was more respect for authority though.

            That said, American education is very low bar these days, and is running as fast as it can to stay in one place, just like Alice in Wonderland. For all the millions, if not billions put into it and program after program from Common Core to No Student Left Behind to Teach For America…we get the same middling results that are predictably broken down by demographics and socio-economic characteristics.

          3. “He pretends that there was some golden age of public schooling before Tinker where “teachers taught, and students listened”

            Its not “pretend”. There was such an age.

            No there wasn’t. There might have been an age where teachers taught and students quietly ignored them without making a fuss about it.

  8. I was going to get this book, because the peer review process keeps Whittington from being a douche (which seems to happen on this blog) and the process of writing a full book prevents him from dashing off not fully thought out ideas, but it’s still $30 for a used one.

    1. “You could get overpriced coffee for a week…or you could study the foundations of our government! The choice is yours…operators are standing by…”

      1. I will give it a semester, then all the used student copies will come in at $15 or so.

  9. “[The Court] has primarily advanced the values and policies that have won electoral support rather than those that have met electoral defeat.”

    I don’t see how this sentence can be reconciled with the Court’s record in the areas of abortion, racial quotas, and same-sex marriage.

    1. Yeah “primarily” is putting in Stakhanovite service in that sentence.

      And I think you’ve put your finger on the essential confusion in Whittington’s piece. Is he trying to describe what SCOTUS Justices do, or what they should do ? Which is the usual confusion about legal realism.

      If it’s just a cynical, if realistic, view of what Justices do, and there’s not much that can be done about it, so well, whatever, then, up to a point, it’s not an unreasonable description. But if it’s an argument that that is what Justices should be doing, then for those in favor of the balls and strikes approach, it’s a very bad idea.

      One can recognise that all humans are flawed creatures and will bring their prejudices to the party witting or not, then yeah. But as soon as we glide over into the territory that “and so they should” we get a Third and Supreme House of Congress, not a court.

      And I think that’s why the Whittingtons of the world like to elide the difference between world weary recognition of human failing, and it’s OK for the Court to make stuff up for political reasons. Because there’s an actual difference between how flawed and imperfect humans behave in a world where making stuff to suit your politics is a major sin, albeit a sin that you may fail to avoid, and how they behave in a world where it’s OK.

      I hope (and believe) that Roberts was internally tortured at betraying his balls and strikes philosophy to arrive at an Obamacare result that would avoid the Court getting into a political firestorm – a quintessentially political judgement. But there are plenty of Justices who would not be tortured at all – because they live in the world where “it’s OK.”

      1. Lee,

        There are those of us who think that, if Roberts was tortured he shouldn’t have been, because the argument against the mandate was silly.

        No need to rehash it now, of course, but IMO only a strong case of ODS, or an irresistible urge to show how clever one is, could lead one to make the claim that was made.

        1. There are those of us who think that, if Roberts was tortured he shouldn’t have been, because the argument against the mandate was silly.

          No doubt, but Roberts was plainly not one of those people in your crowd, since he clearly accepted the argument against the mandate that the other four conservatives accepted. Hence the tax “saving construction” emerging from his hat.

          1. “emerging from his hat.”

            Not from his hat.

  10. A common feature of tyrants is narcissism. And a common feature of political narcissists is to imagine that their political opponents act out of hatred and animosity, that disagreement with them represents evil treason to the country.

    Calhoun considered abolitionists to be hate-filled people opposed to Southerners way of live for no reason but sheer pique. The fact that advocates of slavery were genuinely incapable of imagining any rational reason why anyone might legitimately oppose it is probably the best example of the phenomenon I can muster, but far from the only one. History is full of them. Zealous advocates of causes, like personal narcissists, simply cannot be objective about their political opponents’ motives.

    Thus the courts’ animosity jurisprudence, combined with its expansive interpretation of a compelling state interest, is inherently dangerous. It is one thing to say that the Constitution protects its pet causes and its friends. But it is quite another to say that the Constitution is dead set against its enemies.

    When the Court says that the constitution itself has a compelling interest in getting rid of the scourge of this or that from interstate commerce, for example, when said alleged scourge was never even mentioned in the textual Constitution, it is not behaving all that differently from the way President Trump behaves when he says the the New York Times, Joe Biden, or whoever it is today is a traitor.

    In both cases, political leaders have an inherent ability to align their causes with the country’s, to not only use their office to help their friends, but to make their personal enemies the country’s enemies.

    The court’s animosity jurisprudence is destabilizing. Legitimizing declaring one’s political enemies to be haters and enemies of the country represents political narcissism. It legitimizes tyrrany. It is only a small step from the Court’s jurisprudence, done no doubt for the best of intentions, to President Trump’s politics.

    The Court might have made the Igbo political call, as we now realize they didn’t do on slavery. But the Constitution is no more about making the right political call then it is about putting the right people in jail. It is about protecting against the collateral consequences of acting with subjective certainty about matters where one inherently cannot be certain, and where the Constitution requires a deliberative process rather than someone simply declaring that something is so.

  11. Didn’t Mr. Dooley tell us that “the Supreme Court follows the election returns?”

    Does the OP add anything to that?

    1. The Supreme court following the election returns would actually be something of an improvement, in some cases. It’s more like they’re following polls of “the 2000 faculty members of Harvard University.”

      It’s one thing to be anti-majoritarian when the text of the law commands it, quite another to be anti-majoritarian when you’re just making shit up.

    2. He does it more systematically?

      We are all just telling stories, some of us with better data.

  12. In 2019 the Supreme Court is the most political branch. Stevens and Souter are to blame for becoming a knee jerk liberals.

    1. It’s not a binary choice, Sebastian. Failure to be a knee-jerk conservative is not what defines a knee-jerk liberal. Knee-jerk means reflexive, heedless, automatic. Neither Stevens nor Souter were any of those things. I take it you didn’t like them?

  13. 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.

    I suggest that almost every justice would agree with that, and that it would be true for some of them. The distinguishing mark of the minions is that they not only come down consistently on the side of their political allies, but they also do it for ideological reasons the allies hope to advance.

    Thus, Thomas, Sotomayor, and Alito, at least, are minions. Kavanaugh, in his confirmation hearing, looked built for minionhood.

    The Trump appointment process, and the McConnell confirmation process, have been structured by politicians as minion-finding processes—short on consideration of judicial qualities, long on consideration of ideological identity.

    Roberts has been consistent in voting pro-Republican in every political process case which has come before him. But otherwise, he mostly supports opinions Republicans like, but not necessarily for their preferred ideological reasons. So Roberts seems like a mixed bag—a subtle (and under-appreciated) Republican ally on most cases with mere political valence, but a Republican minion on the political process cases, which are the ones which count the most.

    I suggest the upcoming political gerrymandering case decisions may finish the job of defining Roberts, whether partner, or minion, or (long shot), independent-minded judicial standout.

    1. The census case is, IMO, a clear test of the integrity of the court. No one other than a committed Republican could allow the question to be added. Doing so would be disgraceful – a decision to let the census be corrupted for political purposes, a process defended by liars, in violation of the APA and the Census Act.

      1. On the contrary, only a committed Democrat could deny the question being restored, given that it was uncontroversially part of the Census for most of the nation’s history.

        The arguments being used to claim it shouldn’t be asked are over-inclusive: If accepted they lead to the conclusion that ALL questions in excess of “How many people reside here?” are unconstitutional.

        Could it be more obvious that Democrats don’t want the question asked because they’re afraid of the public finding out just how many illegal aliens there really are in the country?

        1. On the Democrats’ reasoning, (and on the recently-disclosed reasoning of the Republican operative who dreamed up this scam) the question of how many illegal aliens won’t be answered by the proposed question. So not so obvious.

        2. Don’t say stupid stuff, Brett.

          The fact that it asked up to 1950 has zero relevance as to whether it ought to be added now. That’s an utterly unimportant point.

          The point is that adding it will significantly corrupt the results, will produce no information not readily available elsewhere, and that its addition is in violation of the law.

          Besides that, both Commerce, especially Ross before Congress and the DOJ in court, have consistently lied about its purpose and origin. They want to enforce the VRA. What a joke.

          As to the Democrats’ objectives, that’s just your usual mind-reading of evil intent on the part of those you disagree with. It’s a terrible habit.

          Besides, the data is already available from other sources, and that data is more accurate than the census data would be, so stop.

          1. Brett’s point is perfectly logical and we shall soon find out, (I hope) perfectly constitutional according to the Supreme Court. That it has the perhaps intended side effect of scaring illegal aliens away from answering it, thus letting some of the air out of the demographic replacement balloon the left is huffing and puffing into, that doesn’t make it unconstitutional. You could argue immoral, but so is legal representation in Congress for illegal aliens.

            1. The day of your replacement will be a glorious one. For your betters, anyway.

          2. Its prior use has relevance because it’s evidence it’s the sort of question countries tend to ask on censuses. More fundamentally, Congress chose to give the Secretary near-absolute discretion about what to put on the census. If congress wants to cabin that discretion with standards or priorities, it can pass a law doing so.

            Again and again Congress has passed the buck, refused to make decisions, told the Administration it could do more or less whenever it wants, and then when it does something controversial people run to the courts expecting them to step in.

            That’s not how democracy works. Democracy means Congress accepts responsibility when it writes a law that permits an outcome it doesn’t want.

            1. You mean like the ABA?

              Hiding behind the pretext of legal formalities and then saying ‘that’s how democracy works’ is not actually how democracy works.

              We have the policymakers saying this question is meant to help Republican numbers and scare off minorities. Don’t pretend that going through the motions is anything like justice or proper.

            2. Its prior use has relevance because it’s evidence it’s the sort of question countries tend to ask on censuses.

              So? Why does that make it relevant to the current situation in the United States?

              we shall soon find out, (I hope) perfectly constitutional according to the Supreme Court.

              Constitutional does not mean in accord with the APA or the Census Act.

              (c) To the maximum extent possible and consistent with the kind, timeliness, quality and
              scope of the statistics required, the Secretary
              shall acquire and use information available from
              any source referred to in subsection (a) or (b) of
              this section instead of conducting direct inquiries.

              Seems pretty clear, and various “experts can be wrong” objections, the data is better obtained from other sources.

              And the APA was violated more ways than can be counted.

              demographic replacement balloon the left is huffing and puffing into, that doesn’t make it unconstitutional. You could argue immoral, but so is legal representation in Congress for illegal aliens.

              Oh stop the Fox News “demographic replacement” BS.

              And since the Constitution clearly says that

              “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.”

              I fail to see how representation of illegal aliens is “immoral.”

              I do happen, by the way to think the question is unconstitutional, on the grounds that it reduces the accuracy of the census significantly, and in a non-random way, hence violates the requirement for an “actual enumeration,” but I recognize that this is very much a minority opinion.

              1. Fox News mention demographic replacement? Nay my friend, Fox is to polite for that. But just ask yourself, if Hispanics all voted like trad Catholics, all pro-life and such, and states like California (one purple now blue) had gone the other direction due to their import, would you think the same way?

                Of course you fail to see how *legal* representation of illegal aliens is immoral. I notice how in your reply, you left out the word “legal” before representation.

                1. Ah. The great “if things were different” you wouldn’t think that way argument. Counterfactual conjecture, involves mind-reading, and an implicit admission that your own logic is just based on partisanship.

                  Of course you fail to see how *legal* representation of illegal aliens is immoral. I notice how in your reply, you left out the word “legal” before representation.

                  I don’t get your point here. The Constitution makes it plain that representation in Congress is based on the “whole number of persons in each state.” It does not distinguish between citizens and non-citizens (except for the bit about Indians) present legally or not.

                  Now, I understand that there was no such thing as an illegal immigrant at the time the 14th was adopted, but so what? You want to change it, amend the constitution. Good luck with that.

                  1. Nice pettifogging. Counterfactual arguments are often only way to get some who is debating with you (in good faith) to think through why they take a position. Since you can’t explain how you would feel about the large influx of Hispanics if they voted GOP, then that is an explicit admission that your partisanship is your own motivation. Not to be overly dramatic about it, but I diagnose you with a classic case of projection here.

                    Of course you don’t get the point, which is why your answer is silly, even if you don’t see it. You advocate for using the number and distribution of those here illegally for deciding the representation of citizens here legally. That’s like asking the opinion of a burglar as to the best layout for your living room furniture.

                    Further, the phrase “subject to the jurisdiction thereof” as part of the 14th Amendment was put there for just this reason, to exclude illegal aliens. I get that the phrase is subject to some debate, but that you conveniently think we should ask burglars where to put the couch and TV, again, shows some motivated reasoning on your part.

                    That’s some convenient textualism from your part as well, to assume that since it says “person” it mean what I want it to mean, bereft of all historical realism.

                    1. The problem, mad_kalak, is that a counterfactual argument is also an analogy. Analogies are never self-evidently on point. They have to be tested. The best test is to get rid of the analogy, and remake the point it asserts using the same argument that was used to support whatever is being analogized. If you can’t make your point without the analogy, that means the analogy is no good.

                      Illustration: A case was made in Loving v. Virginia that denying a right to interracial marriage is unconstitutional. Decades later, the Massachusetts Supreme Court decided—by saying gay marriage is just like interracial marriage—that denying gay marriage is therefore unconstitutional. I suggest that if that isn’t sleight of hand, you ought to be able to say, “Okay, now lets throw out the analogy, and remake the case from scratch, using the arguments from Loving. If the result doesn’t make sense, then it’s a bad analogy.”

                      My point isn’t about gay marriage, however, it’s about arguing with analogies. For all I know, what I just suggested did happen in Massachusetts, and everything held up. My point is that you should never be allowed to prove anything important or consequential, merely on the basis of a plausible-looking analogy. But it seems like it is an accepted legal custom to do that, and to do it a lot.

                      Which is a long explanation for why I think your counterfactual above is baloney. It collapses right at the end, with your baseless assertion about “historical realism.”

            3. Democracy means Congress accepts responsibility when it writes a law that permits an outcome it doesn’t want.

              How would any law prevent any outcome, if the President decided the law could mean anything, but especially whatever he had in mind?

          3. “The fact that it asked up to 1950 has zero relevance as to whether it ought to be added now. That’s an utterly unimportant point.”

            It has no relevance to the policy wisdom of adding it back now. It is most certainly relevant to the question of whether or not adding it back is constitutional.

      2. “a clear test of the integrity of the court. ”

        If they rule my way they have integrity, if they rule the opposite they don’t.

        That is not how you normally judge integrity.

  14. The modern, hyper-political nature of the Supreme Court stems from the 17th Amendment more than any founding-era structure.

    1. The hate fro the 17th Amendment is one of the more absurd features of many on the right.

      1. It was not the straw the broke the camel’s back, but it was a mistake that should, but won’t be, repealed.

  15. “The Court Swims in Political Seas”

    GET OUT OF THE WATER! GET OUT OF THE WATER NOW!

  16. “The Court Swims in Political Seas”

    Ah, for the days when the law was no respecter of poissons.

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"Treason" at the New York Times

Episode 268 of the Cyberlaw Podcast

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We interview David Sanger, whose recent New York Times article on US intrusions into the Russian grid was condemned as "a virtual act of treason" in a presidential tweet. Turns out that national security officials, contacted before the story ran, didn't ask the Times to hold the story. Understandably. If you're signaling to Putin that his grid will be at risk as long as he puts ours at risk, a front-page story in the New York Times is a pretty good way to get the word out.

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.

Download the 268th Episode (mp3).

 

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

17 responses to “"Treason" at the New York Times

  1. “Turns out that national security officials, contacted before the story ran, didn’t ask the Times to hold the story.”

    Who exactly were these “national security officials”, anyway? Do we know?

    Were they authorized to discuss classified information with the NYT in the first place?

    Have you considered that, rather than this being the administration “signaling” Putin, it was some guys leaking classified information on their own?

    1. “[S]ome guys leaking classified information on their own?”

      Card carrying members of the deep state at work?

    2. Good lord, talk about TDS. Trump’s tweets are so infallible that you suspect that people responsible for infiltrating Russian infrastructure didn’t ask the NYTimes to hold that information for… reasons? You don’t even supply a rationale here, you just seem to assume they had some kind of nefarious reason.

      1. Did you even read the article?

        “Officials at the National Security Council also declined to comment but said they had no national security concerns about the details of The New York Times’s reporting about the targeting of the Russian grid…”

        TDS, indeed. Just not in the manner to which you alluded. What has become of the Volokh comments section? Good heavens.

        1. My general rule is that I question EVERYTHING attributed to unnamed officials. You want me to believe somebody said something, give their name.

          1. If the NSC is concerned about it, they can say something.

            Your skepticism about “unnamed officials” is noted. It is curious that you don’t exercise the same degree of skepticism re: your own completely made up theory about “some guys leaking classified information on their own”.

            1. The administration doesn’t need the NYT to deliver messages to Putin, they’ve got his phone number.

              But it was either an authorized, or unauthorized leak, assuming that it isn’t just a lie.

              My theory is that this was an unauthorized leak focuses on the aspect of the story Baker didn’t relate: The claim that the NYT was told the operation was conducted in secret from Trump out of fear on the part of intelligence services that Trump would have compromised it. This does not strike me as something that would have been part of an authorized leak, but seems quite in character for an unauthorized one.

              1. “the operation” is the underlying operation against Russia (not the leak). For fear that he would “countermand it or discuss it with foreign officials, as he did in 2017 when he mentioned a sensitive operation in Syria to the Russian foreign minister.”

                But sure, unauthorized leak. From Bolton?

              2. “The administration doesn’t need the NYT to deliver messages to Putin, they’ve got his phone number.”

                Doesn’t mean he’ll pick up.

                “This does not strike me as something that would have been part of an authorized leak, but seems quite in character for an unauthorized one.”

                Authorized by Trump? “No” sounds like a pretty good bet. But authorized (or not?) by someone who has authority to make such an order? Weaker ground there. The intelligence agencies (ultimately) report to Trump, but, much to Mr. Trump’s consernation, their alliance is to the United States, not the Twit-in-Chief.

            2. Can’t blame him/her- I mean, isn’t Trump just the most trustworthy person ever? Shouldn’t we always take him at his word?

              1. On the one hand, you can reliably tell when Trump is lying. On the other hand, you can’t reliably count on Trump to keep anything confidential, even with professional help.

  2. Good lord, messing with the Russian power grid to get back at them for meddling in our elections was a plot point on a TV show. By the time the TV writers have gotten ahold of it, it’s no secret any more.

  3. Did he bother asked why if they were worried about Trump’s response, did they leak it to him?

  4. Who isn’t this episode on Apple Podcasts yet?should’ve been there at least a couple days ago.

    1. *why

  5. This business of casually declaring that those who oppose one’s policies do so out of animosity, hate, or treason is terrible for democratic government of any kind.

    The Supreme Court’s animosity jurisprudence, which started us in the terrible political habit we see evidenced here, was one of the worst political moves the Supreme Court ever made.

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There's No Graphy Like Stega-No-Graphy

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CNN reports, relying on a Wall Street Journal story,

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.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

24 responses to “There's No Graphy Like Stega-No-Graphy

  1. Whoops.

    I’ll say, this is an increasing problem, the re-reporting of news, events, transcriptions, etc. Ironically, it’s a CNN news story that reports from…the Wall Street Journal. (Does CNN do any reporting anymore, or just copy off other papers?).

    1. CNN reporting is more original than your comments on this blog.

      1. Aww, you’re cute but you miss the point.

        Point is, data acquisition, processing, input, and analysis, no matter the source of the data, is expensive. It takes time, resources, cross-checking, etc. Whether the data source be news stories, or lyrics, scientific data, etc.

        It’s much cheaper and effective to wait for someone else to do it, then report that (with a slightly different take). Few people want to do the hard work of the actual acquisition, when 90% of the credit can be obtained for just re-reporting or using someone else’s work.

        Once upon a time, there was value to “getting to the story first”. The WSJ would have the paper out a full day ahead of time, and CNN would need to wait until their next reporting session, or another paper would need to wait till their next print run. Now, the rereporting is so fast with the internet that there’s not the same value, if any.

