The Volokh Conspiracy

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The Volokh Conspiracy

Sexual Quantum Meruit

This actually came up in a hypo, based on a real extortion case.

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Say that paying for sex is legal, and a sexual transaction is made with the expectation of payment but no prearranged fee. Then there might be a lawsuit on a sexual quantum meruit theory, which might also be called …

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Religion and the Law

Veil-Wearing Witness’s Religious Concerns Trump Public Trial Rights

A Pennsylvania court decision said they can (though relying on cases generally allowing restrictions on Public Trial Clause and First Amendment trial access rights in the interest of preventing embarrassment to witnesses).

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Tyreese Copper was convicted of murder and sentenced to life in prison. (This comes from Commonwealth v. Copper, which was decided in September 2018, but I just learned about it from a follow-up federal opinion filed early this month.) At trial, eyewitness Davina Sparks was called to testify; but she was a veil-wearing Muslim woman, and (to quote the government's brief),

[C]ounsel objected to Ms. Sparks testifying while wearing her Muslim garb that covered her face. Ms. Sparks refused to remove the garb, citing her religion as the reason for her refusal. Out of deference to Ms. Sparks's religious beliefs, the court decided to clear the courtroom for Ms. Sparks to testify without her face garb "so I can at least have her taking off her covering only in the presence of the people who are absolutely essential to being here," i.e. the jury, court staff, defense counsel, and defendant. Trial counsel did not object to the court's proposal. Ms. Sparks agreed to remove her face garb in a courtroom cleared of spectators.

Eventually, Copper sought to overturn his conviction on the grounds that his lawyer was ineffective for failing to object to a violation of Copper's Public Trial Clause rights. But a three-judge panel of the Pennsylvania Superior Court said no, concluding that the judge's decision didn't violate those rights:

"[T]he right to a public trial is not absolute; rather, it must be considered in relationship to other important interests…." Commonwealth v. Conde (Pa. Super. 2003). We have permitted exclusion orders for "the protection of a witness from embarrassment or emotional disturbance." Moreover, "an exclusion order which is designed to protect a witness from emotional trauma will not necessarily be constitutionally infirm if it excludes the entire public for a limited time."

Based upon the foregoing, we discern no abuse of discretion in excluding spectators from the courtroom while Ms. Sparks testified…. [I]n striking a balance between Appellant's right to a public trial and the need to respect the witness' religious beliefs, the trial court cleared the courtroom, but only for the duration of Ms. Sparks' testimony. The exclusion was limited in duration to protect the witness from emotional disturbance, as well as to protect Appellant's right to confront her and to allow the jury to make effective credibility determinations….

Note also that the First Amendment has been read as securing the public's right of access to court hearings (and court records), to much the same degree as the Public Trial Clause secures a criminal defendant's right to have the trial be public. The court's reasoning would thus suggest that the witness's felt religious obligation to have as few men as possible see her unveiled trumps this First Amendment right of access as well as the Public Trial Clause.

Is this right? The seemingly unlimited command of the Public Trial Clause suggests that it isn't, but there are indeed lower court cases that do allow that command to be trumped in some instances. Thus, for instance, Rovinsky v. McKaskle (5th Cir. 1984), stated,

The right to a public trial is not absolute: limitations on public attendance may be imposed so long as they are no more exclusive than necessary to protect a state interest that outweighs the defendant's interest in public scrutiny of the proceedings. Indeed, the protection of witnesses from embarrassment or intimidation so extreme that it would traumatize them or render them unable to testify is a state interest sufficiently weighty to justify partial or complete exclusion of the press and public.

Classic examples are (to borrow from a list in another case), "to protect dignity of witness in rape trial," "to protect witness with fear of testifying in public," "to protect witness afraid of testifying," "to protect witnesses from intimidation," to protect child witnesses in rape trial from embarrassment," "to protect witness and his family where safety threatened," "to preserve confidentiality of undercover agents in narcotics case," and
"to protect from disclosure of trade secrets."

So the question, under these cases, is whether a witness's reluctance to testify in public for religious reasons should be treated analogously to a witness's reluctance to testify for more commonly felt secular reasons (such as fear of retaliation or embarrassment related to testifying about sex crimes). Perhaps the closest analogy is the "fear of testifying in public" case (U.S. v. Eisner (6th Cir. 1976)), where the court approved of an exclusion based on the witness's relatively idiosyncratic apparent psychological condition (the judge "had apparently determined that the witness was afraid of any spectator being present in the courtroom"); but perhaps that case, too, went too far.

Since I'm not a Public Trial Clause expert, I asked a couple of people who were, and they graciously responded and allowed me to quote them. From Prof. Stephen Smith (Santa Clara Univ.):

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25 responses to “Veil-Wearing Witness’s Religious Concerns Trump Public Trial Rights

  1. So let’s see if I have this correct. If you are a Christian who believes that abortion is murder and who does not want to fund that murder, you have to go to the Supreme Court to have your religious beliefs upheld, at which point you will have to fight the battle all over again while the government tries to get around the ruling. If you are a Muslim who believes that you shouldn’t show your face in public (which is not, by the way, a general tenet of historical Islam but a fairly recent adoption by a few radical sects), then you just go straight to having your religious beliefs upheld and respected. Just making sure I have it right.

    Also wondering how soon there will be articles everywhere talking about how religious beliefs have no place in public and that you have no right to those beliefs in places like a court of law, a standard that is routinely applied to Christians.

    I am not arguing for or against the ruling, btw, just wondering about the consistency of how religious beliefs are respected in our legal system.

    1. You don’t find any secular distinction between the act of paying taxes in a society where the government spends them and the act of testifying with your face uncovered?

      1. In the sense that both are government-enforced obligations which (at least for some people) conflict with sincerely held religious beliefs? No, there’s not a really relevant distinction. Heresolong has a point that there is some evidence of double-standards in the protection of religious beliefs.

        (However the comment about the recency and/or prevalence of a religious belief is irrelevant. If you decide tomorrow that the Great Flying Spaghetti Monster requires you to wear a purple hat at all times, the only test is whether that belief is sincerely held.)

        1. Your needing to go up to that level of generalization shows how much you’re reaching to create persecution.

          In terms of compelling governmental interest, difficulty of remedy, and precedents of said remedy for other secular reasons, these are not the same.

          Agreed that the government getting into sincerity is a bad idea.

  2. At least the confrontation clause wasn’t violated.

  3. Seems about right.

    I wonder what they would do if there were cameras in the court.

    Turn off the camera that shows the witness? Leave it on?

    I like that it was observed that, “The right to a public trial is not absolute. . . . ”

    NONE of our rights are ABSOLUTE (hint hint 2A).

    1. “NONE of our rights are ABSOLUTE (hint hint 2A).”

