1/30/1939: Justice Felix Frankfurter takes oath.
Today in Supreme Court History: January 30, 1939
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Open Thread
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"The Moving Property Problem in Fourth Amendment Law"
A new draft article, now posted.
I recently posted to SSRN a new draft article, The Moving Property Problem in Fourth Amendment Law, forthcoming in the Virginia Law Review. Here's the abstract:
The Fourth Amendment's ban on unreasonable searches and seizures has been interpreted by the Supreme Court to require many location-specific rules. There are different rules for searching homes, cars, spaces near people, and at the border. The Fourth Amendment's place-based rules create a puzzle: What rules apply when property is moved from one place to another? Can the police expand their search powers by grabbing a person's property and moving it to a new place where protections are weaker? And can suspects impede investigations by moving their property to new places where protections are stronger?
This is the moving property problem of Fourth Amendment law. This Article identifies the moving property problem, shows that it is a recurring issue, and offers a framework for solving it. It links a range of cases that have not been linked before, and it shows how courts have often divided when faced with facts involving moving property. It then develops a two-part framework for how courts should solve moving property cases. First, courts should ask whether the movement is consistent with the rationales for the place-based rules of the starting and ending places. Second, courts should ask whether the movement itself was lawful, which should depend on whether the movement violated the Fourth Amendment or was the result of government coercion.
Comments welcome, as always.
"The Parties Either Have Not Read, or They Have Read and Do Not Intend to Be Mindful of …"
"the Court's previous comments about unnecessarily contentious pleadings that waste the Court's time and resources."
Words to note, from Judge Amy Berman Jackson today, in Egolf v. Georgetown University:
MINUTE ORDER. Apparently, the parties either have not read, or they have read and do not intend to be mindful of, the Court's previous comments about unnecessarily contentious pleadings that waste the Court's time and resources. See Jan. 12, 2026 Order 32. Defendant Georgetown University's motion to strike 36 plaintiff's reply brief is DENIED, and plaintiff's motion for a short extension of time to file a reply which has already been docketed 35 is GRANTED. The parties should take note that with the reply, the motion to dismiss has been fully briefed, and it is under advisement. Nothing further is needed. And once plaintiff files a timely reply, if any, to the opposition 37 to his motion for reconsideration 34, there will be nothing else to be filed with respect to that or any other matter. No sur-replies will be permitted. SO ORDERED.
And from the cited Order at ECF No. 32:
Finally, given the nature, number, and tone of the pleadings to date, the Court finds it necessary to advise the parties as follows: 1) this case is going to proceed in an orderly manner; 2) pleadings informing the Court that other pleadings will be filed in the future are entirely unnecessary; and 3) caustic pleadings that include personal attacks on other parties or their counsel tend to obscure, rather than advance, legitimate factual and legal arguments, and they should be avoided.
AI and Constitutions, from My Hoover Institution Colleague Andy Hall
A very interesting post on his Free Systems substack; I'm not sure what to think of the subject, but it struck me as much worth passing along. An excerpt:
I'm a political economy professor who studies constitutional design: how societies create structures that constrain their most powerful actors, and what happens when those structures fail. I've also spent years working on how to build democratic accountability into technological systems—at Meta, where I've helped to design both crowdsourced and expert-driven oversight for content moderation affecting billions, and in crypto, where I've studied how decentralized protocols can create constraints that bind even founders.
AI leaders have long been worried about the same problem: constraining their own power. It animated Elon Musk's midnight emails to Sam Altman in 2016. It dominated Greg Brockman's and Ilya Sutskever's 2017 memo to Musk, where they urged against a structure for OpenAI that would allow Musk to "become a dictator if you chose to."
Fast forward to 2026 and AI's capabilities are reaching an astonishing inflection point, with the industry now invoking the language of constitutions in a much more urgent and public way. "Humanity is about to be handed almost unimaginable power," Dario Amodei wrote this week, "and it is deeply unclear whether our social, political, and technological systems possess the maturity to wield it."