        In a real sense, it’s the issue that spawned copyright and patent laws, updated for the digital world. Data acquisition, processing, input, and analysis has value, even if it’s not strictly copyright-able or patent-able. But as long as it’s much more efficient to wait for someone else to do the hard work, then re-report and/or use it, then it’ll discourage the actual work in the first place.

        1. “Once upon a time, there was value to ‘getting to the story first’.”

          Which created some problems of its own. When journalists are racing to publish first, they’re more likely to overlook details or go with incomplete facts.
          Mistakes (whether from rushing to print or to air or from something else) gives room for politicians who don’t want the truth about them reported to claim that the news media are biased against them, and have a substantial portion of the audience saying “yeah, there they go, reporting bad things about one of my guys again. They’re totally biased.”

          1. This misses the point, in that just re-reporting stories would keep the incomplete facts and overlooking details.

        2. And all this is explanation for why, when I try to search for a news story to figure out WHAT happened, instead, (or at least far more prominently in search results) I get “X reacts to” or “See what people are saying about X” or “Here’s a collection of 15 ‘random’ tweets about X”. It is getting increasingly difficult to find just the basic facts of things instead of reactions to them.

          1. It is, and it’s an increasing problem.

            In many ways, the single most important clause in the US Constitution is “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”

  2. Is this shocking? Exploiting other people’s IP is a large part of Google’s business model.

    I’ll note that many lyrics companies publish lyrics with near homophones substituted for one or two of the actual words in the song, to the same effect.

    1. And back in the day, Thomas Maps would deliberately make tiny mistakes on each page, for the same reason. I wonder how far back in history this practice goes? (If we look, 20,000 years ago, at the French cave paintings, will we see a bull with 3 horns, added to the scene in order to catch the plagiarist painter 2 caves down?)

      1. …Thomas Guide maps, of course. [no edit button. sigh]

      2. Far as I know, all map makers did the same.

      3. In one case, the small mistake (a non-existent town) was used to make a copyright infringement claim and the defense was that the place actually existed — which, by that point, it did. Putting the imaginary place on the map brought it into being:

        https://www.npr.org/sections/krulwich/2014/03/18/290236647/an-imaginary-town-becomes-real-then-not-true-story

  3. Back in law school, we read the case of the telephone book publishers who inserted fake names and numbers into the phone books they published to catch copiers, only to learn the hard way that collections of data are not copywriteable, only original works of creative expression are.

    1. So the copier should have gotten in trouble for copying the creative, fake names in the phone book.

  4. Writing down song lyrics and pretending you own that transcription reminds me of the early days of fan picture sites, where one site would “rip off” the magazine scans another site scanned in.

    “That’s my hard work violating copyright. How dare you!”

  5. It is amazing just how much information is communicated via steganography: there is an abundance of software which “robs” the least-significant bits of uncompressed and losslessly-compressed image data for use in communicating non-image-related information. Many governments and non-governmental-organizations which would otherwise censor messages do not make the effort to examine the bit sequences within each image and therefore miss censorship opportunities. Self-booting steganography tools, many borrowing techniques from the venerable Kermit software, are increasingly commonplace… which suggests an increasingly commonplace need to avoid censorship.

    1. Back when I was just out of college, and bought my first computer, (Mid 80’s.) I wrote a Mandelbrot set program, and for yucks stored the settings for each image by steganography. It isn’t actually a difficult technique.

  6. Pernicious esquivalience.

  7. “To show that Google was allegedly doing this …”

    Correction: “To show that Google was doing this …”
    There – fixed.

    Their intention was ‘to show,’ not ‘to allegedly show …” They later ‘alleged.’

    1. Saying soandso “alleged” is about protecting one’s behind from a lawsuit, and has gotten twisted out of that form and is used when it need not be.

  8. The reporting of this story, unfortunately including here, is bogus. Both Genius and Google license the lyrics from publishers, so even if Google did directly or indirectly copy a few of them (apparently 100 out of over a million) them from Genius, they have a license so it’s quite legal.
    h/t Techdirt with more details https://www.techdirt.com/articles/20190617/13335342414/dumbest-gotcha-story-week-google-genius-copying-licensed-lyrics.shtml

    1. Not quite as bogus as you’re suggesting. Google licensed the right to publish the lyrics, they didn’t license from Genius the right to use their work in transcribing them. So there was something stolen, just not the lyrics themselves.

      1. Now, whether there’s any legal recourse for Google stealing Genius’ work is another question.

        Is steganography enough to argue that what was copied was actually a derivative work, and not the original work that Google had licensed?

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Supreme Court

Is There an RBA (Roberts-Breyer-Alito) Axis on SCOTUS?

These three justices all share a pragmatic streak and they stuck together in three of four decisions decided today.

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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.

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65 responses to “Is There an RBA (Roberts-Breyer-Alito) Axis on SCOTUS?

  1. ” 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. ”

    Nothing that surprising about this, when you consider that the Virginia house was asserting standing to challenge a court ruling favorable to Democrats. Ginsberg, Sotomayor, and Kagan’s votes were just as you’d expect in light of that.

    1. Decrying those results oriented liberals while ignoring both the liberals on the other side and the conservatives that seemingly switched from their usual tendencies is some pretty nakedly partisan thinking.

      1. The conservatives switched for principled reasons, Sarcastro. Surely you understand that.

        Breyer must have misunderstood the implications of the case, or he would have voted with the majority.

        There, I wrote Brett’s comment for him.

        1. Heh. It’s funny cuz it’s true.

      2. Lets see

        1. 3 antibusiness conservatives vs 1 probusiness lib
        2. 2 conservatives in favor of democrats vs 1 liberal in favor of republicans.
        3. Yeah, its criminal justice but I don’t really think this particular area is much of a left/right thing nowadays.

        I guess, its a bit too little to draw conclusions about either wing of the Court but Ginsborg in particular certainly seems to be a slave to ideology above all else.

        1. So all switches were in bad faith, but conservatives win because more liberals switched?
          THAT’S your argument that your side is principled?

    2. The standing argument here is really interesting though.

      For the sake of argument, let’s assume the court is right on the first point of standing, the House can’t continue litigating if the AG chooses not to. It’s the second point which is interesting. The House has no standing on its own, even if the law is demonstratably altering the districts for the House. It’s “not an injury”.

      What does this begin to imply for the partisan gerrymandering cases coming up. Remember, the first case (in Wisconsin) got sent back for lack of standing. Are the future ones going to be sent back for lack of standing? I mean, if you’re represented by a Republican or Democrat, you’re still represented, so it’s not an injury. Right?

      1. Oh, I love me some justiciability. And yeah, when it comes to voting rights justiciability is a mess of partisan backing-and-forthing. Has been since Allen v. Wright.

        I dunno that I see as direct an analogy between legislative members votes and members of the polity’s votes as you do.

        1. Since the legislative members are also members of the polity….

          1. You’re making my point – members get a justiciable EPC right to vote in one person one vote elections just like everyone else.

            1. So, you do see the analogy then.

              1. I see you are making an anlogy;
                I am unconvinced that legislative votes and electoral votes are analogous.

  2. Ginsberg et al ruling in favor of Democrats. What a Shock!/s
    A bit early in the day hitting the bottle Professor?

    1. et al doing a lot of work here.

  3. A far more disappointing case decided today is the Gamble/dual Sovereignty case and double jeopardy.

    The BoR is enforceble against the federal government (Barron v Baltimore). The dual sovereign concept is simply made up to circumvent the plain meaning of 5A

    1. Now… assuming you are 100% correct and the only reason dual sovereignty doctrine exists is to circumvent the 5A… so what? Why is that a problem for anyone but a criminal? You need an answer to that question.

      1. Pfft. Because after you’ve been acquitted once, you’re not supposed to be able to be declared a criminal for that act. The whole point of double jeopardy is to keep people from being tried until a jury “gets it right”, and then stopping.

        1. But Brett they’re a criminal so who cares. ¯\_(ツ)_/¯

          Also why should there be any privacy, if you have nothing to hide?

          1. Well, the standard here is “answers James Pollock knows”, so there’s a reason for pretty much any government overreach.

            1. The ad-hom attack is what people use for answers when they don’t have any.

              1. You probably shouldn’t use that line of argument, given your other responses at 12:14 AM, 12:18 AM, and so on.

                1. Mere namecalling doesn’t get to be ad hominem. It doesn’t even purport to be an argument.

                  1. Particularly when it’s a response to something that isn’t an argument.

                  2. I was being generous.

                    1. … if somewhat stupid. (if this offends you, feel free to substitute “imprecise” instead.)

      2. I….can’t tell if your joking or not.

        1. Grow some more brain cells.

      3. In an unusual alignment, I’m voting with Joe, Brett, and m_k on this one.

        1. Joining the miss-the-point club is nothing to brag about.

          1. Not bragging.

            Just stating my opinion.

            1. Me too. You missed the point entirely.

      4. “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”39 A second “vitally important interest[ ]” embodied in the Double Jeopardy Clause “is the preservation of ‘the finality of judgments.’ ”40

        The concept of double jeopardy goes far back in history, but its development was uneven and its meaning has varied. The English development, under the influence of Coke and Blackstone, came gradually to mean that a defendant at trial could plead former conviction or former acquittal as a special plea in bar to defeat the prosecution.41 In this country, the common-law rule was in some cases limited to this rule and in other cases extended to bar a new trial even though the former trial had not concluded in either an acquittal or a conviction. The rule’s elevation to fundamental status by its inclusion in several state bills of rights following the Revolution continued the differing approaches.42 Madison’s version of the guarantee as introduced in the House of Representatives read: “No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense.”43 Opposition in the House proceeded on the proposition that the language could be construed to prohibit a second trial after a successful appeal by a defendant and would therefore either constitute a hazard to the public by freeing the guilty or, more likely, result in a detriment to defendants because appellate courts would be loath to reverse convictions if no new trial could follow, but a motion to strike “or trial” from the clause failed.44 As approved by the Senate, however, and accepted by the House for referral to the states, the present language of the clause was inserted.45

        https://www.law.cornell.edu/constitution-conan/amendment-5/double-jeopardy

      5. And why is ubiquitous wire-tapping a problem for anyone but a criminal? Why is stop-and-frisk a problem for anyone but a criminal? We need answers to these questions, because somehow we don’t know of any.

        1. And even more questions… why should I care that you got wiretapped? Why is stop-and-frisk a problem for me, a white guy? If your argument doesn’t give me a reason to care, you don’t get to complain if I don’t care.

      6. Double jeopardy is part of the large package of rules trying to stop the powerful from using the levers of government investigation and prosecution to harm political enemies.

        In light of this, NY’s behavior is doubly shameful as they are using this form of double jeopardy (1), and are doing it to (2) harm a political enemy, both of which are disusting violations of this basic principle, designed to forestall tyranny by denying this tool to wanabe dictators.

        Of course, Donald “Lock her up!” Trump is no principled constitutionalist in this respect.

      7. Why is that a problem for anyone but a criminal? You need an answer to that question.

        On that standard, you can do away with about half of the Bill of Rights, which deal with procedural issues in criminal cases.

        1. You also join the miss-the-point club.

          If you can’t explain why a rule exists, why have that rule? 100% of the rights in the BoR have a purpose. The people who put them in the Constitution did so intentionally, because they were familiar with the offenses of the Crown. But a lot of people today don’t have that familiarity with the offenses of the Crown, so it isn’t a safe assumption that they already know what the purpose of this right or that rule is.
          When you ask them to just take your word for it that we have to preserve this rule or that, you turn it from a reasoned debate into an argument of faith.

          1. The founders were well aware, at a time when the process might have included extradition to England for trial and being taken away from friends and family for months or years even if ultimately found innocent, that the process of being prosecuted is part of the punishment. The 5A is intended to mitigate the effectiveness of political prosecutions as a continual form of punishment.

            Today, with the continuous news cycle, the damage to the accused’s reputation along with the perpetual drain of pitting one’s personal resources against the limitless resources of the State, the situation is not much improved. The process is still part of the punishment and should be limited as much as possible to minimize the impact on an innocent party.

          2. With so many people missing your point (assuming for the sake of argument that you have one). Perhaps it’s time to stop and consider if the problem is on your end.

            1. In future, if you can’t be bothered to actually read what I wrote, maybe don’t bother commenting on it, either?

      8. James Pollock: “Why is that a problem for anyone but a criminal? ”

        Really? You’re sticking with that? Ignoring a person whom the anointed are out to get but who slipped past the first time because of — say — an uncowed jury or a really skilled defense attorney?

        I admit to sometimes being happy with the outcome of the second bite at the apple. I’m never happy that the apple is kept within biting distance.

        1. “Really? You’re sticking with that?”

          No. I’m pointing out that if you don’t provide a reason why X is bad (whatever X is) in your argument, you open yourself up to being asked why someone should care what your opinion of X might be.

      9. Pretending that you were engaging in socratic questioning rather than just bad faith trolling, it’s a problem because prosecution itself is costly, regardless of whether one is innocent or guilty, convicted or acquitted. An innocent person who is acquitted by a jury is protected by the double jeopardy rule.

        1. “An innocent person who is acquitted by a jury is protected by the double jeopardy rule.”

          So are guilty persons who are acquitted. Is there no room in your philosophy to question whether this should be so?
          If a person is falsely convicted, and then new evidence comes to light, they can ask for, and sometimes get, a new trial. Why not the same for persons falsely acquitted?

          1. “So are guilty persons who are acquitted. Is there no room in your philosophy to question whether this should be so?”

            No

            “If a person is falsely convicted, and then new evidence comes to light, they can ask for, and sometimes get, a new trial. Why not the same for persons falsely acquitted?”

            Because the resources available to the prosecution are far greater than those available to the defense. For the defendant to get a new trial on the bases of newly discovered evidence, they have to justify to the court why they couldn’t have found this evidence before/during the original trial. Lack of effort isn’t a valid excuse.

            The state/prosecution determines when to go to trial. There is never a valid excuse that the state couldn’t have discovered some piece of evidence before going to trial.

            1. Now that you’re on record preferring that guilty people walk free, why hold trials at all? Just let all the guilty people walk free.

              ” For the defendant to get a new trial on the bases of newly discovered evidence, they have to justify to the court why they couldn’t have found this evidence before/during the original trial.”

              OK. And that doesn’t work the other way because….

              “The state/prosecution determines when to go to trial.”

              …ahem… right to a speedy trial… ahem… What? Oh, nothing.

    2. So an enterprising local DA can preempt Federal Law by doing a quickie throw-away trial that protects all the charged conduct from the Feds under double jeopardy? How would such a scheme square with the supremacy clause, unless every DA had to submit every single charge to the local US Attorney’s office to decide whether they want to preempt it?

      [ Of course, the USA would decline to preempt about 99.99% the time, thus making this an exceedingly wasteful scheme. ]

      1. Well, maybe. Of course, your hypothetical local DA would have to bring in at least one judge and enough of the jury to guarantee the result. By the time you have a conspiracy that large, you’ve got a pretty easy slam-dunk by the Feds for obstruction of justice. Yes, the enterprising DA might be able to get one “customer” off with this technique. I’m not seeing much risk for more than one, though.

        1. ” Of course, your hypothetical local DA would have to bring in at least one judge and enough of the jury to guarantee the result.”

          Or just bungle the presentation of the prosecution so much that the defense wins.
          The reason dual-sovereignty rose to public notice was because the feds started going after people who did racially-motivated crimes, who never seemed to get convicted in state courts. They didn’t want to embarrass the state courts, so they didn’t argue that the fixed state court trials amounted to not actually putting the defendant in jeopardy, so they used dual sovereignty instead.

        2. Not that I’m in favor of the plan at all, but all the prosecution would have to do is just not produce evidence on one or two key points so that acquittal is assured. Acquittal is a pretty easy result to guarantee if you’re the prosecution, considering that’s the default unless you do the work to overcome it.

        3. But the DA doesn’t have to actually lose the trial: jeopardy still attaches if the defendant is convicted and given a lenient sentence. (This is what happened in the Gamble case.) It also attaches as soon as the jury is sworn, so if the DA were to simply dismiss the charges at that point (as they could in most jurisdictions) that would also be the end of it.

          1. “But the DA doesn’t have to actually lose the trial”

            I think “losing the trial” is shorthand for all the ways a DA’s prosecution can end with an acquittal, even if there is, strictly speaking, no actual trial.

      2. Eliminating dual sovereignty would have created significant administrative challenges.

        The easiest way to deal with it would be to grant federal courts authority to order parallel state criminal proceedings stayed once an indictment is issued. If the feds want to get someone, indict him, and then proceed that way. If the feds snooze and wait until a state trial is over, then too bad.

        But we will never know, as dual sovereignty remains the law.

        1. The problem is, how do you know the state prosecution is a sham until you can see it being shammy?

          Example:
          Publicly-available information such as citizens with cell-phone video recordings makes it dead obvious that police are misbehaving. So the prosecutor prosecutes some police whose misbehavior is already public knowledge. BUT, wait. The prosecutor is dependent on the police for all other prosecutions; they can’t afford to alienate the boys in blue. So they “prosecute” the misbehaving cops in such a way that the other cops don’t get pissed off.
          Yes, the feds might see this conflict from the outset and decide to take over the prosecution. They don’t have to work with local cops day-to-day, so they can actually pursue the bad ones with vigor. But they’re also busy with their own work, prosecuting criminals caught by federal law enforcement, so demanding that they also be looking over the shoulder of local prosecutors (how many are there in a federal district?) sounds like it’s unlikely to be effective.

      3. So an enterprising local DA can preempt Federal Law by doing a quickie throw-away trial that protects all the charged conduct from the Feds under double jeopardy?

        Only if federal law is intruding in an area that properly should belong to the state anyway. (Like the Gamble case, for example.) If you limit federal crimes to the handful that the constitution actually supports, then the dual sovereign issue becomes almost moot.

        1. “Only if federal law is intruding in an area that properly should belong to the state anyway.”

          This isn’t true if you accept that there are times that state and federal law overlap, and the overlap is not properly “intrusion”. For example, a crime might be a state crime because of what was done, and a federal crime because of who it was done to. Robbing a postal carrier, say, or murdering a federal judge.

  4. “Justice Sotomayor dissented, joined by the Court’s four liberals.”

    I suspect you meant “joined by the Court’s other liberals.” She wouldn’t have to write a dissent if she was joined by four justices.

    1. I assumed it was just a typo, and was was intended was, “…joined by the Court’s other three liberals.”

      1. speaking of typos, “was was intended was…”
        WTF??????

    2. Ack. You’re right. I’ll fix.

  5. 1. I’m really not a fan of this “change government, don’t appeal” tactic. It’s become increasingly common, where there’s a court case, one that’s ongoing for years, part of the government changes, and suddenly they decide “yeah, we’re not gonna defend this now, we get our desired political outcome.” It basically shortcuts the political system and the court system. Either a speedy trial, or a designated attorney for the life of the case is really needed.

    2. The standing argument is interesting, and perhaps will forecast the results of the future gerrymandering cases (which also may have a standing problem).

  6. I am not surprised about the ruling in Gamble, considering the long standing practice of the dual sovereignty doctrine. I agree with the Court in Brown Shoe Co. v. United States that we should not ignore the implications of this exercise of judicial authority assumed to be proper for so long. 370 U.S. 294, 307 (1962) (even though Brown Shoe Co. was not quoted or cited in Gamble.

  7. The idea that the Virginia house doesn’t have standing to appeal a lessening of its own power is a pathetic joke. Shame on these losers.

    1. It doesn’t lessen the House’s power. It doesn’t affect the House’s power at all. All it affects is which people are members of the House.

      1. Recall that some people develop a loyalty to party over loyalty to country. Then recall that what’s at issue is control of the state government by one party, specifically. So there is a threat here, even if it isn’t the specific one the troll stated.

Please to post comments

Regulation

Is the Chevron Doctrine Really Such a Problem?

Concern about Chevron Deference Would Be Better Focused on Delegation

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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.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

28 responses to “Is the Chevron Doctrine Really Such a Problem?