      True, but gun control proponents mostly treat 2A as a nullity, which is a very long way from it not being absolute. 2A activists treating as absolute is mostly a reaction to the other side trying to treat it as a nullity.

    2. No one argues that the 2nd Amendment is absolute. But the left’s laundry list of demands (bans on semi-autos, bans on private transfers, handgun rosters for guns that don’t exist, absurd carry rules, $340 fees, 10 day waiting periods for people who already own guns) are not just “non-absolute restrictions,” but restrictions that render the right worthless.

  4. This seems like a pretty reasonable closure to me. The defendant got to confront the witness, the judge and/or jury was able to view the witness’s face during her testimony, and the closure was only for a short time. Maybe the judge should’ve discussed other potential alternatives and why they wouldn’t work first, but I think it was a good compromise.

  5. Pretty flexible religious belief.

    “You must cover your face in front of non-family men except for judges, lawyers, baliffs, cops. other court staff and criminal defendants.”

    Muhammed was really specific how he requires woman to behave.

    1. Skeptical of religious laws that take into account practicalities?

      Has Bob has never met a Rabbi?

      1. Sure, sure. She was a Muslim religious law expert.

        1. Sounds like you have a double standard between the nuances in what Jews can believe and what Muslims can!

          1. You need your hearing checked.

            You said a Rabbi would have a nuanced “practical” interpretation, not Jacob Everyjew. She isn’t an Iman, the chance she was able to be nuanced about it was just about zero.

            1. Jews get guidance from Rabbis.
              Muslims get guidance from Imams.

              1. Is there any evidence she got guidance from anyone?

                If not, then you are arguing that an average Muslim woman would be able to know that there was an applicable “court exception” to her deeply held and sincere belief?

                1. I’m assuming sincerity in religious beliefs. You’re the one ginning up bad faith out of too much praticality and nuance.

                  It’s kinda transparent, really.

            2. The religion clauses just don’t work that way. They take people as they are. The Supreme Court has said many times that the fact that people may make compromises in ways that may appear to outsiders to be inconsistent doesn’t invalidate the sincerity of the belief. Nor does it matter if the lines are different from those drawn by official or orthodox authorities in the religious law of the religion involved. The courts have to accept the lines that people themselves draw.

              Professor Volokh has often emphasized the individual character of religious rights. While I think group, organizational, and corporate rights have a good deal of relevance, nonetheless this feature of First Amendment law – everyone is a religion unto themselves for purposes of adjudicating personal sincerity – is a core part of Free Exercise jurisprudence.

    2. Given that he was a perverted pedophile, it’s not that surprising at all.

      1. Aw man. And the Founders were super into the horror of chattel-slavery.

        Better close down America!

  6. If ever there was a compelling reason to override someone’s religious preferences, complying with the constitution would be a reason.

    “The Supreme Court’s Waller case created a strict scrutiny regime for Sixth Amendment public trial claims (borrowed from the First Amendment right of access to courts cases)”

    The difference is that the First Amendment right of access is an inference drawn from that amendment, so exceptions could be inferred as well.

    In contrast, the right to a “public trial” is spelled out specifically in the Sixth Amendment, and I happen to think it’s one of the privileges and immunities of citizenship protected by the 14th Amendment.

  7. The court could have used a less restrictive approach so far as the Public Trial Clause was concerned. Since the witness objected only to men seeing her unveiled, it could have closed the courtroom only to men. This would have partially preserved both the defendant’s and the public’s trial right, even permitting some reporters to attend.

    It’s interesting this alternative appears not even to have occurred to the trial judge.

    But why, exactly, shouldn’t it? Gender discrimination is only subject to intermediate scrutiny, not strict scrutiny. And because all the interests involved are all constitutionally grounded – the withess’ religious rights, the defendent’s and the public’s public trial rights – surely there is a case to be made that they should count as the sort of “important” state interests that tip the Equal Protection balance under existing precedents and justify excluding men but not woman.

    An analogous case could be drawn where a factual issue depends on markings on a witness’ private areas. (That is, the more restrictive set of body areas that contemporary Western mores regard as private). Here too, a witness might be willing to expose in the presence of the same gender, but not both.

    1. “It’s interesting this alternative appears not even to have occurred to the trial judge. ”

      Not very interesting.

      Was the jury all female? You can’y have part of a jury only hear the evidence.

      Was the judge female? The lawyers? The cops and baliff?

      The defendant wasn’t for sure.

      1. In this case, the witness accepted the presence of the participants you named above and wanted only general members of the public excluded. So your hypothetical simply isn’t relevant to this case.

        I replied above to a comment claiming that this compromise rendered her belief insincere. It doesn’t.

        That’s what makes this case so interesting.

  8. It seems that whether the defendant was in fact prejudiced in any way should be considered. I don’t see any prejudice, regardless of whether the defense lawyer objected. In fact not raising an objection could have ben a tactical choice, to avoid making it appear to the jury that the defendant was afraid of the witness’s testimony. The reason for an objection could have been seen as an effort to exclude relevant testimony.

    While the “public” was excluded for a short time and the religious practice was perhaps waived, it seems a reasonable accommodation, as might be required by the free exercise clause.

    Another option would be to allow the witness to testify wearing a veil in open court.

    We do not know this particular witness’s actual beliefs. Some Muslims believe that covering the face is not mandatory, others that it is only mandatory in “public” but some believe that is is mandatory at all times any unrelated male is present. It is possible there are exceptions according to the particular version of Islam the witness follows.

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Donald Trump

Will the Mueller Report be a Blueprint for Impeachment?

Probably Yes

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It is certainly possible that the Mueller Report to be released on Thursday will constitute a blueprint for impeaching President Trump on obstruction of justice charges.  My speculation is based mostly on the aggressiveness with which the lawyers on the Mueller team did their investigation and their keeping the Russia-Trump investigation open long after they had to know there was no collusion between the Trump campaign and Russia.

Andrew McCarthy has been particularly insightful on what was happening:

The collusion probe came to Mueller primarily as an obstruction case. Since it was obvious from a very early point that there had been no collusion, the question of whether there was a prosecutable obstruction case was really the only one Mueller had to answer. In the end, he defaulted.

It is almost certain that Mueller knew by autumn 2017 that there was no Trump–Russia conspiracy. Trump railed about the investigation for public consumption, but the White House and his lawyers (especially the first team, led by John Dowd) provided sweeping cooperation, including hours of interviews with White House counsel Don McGahn and well over a million documents (among them, contemporaneous notes of McGahn's meetings with the president). Though he could easily have claimed executive privilege to withhold this information from prosecutors, Trump never did. . . .

A nagging question persists: Why did Mueller allow the investigation to continue for well over a year after it must have been patent that there was no collusion case? . . . Why did neither Mueller nor Rosenstein issue an interim report? That would have enabled Trump to govern without a cloud of suspicion that he might be a clandestine agent of Russia, yet permitted the overarching inquiry into Russia's operations and even the obstruction probe to continue. The country deserves an answer.