Ideas on how to deal with this concentration of power have often seemed uninspired—a global pause in AI development the industry knows will never happen, a lawsuit to clip at the heels of OpenAI for its changing governance structure.
Claude's revised constitution, published last week, offers perhaps our most robust insight into how a major tech company is wrestling with the prospect of effectively steering its wildly superhuman systems. What to make of it?
"Effective Advocacy," by Allen J. Dickerson
"The landmark decision recognized that effective political speech requires the ability to pool resources and communicate at scale."
From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I've been cross-posting; this is by Allen J. Dickerson is a partner at BakerHostetler and a former commissioner and chairman of the Federal Election Commission:
Buckley v. Valeo ranks among the most consequential articulations of American liberty, and yet almost no one reads it in full. It is a famously long decision, written on an emergency timeline, addressing technical material. It lacks the gripping rhetoric of, say, Justice Robert Jackson's great First Amendment opinions—you will find no paeans to the "fixed stars in our constitutional constellation" here.
But, for all its complexity and compromise, Buckley stood fast on a key point: the Constitution protects effective political organization. The First Amendment exists "to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."
Free speech is central to individual dignity. But it is also the foundation of democratic self-government. We have Buckley to thank for the enduring influence of that idea.
* * *
For speech to be considered effective, it must be able to change government policy and affect election outcomes. Effective speech is inconvenient to those in power because it can make them adjust their plans or risk being fired. Even in the aftermath of Watergate, the Court recognized that campaign finance laws could easily be used to limit speech, handicap civil society, and entrench government power.
The Buckley litigation showed, first and foremost, that Congress's proposed remedies were shockingly beneficial to incumbent members of Congress and their entrenched allies. A central claim in the litigation was, in essence, that Congress had used the Watergate crisis as an opportunity to pass amendments to the Federal Election Campaign Act (FECA) that insulated elected officials from criticism and opposition.
Today in Supreme Court History: January 29, 1923
1/29/1923: Justice Edward Sanford takes oath.
Open Thread
What’s on your mind?
Yoram Hazony's Speech At The Second International Conference on Anti-Semitism in Jerusalem
"This is an extremely high level of incompetence by the entire anti-Semitism-industrial complex, some of whose representatives are sitting right here in this room."
Yesterday, my Civitas Outlook column discussed Anti-Semitism and Anti-Christian Zionism on the right. The piece led off with Kevin Roberts's infamous defense of Tucker Carlson, but I expanded the focus to two other prominent figures: Vice President J.D. Vance and Yoram Hazony.
To this day, Kevin Roberts's video has not been taken down. And I doubt he disagrees with the underlying message. What he said has become standard fare in some corners of the right. AtTurning Point's AmericaFest, Vice President J.D. Vance rejected "endless, self-defeating purity tests" and would not "bring a list of conservatives to denounce or to deplatform." Making the point more plainly was Yoram Hazony, one of the founders of the National Conservatism movement. Hazonydeclared, "nobody ever said that to be a good Natcon you have to love Jews." Hazony, an Orthodox Jew, is unquestionably not himself an antisemite, but reads from the same gospel as Roberts and Vance: antisemites, Hitler revisionists, and Holocaust deniers are welcome under this tent. Jews, Christian Zionists, and other classical conservatives can leave if they are uncomfortable. (In August 2025, I spoke at NatCon with some hesitation; I have come to regret my attendance at that conference.)
My column was right on time. Yesterday, Yoram Hazony delivered a keynote address at the international conference on anti-semitism in Jerusalem. (I attended that conference last year.) Yoram has posted his speech to Substack. It is long, but I encourage you to read all of it. Say what you will about Yoram--and I have a lot to say--but he is a clear thinker who tells you exactly what is on his mind. He hides nothing from the audience.