  1. I read the Law and Liberty article and it seems to me that this is where Adler begins to go off the rails :

    The message of Chevron was clear: Courts have no warrant to force agencies to regulate more expansively or aggressively than Congress has expressly required.

    Which is fine as far as it goes, but that is only half way. What we need to add is the other half :

    The Courts do have a warrant, nay a duty, to prevent agencies regulating more expansively or aggressively than Congress has expressly required.

    Thus Chevron is tackling the wrong problem, with the wrong solution. It is not for the courts to defer to agencies, it is for the courts to enforce the fundamental rule that anything which is not expressly forbidden by the legilslature, is permitted.

    If the agency’s rule complies with this principle, then the court is right to defer to the rule – not because the agency made it, but because the rule compies with the fundamental principle. If the agency’s rule fails to comply with the principle then the court has a duty to shoot the rule down.

    1. “The Courts do have a warrant, nay a duty, to prevent agencies regulating more expansively or aggressively than Congress has expressly required.”

      This doesn’t resolve anything. Legislatures usually give agencies broad latitude to regulate a wide variety of issues.

      “If the agency’s rule fails to comply with the principle then the court has a duty to shoot the rule down.”

      Right. That’s what Chevron does.

      1. I don’t think so. If there’s no ambiguity there’s no need for deference.

        If there’s ambiguity then there’s one side – the government – arguing that Montgomery Burns Mining Sludge Inc has to do something that the legislature has not expressly mandated (or must not do something that the legislature has not expressly forbidden) and another side arguing the contrary.

        Chevron says go with the government.

        The principle – that that which is not forbidden is permitted – says go with MBNS Inc.

        1. “If there’s no ambiguity there’s no need for deference.”

          Right. Chevron only applies if there is an ambiguity.

          “If there’s ambiguity then there’s one side – the government – arguing that Montgomery Burns Mining Sludge Inc has to do something that the legislature has not expressly mandated (or must not do something that the legislature has not expressly forbidden) and another side arguing the contrary.”

          The exact opposite of this happened in Chevron. The agency decided it didn’t need to force MBMS to do (or not do) anything. But “another side” (an environmental protection group) argued to the contrary that the agency was required to force Chevron to do stuff. After the trial court ruled in favor of the environmental protection group, Chevron successfully appealed. Or did you think Reagan’s EPA or Justice Gorsuch’s mother was out there trying to force the MBMSs of the world to do or not do something?

          1. 1. I know that

            2. The Chevron court decided to go with the agency in a case when the agency’s decision happened to be in accord with the correct principle (if not explicitly prohibited, then permitted) So the court decided the case the right way.

            3. But for the wrong reason, thereby establishing the wrong precedent.

            4. The right reason and the right precedent is, as I keep saying, if it’s not explicitly forbidden it’s permitted (it being some act that a private actor is up to, that the government, or some intervening busybody, wishes to stop them doing.)

            5. The wrong reason and the wrong precedent is “because the agency says so.”

      2. “This doesn’t resolve anything. Legislatures usually give agencies broad latitude to regulate a wide variety of issues.”

        There is a legitimate question as to whether or not the US Congress actually has the power to make such broad delegations.

        1. If you’re talking about the nondelegation doctrine, it has never been a serious impediment to delegation by the legislature at the federal level. And by never I don’t mean never since the New Deal, I mean never, in the country’s history. It’s not even a real thing in states with an express separation of powers provision in their Constitution (like Texas).

          Maybe federal administrative agencies should be run entirely by Congressional committees, rather than the executive. But that isn’t constitutionally mandated.

  2. Yes, delegation is the real problem but the Courts are not going to strike down the administrative state in its entirety so tinkering with it at the margins does not matter.

    Conservatives should support the end of Chevron because while we do have conservative judges and justices that decide some cases, the administrative agencies are completely controlled by the enemies of liberty.

    1. I must say, you guys are in high form today (including the ABA blog).

      It must suck to be you.

      1. “It must suck to be you.”

        No its pretty great.

        I don’t post on anything related to the ABA, speaking of enemies of liberty.

    2. I’m not sure what to make of Chevron, as an origionalist. If the standard criticism is that origionalist judges are engaging in “law office history,” are not judges who wish to get rid of Chevron play “law office subject matter experts”?

      1. But the problem is that agencies are NOT subject matter experts in “interpreting statutes”, which is the actual agency action that Chevron requires deference to.

        1. If being a subject matter expert and being an expert in interpreting statutes about that subject matter were entirely severable, this wouldn’t be a problem.

          The management of fedagency are chosen for two things… their knowledge of whatever it is that fedagency does, and their adherence to the party line of the party that puts them into management positions. But the in-house legal staff that guides the agency interpretation of statutes are expert at interpreting statutes. That’s what they do for a living. In most cases, they’re career bureaucrats, which means they serve no matter which party controls the Executive branch.

          1. ” In most cases, they’re career bureaucrats, which means they serve no matter which party controls the Executive branch.”

            Which is not even remotely contrary to having originally been chosen for their adherence to the party line of the party that put them there. Indeed, if you want long term control of an agency, that persists as a practical matter even when your political opponents are nominally at the helm, these are the sort of positions you focus on nailing: Nominally non-political career positions that civil service rules render secure against the efforts of your opponents to recapture an agency after an election.

            1. If you set out to hire unethical lawyers, you get unethical lawyers.

          2. “But the in-house legal staff that guides the agency interpretation of statutes are expert at interpreting statutes. That’s what they do for a living.”

            This might be true at the federal level–though I doubt it. It’s certainly not true at the state level. There’s nothing expert about the statutory interpretation skills of your average agency legal staff. There is a lot of turnover, they’re often bored, or lazy. Or too young to have the expertise. Or incompetent.

            How is it you think someone ends up on the staff of, say, a state’s dental board?

            1. “There’s nothing expert about the statutory interpretation skills of your average agency legal staff.”

              Reading statutes doesn’t fall under a lawyer’s area of expertise? My god man, it takes three years of graduate-level education to learn how to do it!

    3. “Yes, delegation is the real problem but the Courts are not going to strike down the administrative state in its entirety so tinkering with it at the margins does not matter.”

      It’s not the job of the courts to strike down the administrative state. If anyone is going to do it, it will be done by Congress. (When they write the enabling statutes for new agencies.) Or, it will be done by Congress plus the President (when they re-write the enabling statutes for existing agencies.)

      Conservatives who ever whined about “legislating from the bench” should applaud Chevron. (Yes, I know it’s hard to support federal agencies when they decide to do things that aren’t Conservative…. but if you like judicial restraint, you like judicial restraint even when it works against you.)
      Now, the ones who didn’t whine about “activist judges” but simply bided their time, certain that eventually, they’d get to appoint judges who’d legislate from the bench the way they’d prefer, and never pretended they were opposed to judicial activism, they should get to enjoy the fruits of their patience (of course, they also must know that eventually the pendulum will swing back again.)

      1. I am forced to agree with that comment, JP. I would just say that the conservatives have said, with regards to the courts, that “if you can’t beat ’em, join em,” because otherwise they leave an entire field in the culture war to their opponents who won’t hesitate to take advantage. The last conservative contender who was serious about putting the courts in check was Buchanan in 1992.

        1. “I would just say that the conservatives have said, with regards to the courts, that “if you can’t beat ’em, join em,””

          Yes, judicial restraint is a suckers game unless both sides play it.

          1. Now, on that note, where are those 5-4 cases rolling back some unconstitutional gun control laws?

            Oh…that’s right. My perception is that “our” side spends most of it’s litigation energy making sure people who are not paying student loan debt don’t have their licenses revoked by the state, and that food trucks may park where they may. They are hunting squirrels when they should be hunting moose.

            1. That’s because the litigation activists on “our side” are really economic oriented libertarians.

              1. They are indeed.

  3. 1. Who caused the problem?
    2. Who can fix it?

    The writer is saying that since Congress caused the problem, Congress should fix it. But a better answer is that if Congress caused the problem and Congress won’t fix it, the courts can, and should, fix it.

    1. Ok. What do you think the result should have been in the Chevron case if the courts fixed whatever problem you’ve identified? Why?

  4. Are you saying that instead of Chevron, we should blame W. Hampton, Jr. & Co. v. United States, and Mistretta v. United States?

    From Mistretta “Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”

  5. Delegation and Chevron are two acts that work in concert. How this is not easily understood is absolutely bonkers.

    Yes the courts let agencies write too many regulations via the nondelegation doctrine’s under-enforcement. And yes that exacerbates the problem of Chevron deference by expanding the number of rules that are essentially 1 branch interpretations of vague statutes. However, that doesn’t mean Chevron wouldn’t be a problem with a more tightly enforced nondelegation jurisprudence. It still would be.

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Professor Stephen Gillers (NYU) Unwittingly Demonstrates Why ABA Model Rule 8.4(g) Chills Protected Speech

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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 [4] 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.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

39 responses to “Professor Stephen Gillers (NYU) Unwittingly Demonstrates Why ABA Model Rule 8.4(g) Chills Protected Speech

  1. What you apparently don’t get is that there are a fair number of people out there who want to chill ‘protected’ speech.

    Maybe they can’t come out and say it, maybe they rationalize that the speech they dislike shouldn’t be protected, but that’s the bottom line. Not everybody values freedom of speech.

    Yes, he could be subject to discipline under a fair application of the rule he defends, but such rules are not intended to be applied fairly.

    1. ‘Zactly. But I would go further: there is a majority out there who want to do away with free speech. I doubt the first amendment, as written, could muster a majority in Congress in a secret ballot. Probably wouldn’t get a single vote among the “Progressive” wing.

    2. “What you apparently don’t get is that there are a fair number of people out there who want to chill ‘protected’ speech.”

      Sure. That’s a broad claim. I wish more people would improve their decision-making skills regarding what they choose to say out loud. Which puts me under that umbrella. Wishing people would censor themselves is not quite the same thing as wishing other people would censor it for them.
      Merchants who want to continue having customers have to limit what the staff says about the difficult customers. They’re under your umbrella, too. You’ve still grossly wrong when you conflate that with “not valuing freedom of speech.”

  2. Can someone please explain to me what the purpose is of rules like this?

    I can see the point of misconduct rules where they reflect the fact that legal services are a credence good, where the customer never quite knows whether the services they bought are any good. And so it makes sense to avoid a “market for lemons” problem by requiring things like bar exams, ongoing legal training, and standards that are designed to make sure the customer gets the best representation possible.

    But I fail to see how a rule against lawyers harassing people does any of those things. If your lawyer harasses you, you’ll know and (presumably) fire them. If your lawyer harasses someone else, it’ll either become public knowledge (and you have the option of firing your lawyer) or it doesn’t, in which case you have no reason to care.

    1. Don’t confuse pretext with purpose. The purpose is, precisely, to chill protected speech.

      1. Exactly. The ABA’s consistently leftist take on all things legal can be seen as drifting toward what is going on in college campuses across the country.

        Argue against affirmative action: racist.
        Lobby for charter schools: racist.
        Litigate against government takings for do-gooder state social projects: racist.

        Bottom line, is, attorneys better adopt and digest the current speech codes, PC rhetoric and sexual identity wokeness, under pain of licensing sanctions.

        Gillers’ is just virtue signalling, by the way. He knows which is the safe side of the street.

    2. “Can someone please explain to me what the purpose is of rules like this? ”

      To ensure that all people get the legal representation they need. As a side bonus, maybe rehabilitating the profession of law in the public esteem a little bit. (remember that professional ethics are primarily intended to preserve the profession, not the practitioner.)

  3. Gillers was an idiot when I was at NYU nearly forty years ago. He apparently has not improved with age.

  4. I think this needs to be fleshed out some more. The current rules of legal professional responsibility already impose restrictions on attorneys that would be 1st Amendment violations for non-lawyers (e.g. advertising rules, mandatory reporting of ethical violations, restrictions on ownership, and many other areas).

    A complete analysis of Rule 8.4 would first look at the current 1st Amendment jurisprudence around professional responsibility. This might be too in depth for a blog post.

    1. The rules you cite are generally fact based, that is did a lawyer do something specific, I realize there my be some ambiguity in some cases, however this rule is largely subjective and hinges on what constitutes “demeaning” another person or group.

      1. Working out what’s “demeaning” shouldn’t be any tougher than working out what’s “obscene”, and that was resolved so easily.

  5. Gillers looks pretty white himself. So under his logic, we should disregard his argument.

    Done.

  6. Besides NIFLA, another great case to cite is Legal Services Corp. v. Velasquez. SCOTUS decided that Congress couldn’t limit the arguments that could be made by persons funded by legal aid because (1) the lawyers were speaking on behalf of their clients and so it didn’t fall under the government speech doctrine (compare Rust v. Sullivan) and therefore was protected by the First Amendment and (2) it interfered with the function of the courts and the importance of an independent bar (a sort of due process argument).

    SCOTUS has been clear that most of what lawyers do and that would be affected by Model Rule 8.4(g) is protected speech that can’t be abridged by being labeled conduct, including: (1) arguments made in courts (Velasquez discussed above; Borough of Duryea v. Guarnieri); (2) soliciting clients, at least where not done solely for profit (NAACP v. Button; In re Primus juxtaposed with same-day decision in Ohralik v. Ohio State Bar Ass’n); (3) speaking on behalf of clients in public (Gentile v. State Bar of Nevada); (4) providing legal advice (Railroad Trainmen v. Virginia Bar; Mine Workers v. Illinois State Bar); and (5) informing public of availability of certain legal services, although subject to lesser protection in some cases under the commercial speech doctrine (Bates v. State Bar of Arizona; Zauderer v. Office of Disciplinary Counsel; NIFLA discussing many prior commercial speech cases; Florida Bar v. Went For It, Inc., which survived strict scrutiny, although I agree with Justice Kennedy’s dissent there).

  7. Gillers did indeed make a similar comment about “white men” at the Federalist Society National Lawyers Convention in November 2017 during the session that discussed this proposed rule. Here’s the link to video of the session: https://fedsoc.org/conferences/2017-national-lawyers-convention#agenda-item-using-the-licensing-power-of-the-administrative-state-model-rule-8-4-g.

  8. Realistically, if you don’t report Gillers to the Bar authorities relevant to his licensing for his mean-spirited, demeaning, stereotyping anti-white, anti-male statements, which clearly violate RPC 8.4(g), you’re committing an ethical violation yourself. [Model] RPC 8.3(a).

    And, no, I’m not being facetious. Go read the RPC.

    Please also note that most states grant immunity from suit for those who make complaints to the Ethics Police, so whale away.

    1. report him. The irony would be sweet. Robespierre chopped on his own guillotine.

  9. Imposing a duty of confidentiality chills protected speech. So does the duty of candor to the tribunal.

  10. “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. ”

    Unfortunately this is what passes for argument among too many academics nowadays. It is part of the anti-intellectualism that has come with progressive dominance of the universities.

    1. Being against racism, sexism, and homophobia is “anti-intellectual”???

      1. Calling anything you don’t want talked about “racism, sexism, and homophobia” certainly is.

        1. That’s fine, but it’s not in the comment I responded to.

          1. So you admit to being ignorant of modern day speech and how cries of racism and bigotry are used as a political weapon.

            At least you finally admitting that.

            1. I admit that you can’t seem to read for content.

              Was that the confession you were looking for?

      2. No. Ad hominem is.

  11. Liberal fascism strikes again

  12. The backward and bigoted have rights, too.

    1. Eugene Volokh: “… 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.”

      Rev. Arthur L. Kirkland wouldn’t be embarrassed. Ad hominem is his middle name.

  13. But Gillers could be subject to discipline under a fair application of the rule that he defends

    The entire point of such rules is that their application is not “fair”, in the way you suggest.

    Only the “wrong” bigotries will be punished; the “right” ones will be winked and nodded at, or actively applauded, and those doing so will likely refuse to admit they are bigotry.

    1. In other words, the winners write the history books.

      1. Then the heirs of the winners over correct by historical revisionism (like the claim we should have continued to sell oil and iron to Bushido Japan so they could continue raping China, and by cutting supply to their war machine we forced them to bomb Pearl Harbor).

      2. The losers have done a pretty good job of rewriting the past, see modern day intersectionality.

        1. “When I am weaker than you, I ask you for freedom because that is according to your principles; when I am Stronger than you, I take away your freedom because that is according to my principles.”

  14. The definition of “discrimination” in the comment is a bit open-ended. First, it’s not comprehensive (“Such discrimination includes…”), and second, it’s unclear whether there has to be a freestanding harm,or if the objectionable speech is harmful in itself. (In which case, the word would be surplus.)

  15. Bar rules exist to regulate professional duties and relationships — not lawyers’ entire lives. This is a very pernicious proposed rule, but no surprise coming from the incredibly UN-representative, consistently left-wing ABA, for which I have zero respect. Fortunately for me, those in charge of revising the Texas Rules of Disciplinary Procedure aren’t big ABA fans either.

  16. I can’t wait for SJW lawyers to become mainstream. You guys better develop some strong professional standards that get these people disbarred. They’re psychotic neo-Marxist iconoclasts.

    1. Are you going to go after the fictional ones, too? Stopping future lawyers from ever reading “To Kill a Mockingbird” is going to be a tough ask. Or does Atticus get a pass for being pro-firearm?

  17. Can’t believe that anyone would expect intellectual consistency or honesty from a leftist. Everything about their history shows the opposite to be the norm.

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Who Are You?

(Post bumped to the top.)

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Tell us a bit about yourselves.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

209 responses to “Who Are You?

  1. Retired liberal Democrat, 78 ex farm boy, ex bureaucrat.

    1. Public defender for of small county in Illinois. Libertarian-ish, sort of

    2. Libertarian-leaning junior in college studying poli-sci and philosophy, aspiring attorney. Interested in appellate litigation and criminal law.

  2. Why, so I can be doxxed?

    Seriously, even though, autobiographical stuff occasionally comes out in comments I am not going to put it here except to say that my academic background is in political science and the Law & Politics field. This blog is the best to follow what’s going on in the news from that perspective, specifically 2nd Amendment issues, avoiding much of the dreck that constitutes political science.

    I’ve been reading since it was an independent website, by the time I felt up to speed enough to comment, the site went to the WaPo and there was no way they were getting a red cent of mine, so I am happy that you’re at Reason.

  3. Retired (unwillingly) Millwright. Coolidge-Republican. 56 y/o. Serial refugee from two blue states: NJ and CA. Currently hiding out in Texas.

    1. I’m a former millwright. My steel mill closed down, so these days I’m a railcar repairman.

  4. Human resources desk jockey, living in Indianapolis suburb, divorced dad of aspiring youth hockey legend.

  5. Just a recent UVA Law grad reading the Volokh Conspiracy instead of studying for the Utah Bar like I should be.

  6. Retired chemist. Libertarian since 1974. Married, living on the Pacific coast in the redwoods.

  7. Former AUSA in EDNY, now an attorney in private practice in NY, NY. Been reading your blog for many years.

  8. Chief Justice of U. S., likes walks on the beach, casting swing votes on the Supreme Court, light bondage…oops, I think I’ve given too much information.

    1. Are you here through the weekend?

    2. I think not nearly enough! What’s your number?

  9. Practicing trial attorney for 27 years . Former Democrat, now Trumpish libertarian. Adjunct professor.

  10. I’m now a licensed attorney (passed the Georgia 2019 bar exam). Live near Augusta, Georgia. I read VC daily — it’s a been a valued resource for me for quite some time now.

    I just hung my own shingle but I haven’t quit my day job.

    1. Best of luck. A tough row to home, but potentially rewarding (perhaps not monetarily).

  11. Mechanical engineer approaching retirement. Formerly an activist in the LP, got out in the late 90’s when I figured out it was a dead end run by people who weren’t terribly serious.

    I’m a SC refugee from the 2008 crash in Michigan, my hobbies are robotics, (Used to compete in Battlebots.) carpentry, and homebrewing mead.

    1. My nephew just started in computer engineering/robotics at U of Michigan.

    2. Battlebots aren’t robots. They’re RC.

      1. So, it’s your mission in life to come here and piss on people’s comments? Seems that way.

      2. James Pollock, why don’t you tell us who you are? Here’s a starter for you: “I’m James Pollock and I’m a dickhead and a troll.”