McCarthy gives some background about the likely reason that Mueller failed to decide whether to prosecute, ultimately punting the decision to Barr:

As for the obstruction inquiry, after 22 months of investigation, Mueller finally declined to make a prosecutorial judgment, dumping the matter in Barr's lap. . . .

There is no doubt that a president may be cited for obstruction based on corrupt acts that tamper with witnesses and evidence (recall the Clinton and Nixon precedents). But no patently illegal acts were alleged against Trump. In their absence, Mueller's team pursued a novel theory: An obstruction charge might be premised on lawful exercises of the president's Article II prerogatives (e.g., firing subordinate officials, weighing in on the merits of investigations, considering pardons) if a prosecutor — the president's subordinate — later deduced that the acts had been improperly motivated. . . .

As is not uncommon for former top officials, [Barr] had weighed in on important policy matters from time to time over the years.

So it was on obstruction.

In June 2018, Barr had submitted an unsolicited 20-page memo to Rosenstein. Citing the legislative history of the obstruction statutes, leading case law, and longstanding Justice Department policy, he contended that Mueller's apparent theory of obstruction was legally untenable and practically unworkable. Putting the president aside, the theory would subject to possible prosecution any Justice Department supervisor who made a routine personnel decision during a case (say, reassigning a lawyer from one investigation to another) if some prosecutor later suspected an improper motive. Barr further made what should be an incontestable point: Given the damage such a prosecution can do to the nation's governance, a president should not be prosecuted in the absence of something all reasonable people can agree is a clear, serious violation of law.

Once Barr was confirmed, Mueller had to see the handwriting on the wall: The new AG was not going to approve a dubious obstruction charge. The special counsel thus had a choice: concede that Barr was right on the law, or fight for the controversial theory his staff had pursued — i.e., recommend an obstruction charge and dare the AG to nix it. But Mueller shrank from making the decision, choosing merely to summarize the evidence and leave the prosecutorial judgment to Barr.

In consultation with Rosenstein, Barr found no prosecutable case. . . .

In the meantime, [Mueller] let the president chafe under the yoke of suspicion long after it was manifest that there was no collusion case. All the while, the special counsel's staff considered an unsound reinterpretation of obstruction law in order to nail Trump — after the Justice Department had bent over backwards in order to avoid charging Hillary Clinton with mishandling classified information, a concrete criminal allegation that was supported by weighty evidence.

Although political predictions are wrong nearly as often as they are right, I would expect that the Mueller Report released on Thursday will give plenty of ammunition for Congressional Democrats who might want to impeach Trump for obstruction under a theory that the Mueller team thought plausible enough to have spent nearly two years pursuing.

I hope that the report will also reveal when the investigation of the Trump campaign began and on what basis, as well as which current and former foreign agents or governments were used by the Clinton campaign, the FBI, or the CIA to surveil or gather information on members of the Trump campaign, the transition team, or the administration.

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.

72 responses to “Will the Mueller Report be a Blueprint for Impeachment?

  1. “I hope that the report will also reveal when the investigation of the Trump campaign began and on what basis, as well as which current and former foreign agents or governments were used by the Clinton campaign, the FBI, or the CIA to surveil members of the Trump campaign, the transition team, or the administration.”

    It won’t. Trump has already bemoaned the lack of examination given to “the other side.” Hopefully more time will tell though! By the way has anyone seen Joseph Mifsud?

    1. “It won’t. Trump has already bemoaned the lack of examination given to “the other side.”

      It’s almost like Mr. Trump doesn’t know that these are people who work under him, at his direction. Are we to conclude that he doesn’t know how to lead an organization, or rather, that what he says publicly has nothing to do with what he does privately?

      1. No, it’s almost like Trump knows that when under investigation for obstruction it may be counterproductive to issue a formal command to the AG that an investigation of the investigators begin forthwith.

        Better to take the hits, bitch about them publicly and privately, and then appoint a guy as AG who you suspect shares your belief that the investigators need investigating.

        1. Your suggestion that Donald Trump knows how to act when under investigation is silly. At best, he is the guiltiest-looking innocent man in American political history.

          But keep doing the best you can with this, clingers.

          1. He never looked guilty. It was always a ridiculous conspiracy theory on par with the one that Obama is a secret Muslim born in Kenya. Only it turns out Democrats are much more deranged, tribal and filled with hate so they took it much further.

            1. The serial lies — consistent lying by the President and many of those close to him, regarding communications, meetings, and conduct with respect to Russia and the e-mails — were not the expected conduct of innocents.

              The statements that he fired Comey because of ‘this Russia thing’ and that the firing had ‘taken that pressure off’ also are inconsistent with an appearance of innocence.

              Carry on, clingers.

          2. You are boring, and an asshole.

  2. I see the man who doesn’t understand how campaign email lists work has logged on to explain politics to us.

  3. McCarthy is a worthless hack. Citing him for anything is pretty much worthless.

    Barr’s not-a-summary quotes Mueller as narrowly deciding there was no collusion between the Trump campaign and the Russian government. Well, Stone wasn’t part of the campaign and Kilimnik wasn’t part of the Russian govenment, but Stone was indicted for coordinating with Wikileaks and the Gufficer 2.0 operatives and Kilimnik was Manafort’s go-between to Deripaska (also not an official part of the Russian government).

    The obstruction charge probably isn’t weak. It just so happens there’s a DOJ policy saying the President can’t be indicted. Mueller didn’t leave it up to Barr to make any decision, either. That goes against the entire point of the Special Counsel regulation.

    The entire report needs to go to the House to determine what it all means.

    1. You are confused, Stone was indicted for lying not any collusion, and the report exonerates Stone of collusion too, because he was clearly associated with the campaign.

      “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election. ”

      It’s funny you attack McCarthy as a hack, because when this all started he vociferously defended the FBI and the FISA process, saying it was just not possible the FBI would use something as flimsy as the Steele Dossier on its own to get a FISA warrant, until the evidence came out and he had to change his mind.

    2. “Barr’s not-a-summary quotes Mueller as narrowly deciding there was no collusion between the Trump campaign and the Russian government.”

      hmmm. Is that what they say over in your bubble?

      1. That’s the brilliance of conspiracy theories – evidence against the theory is further evidence of the conspiracy.

        1. All conspiracy theories originate from a CIA disinformation campaign.

          #MetaConspiracy

    3. McCarthy is a worthless hack. Citing him for anything is pretty much worthless.

      Plainly not “worthless” since he has radically changed his tune over the course of the last two years. He started off firmly in the camp of “this is a real investigation, because my beloved DoJ, and my nearly as beloved FBI, do not pursue investigations based on vapor. If they got a FISA warrant, there must have been plenty of predicate, thrice checked and verified.”