Yoram divides conservatism into three camps. Yoram argues that the pro-zionist "liberal" wing of the Republican party, led by Ted Cruz, has at most 25% of support of the movement. The alt-right, which has anti-semites in it, has maybe 10%. The remaining 65% is the nationalist wing. Yoram says, the nationalist group is up for grabs. It can be persuaded one way or the other. But the liberal wing, Yoram explains, has not done its job. Yoram argues that attempts to cancel Tucker failed because all charges of anti-semitism have not stuck. He also points out that President Trump hosted Tucker at the White House, even after telling the New York Times that anti-semites have no place in the movement.
One line, in particular, has garnered much attention. Yoram says that no one can create a "15-minute explainer video" to demonstrate why Tucker is in fact an anti-semite, because no such content exists. He then levels this charge:
This is an extremely high level of incompetence by the entire anti-Semitism-industrial complex, some of whose representatives are sitting right here in this room. Maybe some of you think you were persuasively "fighting anti-Semitism" over the last six months. But the unfortunate truth is that you weren't.
This line led to a blistering response from Tablet Magazine, a popular Jewish publication:
Tucker Carlson could goose-step down Pennsylvania Avenue butt-naked with a swastika carved into his forehead and it would be the fault of "the anti-semitism industrial complex" for not making the case "clear enough" to "Republican nationalists."
I understand entirely the point Yoram is making. Indeed, the response from Tablet feeds into his narrative that this internecine fight is likely to alienate undecided nationalists, and push them to the alt-right camp. Yoram would simply just allow these groups to exist to ensure that Jews keep a seat at the table. This was exactly the point he made at NatCon earlier this year. The key line was:
"Nobody ever said that to be a good natcon you have to love Israel. Nobody ever said that to be a good natcon you have to love Jews. Go take a look at our statement of principles. It's not a requirement."
And Yoram meant it. Indeed, his remarks presaged the entire Fuentes-Tucker-Roberts debacle. Like I said, Yoram deserves some credit for stating the issue so plainly.
Now, here comes my opinion. I think Yoram is so committed to the prospect of a successful nationalist movement in America and elsewhere that he is blinding himself to the real risks that Jews, in particular, face. He says we are not in 1930s Germany:
For example, most nationalist Republicans don't think America today is anything like 1930s Germany. They don't see any Nazi party in America poised on the threshold of victory.
On that point, we agree. The comparisons between Trump and Hitler are nauseating at this point. (I'm old enough to remember when George W. Bush was compared to Hitler.) But the Third Reich did not form overnight. Nor was Hitler the first to seek to destroy the Jews. Six thousand years of history teaches the same lesson again and again and again. Anti-semitism changes form and eventually leads to persecution, exclusion, and termination. We should not be so blind to think it cannot happen again. Yoram goes a step further, and asks what Mordechai and Esther, the heroes of the holiday of Purim, would do. I suppose Esther would have gone on Haman's podcast and baked him some hamantashen. As I wrote yesterday the main point of Never again is the second word: again.
Yoram might respond I am being too sensitive or paranoid. He might even say I am being counterproductive, because now the people who might have been inclined to listen to us will no longer do so. On this point, once again, I agree. Speaking out against the anti-semites on the right very well could alienate nationalists, who might become sympathetic to the anti-semites. This entire fight might seem foreign and counter-productive to people who do not really care about this issue. And there is a distinct risk of being excluded from the tent. I am well aware of this risk, and thought about it at some length before I resigned from Heritage. I am not so foolish to believe there is no specter of retaliation--if not now, at some point in the future. Indeed, the way this sort of payback usually work is that you never even find out about it. As the saying goes, revenge is a dish best served cold. (Those who keep charging me with auditioning should really rethink their arguments.)
If Jews are nudged from the conservative movement, where do we go? The Jewish people have been in a political wilderness before, and it will likely happen again. There is certainly no home on the political left, which has embraced the worst strands of anti-semitism and cultural Marxism. At present there is a home on the right, but that domicile may be fleeting.