        1. Your description of youself doesn’t fit me.

      3. Most battlebots aren’t robots, there was an autonomous division at the time. But yeah, my battlebot was just a tough RC car. I was just starting out then.

        Doesn’t stop me from being in hobby robotics, though. Battlebots is good experience for a hobby roboticist, in terms of motor control, drive trains, and so forth. Add some processing power and sensors, and you’ve got a robot.

        1. I’m was a long-time volunteer in robotics competitions for children… Coach, judge, referee. Then my daughter got involved in the same organization, and married a student engineer who was president of the university robotics club.

          1. Ended up donating my robotics equipment to a local First Robotics team when I moved down South, due to lack of shop space. I’m now having to rebuild from scratch, but I don’t regret it. I didn’t want all that stuff just gathering dust in a storage room.

            At the time I was interested in “remote autonomous” robotics, so the fact that my ‘bot’ was RC controlled didn’t bother me, I could have connected the IFI system to a desktop computer for serious computing, and it did have local processing power. Today, of course, it wouldn’t make sense to go that route, given how much processing power you can put in a mobile platform.

            In fact, my summer project with my son is going to be a balancing robot, and it’s going to double as his personal computer.

            1. One of the First levels of competition uses a cell phone for processing. I mostly worked with the Lego robots, which have a dedicated processor.

              1. They’re pretty cool, but I thought they were remarkably pricey. Besides, as a mechanical engineer, I enjoy the metal bending end of the hobby.

                1. You should see the creative ways the kids engineer things. FLL robots are cheaper to build than FTC, and WAY cheaper to build than FRC. Largely because of not having to bend any metal.

  12. 65 year-old semi-retired attorney, I’ve been practicing law for 37 years, primarily in commercial bankruptcy, commercial real estate and commercial litigation. Admitted to practice in the U.S. Supreme Court. A Supreme Court geek, faithful follower of Scotusblog. Passionate about law, economics, science and math, Scuba Diving, and food, especially Mexican, Italian, and Thai. Member of Mensa and Triple Nine Society, confirmed libertarian. Hoping to retire to Cozumel, Mexico soon.

  13. Mostly retired several-time entrepreneur/small businessman. Some hits, some misses.

    Graduate work – no dissertation – in finance and economics. Bad at teaching, too little sitzfleisch for research.

    Serious tournament bridge player.

    1. A bridge player. Cool.

      I haven’t played in >30 years, but one of my proudest accomplishments was a passing unnamed mention in this NY Times bridge column.

      See if you can figure out who’s me.

    2. I also had occasion once to hire Jill Meyers in her capacity as a music consultant for a legal project. I never even mentioned that I knew and was in awe of her as a bridge player, much less that I had ever played.

      1. Hard to follow the column hand, Leo, given the way the deal is presented.

        Jill is a great player, though she and I had a bit of a run-in at the recent NABC.

        I think she will be representing the US in the world mixed teams championships.

        1. Yeah, the hands in the Times’ pre-digital archives are gibberish. Suffice it to say, the play was brilliant. (Here’s a Times column featuring Larry’s bidding. The gist of that one’s pretty clear even without seeing the cards.) Anyway, the hand is superfluous to my moment of glory, which is in the commentary:

          “[Larry] made his mark as a brilliant teen-ager but failed to rise high in the tournament world because his partners were rarely his equal in skill.”

          That’s me! I was one of his partners, and I really did suck! Larry, on the other hand was barely out of high school IIRC when he won the Blue Ribbon Pairs. He had no business playing with a hack like me, but he knew his time was short, and he preferred spending it with friends to striving to realize his potential.

          That was 1985 and he was my first friend to die of AIDS. I’m grateful for the memories.

    3. When I bid and made 7NT, I knew my Bridge life was complete.

      1. Dave, these threads could benefit from more of your contribution.

        1. I’ve made it, but I certainly did not bid it. Alas. I have no business talking bridge with serious players, though I do regularly play with a 97 year old woman who has played since she was five. She talks about playing with Bobby Wolff.

  14. New attorney and public defender. I’ve always been interested in the First Amendment, and I used your book in a First Amendment class in law school (that’s how I found the blog back when it was on WaPo).

  15. Mathematician, ex-academic (they offered me tenure, I thought about what I was putting up with in departmental politics, said “Hell, NO!”, gave two weeks notice and left); software engineer for environmental modeling for the last 30 years (wrote the programs that did the world’s first numerical air quality forecasting, as well as 1.200,000+ lines of production code), semi-retired. Needless to say, I have a deep interest in copyright and IP in general…

    1. Does you bio actually say that you wrote 1.2 lines of code?

  16. Retired military, retired corrections officer, now the treasurer for the county Libertarian Party.

  17. I work at a college as a janitor even though I’m smarter
    than most of the people there.

    Sometimes I see an equation written on a blackboard
    like half an equation, and I’ll just figure it out.

  18. Chicks dig me, because I rarely wear underwear and when I do it’s usually something unusual. But now I know why I have always lost women to guys like you. I mean, it’s not just the uniform. It’s the stories that you tell. So much fun and imagination. Sarcastro, you are a madman. When you stole that cow, and your friend tried to make it with the cow. I want to party with you, cowboy. But the two of us together? Forget it! I’m gonna go out on a limb here. I’m gonna volunteer my leadership to this platoon. An army without leaders is like a foot without a big toe. And Prof. Volokh isn’t always gonna be there to be that big toe for us. I think that we owe a big round of applause to our newest, bestest buddy, and big toe… Prof. Volokh.

    1. Bravo, not as good as Bill Murray’s delivery though.

      1. Bill Murray is Bill Murray, and everyone else is not Bill Murray.

        1. Which is to his advantage as an actor, since all he has to do in any movie is play Bill Murray.

    2. I met Bill Murray at The Palms in London, my then girlfriend’s best friend worked on Fantastic Mr. Fox. He chatted nicely, took some selfies, smoked a joint on the edge of the outdoor bar with a friend, and was off to catch a helicopter. He’s great, but he’s no Sarcastr0.

  19. Civil trial attorney in NM; 32 years in practice.

  20. Recently retired appellate specialist & adjunct law prof in New York City; a non-doctrinaire, lower-case “l” libertarian.

  21. Just a college student interested in pursuing a Juris Doctorate degree.

  22. 60-something real estate attorney at Amlaw 100 law firm, Yale and Boalt graduate, evangelical Christian, white, pseudo Anglo-Saxon (actually a somewhat mongrel mixture of British, Scandinavian, Polish and Jewish), sort of Republican but I don’t like very many politicians of either party.

  23. “Mr. Dove was a gentleman who spent a very great portion of his life in this somewhat gloomy abode of learning. It was not now term time, and most of his brethren were absent from London, recruiting their strength among the Alps, or drinking in vigour for fresh campaigns with the salt sea breezes off Kent and Sussex, or perhaps shooting deer in Scotland, or catching fish in Connemara. But Mr. Dove was a man of iron, who wanted no such recreation. To be absent from his law-books and the black, littered, ink-stained old table on which he was wont to write his opinions, was, to him, to be wretched. The only exercise necessary to him was that of putting on his wig and going into one of the courts that were close to his chambers; but even that was almost distasteful to him. He preferred sitting in his old arm-chair, turning over his old books in search of old cases, and producing opinions which he would be prepared to back against all the world of Lincoln’s Inn.”

    (A. Trollope, The Eustace Diamonds, Chapter 28)

  24. Retired. Degrees in Computer Science, career in systems software development as individual contributor, team lead, and manager – mostly at startup companies. Detail oriented.

    Always had an interest in the law. Considered going to law school in my 30’s but decided against it. One factor in not doing so was because of the cost (money and opportunity loss) and reduced income potential (just as I’m more of a small company guy than a big company guy, I’m pretty sure I’m not “big law firm” material where the big bucks are for a select few who play politics well). Another factor was that, frankly, too many practicing lawyers are slimy and often not all that smart. I was actually put off by the LSAT tests – I took some of the sample tests and got 100% correct on some sections and very near 100% correct on the rest (with self-imposed time pressure, but not “performance pressure” as, of course, my self-test scores would never be reported) and realized I’d be working with other lawyers (either on the same side of the table or the other side) that got only modest scores.

    General fairly strong libertarian bent – esp. at the higher levels of government. Much less concerned about libertarianism at the local level than the state level and less concerned about it at the state level than at the national level. It’s relatively easy to vote with your feet to escape local authoritarians – not so much at the national level.

    Love a good argument. Often bored by discussions with those I agree with unless they provide new and original insight/data or by discussions with those with opposing views who are hesitant to challenge me responsibly.

    Definitely not “PC”.

    1. Oh, and an atheist but will only preach it if someone tries to preach their faith to me or justify taxation or loss of individual rights using scripture.

      I suspect there are parts of the brain that cater to fantasy and religion. I can see that in the process of evolution, these parts may have been selected for as humans lived in groups with limited communications and education and needed direction from an alleged “higher authority” (to avoid killing others in the same tribe too often) and to offer hope (belief that the drought will, eventually, end because a deity has their back may make one work harder to survive rather than give up).

      However, that part of my brain seems to be very limited!

      1. “will only preach it if someone tries to preach their faith to me or justify taxation or loss of individual rights using scripture.”

        Apparently not, preacher. (See your next paragraph.)

        1. There’s, um, no atheism in that next paragraph.

          1. There’s preaching about atheism:

            “I suspect there are parts of the brain that cater to fantasy and religion. I can see that in the process of evolution, these parts may have been selected for as humans lived in groups with limited communications and education and needed direction from an alleged “higher authority” (to avoid killing others in the same tribe too often) and to offer hope (belief that the drought will, eventually, end because a deity has their back may make one work harder to survive rather than give up).”

            1. There’s discussion in that paragraph. Only those who want to be offended will see it as preaching.

            2. There’s no atheism in the passage you quoted, either.

  25. 39 year old financial planner and father of two. I love learning about the Constitution. I am also a founding-era history nerd, so I’m always looking for good books on the Constitution and/or the founding fathers.

  26. Age 49, attorney, mother of 2. I enjoy walks on the beach, sunsets and puppies.

  27. Recovering BigLaw attorney. Prognosis grim.

    Was superficially acquainted with Eugene professionally for a very brief time approximately 25-30 years ago.

    That would have been the end of it, but a few years after I knew him I heard Eugene debating gun control on a local NPR station. I was traumatized by how well-informed, persuasive, and courteous he was in the face of a detestable woman arguing my side, who was none of those things. (Little did I imagine which of them was showcasing a formula for winning the White House in 2016.)

    That left a mark, so when I heard Eugene had a blog 12 or 13 years ago, I sought it out. I’ve been reading regularly and commenting somewhat less so ever since.

    In every respect except the quality of the blogging, the VC experience peaked early, and has been declining steadily since. I regret to say the current iteration of the VC comment section is worthy of Eugene’s radio debate opponent from way back when.

    Now get off my lawn.

  28. Middle aged. I work in the internet backbone engineering industry. I’ve been reading Volokh Conspiracy daily since 2004. My brother is best buds with Gary L who a bunch of conspirators went to school with and/or are friends with.

  29. Retired, single, advertising executive, 3 “kids”, 6 perfect grand children. Restorer of old British sports cars (Triumph TR3B). NRA Certified Pistol/Rifle/Shotgun instructor. Illinois Certified Concealed Carry Instructor. High Power Rife Competitor. Foster parent of rescue dogs. Started following and enjoying VC during the Heller and McDonald cases.

    1. Your hobbies might be more enjoyable one state to your east.

  30. Former State Deputy Attorney General. Started reading when it was a standalone website. Used to comment regularly when I had lots of free time as a government employee. Much harder in private practice.

    Massive death penalty experience.

    According to one researcher, I can claim credit for inadvertently launching “Birtherism” on these very pages

  31. When I bid and made 7NT, I knew my Bridge life was complete.

  32. Late 50’s, former community organizer.
    Told the admissions people at Columbia and Harvard Law that I was born in Indonesia, hoping it might give me a leg up, as my grades weren’t all that hot at Occidental.
    Well-known for the sharp crease in my pants, and for being clean and articulate.

  33. Mid 30s, studied the biological sciences in college, but ultimately wound up doing computer programming and some IT work, which I had picked up as hobby. Always been strongly socially libertarian, so that led me to sites like Reason then here, as my interest in the constitutional law aspects of my policy concerns grew over the years (though I wasn’t entirely uninterested in law when I was younger, a course in basic business/contract law was one of my favorite undergrad classes, and I loved the mock trial thing before that). Have enjoyed reading in depth legal commentary, articles, and court decisions a long time now.

  34. Dumbass sportswriter, early 40s.

    1. “Dumbass sportswriter” – That’s a bit redundant.

      1. Watch it, guys. The proprietor has indicated he does not condone that type of language, or the disparaging tone.

  35. Middle aged survivor of the tech industry, analytical and passionate about American ideals. Leaning libertarian on pragmatic grounds most of the time with major exceptions for some progressive interventions. I appreciate analytical thinking and therefore it’s fun to hang out in lawyers’s spaces even though I have no law background.

    1. It’s OK. It’s amazing how comfortable the lawyers will make themselves in tech spaces despite having little to no understanding of tech.

      1. If there’s a common trait to lawyers, it’s a comfort in asserting competence in any area that catches their eye. I’m a historian and have never met a lawyer who wasn’t quick to assert their historical expertise if they’ve skimmed a couple books or articles on a subject. Lord grant me the confidence of a lawyer.

  36. Currently a software developer living in Texas with my wife, son and three Shih Tzus. I got interested in law working with IP lawyers in California and started following VC in the years leading up to Heller.

  37. Dropped out of my physics PhD program with a masters, from there to law school. Worked as a lawyer long enough to pay down my loans, and then went back to school in science policy.

    Now I do that, and it is good.

    1. What does it mean to do science policy? Are you at a think tank? Lobbying shop? Bot farm?

      1. Bureaucrat. I am the Deep State.
        😛

        1. Now there’s a shocker: a government bureaucrat lounging around in a tracksuit and posting comments on a blog.

          1. There’s no shortage of bureaucrats in private industry.

            1. True, but private industry bureaucrats are financed by private industry.

              1. So are public ones.

      2. I was so awful a lawyer that my services were much sought after by firms eager to establish losses for tax purposes. My prices were high, for failure often did not come easily. I had to start at the top and work his way down, and with sympathetic friends in Washington, losing money was no simple matter. It took months of hard work and careful misplanning. A person misplaced, disorganized, miscalculated, overlooked everything and open every loophole, and just when he thought he had it made, the government gave him a lake or a forest or an oilfield and spoiled everything. Even with such handicaps, I could be relied on to run the most prosperous enterprise into the ground.

        I am a self-made man who owe my lack of success to nobody.

        1. What was the catch?

        2. “Even with such handicaps, I could be relied on to run the most prosperous enterprise into the ground.”

          So you are ideally suited for government work. If, that is, there are any government programs that haven’t yet failed miserably.

  38. Seventy year old retired federal Navy nuclear engineer technician living rural isolated Lake Michigan island bicyclist Second Amendment activist distrusting of government and cops and education establishment and strangers pierced tattooed hoodied. Extreme IQ +4σ Follow Alexander Meiklejohn curriculum. Eschew mass media infotainment, two decades TV-free. ~1 Mbps net access.

    Current reading interest; The Science of Conjecture: Evidence and Probability before Pascal (JHU 2001) by James Franklin

  39. Professor of computer science who has been enjoying the reasoning here since 2001.

  40. Born 1946, varied employment history.
    – Public schools through HS. Graduate training in history. No PhD.
    – Photo journalism. Reporting, editing, newspaper publishing.
    – Steel fabrication. Built heavy machinery and pressure vessels. Previous member in 3 unions.
    – Typography. Developed and patented software system to coordinate non-linear, letter-pair dependent type kerning changes with font size changes.
    – Photography and graphic design. Annual reports, packaging designs, logo development.
    – Fine art photography.

    Volokh-related special interests: libertarianism, originalism and history, political philosophy, speech freedom, publishing law, changing publishing practices, environmental issues and law, 2A, anything from Orin Kerr.

    Long-time Volokh follower and commenter. I join others who preferred the independent version of the blog. I miss Mark Field, Loki, and others.

  41. US Air Force, AFOSI special agent retiree.
    Lived OCONUS for 24 years.
    Worked/traveled throughout Europe and Africa (secret tip for international travelers: Namibia).
    Currently a government contractor.
    Amateur foodie.
    We can disagree on many things but I do appreciate the insight and education.

    1. Good call on Namibia. Tons of different active things to do, in addition to the dunes, wild animals, etc..

      1. South African Airways serve the best airline food in the world. Mugabe was a monster but Zimbabwe raises some tasty cattle.
        Mark Field and Loki are indeed missed.

    2. The one and only time (AFAIK) I interacted with an AFOSI agent was a computer security conference, where he explained how the AFOSI tracks down child porn on AF computer systems. He spent the first ten minutes explaining just how much effort the AFOSI has to spend on tracking down CP on AF computers.

  42. 47 year old dad of two boys, married. Work as a data mgr for the govt. Long time Reason reader and small l libertarian.

  43. In-house counsel with strong avocational interest in 1A law; been reading VC since the very beginning (2001 or 2002?)

  44. Left biochemist work for law school, 31 years of practice, starting with commercial litigation and appellate firm, followed by 20 years in-house counsel for large academic medical center, and am now an Assistant Dean helping to birth a new medical school (our first class is finishing its first year). Equestrian. 2nd Amendment activist. Married, with a 16 and an 18 year old. Vicariously met Professor Volokh when my husband attended a 2nd Amendment advocacy conference in Orlando. Read the Conspiracy for years before the move to wapo.

  45. 40 year old very recent law school grad, studying for the bar. Before that I taught school for a year, worked in biotech, and traveled extensively in Asia. The impetus for me going to law school was in fact the VC – stumbled across it when I read a balanced article on Justice Thomas written by Professor Volokh back in 2003, which led me to look for other things he had written.

  46. 43 years old, Russian-Jewish immigrant, non-practicing attorney.

  47. Husband, father, retired lawyer, former Marine, native Texan, and past president of my local Tea Party.

  48. Architect, 59, divorced, bibliophile, hiker (did the AT while unemployed during the Great Recession), diver (shipwrecks), art collector (Japanese woodblock prints), veteran (Army NG)

    1. I did approximately 100 yards of the trail, where it crosses I-40, this month. Not quite the same accomplishment, granted, but I wanted to go west, not north or south, so I got back on the Interstate.
      And, as long as I am VERY careful of how I phrase it, I can truthfully say I hiked on the Appalachian Trail. And then toss off the fact that I did it “both ways”.

      1. A lot of people do the Trail in sections until they finish its entire length. At 100 yards per month you’ll be done in about 3,200 years. I recommend the experience to everyone as something uniquely positive – at least in the people you meet, hikers and non-hikers alike. One of the extremely rare murders on AT recently occurred, so all the usual suspects shrilly insisted everybody should be armed. Well, I was on the Trail for eight months (being very, very, slow) and met only a single handful of people with negative attitudes, and usually only slightly negative at that. Try finding that statistic in the real world. Of course, at the time I was (1) long-term unemployed, (2) stressed financially, and (3) in the midst of a divorce. The woods seemed like just the place to be.

        1. I’m afraid I’m likely to remain limited to sections of the trail readily acdessible by an Interstate I already happen to be on. At that rate, it’s going to take me more than 3200 years to finish.

  49. Senior Economics undergrad at Hampden-Sydney College- love this blog!

  50. 25 y/o, work in finance, BA in business and economics, PA resident for most of my life, extreme weeaboo, politically and economically unorthodox.

    I appreciate Reason and every contributor, in spite of my frequent political differences, for highlighting the ever present and increasingly frequent intrusions of the State into our lives. As our national politics become increasingly Marxist in every sense of the word, we need as many strong voices as possible explaining that the flaw of the administrative State is not who runs it, but the mechanism itself.

  51. Late middle age in-house real estate lawyer. Graduate of public university and law school. Jew by conversion. Started reading VC back in 2002 or 2003, not long after it started.