      And then after a year or so he changed course to “Oh Lordy ! My beloved DoJ seems to have been doing exactly what I said it would never do .”

      So if he’s a hack, this 180 can only be based on a change of paymasters. Ergo at least someone thinks his scribblings are valuable.

    4. Oh boy, we got a live one.

      Do you realize that you are now at the stage of rejecting the short form birth certificate and demanding to see the long form birth certificate?

  4. The collusion probe came to Mueller primarily as an obstruction case. Since it was obvious from a very early point that there had been no collusion

    It was? There were numerous points of contact between Trump, the Trump campaign, people in Trump’s orbit, and people connected to Russian intelligence.

    A nagging question persists: Why did Mueller allow the investigation to continue for well over a year after it must have been patent that there was no collusion case?

    Because it wasn’t clear. People who were interviewed kept lying and trying to deceive the investigators, and the President’s allies kept dropping hints that he’d pardon anyone who got charged for lying to the investigators.

    Just look at Manafort, he lied, cut a deal, then lied again, and it’s widely expected that Trump will issue a pardon at some point.

    Even now… how easy would it have been to set up an encrypted back-channel between the Trump campaign and Russia? It’s really hard to prove a negative, and with that many weird and suspicious connections you have to keep digging for a long time.

    . . . Why did neither Mueller nor Rosenstein issue an interim report?

    Because that wasn’t in their mandate and they played it by the book. Their job was to investigate, not run PR for POTUS. If you wanted to track the investigation there were plenty of court filings.

    As for the obstruction inquiry, after 22 months of investigation, Mueller finally declined to make a prosecutorial judgment, dumping the matter in Barr’s lap. . . .

    Probably, according to Barr’s summary. We still haven’t seen the report, and don’t know what will be in the redacted version.

    But no patently illegal acts were alleged against Trump.

    I’m pretty sure I could beat this article’s word count simply by listing patently illegal acts alleged against Trump.

    Some of which (including those by his allies) were unearthed by the Mueller investigation and would have ended up in the sites of the original probe.

    In their absence, Mueller’s team pursued a novel theory:

    Which sounds a lot what a normal person would describe as obstruction of justice.

    In June 2018, Barr had submitted an unsolicited 20-page memo to Rosenstein

    And got appointed AG! Replacing an Interim AG who penned an op-ed on how the AG could kill the Mueller investigation.

    Although political predictions are wrong nearly as often as they are right, I would expect that the Mueller Report released on Thursday will give plenty of ammunition for Congressional Democrats who might want to impeach Trump for obstruction under a theory that the Mueller team thought plausible enough to have spent nearly two years pursuing.

    In other words you expect loads of evidence that contract your position, and you’re fully prepared to disregard all of it.

    1. In June 2018, Barr had submitted an unsolicited 20-page memo to Rosenstein…..And got appointed AG! ”

      An absolutely key point. Not only is Trump guilty by nominating and appointing Barr, but 54 Senators are guilty by confirming him.

      I expect to see that Mueller came within an ace of indicting them too. Presumably in a trial of Trump in the Senate following impeachment, they’d all have to recuse themselves ?

    2. Yeah, “fully prepare to disregard all of it,” does “it” include the Obama administrations use of clandestine informants (commonly known as “spies”) against the Trump campaign? The use of Clinton/DNC funded opposition research (commonly know as “BS”) to obtain multiple FISA warrants? The Obama administration’s decision to withhold investigatory information from the incoming administration? The Strzok/Page “Insurance Policy” text (and other texts that weren’t deleted)?

  5. I doubt this is going anywhere in the House but suspect that is even better from a Democratic strategy point of view. They can bemoan how nothing is happening even as they make sure nothing actually does happen.

  6. Those who want to impeach Trump don’t need this report as a blueprint. I personally don’t think there is much chance of impeaching Trump, because the Dem leadership (as opposed to the 19-and-counting candidates) knows it would just rile up most of those voters who voted for Trump precisely because he is not a standard politician. It would be an even more obvious case of sour grapes than the Clinton impeachment was.

    1. I believe — based in part on discussions with many Democratic Party leaders — that the primary reason senior Democrats prefer not to impeach Pres. Trump is that they are content to let him brand the Republican Party with ineptitude, bigotry, corruption, and backwardness for at least a generation.

      That, coupled with the leashes a Democratic House can place on the Trump administration, is enough to make watching Trump lurch about for a couple of more years the better political bet.

      1. “based on discussions with many Democratic Party leaders”? Who exactly? Just watching Rachel Maddow doesn’t count. But, I almost wish it were true. It would explain a lot about the leadership of the Democrat Party.

  7. I thought it was God who was the searcher of all hearts, but apparently it’s Jim Lindgren, who seems to know exactly what everyone thinks. He’s also a law professor who clearly adores a man who rejects entirely the very notion of the “rule of law”. Strange!

  8. If the Democrats impeach Trump after the no-collusion finding then they’ll lose Congress in 2020, not just the presidential election.

    The obstruction charge is basically that he fired Comey, complained about Sessions recusing himself, and he sent some tweets. I can’t believe how full of themselves the FBI and Mueller’s team are.

    Comey should have been fired the day he briefed Trump on the Steele/GPS/DNC dossier.

    1. Wrong.

      Trump should have whipped out a list on inauguration day, and fired a fair number of people before the warmth from his hand had faded from that Bible. All he accomplished by giving people like Comey a chance, was to give them time to organize against him and set traps.

      Even the briefing you mentioned was just a trap, conducted only for the purpose of being able to tell the press that he had been briefed on it, transforming it from just a campaign smear to some sort of official intelligence document.

      Sure, it would have been a mess, but he’d have been the one to put the mess together again, under his control. Instead of the “resistance” just getting organized and stubborn.

  9. It’s always refreshing to see someone openly willing to whore his integrity to defend the indefensible.

    Jim Lindgren: Intellectual whore. Yup, you wear it well.

    (Advice to future presidents: If you do not want to be investigated over an extended period; don’t bend over backwards to look as guilty as possible. I am *still* trying to figure out why he felt he had to lie about the Trump Tower meeting if absolutely nothing improper was going on.)

    1. One possible explanation for the President’s actions during the investigation is that he wasn’t sure none of his team was guilty, or even thought that at least some of them might be guilty. At the high end of partisan spin, he might not have even been sure he was innocent of wrong-doing.

      Far more likely (to me, anyway) is that it’s simple ego. The Russians wanted Trump elected because they believe he was the far less capable candidate, and his election would hobble the United States. So, first he tried straight denial… the Russians didn’t even try to influence the election. Since that was obviously untrue, and Trump changes from lie to lie until some other issue takes center stage, he then moved on to “no collusion” and “witch hunt” and and “attempted coup” to “investigating me is treason”.

      1. “The Russians wanted Trump elected because they believe he was the far less capable candidate, and his election would hobble the United States.”