At present, I think Vice President J.D. Vance is trying to stay out of the fray, one way or another. It was noted that his tweet about Holocaust Remembrance Day failed to mention Jews. At some point, the presumptive 2028 nominee will have to take a stand.
First Circuit Will Consider, En Banc, Important Questions About Government Employee Speech
From today's order granting rehearing en banc in Hussey v. City of Cambridge:
The majority panel opinion relied on First Circuit precedent for the proposition that "speech commenting on public 'issues in a mocking, derogatory, and disparaging manner' is accorded less weight in the [Pickering] balancing test." Hussey v. City of Cambridge, No. 24-1279, Slip Op. (Aug. 15, 2025), at 16 (quoting MacRae v. Mattos, 106 F.4th 122, 137 (1st Cir. 2024), and also citing Curran v. Cousins, 509 F.3d 36, 49 (1st Cir. 2007) ("Speech done in a vulgar, insulting, and defiant manner is entitled to less weight in the Pickering balance.")).
- Is this precedent consistent with the Supreme Court's First Amendment jurisprudence, including but not limited to Rankin v. McPherson, 483 U.S. 378 (1987), and Connick v. [Myers], 461 U.S. 138 (1983)? Please address the propriety of giving less weight to "mocking, derogatory, and disparaging" speech on matters of public concern, and—in doing so—please discuss how the consideration of "manner, time, and place" in the Pickering balance bears on that question. Finally, please address whether the propriety of giving less weight to "mocking, derogatory, and disparaging" speech on matters of public concern depends on whether the speech occurred within the workplace or outside the workplace.
- Is there a more suitable approach, also consistent with First Amendment jurisprudence, for balancing the First Amendment right of a public employee to speak on a matter of public concern against the needs of the public employer?
- How would any proposed change in approach affect the analysis and outcome in this case? Please also discuss whether, and how, the Pickering balancing would differ under such an approach for speech by a public employee holding a different employment position or rank than appellant Hussey.
- If the proper Pickering inquiry considers whether the speech at issue disrupted the workplace without reducing the employee's interest in the speech, is it necessary to remand the case to the District Court? Or did the District Court already make a finding on that score?
Here's an excerpt from the panel majority, by Senior Judge Kermit Lipez, joined by Judge Gustavo Gelpí; the controversy was about police officer Hussey being disciplined for posting the Facebook post excerpted at the start of this post:
"Merely Correctly Advising … Daughter of Her Constitutional Rights Did Not Constitute … [Criminal O]bstruction … of a Governmental Function"
From today's decision in Keeton v. State, written by Arkansas Court of Appeals Judge Cindy Grace Thyer, joined by Judges Brandon Harrison and Casey Tucker:
Appellant Doralee Keeton was found guilty by a Dallas County jury of one count of obstructing governmental operations, a Class C misdemeanor, and sentenced to pay a $500 fine….
Police had come to the home of Doralee's daughter, Madeline, to arrest her for possession of methamphetamine, but Keeton had apparently talked to Madeline on the phone and "told her don't answer the door. They don't have a no-knock [warrant]." (It may be that she just meant that they didn't have a warrant.) This led to Keeton being prosecuted, but the court reversed the conviction:
A person commits the offense of obstructing governmental operations if the person knowingly obstructs, impairs, or hinders the performance of any governmental function. "Governmental function" means any activity that a public servant is legally authorized to undertake on behalf of any governmental unit he or she serves.
Arkansas case law appears to require actual interference with law enforcement officers or government activities in order to sustain a conviction for obstruction of governmental operations. For example, in Kelley v. State (Ark. App. 2001), this court affirmed an obstruction conviction when the defendant caused a physical disruption to officers who were attempting to administer a field-sobriety test to another individual by shouting, physically approaching the officers, and fleeing back into his home. The officers testified that Kelley's actions hindered their ability to administer the field-sobriety test and interfered with the officers' ability to provide backup for each other. This court held that Kelley's actions "obstructed, impaired, and hindered the officers' ability to perform their governmental functions as law enforcement officers during the investigation of a DWI traffic stop."