  52. Late 40s practicing litigator. Have been reading the VC since the pre-comment days of the mid-2000s. Small l-libertarian. Very stable genius.

    1. Both “stable” and “genius” are things that, if you are these things, you don’t have to tell people that you are these things. As a result, when people say they are these things, it’s an almost certain sign that they are not.
      (Yes, I know you knew that. But that other guy doesn’t seem to know that.)

      1. Huh. I thought he just knows a lot about horses.

  53. Politically, libertarian and Libertarian for 40 plus years. I don’t agree with many, or most, people, who call themselves libertarians, but I disagree with them less often than those who call themselves dems or repubs.

    Educationally, graduate degree in English literature. Vocationally, retired. Spent my working years about equally between the private and public sector, with stints in private business and non-profits. Careers? Everything from truck-driving to driving tractors to college instruction.

    1. “I don’t agree with many, or most, people, who call themselves libertarians”

      No two libertarians agree about much of anything, including specifically just what it means to be “libertarian”.

      1. This is true. My favorite way of explaining “libertarians” includes the following video, which can be said to illustrate why there will perhaps never be a viable “libertarian” political party:

        https://www.youtube.com/watch?v=PZ0ur5GKC0w

        1. A very neat video indeed.

  54. 55 yo economics professor at Wright State University. Interested in legal developments. Ph.D. In economics at UCLA. Gary Schwartz and Richard Sander were the external professors on my dissertation committee.

  55. Small town Midwest private-practice lawyer, mostly civil. BS (Agriculture) from Big Ten school, JD from another state school. Late middle age.

  56. 30-something network engineer, former Republican, current Libertarian, just got married and now shopping for a house

  57. Just an average Joe with an interest in the law, especially civil rights issues. Soft atheist (I don’t feel a need to rebut others’ beliefs) and lowercase “l” libertarian. Addicted to sports cars, old and new.

    I appreciate the thoughtful nature of (most of) the posts here. Those keep me coming back.

  58. Eastern Orthodox deacon, 65 this year, lifelong Coloradoan, degrees in mathematics and theology, interested in lots of things prominent among which are languages, history, and Constitutional law. Always Conservative, sometimes Republican.

  59. 50s, Software Engineer working in IP litigation in Silicon Valley, National Greatness Libertarian (a party of 1, as near as I can tell).

  60. 60-ish corporate lawyer in midwest, rational and secular on public policy matters. Far to the left by 2019 standards, but not by 1968 standards. No party.

  61. Who, who? Who, who?

    1. Cuz I really wanna know…

      1. Just get up and walk away, dude.

        But as long as we’re on the subject, who put the ram in the rama lama ding dong?

  62. Retired economist/investment analyst. Trends (economic, political, and societal trends over past 20 years) have pushed me into the “rabid libertarian” camp. Over my 35 year private sector career I watched Accounting and Law move from principals-based to rules-based so I discovered this site as part of my knowledge base improvement program. I learned in college Econ history how and why all empires have failed – losing foundational principals that earlier had controlled government excesses is one core reason.

    1. “I watched Accounting and Law move from principals-based to rules-based”

      Elaborate? Any concrete examples?

    2. I don’t see it as much of a pivot to go from principals-based to rules-based. The principals who ran every school I attended were always rules-based.

  63. Prophet. Soul rebel. Rastaman.

    Oh, no, wait — that’s Bob Marley … I always get us confused.

    Retired in the SC — Navy/Banking

    I identify as a sage.

  64. I am a retired academic economist with a PhD in physics who spent the final twenty-three years of my career as a law professor. I also write, both fiction and non-fiction, cook from medieval cookbooks, and argue with people online.

    1. Winner

      1. Well, he didn’t say he won the arguments….

  65. I am a retired atmospheric scientist with a PhD in mechanical engineering (heat transfer and fluid mechanics). I discovered that I didn’t like working in the aerospace industry, so I did a post doc at the National Center for Atmospheric Research. I have been director of atmospheric and climate research at a DOE national lab, manager of an international government/industry research consortium, and I have done stints as a staffer at EPA and DOE headquarters. Nowadays, I pursue my life-long interests in American and ancient (Greco-Roman) history. But I am also influenced by my environment, which includes a daughter who is a state-level appellate court judge and a wife who was a public school superintendent.

  66. 69 year old CPA. I have a strong dislike of both Democrat and Republican parties. Please can someone start a viable third party. I read VC to aggravate myself when I read terms like qualified immunity, absolute immunity, third party doctrine, etc etc etc.

    1. A brief description of the basic platform?

  67. Retired law professor–been reading VC for about dozen years. Somewhat lower case libertarian in outlook.

  68. 49 y/o pastor in southeast Minnesota who has always been fascinated with constitutional law, specifically the First Amendment. Tend to be rather libertarian so I’m not your stereotypical dyed-in-the-wool evangelical Republican.

  69. Retired aerospace engineer, former Marine officer, active Libertarian in the ‘80s, less active libertarian now. See y’all at Juplaya ‘19!

  70. I’m the Dude, man. So that’s what you call me. That or his Dudeness, or Duder, or el Duderino, if you’re not into the whole brevity thing.

    1. That rug tied the whole room together.

    2. Or are you a dude playing a dude, disguised as another dude?

  71. Did someone wake up in Soho doorway?

  72. 39. Social worker. Social libertarian. Traditional skinhead. Proud Zionist. Not a fan of capitalism’s excess but don’t see any system working better.

  73. Disgruntled engineering professor.

  74. Former computer engineer, current software engineer. Two children. Interested in law, colonial history, science fiction, various technical subjects. Not conservative and not very libertarian, but I started reading Volokh Conspiracy around when it started allowing comments, and have continued following it since.

  75. Middle-aged anesthesiologist from Missouri. I lean in to the stereotype that doctors see themselves as Experts on Everything.

  76. Practicing civil-litigation attorney in Minneapolis. Started reading the blog in 2003, when I was in law school. Followed to WaPo and now to Reason. Not commenting under my real name.

  77. Emeritus professor of criminal justice and Information & decision sciences, just entering my ninth decade. Very cynical about libertarians, who feel they got there based on their own merits alone. Show me one who has his own well and latrine instead of using socialized water and sewers, who schooled himself (they are mostly male), and then I’ll consider it a possibility.

  78. Software engineer turned lawyer. Despite suggestions from nearly everyone that I should be in IP practice, I chose to do court-appointed criminal appeals, and I have never been sorry about the choice.

  79. In all seriousness, I found Eugene’s 2A writing during my State’s push for shall-issue CCW licenses. Unfortunately that was while I was still working on my Ph.D. in physical chemistry, so I couldn’t do so much politicking. Got that and went straight into the renewable energy industry. I managed to stay in the lab since then, got a few patents, until last year. Medical/neurological issues have stopped me from carrying or shooting, and made it a Bad Idea to keep working in a high-voltage lab, so I’m driving a desk now.

    1. Oh, BTW, a few years into my career I thought about going into law, but never did – that was a good thing, because it would have been Cooley.

  80. I am a noncontingent human being. My personality is sketchy and unformed, my heartlessness goes deep and is persistent. My conscience, my pity, my hopes disappeared a long time ago (probably at Harvard) if they ever did exist. There are no more barriers to cross. All I have in common with the uncontrollable and the insane, the vicious and the evil, all the mayhem I have caused and my utter indifference toward it, I have now surpassed. I still, though, hold on to one single bleak truth: no one is safe, nothing is redeemed. Yet I am blameless. Each model of human behavior must be assumed to have some validity. Is evil something you are? Or is it something you do? My pain is constant and sharp and I do not hope for a better world for anyone. In fact, I want my pain to be inflicted on others. I want no one to escape. But even after admitting this—and I have countless times, in just about every act I’ve committed—and coming face-to-face with these truths, there is no catharsis. I gain no deeper knowledge about myself, no new understanding can be extracted from my telling. There has been no reason for me to tell you any of this.

  81. 2008 J.D. who has worked exclusively for small firms since graduating Law School. I like being a “mutt” when it comes to what areas I practice. Don’t do Federal work, but always had an interest in the Supreme Court (which I think drove me to Law School in the first place in addition to working on a local level political campaign as basically the only staff of a lawyer who was running for local office and after that campaign encouraged me to go to Law School). Been following this site over multiple platforms because I appreciate that Eugene and Co. do try to neutrally presents all sides of major issues, are willing to accept feedback from the peanut gallarey, and a sibling of mine had Eugene as a 1L!

  82. Young engineering PhD student with a family.

  83. 70, soon to be 71, retiree from manufacturing career, now semi-gainfully employed as a substitute teacher. In many ways, living the dream! And an avid student of law and government.

  84. Gov’t lawyer, open gov’t advocate, former democrat turned Ron Paul libertarian and 1A true believer

  85. Environmental Engineer from Houston. Heavily involved in regulatory compliance.

  86. Still a family law attorney; now doing nothing but pro bono work. Still a left wing contrarian. Still married to my former law partner, who’s now a sitting state court judge. I’ve been annoying folks on Volokh Conspiracy at least as far back as 2005….

  87. Practiced law for about 50 years, not so much now, but still hoping I can get it right.

  88. OK, I’ll bite.

    I started reading Reason in the ’80’s when I was living in Santa Barbara and reading a USENET newsgroup, polisci @ Rutgers, whose editor, ‘JoSH’, had waxed eloquently about the magazine. Later, when I noticed in the local telephone book the Reason office was actually in Santa Barbara, I wandered over there during lunch and interrupted Robert Poole’s day with a check for a subscription and a few back issues that were laying around.

    I’m a retired computer engineer with degrees in physics and electrical engineering. Was at the reception for Ron Paul hosted by Dr. and Mrs. Timothy Leary during the 1988 campaign for President at their home in the hills above Beverly Hills.

    I’ve been a registered and sometimes card carrying Libertarian Party member since the Ed Clark (he was also at the Leary reception) campaign when I decided one term of Jimmy Carter was enough and couldn’t be a Republican even as I quit being a Democrat.

    I’ve been following the Volokh Conspiracy for a few years and was overjoyed when it landed at Reason from its uneasy seat at the WaPo table. I hope it is as good a fit as it appears from the outside looking in.

  89. I’m the husband of Eugene’s UCLA Law classmate, Bridget Clarke. If we were all on Jeopardy!, I’m pretty sure he’d win, she’d finish second, and I’d be booted with a negative score going into Final Jeopardy.

  90. A guy that’s been reading Volokh Conspiracy since at least 2004-10-29. I save all my email, and that’s the first time I forwarded a link to someone, which was:

    http://volokh.com/2003_10_26_volokh_archive.html#106735624982648257

    (sent to a zork fan)

    1. Does the friend live near the granola mines of coastal Antharia? Does the friend sent majestic postcards of Flood Control Dam #3? Does the friend have any genuine zorkmid coins, the ones with King Dimwit Flathead on them?

  91. 36 years old, male, married with one child. BS in CS, BS in Mathematics, MS in CS, MS in Mathematics, phD in Mathematics. Work as a Data Engineer/Data Scientist/Machine Learning Engineer. Attended one semester of law school, and then realized that I would not enjoy being a lawyer, though I enjoy learning about and theorizing about law. In my spare time, I like to study (history, philosophy, economics), read novels, play tabletop and strategy games, and train in self-defense (both hand to hand and weaponry).

    1. That’s a lot of mathematics. What is the graduate school experience in math like? Is that where you learn the math that people still haven’t found a useful purpose for? Or does it all still turn out to be useful in the real world?

  92. I am a physician in my late 60s. Practice in NYC but born and grew up in Canada. Started as a New Republic liberal circa 1985, but became more conservative following Sept 11. Ambushed by reality and better arguments and policies on the moderate right. Have always admired the US and especially the Constitution. I enjoy reading many of the posts. Despite the excellence of the writing, I don’t always completely understand them but I do love following legal arguments the best I can.

  93. 52-year-old prosecutor from Northern California, bridge player, decent quantitative skills for a prosecutor, occasional writer of things. Drifted away from Volokh in the WaPo years, and miss the insanely good commentariat at the original site. But this is a good home.

    Reason readers will be interested in this case: https://www.courts.ca.gov/opinions/documents/D075106.PDF

  94. Retired PH. D. in economics, spent one third career in academia, published well, two third of career in private sector (banking, manufacturing, tax and consulting)

    Socially liberal, fiscally conservative, love the integrity of this Forum except for stance on guns. The pro-freedom position is just great. Believe modern conservatism has betrayed real conservatism.

    1. ” Believe modern conservatism has betrayed real conservatism.”

      The view I’ve developed is that a lot of “conservatives” just want to see consternation on the faces of the hated liberals; they wanted the R Congress to oppose Obama no matter what. and they delivered; they like Mr. Trump not because he achieves anything, because he’s never achieved anything, except for pissing off liberals and people who want the government to work.

      1. Sounds about right. Obama is a disgusting, treasonous piece of excrement.

        1. Among other reasons to dislike them, they produce trolls like this.

  95. Reader of Volokh Conspiracy for a few years. Big fan on Eugene’s First and Second Amendment write-ups on the blog and elsewhere. Mostly a hobbyist in law: mathematics is my primary domain, having done undergraduate and graduate work at UCLA.
    Not a libertarian in full, as I am closer to Trump’s perspective on tariffs of China and his immigration stances (though not on EU tariffs). Otherwise I seek to dissolve the Fed, place First Amendment protections on our youth of public schools, and apply nation-wide constitutional carry. Also look to up the voting age to 25 and hope to see the courts give the commerce clause back its true restricted interpretation.
    A bit surprised to see so few younger folk, being 19 myself.

  96. Full Professor of law and business at a community college in the north east. Maintain my license to practice in PA, but use it rarely.

    And I’m a lesser well known blogger who has been around for a while.

  97. Practicing lawyer for nearly 20 years. Former AUSA in two districts, now senior partner in BIGLAW. Military service before law school. Libertarian and have been reading this site since shortly after it was created (eg in the Juan non-Volokh era). Thanks for creating/ producing so much interesting content.

  98. I’m a defense contractor in the D.C area. I’m Michigan native but left when I enlisted in 2005. I’m fairly libertarian on most issues other than environmental protections, that’s where I tend to lean left. I have a BS in criminal justice and maybe one day I’ll attempt to get into GMU’s Antonin Scalia Law School so I can learn from the likes of Ilya Somin. I occasionally write about criminal justice, military spending, and foreign policy for the Libertarian Institute.
    https://libertarianinstitute.org/author/rfaust/

  99. I would like to direct this to the distinguished members of the panel: You lousy cork-soakers. You have violated my farging rights. Dis somanumbatching country was founded so that the liberties of common patriotic citizens like me could not be taken away by a bunch of fargin iceholes… like yourselves.

    1. This reminded me that Johnny Dangerously’s mother was my neighbor for about 15 years. No bullshtein. Thanks, icehole.

  100. Programmer, 40. King County, WA resident. Little-l libertarian, private pilot (but I repeat myself). Legal-curious for a couple decades. I found Volokh through Overlawyered ages ago, been an RSS subscriber for years and a Reason reader off and on for about the same amount of time.

  101. EV,
    I’m a former colleague of yours from Physics & Astronomy.

  102. I’ve seen things you people wouldn’t believe. Attack ships on fire off the shoulder of Orion. I watched C-beams glitter in the dark near the Tannhäuser Gate. All those moments will be lost in time, like tears in rain. Time to die.

    1. Tell me about your mother.

    2. Thanks Eugene for this post.

      CG, your comment reminded me of Glaser’s little-known (and stubbornly quixotic) attention to beam aesthetics, so I can just believe you were at the Gate; but you can’t *also* have been at the Conflagration (neither was in the other’s light cone).

      That you even know of both of these is intriguing, however: Who *are* you, and what are you doing in this benighted backwater?

      PS. You sound deathly bored. You may not have heard that the latest DeepSIM runs show this sector quite lively in a few millennia, *even at minus 3 sigma*. If interested and Stasis is an option, I know a solid provider (I’d go that route myself but I have .. responsibilities).

  103. Attorney (and CPA) in private solo law practice. Not enough time to study many of the high quality blog posts. Been reading this blog for 15 years. Really enjoyed the high quality comments during the early Bush years. Currently no fan of the Bushes or the chamber of commerce globalist GOP establishment RINOs. Got sold on Trump since 2015 and his identification of illegal and legal immigration needing substantial reform. Sold on his use of Tariffs to negotiate with. Love his waving the magic wand around that Obama never had and said didn’t exist. Really hope Trump wins again in 2020. The country so needs the saving he is providing. Gotta love his strength of will to fight the GOPe, Democrats, and deep state to a draw, and now with Barr turning the tables on them hopefully.

  104. XX former journalist and retired lawyer, Hoosier-born but live in TX after stints in CA and NV. Politically conservative, not Republican. Went to a central high school and state university and thus resent being called a Russian troll. Love horse racing; hence, my screen name.

  105. I’m a computer-science professor at Loyola Chicago who teaches a course on computers and the law. I think it was first drawn to the Conspiracy reading about Universal v Reimerdes, and stayed for the 4th Amendment. But we have the most fun in class with §230. I’m a liberal in the English sense, mostly. I take a dim view of politicians who have trouble with math.

  106. Recently retired non-bureaucratic federal employee now baking in the Outer Banks of North Carolina. Started and continue reading VC to challenge my libtard tendencies. Also recently began enjoying not entering the fetid hyper-partisan ad hominem cesspool that the comments section of this blog has become.

  107. Recently retired soldier (National Guard), former millwright, now a railcar repairman.

  108. Millennial (begrudgingly) and a lawyer. A combination of two most despised demographics.

  109. Former right wing absolutist. Read Anarchy, State and Utopia and haven’t cut my hair since. Been in the litigation support industry for the last 10 years. One year from full SSA payments.

  110. Libertarian gadfly. Woodchippers are my lame claim to fame.

  111. Software engineer and lawyer. A combination of two most despised demographics.

  112. Computer programmer until I retired about a year ago. Now I live in my cabin off the grid in the summer, and SE Asia in the winter.

    1. “Now I live in my cabin off the grid in the summer, . . .”

      So, going for that whole Unabomber vibe, eh?

  113. I enjoy riding shirtless on by horse, as we travel past my dacha and spoof GPS satellites. Whoops, I mean…

  114. Mid-30s civil litigation attorney. libretarian-ish anti-statist, small “a” anarchist.

    Turn-ons: Summary Judgement, rules of appellate procedure, constructive notice, statutes of limitation.

    Turn-offs: Tinker/Morse vs Fredrick, qualified immunity, discovery.

  115. Disabled, homeless former PhD candidate in Materials Science. Teaching Chemistry as a TA was the best job I ever had. My only child lives with mom and is now an adult. Child still sleeps till noon. 🙁 I would live in Alaska year round if it were possible.

  116. Primarily False Claims Act attorney representing whistle-blowers exposing fraud on the government. Longest case: 16 years. Also general commercial litigation, business governance disputes, business transactions, FINRA arbitrations, appellate practice. Top 5 law school graduate. Took ten years off from practice of law (the 90s)to open/run a coffeehouse and bookstore, and publish/edit a literary magazine. These activities allow me to claim experience as an entrepreneur/small business owner and remain a member in good standing with the literary/arts/bohemian demimonde. Libertarian-sympathetic when it comes to individual rights, but Libertarianism has no answer to, or even concedes the dangers of concentrations of economic power. Been commenting here since just about the beginning, though like the commenter above, have visited less as the comment quality has devolved from what used to be–or at least aspired to–rational discourse. Once an oasis, the commenting population, sadly, seems to have lost this quality. Bad currency drives out good, I am afraid.

  117. 64 year-old retired USAF fighter pilot, now a B757 Captain. BA in International Relations, MS in Comp Sci.

    Rarely comment, lurk a lot.

    1. Once upon a time, I was an aircraft armament systems technician. Turns out there’s not much civilian application to that one.

  118. retired southern small town lawyer. love the Conspiracy

  119. I’ve been reading VC since it started, back in the old, old days. At that time I was a grad student studying history and I commented under my actual name. I started law school in 2007 and decided to switch to an alias, settling eventually on this one. It’s also my Disqus handle.