        If that was their theory, then they got it ass backwards, which might make you rethink your premise.

        1. It’s also ridiculous on its face. The Russians knew, just as did the Americans, Republican and Demcrat alike, that Hillary was bound to win.

          Any Russian monkey business could not have been aimed at helping Trump to win, since it was a sure thing that he wasnt going to. The obvious motive for any monkeying was to sow discord and to try to hobble a Hillary Presidency with a taint of illegitimacy.

          I doubt that there was in fact any real Russian input to the Steele dossier, but if there was, then there’s your secret collusion in a nutshell.

        2. “If that was their theory, then they got it ass backwards,”

          In the sense that they got exactly what they wanted, and it was better (for them) than they could have hoped for?

          1. Two reasons. One, you have to believe that Hillary would have made for a stronger, more secure America on the world stage, better able to oppose Russia for them to try to get her to lose. I suppose you can believe that Hillary would have been, in an alternate universe, a better president, but this is un-provable. Thus your hypothetical is based on an unprovable axiom. Trump’s leadership, in this timeline at least, has led to a stronger America than before his election.

            But secondly, for your premise to make sense, you have to assume that Hillary would be harder on Russia than Trump has. This again is an un-provable hypothetical. If anything, though, Trump has done less to relieve sanctions on Russia than a president not under a cloud of “Russian collusion” might have, lest he be thought of as a stooge.

            Think though, the Russians have been meddling in our elections since their Revolution in an attempt to undermine the West. And further, do you really think that Russians are better at reading the polls than people hear? Like everyone else, they thought Hillary would win, and wanted to undermine the West, which they have done is spectacular fashion thanks lately, playing the Democrat Party and American media like a harp.

  10. They kept it open as long as possible because 1. The investigation existing served as an anchor around the Admins neck 2. so they can squirrel together has many nuggets of minor negative information they could in the hope that they would eventually strike gold or cobble something together on what was essentially a fishing expedition. If there was anything slamdunk in that Report you can be your fake Democrat pee tape that we would have heard about it the moment it came out.

    1. If Mueller had officially concluded that there was no Trump-Russia collusion by 2017, but he wanted to continue investigating Trump for obstruction, there would have been no argument for Sessions to remain recused. Hence Sessions would have taken over the SC supervision from Rosenstein. I suspect that would have been unwelcome.

  11. Well, it seems like people are still plenty sore over Trump’s exoneration.

    1. “it seems like people are still plenty sore over Trump’s exoneration.”

      If he ever gets exonerated, they will be.

      1. Sore of his exoneration? They are still sore over his election.

      2. “If he ever gets exonerated, they will be.”

        Wow. I’d expect you to have at least gotten to bargaining with God, by now.

  12. I can’t accept the initial premise of this post, which seems to be that the Muller probe found no collusion between the presidential campaign(s) and foreign powers: if a common definition of collusion is “secret or illegal cooperation, especially in order to cheat or deceive others,” then the Muller investigation certainly found it in the person of Gregory Craig, Special Counsel to Former President W. Clinton (spouse of presidential candidate Hillary Clinton) and White House Counsel to Now-Former President B. Obama (titular head of a political party), who undertook considerable “lobbying work” for Ukraine.

    Granted, the Muller probe found no stained blue dress in Trump’s wardrobe; however, that doesn’t imply that such stained blue dresses aren’t prominent in other closets which must necessarily have been examined as part of the probe. What if the much-begged-for Muller Report serves as a blueprint for indictment of those who //oppose// the President?

    1. Setting aside that Ukraine isn’t Russia… Basically, by this definition of ‘collusion’ you’re suggesting, every administration in the last century has been guilty of it.

      1. Under that definition of “collusion”, there IS a crime which applies… unregistered lobbying.

        We saw that the Trump campaign would have been more than willing to collude with Russia. We also saw that Russia wanted to influence the election, specifically, to elect Mr. Trump. With those two facts clearly in sight, it’s obvious (to non-partisans, anyway) that you’d need a fairly thorough investigation to be sure that nobody ever crossed any lines (or, as it turns out, that only 37 people or so crossed lines, but none of them were actually Mr. Trump.)

        The investigation took so long because Mueller didn’t want to be accused of overlooking anything, accidentally or on purpose, after it was done. The President is incapable of taking a long-term view of ANYTHING, or he would have told the Mueller team to investigate away, secure in the knowledge that he didn’t do anything wrong that they could actually pin on him. Instead, at pretty much every opportunity, given a choice between doing something that made him look innocent, or doing something that made him look guilty, he chose the second one.

        1. The investigation took so long because Mueller didn’t want to be accused of overlooking anything, accidentally or on purpose, after it was done.

          I suspect this will rapidly be proved to be false. I think we will find that Mueller’s team did not investigate the large pile of obvious stuff that Barr will now be investigating himself.

      2. Why should the country matter. Collusion with any foreign government to affect the result of a presidential election is the very definition of collusion.
        TBH, I personally believe all connections with China should be investigated which would put Feinstein in the frame since her driver of over 20 years was discovered to be a Chinese spy and Pelosi and her husband’s financial links to China are well documented.

  13. Here’s my prognostication. Mueller’s report will be full of evidence of Trump obstructing the investigation, based on the legal theories that ranting and complaining about an investigation is obstruction. And that firing honest Jim could be too.

    But the report will also demonstrate beyond argument that Mueller , Weissman et al do not really believe their theories at all. Because there will be one glaring omission which, on their theories, should be front and center in the evidence of Trumpy obstruction – appointing a guy as AG who was already on record as opining that the Mueller-Weissman obstruction theory was, legally, dog poo. And persuading the Senate to confirm him.

  14. The House indicts, the Senate convicts. As long as the Republicans remain in control of the Senate and support Trump, impeachment is little more than political theater. If the Democrats think that will help them in the next election they are very misguided.

    1. ” If the Democrats think that will help them in the next election they are very misguided.”

      They don’t. Talking about impeaching Trump is about as real as when the R’s talk about indicting Hillary. It gives the hardcore partisans something to talk about, but doesn’t have anything to do with what’s actually going to happen.

  15. This otherwise fine blog keeps getting tarnished with this anti Trump nonsense. Stop.

    1. Yes, noted anti-Trump zealot Jim Lindgren quoting even crazier TDS sufferer Andrew McCarthy.

  16. “Will the Mueller Report be a Blueprint for Impeachment?”

    Almost certainly not. The D leadership would have to want to actually impeach President Trump, and they do not. The likely outcome of such an attempt would be a party-line acquittal in the Senate, which does not benefit the D’s individually or collectively, and if it actually worked, they’d get a President Pence out of the deal. No, if the White House is to be occupied by a Republican, as it will be until at least January of 2021, better to leave the most ineffective of leaders in place, rather than risking installing someone else who might be a more effective leader.