Prof. Rick Hasen Criticizes Buckley v. Valeo
A nice counterpoint to the Buckley v. Valeo at 50 symposium that we're cohosting, from Prof. Rick Hasen (UCLA) at Slate; an excerpt, though the whole thing is worth reading:
Whether or not money is the root of all evil, the root of our current American oligarchy is a single Supreme Court case. That Supreme Court decision, Buckley v. Valeo, happens to turn 50 years old this week. It's Buckley, and not the often-excoriated 2010 Roberts court decision in Citizens United v. FEC, that created the conditions for the ultrawealthy to transform their vastly unequal economic power into lopsided political power, and for a billionaire like Elon Musk to contribute a staggering $291 million to help elect Republican candidates, including Donald Trump, in 2024. It is going to take a constitutional amendment or Supreme Court reform to make things right again—and there's a realistic chance that the current Supreme Court soon makes things worse, not better—but reform is unlikely because of the power of the very moneyed interests who benefit from the Buckley-created system….
The First Amendment concerns voiced by Buckley's challengers were real and the 1974 law was too draconian. In the middle of the Buckley litigation, an advertisement appeared in the Washington Post criticizing Ford for his pardon of Nixon and his choice of Nelson Rockefeller as vice president. As campaign finance expert Herbert Alexander described it, the political advertisement headlined "Would You Elect Ex-Congressman Ford President?" "urged Republicans, Democrats, and independents to oppose Ford and convince him to withdraw as a candidate." The ad cost $2,368.80, in violation of FECA's $1,000 individual spending limit. It was a technical violation of the law, but not a fair one. There was also a concern that challengers need more money than incumbents, who already had name recognition and other benefits like free publicity from being in office, and so limiting campaign contributions and spending was in the self-interests of the members of Congress who passed the law.
But whether or not parts of the 1974 FECA went too far, the court was wrong to say that independent spending could never corrupt or create the appearance of corruption, or that there could be no limit in spending by the ultrawealthy. And the results in recent years have been disastrous. As I explained last year at Slate, Musk is not alone among billionaires spending big money:
In the 2024 elections, the top six donors supporting or opposing federal candidates each reported contributing at least $100 million, according to data compiled by OpenSecrets. Those donors—Musk ($291.5 million), Timothy Mellon ($197 million), Miriam Adelson ($148.3 million), Richard and Elizabeth Uihlein ($143.5 million), Ken Griffin ($108.4 million), and Jeffrey and Janine Yass ($101.1 million)—all exclusively supported Donald Trump and other Republican candidates (with the exception of the Yasses, who gave a nominal $1,500 contribution on the Democratic side). The biggest donor on the liberal side was former New York City mayor and publisher Michael Bloomberg, who gave $64.3 million total, with all but $1 million going to the Democratic side….
In Defense of Justice Alito
Ben Aguiñaga, a former law clerk, responds to the gross media smears of Justice Alito.
The media does not fairly cover the conservative Supreme Court justices. But it is not enough to criticize their written opinions. Rather, pundits feel compelled to opine on how the Justices feel. Case in point is a recent headline from Joan Biskupic, titled "Samuel Alito keeps getting his way. So why does he seem so unhappy?" Does Biskupic have any evidence that Alito is unhappy? Did she talk to the Justice or his clerks? No, Biskupic apparently no longer has access to that sort of actual information. Instead, she based her conclusions on the Justice's facial expression on the bench. These are actual passages from a CNN article:
Alito's aggravation is regularly on display in the courtroom, too. . . .
In the courtroom, even the little things can visibly irk Alito. He often grimaces and rolls his eyes. . . .
Other justices laughed. They appear accustomed to his unguarded irritability.