    I worked in Biglaw for a while and now am at a litigation boutique formed by refugees from my firm. I live in the easternmost city of the Midwest.

    Not-quite-mid 40s, married to a university administrator, two kids in school.

    Politically I am definitely on the left but have never been happy with the lazy soft leftism that you’re stuck with in universities and (to a great extent) big firms and businesses. So it was natural for me to read the smartest libertarians around. A long time ago I emailed EV and called him an “evil genius,” which I think he liked. This blog has convinced me of some things now and then.

  120. I am an indigent criminal defense lawyer.

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Federalism

Appellate Court Upholds Constitutionality of Federal Hate Crimes Act Conviction Based on the Commerce Clause

The decision is a complicated ruling that potentially sets a dangerous precedent for the scope of federal power under the Constitution.

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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 as United States v. Lopez and 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.

Such an expansion of federal power makes a hash of the constitutional scheme of limited federal power, and can easily be abused. It would also undercut the usefulness of constitutional federalism as a tool for mitigating the conflicts caused by severe political polarization.

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.

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50 responses to “Appellate Court Upholds Constitutionality of Federal Hate Crimes Act Conviction Based on the Commerce Clause

  1. Well, at least the outcome is correct, because it’s wrong to punch somebody because they’re gay. It’s only OK to punch Nazis and Socialists.

    1. What about gay Nazis?

      I didn’t think that it was ok to punch socialists; if that has reversed itself, what about gay socialists?

      It’s all very confusing.

      1. Or Illinois Nazis. I hate Illinois Nazis.

  2. Does Somin object to making bank robbery a federal crime? Why isn’t that just a matter for the states? How about murder in a national park? How about holding federal officials at gunpoint on a state wildlife refuge? Seems like all these are federal crimes because they unlawfully hinder activity the federal government is legitimately empowered to undertake. Why is interstate commerce different? Isn’t it because libertarians prefer for ideological reasons that commerce be less regulated?

    And while we are at it, why is it that property interests (including libertarians) so often prefer state enforcement to federal enforcement? Isn’t it because state enforcement is more readily accessible to corruption on behalf of property interests?

    I am not arguing as a fan of a generalized national police power. There are good reasons to oppose that. But I am suggesting that there are also bad reasons to oppose it, and libertarians too often seem motivated by the bad ones.

    1. “Does Somin object to making bank robbery a federal crime?”

      I do.

      “How about murder in a national park?”

      No, crimes committed on federal property is one of the few things that is legitimate for the federal government to regulate.

      “Why is interstate commerce different?”

      It’s different because the intent of the founders was to allow Congress to regulate actual commerce, like the waterways, mail, and so forth. It was not intended to allow Congress to regulate anything that has some tangential effect on national commerce. Article 1, Section 8 was intended to be a list of narrow exceptions, and the current Commerce Clause “jurisprudence” allows that exception to swallow the rule.

      1. “No, crimes committed on federal property is one of the few things that is legitimate for the federal government to regulate.”

        On federal property “purchased by the consent of the legislature of the state in which the same shall be”.

        Without that consent, constitutionally, the federal government is just another property owner.

        1. I don’t think I agree with that. The military, as an example, has purchased a lot of land for bases and what not, and I’m not sure if they always had state approval. But it would be absurd to say that the federal government doesn’t have jurisdiction over military bases.

          1. Not absurd at all: states have to agree to give up jurisdiction over territory to lose it.

            Mind, this is one of those clauses the federal judiciary don’t enforce.

            1. For a lot of western states, there are large tracts of land that the federal government retained sole jurisdiction over then when those states were first created.

            2. But they’re not giving up jurisdiction. The states can still prosecute crimes committed on federal property. It’s just that the federal government also has jurisdiction.

          2. The military is not your best example, RWH. The vast majority of their property was purchased with the consent of the state legislatures (or as Matthew says below, retained as a condition of statehood). The Post Office would be a better example since they have lots of really small offices and many of them were routine purchases.

            And in those scenarios, yes, the federal government is just another property owner. They can enforce federal laws that are domain-specific but location-independent (such as ‘no stealing the mail’ and probably ‘no assaulting the postal workers no matter how much they deserve it’) but they can not enforce general federal laws in those locations. So it’s not that they “don’t have jurisdiction” – more that they don’t have sole jurisdiction. The states can, and in some cases must, still be the ones to prosecute.

    2. 1) Bank robbery as a federal crime
      -No, so long as certain preconditions for the crime are met.
      2) Because sometimes the Bank is a federal property, or the crime crosses state lines.
      3,4) Again, federal crimes
      5) Interstate Commerce is a special clause that can be…stretched…far beyond the original meaning.
      6) Because property rights are better able to be managed by people closer to the source, than absentee “landlords” half a continent away.
      7) Because a limited government is better than an all-powerful government, if one is worried about abuse, corruption, and more.

    3. “Does Somin object to making bank robbery a federal crime? ”

      Many banks are federally chartered [“National Association”, “Federal Savings Bank”] and all participate in the FDIC and are part of the Federal Reserve.

      So plenty of reason to make it a federal crime.

      The other things you ask are aimed at federal officers.

      An assault that happens to take place at a business is utterly and completely different.

      Get serious for once.

  3. To paraphrase a comment recently in the news: The interstate commerce clause has already been transformed into a general police power. The courts are now just driving around shooting the exceptions.

    And, in the long run I’m betting you’re going to be OK with that, Having already accepted that it’s OK for the federal government to be ‘a little bit pregnant ‘ in this regard, what principled basis have you got to object to picking off those exceptions?

    You really need to be more principled about this. Forget “effects” or “potential ” or “in aggregate “; Unless the thing being regulated is ITSELF narrowly defined interstate commerce, the clause affords Congress no jurisdiction. Period, end of the story.

    Commerce Clause jurisprudence went off the rails with Wckard, if not earlier, and, no, there’s no such thing as a little bit pregnant.

    1. What might get the expansion for hate crimes rolled back, is if an enterprising person started prosecuting blacks or Muslims for the attacks on Jews in NYC that are increasingly occurring, or something similar, to make the issue boomerang around on the left. Then they might be newfound defenders of Federalism, just like they are with presidential powers in the era of Trump.

  4. Wickard was a gross abuse of power as well as logically incoherent.
    It should be reversed. I started to say repealed, but Supreme Court decisions cant be repealed by the people, can they?
    Sort of anti-democracy, huh?

    1. Courts are inherently anti-majoritarian. It’s both a feature and a bug. We want them to be anti-majoritarian to defend individual rights (which they sometimes do) against the tyranny of the majority, but majoritarian as to which rights they protect or *ahem* (cough) create on their own.

      1. The courts are supposed to be short term anti-majoritarian, in the sense that they don’t permit temporary majorities to override rules previously adopted, unless this is done by the required formal procedure. For instance, temporary majorities can’t trample freedom of speech, because it is protected by a constitutional amendment.

        But they are supposed to be long term pro-majoritarian, in the sense that the rules they enforce ARE adopted and changed by majorities. So that, for instance, a sustained and properly distributed majority could, conceivably, repeal the 1st amendment. And if it did so, the courts would be obligated to respect that.

        The problem is that they’ve taken advantage of the difficulty of amending the Constitution to become long term anti-majoritarian, making changes to the interpretation of fundamental law, outside the amendment process, and then demanding that the majorities that never authorized this use the amendment process to undo it. This take a supermajority mediated amendment process intended to produce stability, and stands it on its head, requiring supermajorities to BLOCK, rather than intitiate, constitutional changes.

        1. I have to quibble a bit with that historical assessment, to say that it’s not that Courts, specifically the Supreme Court, are “taking advantage of” the difficulty in amending the Constitution. Congress is avoiding amending the Constitution. Last serous attempt was the ERA. Rather, elected majorities are punting on difficult decisions, and Courts are filling the void because of a more litigious society after the Warren Court. And courts take advantage of the elected branches being divided politically by party to do more when they know they won’t be so easily overturned.

          Moreover, the only real issues are when various majorities are put out of power but the Courts (which lag) are still in power from the previous elected majority. The appointment process takes some time to catch up.

          The only danger that is real, here, is that as you say courts block majoritarian amendment processes, like how California (before it became totally crazy) tried to block gay marriage and welfare/benefits for illegals only to be stepped on by the Courts. Where are the cowardly liberal judges worried about institutional legacies (like Roberts) when that happens?

          1. Part of what is going on here is that we’re developing, (All the Western democracies have been…) an insular, self-perpetuating political class, with values and opinions different from the general populace. They’re getting increasingly good at rigging the system so that nobody outside their clique can get a position of power. (That’s why Trump has been met with so much horror: He’s not a member of the club.)

            Formal amendment is deplorably subject to democratic veto by that populace. The actually get to reject proposed amendments! Like they did the ERA, before the courts ‘amended’ the 14th amendment to render that rejection moot…

            As judges are more insulated from popular retaliation than elected office holders are, they’ve become a preferred way to impose changes that are politically dangerous. The judges do the dirty work, and then the elected office holders can publicly fight the good fight, take a dive, and, Ta Da! Everybody but the public gets what they want, and nobody gets voted out of office for doing it openly.

            But it’s all a game, where the objective is that the political class get their way, and the public has no say in the matter or way to undo it.

            1. While I agree that the political class is insular, and self-perpetuating with its own way of assigning merit membership into the class (did you go to the right school, do you have the right globalist opinions, are you style over substance, etc. etc.) it’s not clear to me that the judicial creation of a whole host of anti-majoritarian “rights” (amongst other things) are not being as driven by the public as the elected office holders who are punting to the courts. Certainly, even if it is a noisy minority who wants them, they quickly get accepted, like in Miranda, or Lawrence or Obergefell.

              I guess I’m saying that it’s no so clear cut that judges are out of control…they are, but so is the public for thinking that there is a right attached to every facet of human behavior.

              1. Obergefell got “quickly accepted” because the judiciary steamrollered the democratic opposition, which was somewhat hobbled in the first place by the sort of deliberately ineffectual representation I referred to above.

                What you’re looking at since then isn’t so much acceptance as resignation, the realization that the public have no tools with which to reverse Obergefell, and that public opposition to it may eventually bring dire consequences. Brendan Eich loses his job, social media platforms cut you off at the knees if you dissent, and who knows what may happen to you 10 years from now if you say something today that gets recorded somewhere?

                In some ways the US is already starting to exhibit classic totalitarian state characteristics, with people concealing their opinions out of fear of retaliation.

                1. People support the rule of law. The only way to call it resignation, is if you have an opinion survey before and after a decision nuanced enough to measure that. We pretty much do with gay marriage, and it’s acceptance not resignation. For Obergefell, the Supreme Court rode a wave like a surfer. Scalia’s prognostication in Lawrence was entirely correct.

                  This does not, however, discount your correct point that surveys and history (the 2016 election) show that American’s have to dissemble their political opinions out of fear of retaliation, but that isn’t something as new as you think either. Imagine being a communist in 1951 in someplace other than Hollywood or the State Department, or gay in 1970 in someplace other than NY or San Fran?

                  In short, though, I think you need to be more aware that the support flows both ways. The culture of rights in America, which people take in with their mother’s milk, tends to make people think they have a right to do whatever makes them happy, which is also a product of late stage liberalism.

  5. Punching a gay guy falls under the purview of the Commerce Clause, but Andrew Cuomo personally blocking a pipeline from crossing the state of NY to send natural gas from one state to another doesn’t?

    His actions, unlike what occurred in the above case, are 100% affecting interstate commerce.

  6. I’m having trouble seeing what’s interesting about this decision. Isn’t every Commerce Clause nexus this thin? The incident took place at work, within a firm that does business in more than one state, therefore whatever happened presumptively affects “interstate commerce.”

    What I wonder is whether Congress can solve this legislatively, by declaring that interstate commerce means only transactions across state lines, not just anything that happens in connection with a business that might theoretically affect interstate commerce.

    1. Why would they do that? Do you think the judiciary are dragging Congress kicking and screaming into having power over more and more of our lives?

      This originated with Congress, the Court just endorsed their power grab.

      1. I get that, I just am curious whether Congress could do that. I’m not aware of any other case in which they have passed a resolution to define the scope of a Constitutional power–I’m sure for the reason you just mentioned. But, could they?

        1. Maybe the RFRA. That got largely struck down, though.

          1. Maybe the RFRA. That got largely struck down, though.

            I can see that as being an example. Both of Congress defining a Constitutional grant of power, and the court coming back with its own interpretation. You’d think that’s how the coequal branches were meant to work, huh?

  7. “Homophobic assaults and other hate crimes deserve severe punishment. ”

    They deserve the same punishment as any other assault, no more, noless. If my nose is broken what does it matter if the prep hated Jews or just wanted my wallet?

    “Perhaps hate crimes should even be punished more severely than otherwise similar “ordinary” violent crime.”

    No. Severity should not depend on whose nose got broken.

    1. No. Severity should not depend on whose nose got broken.

      Notwithstanding that the basic sense of hate crime laws isn’t what we’re arguing here, these comments by Ilya strike me as disclaimers, as if he’s worried about his boss reading the post and wants to be able to point to those sentences to prove he hasn’t deviated from the orthodoxy.

      That being said, yes I’m with you on the illiberality of the whole notion of hate crimes. You have the absolute right to say what you wish, but your right to swing your fist ends where my nose begins. And if you keep swinging it past that point, your crime is that you hit me. Your reason for doing so is irrelevant (unless it’s that I hit you first.)

      1. I agree, it’s boilerplate kowtowing.

        I think the principle that Bob is defending is that it shouldn’t matter why you broke someone’s nose, what should matter is that you broke it.

        Obviously the point has to be relaxed a bit to take account of the implications in relation to other crimes. So breaking someone’s nose as part of an unsuccessful attempt to kill them, scores bigger than breaking someone’s nose because you were aiming a punch at his chest in a bar fight, but he ducked. Likewise punching someone on the nose in response to an insult might deserve some mitigatory allowance, whereas an unprovoked assault would not.

        But I don’t think the essential principle goes quite as far as Bob’s “all noses are equal” assertion. The nose of a child or a woman or an elderly man might count more than the nose of someone who might be able to defend himself. The nose of a policeman on duty might count more for reasons of encouraging deference to police authority in moments where the peace is threatened, and so on.

        But the nose of a man who is punched because he is black does not seem to me to be worth more than the nose of a man who is punched because he is wearing a MAGA cap, or the nose of a man who is punched because he is dating the woman you used to date.

        1. I’m going to have to disagree with my more conservative brethren, and say that extra harshness in sentencing if the prosecution can show that a broken nose occurred due to hate based on demographics is not a bad thing.

          First, we already put people away for longer terms depending on their various state of mind when committing a crime. Walk in on a lover with a paramour and assault him? Not the same as jumping him in an alley as he walks home from the bar, and we punish accordingly.

          Second, harsh punishments for attacking someone just do to an inherent status like skin color should be (I don’t know if anyone has measured this) a deterrent to prevent this country from degenerating into racial violence, which it regularly did in the past and which it may well in the future the way things are going.

          I think what you’re objecting too, rather, is not that hate crimes deserve harsher punishment, but a perception that hate crime prosecutions only go one direction.

          1. harsh punishments for attacking someone just do to an inherent status like skin color should be (I don’t know if anyone has measured this) a deterrent to prevent this country from degenerating into racial violence, which it regularly did in the past and which it may well in the future the way things are going.

            The thing is, when you protect some classes of people and not others, you a) create a political contest to gain protected status for more and more classes, and b) extreme resentment on the part of those not in a protected class, especially if they are also politically blamed for the other classes ‘need’ to be protected. If you look at the last 10-15 years, especially on college campuses, you can make a strong case that that phenomenon brings its own increase in racial violence.

            All-noses-are-equal is far preferable to having a political process where we try to determine which noses are more equal than others.

        2. The fundamental, constitutional problem with the nose of a man who is punched because he’s black mattering more, is that basing the “mattering more” on immutable characteristics violates equal protection. It’s the basic problem with the whole concept of “protected classes”: Some of the animals become more equal than others.

          1. You’re looking at it by the outcome, not the by intent, which I can’t blame you for.

            In giving a boost on sentencing for any attack motivated by punching someone because they are black, we are punishing more harshly for the state of mind of the attacker, not for attacking a black person like they have extra special protections as the Democrat plantation’s favorite pet demographic.

            Theoretically, blacks who go polar bear hunting when playing the knockout game should receive the same harsher punishment, but I don’t see that happening. I’d like to see examples, maybe it is.

            The constitutionality of hate crime laws is not the issue, it’s the application of them.

            1. That’s the problem though. The courts shouldn’t be deciding what is more or less morally reprehensible for the purposes of virtual signaling or directing cultural narratives about race.

              The intent doesn’t matter. This is just like affirmative action. You can’t uplift one person without pushing down another. You can’t make a workplace 50% female without firing men or hiring only women going forward. You can’t punish one crime more without punishing another crime less.

              “All men are created equal, but some are more equal than others” is just semantics. Inequality is inequality, period.

              1. While we both agree on the problem, the solution to hate crimes laws is not to try to get them ruled unconstitutional, because they are not unconstitutional. It’s better to have them repealed, or alternately, apply them equally, which will lead to them being repealed.

                1. But they ARE unconstitutional, as applied, anyway, and unavoidably so.

                  Conceptually, this is sort of like the unconstitutionality of “separate but equal”: Not unconstitutional in and of itself, but rather because it’s never, ever going to be executed in a constitutional manner.

                  1. I don’t think they are unavoidably unconstitutionally applied, but your point is well taken. It would be better if they were gone, but I highly doubt they ever will be…unless they are applied equally. At that point, the intersectional left will declare hate crime laws tools of the cisnormative white supremicist patriarchy, and the momentum to undo them (like mandatory minimum sentences) will really begin.

              2. What is more harmful to the community, thus eligible for harsher punishment, in the context of hate crime laws was decided by Congress, not the court. Court decided whether that was within the scope of power granted to Congress by Constitution. That was the whole thrust of the blog post, starting with the title.

                “You cannot uplift one person without pushing down another” is a question-begging statement. Law inherently creates those who abide by and those who do not and will always “push down” the latter group of people. Hate crime laws do not create castes along with the suspect classification. Blacks, as well as whites, can run afoul of them if they act on racial hatred. Indeed, the first time a hate crime law was upheld as constitutional under the 1st Amendment in the SCOTUS the perpetrator was black. See Wisconsin v. Mitchell. The decision was unanimous.

                1. ” Hate crime laws do not create castes along with the suspect classification. Blacks, as well as whites, can run afoul of them if they act on racial hatred. ”

                  As a matter of theory, yes. As a practical matter, not so much. The courts can uphold cases of ‘reverse’ application if they reach them, but the courts do not make charging decisions.

                  You don’t see affirmative action programs trying to lighten the skin tone of the NFL, or recruit more male nurses, while STEM programs are under relentless pressure to bring in more women. People know what sort of violations of nominally neutral laws are safe, and what sort produce legal consequences.

                2. I read these comments and I take from them that there is broad agreement, amounting (because of assertions without evidence or explanation) apparently to religious faith, that the commerce clause was meant to be very narrowly interpreted and enforced. Somewhere, there must be more on that than what is in the Constitution, because that isn’t in the Constitution.

                  Can someone fill me in please, on where that comes from? Is it from earlier precedents, now overturned? Is it from some strained reading of the Federalist? Is it from a reading that founding era assertions that federal powers were to be strictly limited, meant that they were to be limited in effect, instead of limited in kind?
                  Why isn’t the power to regulate commerce straightforwardly a power to do everything which is necessary and proper to regulate commerce?

                  1. For starters, just off the top of my head, it was asserted that there was no need for a Bill of Rights by the Federalists (to counter the Anti-Federalists who didn’t want the Constitution) because they said that the powers of the federal government were such that it wouldn’t be able to infringe on rights.

                    From the Federalist Papers (not a “strained” reading to be sure), it’s clear from the beginning that the expectation was that the Commerce Clause wouldn’t be the broad catchall that it has become.