    1. The likely outcome of such an attempt would be a party-line acquittal in the Senate

      Highly unlikely. Manchin, Jones and probably Sinema would not be votig to convict. Which would make the optics even worse for impeachment.

      The whole dog and pony show is about scooping up contributons, and trying to keep suburban housewives in their column in 2020.

  17. It is now 8:52AM and I have MSNBC on not because they are a reputable news outlet (they are not) but because I want to watch the Left absolutely lose their breakfast over the release of this report. I have my popcorn popping in the microwave right now. This is going to be like 2016 election night all over again. Rachel Madcow might actually have a heart attack on the air. This is going to be awesome.

    I remember two years ago when the libtards were pasting “Its Mueller Time” all over social media because they were so convinced Trump had colluded with the Russians to “steal” an election. They can’t believe that didn’t happen (and in some sick way are actually sad that our President wasn’t some sort of traitor who stole an election). Now their world view is falling apart and watching it collapse it going to be one word – AWESOME!

    1. This is good, Jimmy the Dane, because what you describe gives you a glimpse of how your betters have enjoyed stomping your preferences into submission in the culture war.

      Have a good morning! And imagine what it would be like to be on the winning side regularly.

      1. And Cuckland will wonder why he won’t have any succor or respite when the time comes….

        1. Yup. In 12 years, AOC is gonna link Kirkand up against the wall with all the other rich lawyers.

  18. IANAL but why should obstruction (or any procedural offense) even be a chargeable if no initial crime was committed? Sounds like entrapment to me.

    1. “why should obstruction (or any procedural offense) even be a chargeable if no initial crime was committed?”

      Because obstruction of justice is a separate crime.

      Consider. Suspect A does something wrong. Public official B is not involved, but does believe that if A’s wrongdoing comes to light, it will be bad for B. B therefore participates in a coverup of A’s crimes. A’s wrongdoing has nothing to do with B’s crime of obstruction of justice. This is also true if A turns out to not be guilty.

      Also, of course, the President is an unusual case, immune from criminal prosecution while in office, but also subject to impeachment and removal while in office. The exact crimes that justify impeachment and removal are not defined, but rather are left for (a supermajority of) Congress to decide, if and when the need arises.

      1. I would think as a matter of principle that could be distinguished separately as some sort of conspiracy. I just don’t like the idea of someone defending their innocence being considered a crime in and of itself, especially when its politically motivated. Of course being innocent doesn’t mean you can do anything you want to prove it, but sometimes innocent people do questionable things.

    2. Because successful obstruction looks like no crime was committed. So obstruction has to be illegal, or everybody who was guilty would attempt it, what would they have to lose?

      The problem with obstruction in the case of Trump was that every last thing he did was within his legal authority, so the only way it could have been “obstruction” is if they could prove he had a corrupt motive for the legal acts.

      And, absent an underlying crime to hide, that’s mind reading territory.

      1. The corrupt motive was Making America Great Again.

  19. Well surprise surprise…no collusion….not even a close call on obstruction…this was an illegal witch hunt from day 1. Time for those who perpetrated this to pay the piper.

    1. Indeed, why bother reading the report when you can just listen to Honest Barr explain the real answer?

      Also not sure where you are getting the no close call on obstruction.
      “Im not sure if this is a crime or not” != “that means it’s not one.”

      In the end, you’ll continue to declare the same victory you’ve been preemtively declaring, the Dems will declare the same (though with less preemptive silliness) and the Mueller report will be effectively neutered as another partisan scrum.

      Remember when there was a post on this very blog that the blue wave as a nothingburger? Hot takes are fun, but we’ll see what shakes out in a week or two. (And I do think there’s a nontrivial chance what shakes out will be net good for Trump, though I wouldn’t bet on it).

      1. NO COLLUSION….NO OBSTRUCTION….NOT EVEN A CLOSE CALL.

        Get over it. The fact that you are sad/mad that Trump is not some kind of traitor who “stole” an election is telling.

        1. Man, I am owned by quoting eloquent Trump tweets and calling me mad online.

      2. “when you can just listen to Honest Barr ”

        Keep hope alive.

        1. Read to the end of my comment. Finding Barr’s conference an unseemly defense of the President doesn’t mean I’m convinced the Mueller report will be a panacea and retractively make Sanders the Arch-Commisar or anything.

  20. not sure how it follows that continuing an investigation past the point that “Mueller must have known there was no collusion” means that there must have been obstruction, much less obstruction that rises to the level of a prosecutable crime. I’m not arguing that Mr. Trump didn’t twist arms, try to manipulate curcumstances, or try to place loyalists to ensure that he got the result he wanted. but if those actions rise to a prosecutable level, I’m not sure I’ve seen a President in the last 6 decades that hasn’t done similar things, either regarding himself or close associates.

    seems much more likely based on what we _have_ seen is that he kept finding links into much more prosaic criminal activity that was eminently prosecutable, like fraud, fiduciary malpractice, and unregistered activity on behalf of foreign governments. those links have resulted in quite a few prosecutions and indictments, and it does not appear that those activities are over. continuing the investigation to allow following those threads until they could be handed off to other prosecutors is a simpler and much more likely scenario than the assumption/innuendo laden narrative spun in this article.

  21. MSNBC is going crazy…this is hilarious…they just accused Trump of “copyright infringement” for having a Game of Thrones theme based Tweet. That is how little they have. Well that and they are twisting the words of everyone including the AG. Headlines to come:

    Feelings and Emotions….

    AG acted like Defense Attorney….

    Where was Mueller?….

    Cooperation?!? Trump WAS NEVER INTERVIEWED!!!!!!

    1. Uh Oh….the mainstream Media is now pronouncing Barr’s legal reputation is GONE! Done! He is a SELLOUT!

  22. And now talking heads are saying “if there are TEN, TEN, TEN instances in the report then there is a strong argument for impeachment and obstruction!!!!!”

    Come on…..these people are mentally insane.

  23. [sarcasm] Well, the orange Literally Hitler is obviously guilty of obstructing an investigation of collusion since the investigation found no evidence of collusion. [/sarcasm]

  24. I haven’t had this much fun over a special counsel since Fitxmas fizzled.

    How dare Barr have a press conference!!!!

  25. Well, this comment section sure is having a very normal day.

  26. The “corrupt intent” theory of obstruction, as I understand it, posits that the same discretionary decision made for a bad reason (to protect oneself or one’s associates from prosecution and embarrassment) constitutes criminal obstruction, while doing so for a good or neutral reason is not.
    So let’s try that out on a hypothetical. The outgoing president very much wants to see someone from his party re-elected. His former secretary of state is the lead candidate to replace him as his party’s nominee. He very much wants her to be the one re-elected, so she will continue his legacy.
    But then she comes under investigation for a crime. The factual elements seem to fit hat and glove with a criminal statute. But, indicting her would kill her chances.
    Meanwhile, her husband meets with the attorney-general (herself politically connected with the sitting president) to persuade her not to proceed.
    Then shortly after, someone – perhaps the AG, perhaps someone at DOJ, perhaps the head of the FBI – decides to issue a report saying there is no basis to prosecute. At least part of that was to spare the former Secty. Of State’s candidacy.
    Is the person who made that decision for that reason guilty of criminal obstruction?