Of course, these sorts of claims usually go uncontested. There is zero upside to the Justice defending himself, especially from an unfavorable media.
Fortunately, one of Alito's recent clerks has taken steps to respond. Ben Aguiñaga, the Louisiana Solicitor General, wrote a piece titled "I worked for Justice Alito. What I saw up close shatters the media smear." (I met Ben a decade ago when he was clerking for then-Justice Don Willett.)
As they say, read the entire thing. A few things stand out. First, Ben smashes this false notion that Alito is a curmudgeon.
One of the memorable parts of any clerkship is the chance to eat lunch with your judge or justice and discuss anything but work. Some jurists prefer a fancy lunch out on the town. Not Justice Alito. My fondest memories are those lunches we had around a chambers table — the clerks with box lunches or maybe a to-go plate from the cafeteria, and the justice with a bowl of Campbell's soup that he had just warmed in a microwave. The justice is famously introverted, and so, it was not uncommon for the clerks to run away with the conversation as the justice's spoon clinked against his bowl of soup. The justice was not disengaged; he was waiting for the right moment to strike with the driest humor known to Washington. He did not need to spend precious time with us at lunch — he had more important things to do. And yet he sacrificed anyway.
The Justice is an introvert to be sure, but when he chooses to speak, he chimes in perfectly with just the right sense of humor. My suspicion is that Justice Alito has little interest in engaging with elitist reporters, so they simply never see his funny side.
Second, Ben echoes a message I've heard from many Alito clerks over the years. The Justices does not actually need the clerks. He could do all the work himself. And when he asks the clerks to do work, he does so sheepishly.
Some jurists are reputed to be harsh taskmasters. Not Justice Alito. Not only did he lighten our loads at all costs, but he also never raised his voice or directed displeasure toward us. That is not because we were perfect — one time I had to apologize for turning in a memo a day late, but he did not bat an eye. To the contrary, the justice took every opportunity he could to encourage us. I remember one particularly long memo battle that we fought and won. He could have walked off with the victory. But instead, he took time to give me a thoughtful thank you note for my assistance.
I've heard some horror stories from other chambers about Justices who expect their clerks to be on call 24x7. And when a clerk messes up, the Justice does far more than bat an eye. Again, the false narratives about Justice Alito being harsh on the bench do not match the reality of how the Justice interacts with others.
Third, Ben responds directly to the Biskupic-led charge of unhappiness:
All this is why obsessive depictions of Justice Alito as "aggrieved" and "unhappy" in the media are personal to me. He is nothing like the caricature erected by those pining for clicks and likes at his expense. And it is a disservice to the justice and to the Supreme Court as an institution to perpetuate a false "aggrievement" narrative that, at this point, is exhausted from being copied and pasted too many times.
The Justice Alito I know is kind, humble, thoughtful and selfless. I know because he believed in me — and I am a better man because of his example.
I don't think Justice Alito's value is fully understood. Justices Scalia and Thomas have built up significant fan bases, in part because of their gregariousness and outgoingness. But Justice Alito is a constant and stable force for conservative jurisprudence.
Students sometimes ask me who my favorite Justice is. That question is like asking me to pick a favorite child. I love them for different reasons. I sometimes answer the question with a baseball analogy. Justice Scalia scored the most runs, with a combination of walks, base hits, home runs, and stolen bases. Justice Thomas has the most home runs, but as he always swings for the fences, he sometimes strikes out. Justice Alito has the highest on-base percentage. He does not always cross home plate or or knock it out of the park, but he consistently get on base, and almost never strikes out.
"James L. Buckley: The Man and His Principles," by Roger Pilon
A friend profiles Buckley himself, a public servant who spent his life defending constitutional first principles.