  8. How did the interstate commerce clause get to this point? I understand that Wickard codified an extremely far reaching definition, but how did the judges’ reasoning become so flawed in the first place?

    My limited understanding of the interstate commerce clause is that the founding fathers wanted Congress to be able to deal with states that try to issue tariffs against one another. To me, “among the several States” means “between the States themselves”, not commerce between individuals. I would like to believe the founding fathers didn’t mean that Congress can regulate any and all trade we do just because it crosses State boundaries. That’s an insane overreach that, by definition, regulates intrastate commerce as well.

    1. It got to this point due to “the switch in time that saved nine.” FDR’s Court packing proposal didn’t fly with Congress, but it did scare the Court out of enforcing constitutional limits on federal power.

  9. I think that looking at the strict commerce clause issue, shorn of political context, this is a closer call, and there is more justification for finding commerce jurisdiction, then Professor Somin’s analysis suggests.

    Under a very narrow interpretation of the commerce power, Congress has the power to prohibit assaults and crimes generally within interstate commerce itself, such as an assault taking place on a train or airplane moving between states.

    In expanding the commerce power to cover instrumentalities of commerce, I think the Supreme Court, rightly or wrongly, at least arguably expanded the commerce power to include ordinary crimes taking place within instrumentalities of commerce, not just within commerce itself.

    I generally agree with Professor Somin that the Supreme Court has expanded the commerce power beyond recognition in a way that removes limits on centralized government that were put in place by the founders, and those limits need better enforcing.

    But what I can’t do is start enforcing stricter limits whenever I’m faced with a law I might disagree with on other grounds. I have to apply the same limits and the same rules to all laws, like them or not. And under the Court’s current very expansive interpretation, this probably passes muster.

  10. […] Appellate Court Upholds Constitutionality of Federal Hate Crimes Act Conviction Based on the Commerc… Ilya Somin, The Volokh Conspiracy […]

  11. A law school exam question comes to life.

Please to post comments

Calling All Guamanians

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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!

Free Speech

Vermont Supreme Court Reads Revenge Porn Law Narrowly

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.

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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.

Now, the legal analysis:

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41 responses to “Vermont Supreme Court Reads Revenge Porn Law Narrowly

  1. This ruling scuttles a criminal proceeding.

    Is there still a civil suit remedy available?

  2. “Under this analysis, by the way, it wouldn’t have been a crime for Mr. Coon to post the material himself, so long as he and the complainant were no longer in a ‘sufficiently intimate or confidential’ relationship when complainant had sent him the material (and there was no promise to keep the material confidential). Indeed, the same would presumably apply if complainant and Mr. Coon had never been in a relationship, and the sexting was a means of flirting.”

    I think the act of sending nude images implies at least a request to keep them confidential, absent specific language between the parties otherwise. I think the Court rushes to dispense with expectation of privacy a little too much here.

    1. Of course you’re correct re sending implying at least a request for confidentiality. But unless the law changes, I think the legal standard is: Is there a reasonable **expectation** of privacy. The court is, I think, correct in saying, “Well, if there’s no special relationship between the two of you, then why on earth would anyone expect dirty pix to be kept confidential?” Hence the famous Latin warning, “Caveat Spanktor” (Let the sender of porn beware.)

      We all agree that receiving these photos and then passing them on (other than, perhaps, to law enforcement in some situations) is repulsive and bad behavior. But illegal? I have my doubts.

      1. Some women receive entirely unsolicited dick pics from guys. I really don’t think these guys have a *reasonable expectation* of privacy. The man clearly can’t think the picture is entirely “private” if he just decides to send it out when it has not been requested. I don’t think his adding “please don’t share” makes any difference to my assessemnt of whether this is a “private” picture.

        Under these circumstances, I think the woman should be well within her legal rights to post the picture, comment on the man’s behavior and perhaps on the merits of the dick in the picture. Whether that’s what she ought to do is another matter, but sharing these shouldn’t be illegal nor should it be considered invading the man’s privacy.

        If the guys don’t have a reasonable expectation of privacy for sending dick pics to women who have in not requested them and who are not in any sort of relationship with the guy, it seems to me women also don’t have a reasonable expectation of privacy for sending their pictures to a man. I agree with the court.

        1. “If the guys don’t have a reasonable expectation of privacy for sending dick pics to women who have in not requested them and who are not in any sort of relationship with the guy, it seems to me women also don’t have a reasonable expectation of privacy for sending their pictures to a man.”

          If you start by assuming your conclusion is true, nobody should be surprised when you “prove” you conclusion. Here, I’ll do it the other way.
          If naked pictures are inherently private, then anyone who access them by whatever method and then further distributes them has violated someone’s privacy.

          Under your logic, the massive release of celebrities’ nude photos dubbed the fappening weren’t an invasion of privacy, because the hacker(s) didn’t have a personal relationship with the celebrities.

          1. James
            >If naked pictures are inherently private
            So, if I understand you correctly, you are going to start by assuming your conclusion that pictures are inherently private to conclude they are private.
            In fact: naked picture are not inherently private. Moreover, neither society nor the courts treat them as such. If they were inherently private, magazines like Playboy and Penthouse wouldn’t exist.
            Context and behavior of the person pictured affects whether the pictures are private or not.

            >Under your logic
            Nonesense. That is not what happens under my logic. Under my logic if the celebrities *sent the pictures* to someone who didn’t solicit them, then the celebrities weren’t treating them as private and they weren’t. The celebrities did not send the pictures to hackers either accidentally or on purpose. The hackers obtained them by hacking.

            BTW: Yes. I do assume that people who voluntarily disseminate their pictures, confessions, or deep dark secrets to others who don’t wish to receive the pictures, confessions or deep dark secrets have no reasonable expectation that the others will keep these things private. The picture senders and so on may have expectations, but those are delusional.

            1. “So, if I understand you correctly, you are going to start by assuming your conclusion that pictures are inherently private to conclude they are private.”

              You managed to figure out what that was an example of? Brilliant! And all I had to do was explicitly say that’s what it was.

              “Nonesense. That is not what happens under my logic. Under my logic if the celebrities *sent the pictures* to someone who didn’t solicit them”

              Good lord. I have to explain YOUR logic to you, as well as mine? Fine. Start by getting your facts straight. For example, stop insisting on inserting “people sent photos” when the facts don’t happen to include that one. Get it? The celebrities didn’t *sent the pictures* to the person who published them. But, since they also don’t have a personal relationship with the hacker, your logic says it’s OK to publish them.

              “If they were inherently private, magazines like Playboy and Penthouse wouldn’t exist.”

              You’re also apparently unaware of what “waiver” means. Hint: Before magazines like Playboy and Penthouse (do either of these still exist?) publish photos, they obtain waivers.

              1. Get it? The celebrities didn’t *sent the pictures* to the person who published them.

                Of course not. That is one of my points exactly. I didn’t say they sent the celebrities sent them. In fact, I wrote

                The celebrities did not send the pictures to hacker

                If you wish to understand my logic (and I suspect you do not) you might want to learn the meaning of the word “if”.

                Following my logic it is those who send their pictures themselves who don’t have expectation of privacy. That is why the celebrities can have expectation of privacy, while the complainant in this case or people who send dick pics to stray women do not.

                But, since they also don’t have a personal relationship with the hacker, your logic says it’s OK to publish them.

                Nope. Never said that and it doesn’t follow from my logic.

                You’re also apparently unaware of what “waiver” means.

                Wrong. I know what waiver means. If that’s the word you like: people like the claimant or those who send dick pics to people who don’t want them have, by their actions, waved any reasonable expectation of privacy.

                Also: if one can wave away the privacy in nude photos, then, contrary to your claim the privacy is not inherent in the fact of nudity in the photo. The privacy springs from something other than mere nudity.

                1. ” But, since they also don’t have a personal relationship with the hacker, your logic says it’s OK to publish them.

                  Nope. Never said that and it doesn’t follow from my logic. ”

                  It’s the ruling of the court that you said you agreed with.

      2. Consider the case where person A intends to send their naughty photos to person B, but actually sends them to person C by mistake. Person C hasn’t done anything wrong by receiving them, but they have if they further distribute the images to the public.

        Nekkid pictures, by their nature, are by default expected to be private. Now, that expectation can be expressly waived, but that’s the way I’d have decided the case.

        1. Again, the issue is reasonable expectation of privacy rather than a mere expectation. If you send pictures to your significant other, yes, you can reasonably expect that they will keep them secret. But if you send unsolicited pictures, you can’t reasonably expect that, even if you do expect it.

          1. “But if you send unsolicited pictures, you can’t reasonably expect that”

            Yes, you can. Most people treat nude images as if they were confidential. They do this because if you don’t, nobody will send you any. That’s why “revenge porn” is a crime in the first place.

            Nude images are sent using technologies that themselves have an expectation of privacy… SMS and email. (I’ll concede the Facebook offers no such assumption.)

            1. > They do this because if you don’t, nobody will send you any.

              Women who are sent dick pick by near strangers don’t want them. The idea that the near stranger has a “reasonable expectation” of privacy based on the theory that otherwise the woman wouldn’t be sent any more is pretty silly.

              >sent using technologies that themselves have an expectation of privacy
              The technology by which these are sent is irrelevant. If the unsolicited pictures being sent to people who don’t even want them are sent by mail, carrier pigeon or SMS, I don’t think the method by which the pictures are sent can confer an expectation of privacy.

              1. “Women who are sent dick pick by near strangers don’t want them.”

                OK. And? This is a case of a woman who got not-dick-pics and had to go looking for them.

                ” The idea that the near stranger has a “reasonable expectation” of privacy based on the theory that otherwise the woman wouldn’t be sent any more is pretty silly. ”

                That is silly. Where did you get it?

                “The technology by which these are sent is irrelevant.”

                Speaking of silly.
                You’re willing to toss aside the wiretap act?

                1. “That is silly. Where did you get it?”
                  Uhmmm… You provided this as the reason people treat nude images as confidential:
                  “Most people treat nude images as if they were confidential. They do this because if you don’t, nobody will send you any. ”
                  The corollary would be that women who don’t wish to be sent dick pictures would have absolutely no reason to treat those sent to them as confidential. The man sending them to someone who did not request them certainly can’t reasonably expect that person wants them, and therefor might be motivated to keep them confidential. The receiver has every motive to blab and show them to others– if only to prevent getting further ones!

                  “>Speaking of silly.
                  You’re willing to toss aside the wiretap act?”

                  You do know that if you phone me and talks to me, the wiretap doesn’t make it illegal for me to tape the conversation I am taking part in. Right?

                  1. “You do know that if you phone me and talks to me, the wiretap doesn’t make it illegal for me to tape the conversation I am taking part in. Right?”

                    AFIK, You are correct as to federal law. State laws vary. Some states allow one participant to consent to recording a conversation, but some states require that all parties consent. So what you describe, could well be illegal under the state wiretap law depending on where you are.

                    1. Yes. I was referring to the federal wiretap act. But one party consent recording is more common than all party consent. So, yes, I am willing to toss all party consent just as many states and the feds have done.

                      FWIW: I live in Illinois, which recording can require 2 party consent with exceptions to comport with the 1st amendment. Among other things, to make it compliant with the 1st amendment a party can record as long as the recording is not “surreptitious”. There is also language about consent. But presumably, the consent is implied the moment a party says they are recording or makes it obvious they are recording and the other party continues in the conversation.

                      (The law also has provisions permitting surrepticious recording with 1 party consent.)

                      It’s also worth noting that I was responding to Pollock who wrote

                      Nude images are sent using technologies that themselves have an expectation of privacy… SMS and email. (I’ll concede the Facebook offers no such assumption.)

                      This seems to claims that merely sending by SMS or something would transform the final delivered product into something “private”. That’s just not true. Obviously, when sent by email, the sender has consented to the contents of message being “recorded” by the receiver.

                      I think my larger point that that the technology for communicating isn’t what makes a conversation or image private is true. Sending a message by email doesn’t render a spam message from the Nigerian scammer “private” in the sense that I can’t re-post it!

                    2. “This seems to claims that merely sending by SMS or something would transform the final delivered product into something “private”.”

                      Are you just flatly unable to comprehend what has been said to you? It seems to be the case.
                      You didn’t get it right any of the times you tried to summarize what I wrote. Not once.

                  2. “You do know that if you phone me and talks to me, the wiretap doesn’t make it illegal for me to tape the conversation I am taking part in. Right?”

                    No, but I DO know that you’re flatly incorrect in fifteen states, including the one I happen to be sitting in at present.

                    1. Yes. And as I told Mathew above, I am willing to throw the two party consent laws out or drastically narrow them, just as many courts periodically do.

                    2. “I am willing to throw the two party consent laws out or drastically narrow them”

                      Interesting, considering how you tried to lecture me that we’re discussing what the law is, not what it should be. But the one time you made a statement about what the law is, you got it 180 degrees wrong.

          2. ” If you send pictures to your significant other, yes, you can reasonably expect that they will keep them secret. But if you send unsolicited pictures, you can’t reasonably expect that, even if you do expect it.”

            So if you get nude images sent to you by mistake, your inclination is to publish them?

            1. The question is what is legal, not what a person is inclined to do. Lots of people will be disinclined to publish the pictures or secrets or other things not intended for them. But there are two problems with your conclusion based on your analogy.

              With respect to the specific case of dirty pictures: in this case the unsolicited pictures weren’t “accidentally” sent to the ex boyfriend. They were sent on purpose. So the person who received them didn’t want them, and certainly wouldn’t be “expected” to indulge the sender in the hope of getting more pictures. (The desire for more pictures seems to be your theory about why the sender might “expect” the receiver to keep them private.)

              But even if the accident had occurred, the ‘reasonable expectation’ still wouldn’t exist, which we can see if we change what is sent. Suppose Person Joe sends his fiance Jane a note discussing the recent murder he committed at her behest. (Perhaps he committed it to inherent funds so he and Jane can run off to the Bahamas and live in splendor.) The note is misaddressed and accidentally is sent to Sally. Joe might have expected his fiance Jane to keep mum. But that hardly binds Sally to keep the contents of this private communication a secret. Most people would expect Sally to trot over to the police and turn Joe in.

              1. “The question is what is legal”

                No, it isn’t. The question is what should be legal. See how that’s not the same thing? Take your condescension and shove it under the mattress, ‘K?

                “With respect to the specific case of dirty pictures: in this case the unsolicited pictures weren’t ‘accidentally’ sent to the ex boyfriend.”

                Duh? Did somebody say they were?

                “Suppose Person Joe sends his fiance Jane a note discussing the recent murder he committed at her behest”

                With respect to the specific case of dirty pictures: in this case the unsolicited pictures weren’t actually a confession of murder. Or, put non-condescendingly, confessions of murder aren’t inherently private. Try again with something that is: Suppose the nekkid pictures aren’t amourous in nature, but rather medical. If the doctor leaves such pictures out, is the after-hours cleaning crew allowed to publish them? Your doctor has a special relationship with you that confers a duty of confidentiality, but the janitor has no such relationship with you. The logic of this ruling says “go right ahead!”
                If your accountant forgets to shred your tax documents, and some dumpster-diver retrieves them, are they free to publish?
                Private photos are, by definition, private. Until now, pictures of people in the altogether have been considered private per se.

                Here’s another type of case where the outcome probably isn’t what the Court anticipates: naked photos are on a computer or device. The device gets hacked. Since there’s no relationship between the hacker and the hackee, the hacker is free to publish away. On photos that were not intentionally transmitted to anyone… because no expectation of privacy?!?!?!

                1. >No, it isn’t. The question is what should be legal.
                  Uhmm… The court rule is on what is legal or illegal. So yes, the question is what is legal.
                  But I happen to think this is the way it ought to be.

                  > Or, put non-condescendingly, confessions of murder aren’t inherently private.
                  Nude pictures aren’t inherently private either.
                  > If the doctor leaves such pictures out, is the after-hours cleaning crew allowed to publish them?
                  Once again your conclusion about what my logic dictates is incorrect.
                  The doctor is the one who hasbreeched his duty of confidentiality. The cleaning crew employed by the medical establishment almost certainly also has a duty their employer which will include not sharing confidential information the employer accidentally revealed at the office. So, the doctor-patient context and the employment context creates an expectation of privacy with respect to the janitors actions.

                  In contrast, the woman who is sent dick pictures she quite likely doesn’t want to receive has no such duty toward the person who sent them to her.

                  If your accountant forgets to shred your tax documents, and some dumpster-diver retrieves them, are they free to publish?

                  I might not think highly of people who fish around dumpsters to find confidential information, but I think they are free to publish the information. You may very well be able to take legal action against your accountant for his slip-shod methods.

                  Private photos are, by definition, private. Until now, pictures of people in the altogether have been considered private per se.

                  You keep wanting to assume your conclusion. But your assumption is incorrect. Nudie pictures can become non-private through the actions of the person pictures. They are routinely published in magazines like Playboy and Penthouse.

                  The device gets hacked. Since there’s no relationship between the hacker and the hackee, the hacker is free to publish away.

                  You keep missing the distinction between someone stealing photos (by hacking) and a person voluntarily disseminating their photos. It’s perfectly possible for the law to distinguish between publication of an item obtained by theft (i.e. hacking) and an item given away by the owner (i.e. the man sending a dick pick to an unwilling person.)

                  It’s also perfectly clear that in the latter, the man himself is not treating the his naked pictures as “private”. It is the man’s own behavior that is relevant to the issue of whether his privacy is invaded.

                  1. “Uhmm… The court rule is on what is legal or illegal.”

                    I’m not on the court, and obviously neither are you.

                    Go the fuck away.

                    1. So I don’t suffer fools gladly. Chalk it up as a character flaw.

    2. Where is the “expectation of privacy” in this case?

      Did they have a prior agreement?

      Did the sender write, “Do not post or forward,” and if they did, does that impose some legal obligation on the receiver?

      I’m with the court on this one.

      And a warning to everyone that once you post something on line, then you lose physical control of it.

      You may have some legal control of it (e.g. copyright, proprietary, etc.), but that can’t physically stop someone from using it.

      And once it’s out in the Interuniverse, then tough cookies getting it removed.

  3. “Complainant sent nude pictures of herself to Anthony Coon[CASE DISMISSED!]”

  4. It strikes me that this sort of republication might be a copyright violation.

    If the picture was a nude self-portrait, it seems likely to me that the recipient would have a right to look at the photo or show it to whoever (implied license), but republication (or a public performance?) would require a license, either express or implied, and I don’t think that is present here.

    If the copyright was owned by a third party, that might implicate expectation of privacy but could also be a violation of that person’s rights to publication, etc.

    If the picture had been taken by the boyfriend, things get significantly more complex. If the new girlfriend’s publication was not authorized by the boyfriend, she could be violating his rights, though he might well not be interested in pursuing the issue. If the publication was authorized, that could implicate explicit or implicit agreements between the photographer and model at the time of the photo. In that case, it’s unclear to me how such agreements might be affected by her re-sending the photo back to the photographer.

    But any of those would be a case for a different venue. Probably one without the “victim” friendly features of the state revenge porn law.

    1. Yes, it is a violation of copyright. It is also arguably extortion and blackmail as they threatened to get her fired. Revenge porn cases have been settled civilly on all these counts before. However, the purpose of these laws was expressly to prevent that from being necessary.

      1. It looks like the complainant could file a civil suit:

        he State failed to show that there were no less restrictive alternatives available, or to address why civil penalties, such as those set out in 13 V.S.A. § 2606(e), were not reasonable and effective alternatives. It thus concluded the statute did not survive strict scrutiny and dismissed the State’s charges.

        The provision permitting a civil suit is here:
        https://legislature.vermont.gov/statutes/section/13/059/02606

    2. The copyright idea is interesting. I admit my understanding of copyright is ‘internet search level’ (e.g. https://copyrightalliance.org/ca_faq_post/statutory-damages-why-do-they-matter/ )

      It sounds like filing a DMCA notice with Facebook would be sort a shot. The accused violator would probably take it down, but might also push back and send Facebook a response claiming it was fair use. But I bet it would get taken down.