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Denaturalization

United States v. Eguilos and Denaturalization

George H.W. Bush appointee denounces second-class citizenship, cites to my work with Cassandra Robertson

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Judge William Shubb, who was appointed by George H.W. Bush, does not mince words in his decision concerning the civil denaturalization process that the government initiated against Christian Oribello Eguilos. The opinion, available at 2019 WL 1643234, begins with a bang:

This court must once again dispel the commonly held misconception that all American citizens are afforded the same rights of citizenship. See United States v. Dang, No. 2:01-cv-1514 WBS DAD, 2004 WL 2731911, at *1 (E.D. Cal. Nov. 15, 2004). Through the denaturalization process, Congress has created two distinct classes of American citizens. The first class of citizens includes those whose mothers happened to be physically present in the United States, whether legally or illegally, at the moment they were born, and those whose parents were American citizens. See 8 U.S.C. § 1401 et seq. These citizens are forever secure in their citizenship. It can never be taken from them, no matter what they may have done in the past or what they may do in the future.

The second class of citizens, and the focus of this case, consists of those individuals who acquire their citizenship through naturalization. See 8 U.S.C. § 1421 et seq. To even qualify for naturalization, an individual must meet a long list of criteria. They must wait at least five years after establishing permanent residency, pass a citizenship test, truthfully answer questions posed by United States Citizenship and Immigration Services ("USCIS"), be a person of good moral character, and swear allegiance to the Constitution. These requirements, unique to those applying for naturalization, demonstrate only the beginning of the substantial burdens this country places on these second-class citizens.

Once a naturalized citizen completes this arduous process, their American citizenship still hangs in the balance, at the mercy of government officials.

Judge Shubb goes on to cite Cassandra Robertson's and my forthcoming work:

And once the government starts the denaturalization process, these civil proceedings are replete with procedural shortcomings given the important right at stake. See Cassandra Robertson & Irina Manta, (Un)Civil Denaturalization, 94 N.Y.U. L. Rev. (forthcoming 2019) (manuscript at 49-54), https://bit.ly/2uMeBow (cataloguing the due process deficiencies of civil denaturalization). Defendants often do not have the right to a court-appointed attorney nor the money to hire one. It is within this unfortunate backdrop that this matter comes before the court as the defendant in this case, Christian Oribello Eguilos, is part of this second class of American citizens.

Eguilos's case concerns whether the government can denaturalize him for committing (allegedly both undisclosed and concealed) sexual abuse against minors–for which he later entered a no contest plea–before being naturalized. Judge Shubb denied most of the counts in the defendant's motion to dismiss, but one can see in the opinion his honest struggle to follow the law while condemning the unequal and insidious treatment of naturalized citizens.

Our beliefs in due process and its protections are virtually always tested the most when dealing with unsavory individuals such as Eguilos appears to be. The Constitution does not cease to apply, however, because someone is immoral or a criminal; indeed, that is usually when its applicability becomes relevant at all.

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6 responses to “United States v. Eguilos and Denaturalization

  1. I submit there is a substantive difference if the naturalized citizen is a dual citizen of another country. Dual citizenship shouldn’t even exist (when you are naturalized you swear an oath that you are giving up alleigance to any foreign nation), but it does, and that also creates another class of citizenship. Playing devil’s advocate here a bit – If a dual citizen commits a serious crime in the United States, one can argue that demonstrates a disregard for the US or it’s laws, and they should return to their other country of citizenship.

    1. A bit of a tangent but why do you think it appropriate to require an oath that you are “giving up allegiance to any foreign nation” when citizens-by-birth must make no such oath? Are you unaware of the many, many citizens-by-birth who nevertheless retain strong allegiances to their countries of ethnic origin?

      To be clear, “giving up allegiance” is a far broader standard than “renouncing citizenship”.

  2. I think that Reason should do something about these “trackback” comments. Aside from the fact that they’re not actually comments as such, they’re a notorious route for spam to sneak in, and in extreme cases, can seriously clutter a comment thread even if they represent real trackbacks.

    If they’re really desired, perhaps they can be segregated from the real comments?

  3. Isn’t the general rule that, once naturalized, you’ll only lose your citizenship if evidence surfaces that the naturalization was based on some fraud? This is Eguilos’s case; He’s alleged to have obtained citizenship under false pretenses.

    We can imagine a ‘natural born’ citizen, ‘American’ parents, ‘born’ in an American hospital. As secure in their citizenship as can be.

    And then it is discovered that they were actually born of non-Americans, somewhere else, and are benefiting from some elaborate hoax. In this scenario, would their citizenship be any more secure than Eguilos’s?

    Are we going to argue that, once somebody is declared a citizen on some basis, the discovery that this basis is fraudulent must be irrelevant? They get to keep the ill gotten status?

  4. Boo hoo. Poor little judgie.

    Congress has the power in this area, not him and he doesn’t like it. Oh well, maybe he should just retire and his little feelings won’t be hurt.

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Free Speech at Colleges

Middlebury College Cancels Speech by Polish Politician-Academic

The speech had been cosponsored by three faculty-run programs at the College.

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From Seven Days Vermont (Molly Walsh):

Middlebury College officials cancelled a forum Wednesday that would have featured conservative Polish politician and academic Ryszard Legutko, saying they were concerned that they could not guarantee people's safety as protestors organized.

Legutko was to speak on The Demon in Democracy: Totalitarian Temptations in Free Societies, and seems to be a pretty serious scholar:

Ryszard Legutko lived and suffered under communism for decades — and he fought with the Polish anti-communist movement to abolish it. But having now lived for three decades under a liberal democracy, he argues that western democracy has over time crept towards the same goals as communism, albeit without Soviet-style brutality. Both systems, says Legutko, reduce human nature to that of common man, who is led to believe himself liberated from the obligations of the past. Both the communist man and the liberal democratic man refuse to admit that there exists anything of value outside the political systems to which they pledged their loyalty. And both systems refuse to undertake any critical examination of their ideological prejudices.

Mr. Legutko is a Member of the European Parliament.  He has served as the Republic of Poland's Minister of Education, Secretary of State, and Deputy Speaker of the Senate.  As a Member of the European Parliament, he chairs the Parliamentary Group of European Conservatives and Reformists and serves on the Foreign Affairs Committee.  He has been an active participant in recent debates over Brexit in the European Parliament.