From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I've been cross-posting; this is by Roger Pilon, senior fellow in constitutional studies at the Cato Institute, founding director emeritus of Cato's Robert A. Levy Center for Constitutional Studies, and founding publisher emeritus of the Cato Supreme Court Review:
Ten years ago, the Brooklyn Law School held a symposium to commemorate the 40th anniversary of Buckley v. Valeo, featuring Dean Nicholas W. Allard, the ACLU's legendary Ira Glasser, and the eponymous James L. Buckley himself, then a senior judge on the D.C. Circuit. Expressing his delight at being part of the commemoration, Judge Buckley noted that the decision had assured him "a measure of immortality." Immortality indeed! Here we are again, a decade later and half a century after Buckley was decided, and we're still talking about the case.
Let me open on a personal note. My wife Juliana and I have had the good fortune to know Judge Buckley—or Jim, as he insisted, and as I will do hereinafter to avoid confusing the man with the case. Especially after he moved back to Washington late in life, near us, we were often able to dine together. Long before that, however, as a Columbia University undergraduate, I was a volunteer in his improbable 1970 campaign to become New York's junior senator, running as a third-party candidate on the Conservative Party line.
But it was not until 1976, when Juliana and I were completing our doctorates at the University of Chicago, that we would first meet the senator at the storied Ford v. Reagan Republican National Convention, where we were alternate delegates pledged to Reagan. Two years earlier, you see, Jim had inserted in the Congressional Record Juliana's New Guard article, "Against Ideology," which drew from Alexander Solzhenitsyn's Gulag Archipelago. When we happened upon Jim at the convention and introduced ourselves, he responded, "Oh so you're Juliana Pilon!" Ever the epitome of modesty, that was Jim.
More Historical Evidence Showing that the Public Use Clause of the Fifth Amendment Does Not Allow Takings that Transfer Property to Private Parties
Harvard law Prof. Maureen Brady uncovers relevant evidence from late-nineteenth century state constitutional conventions.
The Supreme Court's controversial 5-4 ruling in Kelo v. City of New London (2005), held that private "economic development" is enough to satisfy the Fifth Amendment requirement that the government can only condemn property for a "public use." In so doing, it rekindled a longstanding debate over whether takings that transfer property to private parties violate the public use requirement. Harvard law Professor Maureen "Molly" Brady - one of the nation's leading property and takings scholars - has uncovered additional new evidence on this topic. And it counts against the decision reached in Kelo.
In an insightful post at the Brennan Center State Court Report, and an article for the recent Yale Journal on Regulation symposium on the 20th anniversary of Kelo (which I co-edited), Brady assesses debates over public use in late-nineteenth century state constitutional conventions, mostly in western states. She finds that several western states included specific provisions in their new state constitutions authorizing the use of eminent domain for some private purposes, such as drainage and mining. But, importantly, they did so explicitly, specifically outlining these categories as exceptions to the general requirement that takings must be for a "public use."
While Brady does not quite fully draw the connection, the fact that these private-use takings had to be explicitly authorized indicates that most delegates to these state constitutional conventions did not believe that a standard authorization of takings for "public use" was sufficient to allow condemnations for transfer to private parties, so long as the latter might benefit the public in some way (the interpretation eventually adopted by the federal Supreme Court in its terribly reasoned decision in Berman v. Parker (1954) and reiterated in Kelo). Rather, they assumed that "public use" only allowed condemnation for publicly owned projects, with the possible exception of private owners who have a legal duty to serve the entire public (such as public utilities).
This evidence is relevant to the interpretation of the federal Public Use Clause because many originalists argue that the relevant period for understanding the original meaning of the Bill of Rights as applied to state and local governments, is that around 1868, when the Fourteenth Amendment was enacted, thereby "incorporating" the Bill of Rights against the states. The state constitutional conventions Brady analyzes mostly occurred within a few years of 1868, and therefore illuminate understandings of the meaning of "public use" during this period.