      If it wasn’t the complainant could then go to copyright court. Getting damages under copyright might be difficult. The image needs to be registered to sue; she can register now. I think actual damages must be financial, and she probably lost $0 as a result of publication. So she would presumably want statutory damages. To get statutory damages you need to register within 3 months of first publication or before the infringement starts. She probably didn’t register the image before sending it to Mr. Coons or before VanBuren posted.

      Still, if her main concern is privacy the copyright claim could backfire. The entire incident could potentially become fodder for discussing the legal claim; those discussions might be able to discuss the photo under fair use! Also, currently, the case is “State vs. VanBuren” and the complainant is unnamed. I assume the complainant would need to reveal her identity in a copyright suit. (And possibly attach the photos as evidence!?)

      I also don’t know much about blackmail. But to be blackmail doesn’t a person demand something like money in exchange for not causing the harm to another? VanBuren threatened to do something to harm the complainant, but doesn’t seem to have made any demand of the complainant. So perhaps that won’t fly.

      1. “If it wasn’t the complainant could then go to copyright court.”

        All records in civil court are presumably public records, which means that after the case proceeds, the images she’d like to limit are available to the public.

  5. This defines revenge porn so narrowly as to effectively delete the statute. This whole thing hinges on the fact that she was no longer in a relationship. The motivation for sending the pictures appears to be an attempt to restart that relationship. This is a completely different scenario than a random picture from a stranger. She was treating him as a lover, and should be able to expect a modicum of privacy.

    From my impression, the judge is creating law whole stop as a moral judgement against attempting to “steal” another woman’s man. I do not find any reasonable “Homewrecker” exemption in the statute. This goes beyond being clearly wrong, and I am inclined to think the judge should be officially censured.

    1. Ben,

      Isn’t the relationship requirement precisely what most people – other than James Pollock here – think is wrong about revenge porn? Two people have a relationship, and in the course of that relationship exchange intimate visual images. One doesn’t need a law degree to understand that such exchanges have an implied promise of confidentiality. How robust that promise is may be open to question, but I think most would distinguish between showing an image on your phone to a friend (to make him envious?) and transmitting it indiscriminately to hundreds or millions.

      The odd situation in this case isn’t like that. I agree that it’s not exactly the scenario Lucia above describes, either. If the question was, “Which is the more gentlemanly course of action?” – well, that wouldn’t exactly help since the new GF found them, but I bet we would agree that disclosure would be wrongful. But given that we are tiptoeing around the First Amendment, making hopefully-informed conjectures about what the average sexter thinks about digital privacy, this counsels caution in applying criminal law to a situation not specifically contemplated.

      1. Adam, that makes the definitions so vague as to be useless. She was obviously treating him as a lover in her act of sending erotic pictures.

        This goes beyond manners and “gentlemanly behavior”. This was a genuine attack on the woman’s reputation combined with explicit threats against her livelihood. This is clearly beyond the realms of manners and is at least civilly liable, if not criminal.

      2. “Isn’t the relationship requirement precisely what most people – other than James Pollock here – think is wrong about revenge porn?”

        Adam, if you read what James Pollock here wrote, and came away thinking he’s not complaining about the relationship requirement, then you are as stupid as lucia.

        ” If the question was, ‘Which is the more gentlemanly course of action?’ – well, that wouldn’t exactly help”

        Because neither the complainant nor the defendant are gentle, or any other kind of, men.

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Short Circuit: A Roundup of Recent Federal Court Decisions

Prison brunch, gaslighting, and nonconsensual neonatal blood samples.

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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.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

51 responses to “Short Circuit: A Roundup of Recent Federal Court Decisions

  1. [m]emorious

    Thanks, that was a new one for me.

  2. Brunch at the Pinckneyville Correctional Center: you’ll come for the mimosas, but you’ll stay for the S.O.S.

  3. “The purpose of a system is what it does”.
    Including trapping people in poverty by preventing them from earning money.

  4. While I agree with the IJ taking on the counterproductive policy of taking away licences for unpaid student loan debt, I really think the write up in this blog post of it being done “simply for unpaid student debt” is very disingenuous. Absconding on your debts is a serious matter, and human capital, the kind you earn from student loan debt, is in your head. It can’t be seized like a car or a house if one doesn’t pay the tab.

    1. But you can garnish wages. There’s no point in destroying the capital.

      1. Repossess his brain, he can still serve in Congress.

        1. …or coach the (insert name of unpopular sports team here).

          1. Or write comments on the Internet.

            1. Stop talking about yourself like that.

              1. Sounds like the shoe fit, and you don’t wanna wear it?

                1. Sounds like you need more joy in your life. Here, open wide and experience the joy:

                  https://www.youtube.com/watch?v=YYOKMUTTDdA

                  1. Sounds like yours is the joyless life, friend.

                    1. Paraphrased Pollock: “Nuh-uh, *you’re* a humorless dolt!”

                    2. I guess if that’s all you got, that’s all you got.

                      You’re still the one who got all pissy about a joke. Maybe we justlet THAT fact decide who’s the humorless dolt, and walk away.

                    3. “You’re still the one who got all pissy about a joke.”

                      Glass houses.

                    4. No need to continue being a humorless dolt. I already picked up on that.

                    5. How many James Pollocks does it take to change a light bulb?

                      “That’s not funny!”

                      (Plus your condescending explanation of how a light bulb doesn’t need to be changed because it doesn’t even need diapers)

                    6. OK, I guess you don’t have any settings other than humorless dolt.

                  2. Anyway, what’s “pissy” about the link I posted?

                    Everyone around, love them, love them
                    Put it in your hands, take it, take it
                    There’s no time to cry, happy, happy
                    Put it in your heart where tomorrow shines
                    Gold and silver shine
                    Shiny happy people holding hands
                    Shiny happy people holding hands
                    Shiny happy people laughing

    2. human capital, the kind you earn from student loan debt, is in your head. It can’t be seized like a car or a house if one doesn’t pay the tab.

      No, but your car or a house can be.

      1. If one HAS a car or a house to seize.

        1. Blood. Turnip/stone.

  5. Can anyone enlighten me – if federal law doesn’t allow a Bivins suit for some federal official’s misconduct, then can state law fill the resulting gap? Or is the misbehaving official immune from both state-law and federal-law suits?

    1. I haven’t read the case yet, but here is my general understanding.
      1. Bivens is for federal law enforcement (so on the summary I don’t even know why it was brought up).
      2. Section 1983 is for state law enforcement
      3. The Court only allows a Bivens claim if there is no adequate state remedy; if there is then they must go to state court (It also hasn’t been recognized for all constitutional violations)
      4. Qualified immunity is generally available in both types of actions
      5. A state can waive the immunity of it’s officers
      6. I don’t believe qualified immunity applies to state law (that is that SCOTUS doesn’t decide that and there is no constitutional requirement. A state, I presume, can create a qualified immunity defense to its laws if it wishes)

      1. OK, so my more specific question is – are state-law suits against federal officials *always* precluded based on federal supremacy?

        Or could state law step in if there’s no federal cause of action?

        1. Just to be clear, I’m not trying to sue any federal agents, I’m just interested in federalism.

  6. “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.”

    1. I’ve been active in prison reform work and have researched more than one or two procedure manuals.
      For one thing, strip searches are strictly no-touch. Cavity searches have to be authorized at a high level and conducted only by medical personnel.
      For another, cross-gender searches are forbidden except for “exigent circumstances”. It’s hard to imagine what that would consist of, in an environment where there is zero cost to making an inmate wait.

      1. Yeah, it’s well-established that groping the prisoners is bad form. But can you prove that all of them did it? If you can prove that one of them did it, can you prove which one it was? Or is this one of those crimes that everybody present is guilty of, whether they had a hand in the commission of the crime or not?

        I think it has to be some variation of that last one… just like the lookout and the getaway driver are guilty of bank robbery, even if they didn’t carry a gun into the bank.

  7. “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.”

    Making people believe that they will lose occupational licenses provides some motivation to repay, for those that could be paying, and does nothing at all for people who cannot pay, because motivation isn’t a factor if people cannot rather than will not pay up.
    So actually pulling occupational licenses isn’t bafflingly counterproductive. It’s working on the people who can pay, but refuse to do so even as it isn’t working on the people who can’t pay.

    1. I think a lot of us on this site would argue that, on balance, the harms from this policy greatly outweigh the benefits. But you are making a real point, and you’re right…it definitely does work some of the time. I really had not thought about that before, so thanks for posting.

      1. I am not arguing that the approach isn’t counterproductive. I think it probably is. But it sure as hell isn’t baffling to anyone of at least normal intelligence.

        1. Yeah, it’s kind of like saying it’s counterproductive to throw somebody in prison and also demand they pay restitution to a victim. True, yeah, but deterrence (both general AND specific) is a real thing that can’t just be hand-waved away.

  8. a bougie euphemism

    This is “How do you do, fellow kids” stuff. Do not ever say that again.

    worker at Amazon shipping facility punches coworker in the face repeatedly… Fourth Circuit (over a dissent): Interstate commerce is implicated, so the feds can prosecute him.

    This is an excellent example of overreach of the Commerce Clause. The justification given by the court is that because the action between two private individuals that involved no interstate anything took place at a facility where interstate commerce took place, it impacted interstate commerce, and thus the Federal Government can get involved – even though the Court itself admitted expert testimony that there was no impact to the performance of the facility that day. The Court also admits no other court has concluded that an assault like this at a workplace is interstate commerce before, but blows off all of that in their conclusion.

    The entire ruling reads like the judges simply wanted to say “Virginia couldn’t prosecute him for a Hate Crime, so we found someone that could, law be damned”.

    1. Toranth,
      Yup. I just don’t get the logic of this. Does shoplifting a candy bar from a highway-adjacent gas station implicate interstate commerce? Heck, does shoplifting a tyre from your local Pep Boys implicate interstate commerce? (After all, it’s certainly reasonable to assume that this tyre will, at some point, move from state to state.) The exception is really swallowing the rule here.

      1. The answer to both of your examples is pretty clearly yes under current doctrine. See, e.g., US v. Baker, 517 F.3d 899 (6th Cir. 2008) (robbery of pizza restaurant affected interstate commerce because three ingredients were manufactured in other states).

        1. The first casualty of actually scaling back commerce-clause authority is the Controlled Substances Act, which limits the drug trade in substances that have no lawful commerce in any of the states because interstate commerce.

            1. YOU may like this, but it scares the hell out of mainline politicians.

  9. There should be a constitutional amendment that every time a judge uses interstate commerce for a crime that is only secondarily or less connected to interstate commerce (Rube Golberg-style) they have to humanely sacrifice a finger or toe.

    Make sure they truly believe it.

    Also, can this asterisking web site please turn off the fumble finger “go to next story because you touched two different fingers to the screen simultaneously” feature? When 99.9% of the time that’s what the user didn’t want to do, there’s a design flaw.

    1. Just one of many annoying things. Except for the slightly nicer formatting of the main page and indenting comments, pretty much everything related to the new web design is worse than the old one. Yet whoever is in charge of it seems impervious to the universal “your new website sucks” from users.

  10. “Concurrence: Sounds like a Fourth Amendment violation but not a clearly established one. So, yeah, qualified immunity.”

    Sigh. Sometimes I think our entire judicial system is broken.

    Today, 146 years after the Slaughterhouse Cases, the courts still have not finished incorporation of privilieges and immunities into the 14th amendment.

    Now with the need for courts to “clearly establish” each and every form of outrageous official conduct before it is removed from qualified immunity protection, we face a few more centuries of waiting.

    IMO, our judicial system is more than 100x too slow to protect rights to my satisfaction. Congress is no better; it prefers to leave all the tough stuff for courts to handle. The executive just loves overreaching. Our principle of separation of powers to protect us from abuse, has been turned into a system where no branch has accountability. But if I express sympathy for overthrow of our government so that we can start over from scratch, it is I who am the crazy person.

    1. The reason QI litigation is such a morass is because it’s an attempt to pin liability on an individual, and our default position is that individuals can do anything unless it’s clearly established that they can’t. It’s the same default rule we like (for individuals who don’t work for the government), because it provides the best freedom.

      1. Show some examples where any non-government entity gets a free pass because a court hasn’t clearly established that objectively heinous behavior is wrong. There are many QI examples of that. If you search, you’ll even find examples where the LEOs get a free pass for some bad behavior while any non-governmental people involved see legal liability (start by looking for cops dragging people to hospitals for invasive drug searches).

        1. If you’re unaware of any cases where a non-government entity got a free pass because what they did isn’t clearly covered by the statute that the prosecutors tried to apply, it’s because you never looked. Try googling “got off on a technicality”.

          How about the case where a defendant was cleared of taking indecent photographs of a minor because the court interpreted the case to only apply in places that were private, and the guy did it in the aisles of a store. Cleared because although he rather clearly exceeded societal bounds by putting his camera up her dress, he “only” got photos of her panties, and the statute didn’t apply to people with clothing on.

  11. Ninth Circuit: You can’t use a search warrant for documents as a pretense to detain, interrogate, and arrest literal busloads of people.

    This is simply a misstatement of federal law. The current state of the law absolutely allows this sort of “pretense.” The only reason the 9th decided against this was because it involved illegal immigration.

    Suppose instead of illegal immigration this was a seizure of illegal (or given the circuit’s politics, legal) weapons manufacture. I doubt the 9th would so casually dismiss this case.

  12. […] Short Circuit: A Roundup of Recent Federal Court Decisions Prison brunch, gaslighting, and nonconsensual neonatal blood samples. […]

  13. “The reason QI litigation is such a morass is because it’s an attempt to pin liability on an individual, and our default position is that individuals can do anything unless it’s clearly established that they can’t. It’s the same default rule we like (for individuals who don’t work for the government), because it provides the best freedom.”

    For example, there was a recent post here on Volokh a week or two ago saying that it had not yet been clearly established that police can not steal money from citizens. It has the effect that we take the entire body of criminal laws and say that each one doesn’t apply to government unless it is clearly established. Rape? Pillage? Burn? Sorry but those have not been clearly established that government employees may not do that.

    The default should be that all laws apply to government employees except for enumerated exceptions. But as this blog post and others point out, when it comes to QI, that has been inverted. The default is that no criminal laws apply to government employees until each law is individually determined by a court to be “clearly established.”

    1. You’ve misunderstood that case – although to be fair, it seems extremely likely that Mr. Ross wrote the summary in a way that was deliberately designed to engender this misunderstanding.

      The court did not hold that it was unclear that the officers’ alleged conduct was illegal: indeed, they held that it almost certainly could be redressed by California state law. And to the extent that the California authorities believed the officers had stolen the money, there’s no question that they could be prosecuted for theft – as, of course, would be the case for the other crimes you mention.

      The issue in the case was not whether the conduct alleged was illegal, but whether it was clearly established that it violated the US constitution.

      5

  14. The 4th Amendment, by its terms, addresses a right of the people. Non-members of the people have no more interest in whether a search or seizure was done properly than a fetus does in whether a doctor committed malpractice in performing an abortion. It’s simply none of their business.

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Free Speech

No Take-Backs, No Do-Overs, No Data Replevin

A lawyer caught on tape criticizing his client (a judge), in the making of a documentary about the prosecution of rapper Meek Mill.

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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….

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12 responses to “No Take-Backs, No Do-Overs, No Data Replevin

  1. I would not have ruled so broadly. The judge could easily have said that even if replevin might apply, the consent to be recorded precludes a claim of sole ownership of the recording. I would have left for another day the question of whether some class of electronic data intangibles (Bitcoin comes to mind) might be subject to replevin.

    1. Why not? Using replevin to seek possession of something that legally is incapable of being possessed is clearly bonkers. Whether Bitcoin can be possessed is a different question, which different jurisdictions might well answer differently. In any event, I don’t see how this case prejudges that issue.

    2. I would have left for another day the question of whether some class of electronic data intangibles (Bitcoin comes to mind) might be subject to replevin.

      I respectfully disagree.

      This opinion doesn’t mention Bitcoin; it doesn’t purport to be a sweeping new ruling on all types of electronic data intangibles. Nor does purport to create a precedent for any types of electronic data intangibles that were not at issue and that thus were not before the court. Even if it had so claimed, that would have been obvious dicta.

      If someone in a future case cited this opinion as if it were controlling or persuasive precedent applicable to all, or some other, electronic data intangibles (e.g., Bitcoin), it would be easy to distinguish this case.

  2. One hopes Mr. Peruto has kept his malpractice insurance up-to-date.

  3. This dude is kinda stupid.

  4. “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”

    What if plaintiff had requested all physical copies of the medium on which the interview had been recorded?
    Or is it the case that interviewees should present a boilerplate contract to interviewer granting themselves a right to edit or delete the recording after it has been made, or reserve the right to decline to permit the interview to be used for any particular purpose or for any purpose, period. Would courts enforce such a contract in light of a first-amendment challenge?

  5. What a delightfully droll opinion! And what a maroon!

    Pro tip for fellow lawyers: “Let me tell you something” ≠ “Let’s go off the record.”

    All-Pro Tip for fellow lawyers: Remember who generally conducts in camera review to consider privilege claims: the judge (or a subordinate). Therefore, my standing and invariable practice over the last 40 years has been never to commit anything critical of any sitting judge to writing, even in a privileged communication.

    If obliged to give my candid impressions and advice to a client about a judge — which indeed trial lawyers are commonly obliged to do — I do so verbally, with an instruction to my client not to take notes about it.

  6. Court squirrels out of it by arguing contract — he gave permission. This seems to make a weak point in the facts load-bearing, though — if he can establish that the recording was unfairly surreptitious, you’re back to square one. Perhaps easier to say that Replevin doesn’t lie for an infinitely reproducible object. (And rely on the fact that either the secret prime or the post hoc work in modifying the blockchain string can sufficiently distinguish cryptocurrency, perhaps.)

    Trover, perhaps. Seems to test the facts more cleanly. (Was the appropriation wrongful? Did the plaintiff exercise due care?)

    This comment is not legal advice. Or a ham sandwich.

    1. … if he can establish that the recording was unfairly surreptitious, you’re back to square one.

      From the opinion:

      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.

      He didn’t notice when they literally clipped a microphone to his collar, d’ya think?

      1. “He didn’t notice when they literally clipped a microphone to his collar, d’ya think?”

        Clipping a microphone on your collar doesn’t cause a recording to be made. If they clipped on the microphone on and then said “we’ll do this hand gesture when the recording starts, OK?”, but started recording immediately without doing the hand gesture, that’s a surreptitious recording. is it not? If they told him he could go off-the-record just by signaling a desire to do so, but the recorded throughout, that might be surreptitious, too, no?
        Or even if they suggested that they’d let him cut out stuff after the interview, but they didn’t, that might be unfairly surreptitious. So the fact that he knew he was wired for sound doesn’t rule out the possibility that he was surreptitiously recorded.

  7. Having spent a few years of my youth subsidising my acting habit by working as a theatre electrician, I can vouch for the fact that people forget that they’re there. If the sound tech doesn’t take the slider down during tech rehearsals, you’ll be hearing conversations and the usual noises associated with human beings from the offstage folks. Industry rumor has it that a high-profile star broadcast some trailer shenanigans to the entire set, as he was still wired (and patched into the PA by a trickster tech).

    The tort claim would test the attenuation of the wiring-up to determine fault. Possession of the IP of the voice was never really acquired by conversion or asportation — which is why I think the trover/quasi-trover calculus might be right. It’s discovered in possession subject to a sort of quasi-bailment logic, and the techno-paterfamilias who has it does something with it that they shouldn’t do. That goes beyond their rights in the object, however acquired.

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"Photoshop the Change You Want to See in the World"

A funny line from an interesting story about a photoshopped photograph in GQ, "more a cheapfake than a deepfake."

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From Ryan Mac (BuzzFeed):

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.

Thanks to InstaPundit for the pointer.

Flag Day (June 14) Puzzle

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Prof. Walter Effross points out that there's an English adjective (still in use today) that has been variously used to indicate that something is reddish, or whitish, or bluish. What is that?

No Product Liability for Risk Assessment Tool Used in Deciding Whether to Release Arrestees Before Trial

So a federal district court held Tuesday.

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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….