One might wonder why state constitutional framers enacted provisions allowing for takings that were banned by the federal Fifth Amendment. One likely reason is that, during this period, the Supreme Court had not yet ruled that the Fifth Amendment (or the rest of the Bill of Rights) had indeed been incorporated against the states. It did not do so until well into the twentieth century, a history discussed in Chapter 2 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain,
In The Grasping Hand, I also cover a wide range of other evidence of the meaning of public use in 1868, including state court decisions, legal treatises, and more. This evidence, too, largely supports the narrow definition of "public use" over the broad one adopted in Berman and Kelo. The same is true of the admittedly more limited evidence on the understanding of "public use" in 1791, when the Fifth Amendment and the rest of the Bill of Rights were initially ratified. This evidence, too, is covered in my book.
Brady argues that the nineteenth century state conventions also highlight the importance of the "necessity" requirement as a constraint on eminent. Necessity - a doctrine adopted in many states' eminent domain jurisprudence - requires proof that condemnation is needed in order to achieve the public use supposedly justifying the taking. While federal courts would do well to give greater consideration to necessity, it is not a substitute for restoring the correct meaning of "public use." A condemnation that is "necessary" for a private use is still unconstitutional.
In the aftermath of Kelo, many states enacted reforms constraining eminent domain abuse. But abusive takings still continue in many parts of the country, and state action is not a sufficient substitute for systematic nationwide enforcement of the Fifth Amendment's public use requirement.
I hope the Supreme Court eventually reconsiders its badly flawed "public use" jurisprudence, and reverses Kelo and Berman. Molly Brady's excellent work provides additional reasons for moving in this direction.
#TheyLied Defamation Plaintiff, Suing Over Rape Allegations, Can Prove Reputational Harm with His Own Testimony
In Apperson v. Kaminsky, decided Friday by the Missouri Supreme Court (opinion by Justice Paul Wilson, Apperson sued his ex-romantic partners Kaminsky and Norman for defamation (see the intermediate appellate decision for more factual details):
After [their] involvements ended, Norman told more than one person Apperson raped and abused her, and Kaminsky told others (in person and through an extensive social media campaign intended to reach those with whom Apperson dealt personally and professionally) that Apperson stalked and raped her, was a serial rapist and serial abuser, was restrained from coming within 500 feet of her, and threatened to kill both her and Norman.
As a result of these statements, Apperson was confronted in his home by a group of people (several of whom were armed) supporting Kaminsky and Norman. Because of this confrontation, Apperson was forced out of his home for seven months. Kaminsky's statements also resulted in Apperson being asked not to patronize a local coffee shop, being made to disassociate himself from two organizations he founded, and losing a speaking engagement. Finally, Apperson was involuntarily removed from shared office space after Kaminsky told the management Apperson raped her and insisted management take action against him….
Missouri precedents, unlike those in many other states, require evidence of actual damages in a reputation case; damages may not merely be presumed. The trial court read those precedents as also requiring that the evidence had to go beyond just plaintiff's testimony on the issue, and thus granted a directed verdict in defendants' favor. But the Missouri Supreme Court disagreed:
True, a plaintiff's conclusory assertion of reputational damage is insufficient. A plaintiff's entirely subjective belief her "integrity" has been damaged also is insufficient. But such holdings are mere applications of the general rule there must be evidence (or a reasonable basis for inferring) the defendant's defamatory statement caused damage to the plaintiff's reputation…. If the plaintiff can testify competently to such damage, doing so will suffice to make a submissible case on the issue of reputational injury as readily as evidence from any other source.
U.S. Government Discovers New Country: Juvalu
If you're from Juvalu, you may be eligible for certain affirmative action programs.
That's from a federal regulation, 70 Fed. Reg. 14496-01, 14510-11; it has recently been corrected, but some states have similar statutes and regulations (I suspect borrowed from the federal model). I assume the country is supposed to be Tuvalu, and its neighbor Kirbati is supposed to be Kiribati.
Today in Supreme Court History: January 28, 1916
1/28/1916: President Wilson nominates Louis Brandeis to the Supreme Court. He would be confirmed on June 1, 1916.