Under communist rule, Legutko served as editor of the illegal samizdat publication, Arka. After the collapse of the communist regime, he co-founded the Centre for Political Thought in Kraków. One of Poland's foremost public intellectuals, Mr. Legutko is Professor of Philosophy at Jagiellonian University (Kraków, Poland).  As a specialist in ancient philosophy and political theory, he has translated and written commentaries to Plato's Phaedo (1995), Euthyphro (1998), and Apology(2003). He is the author of several books, including Plato's Critique of Democracy (1990), Toleration (1997), A Treatise on Liberty (2007), An Essay on the Polish Soul (2008), and Socrates (2013).  

He had been invited by the Alexander Hamilton Forum, a faculty-run program, and his talk had been cosponsored by the Department of Political Science and the Rohatyn Center for Global Affairs. But he drew opposition from faculty and students who argued that his views were "homophobic, racist, xenophobic, [and] misogynistic"; and the College administration canceled the lecture, writing (I quote here the Washington Free Beacon (Alex Griswold)):

In the interest of ensuring the safety of students, faculty, staff, and community members, the lecture by Ryszard Legutko scheduled for later today will not take place. This decision was not taken lightly. It was based on an assessment of our ability to respond effectively to potential security and safety risks for both the lecture and the event students had planned in response.

At least some of the organizers of the planned protest against Legutko say they weren't trying to prevent Legutko from talking:

"In light of the recent announcement by the Middlebury College administration to cancel the Legutko event this afternoon, we are reiterating that it was never our intention to shut this event down, nor prevent the speaker from speaking," Taite Shomo wrote.

But the administration did prevent it.

(Thanks to InstaPundit for the pointer.)

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14 responses to “Middlebury College Cancels Speech by Polish Politician-Academic

  1. Of course they were trying to shut it down.

    And highly ironic, as they were demonstrating his thesis for him.

  2. This must the first recorded account of a modern college leftist protest who uttered the sentiment of not wanting to suppress speech.

    I doubt they lost much sleep that it happened, though. They also probably knew full well this was a likely outcome and protested anyhow (as opposed to engage in conversation… that requires a back-and-forth that you just dont have to mess with when you just scream and yell… I mean protest).

  3. Middlebury has not exactly covered itself in glory in previous episodes of speech suppression. It doesn’t seem to be accidental.

  4. Should those who disagree with an upcoming speakers’ arguments simply remain quiet rather than voice their view? I don’t know what exactly was said about this individual by faculty and students other than what is quoted in this piece. If they were expressing their view that the scholar is racist, sexist, homophobic, leftist, rightist, biased, alt-rightest, elitist (whatever), then that seems quite different than saying that if he shows up they are going to show up and harm others.

    If the University is just going to cancel a speaker because some people voice disagreement with the speaker’s views, but want the speaker to to attend, then there will be a chilling effect on speech. The heckler becomes the speaker, and a new player (the university) becomes the heckler. It’s hecklers vetoing hecklers all the way down (something something CHILLED SPEECH)!

  5. An updated version of the linked article reports that Legutko spoke anyhow, albeit in a classroom rather than in a forum.

    1. It looks like the speech was cancelled, but a separate talk to a small seminar did happen. (My assumption is that this was planned like some other visits by academics, especially from far away — someone is invited to give a prominent talk to a broad audience, but to take advantage of their presence, a professor also has him talk to the professor’s class.)

  6. But somehow the Right are the fascists.

    1. “Your speech is violence, our violence is speech.”

      – Leftists.

  7. Hecker’s Veto? Heckler’s veto.

  8. The left seems determined to destroy all vestiges of western civilization. I bet they won’t be pleased by what replaces it.

    1. That’s why they support so ardently things like gay marriage and mass immigration. They’re tools of destroying the West

  9. “A.5. Freedom of Expression

    “Middlebury is a community of learners and as such recognizes and affirms that free intellectual inquiry, debate, and constructive dialogue are vital to Middlebury’s academic mission and must be protected even when the views expressed are unpopular or controversial. Moreover, as the College Faculty Handbook and the Institute’s Policies & Standards Manual (PSM) statements on academic freedom recognize, an institution of higher education’s service of the common good “depends upon the free search for truth and its free exposition.” (Faculty Handbook, Academic Freedom. Adapted from the 1940 “Statement of Principles on Academic Freedom and Tenure” of the American Association of University Professors.)”

    http://www.middlebury.edu/about/handbook/policies-for-all/genl-principles/freedom-of-expression

    1. Oops –

      “D.7. Policy on Scheduling Middlebury Space for Events…

      “13. In an exceptional case where the review, after application of risk mitigation strategies, indicates that the activity presents an imminent and credible threat to the physical safety of individuals that cannot be adequately mitigated, the president and the senior administration reserve the right to re-schedule or, if necessary, to cancel an event.”

      http://www.middlebury.edu/about/handbook/policies-for-all/appropriate-use/d.7.-policy-on-scheduling-middlebury-space-for-events

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Game of Thrones

Podcast on the Politics of “Game of Thrones”

Harvard Kennedy School Prof. Christopher Robichaud interviews me on this topic for his "This Week in Dystopia" podcast series.

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In this recent podcast, Harvard Kennedy School Professor Christopher Robichaud interviews me about a variety of burning issues related to the politics of Game of Thrones. The podcast is part of his This Week in Dystopia series. Among the many pressing issues covered are the institutional flaws of Westeros' political system, possible explanations for the continent's longstanding economic stagnation, why the politics of science fiction and fantasy worlds matters, and why Jon Snow is an absolutely terrible political and military leader (though he is undoubtedly a brave and decent man).

For those interested, this post has links to my previous writings on the politics of Game of Thrones.

 

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Not a Jujube

Apparently, that's so of qualified privileges and of the All Writs Act -- but what on earth does that mean?

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From Judge Selya, in Havlik v. Johnson (1st Cir. 2007):

A qualified privilege is not a jujube that, like some magical charm, wards off liability for defamation, come what may. In Rhode Island, as elsewhere, such a privilege may be abrogated if the plaintiff proves that the privilege-holder published the offending statement out of spite, ill will, or malice.

And from the same judge in Trenkler v. U.S. (1st Cir. 2008):

Still, each attempted use of an extraordinary writ in connection with post-conviction relief must be judged on its own merits. The strictures of section 2255 cannot be sidestepped by the simple expedient of resorting to some more exotic writ. Put bluntly, the All Writs Act is not a jujube. At most, it constitutes "a residual source of authority to issue writs that are not otherwise covered by statute."

What does that mean? And how is it putting it "bluntly"? I know about the fruit and about the candy, but I just can't figure out how they fit here.

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9 responses to “Not a Jujube

  1. It means “magical talisman” in this context. In eastern medicine and religion, the jujube plant had magical powers, both as an edible and the wood when carved.

    You’re looking for old eastern China, and some migration into Japanese Shintoism.

  2. My guess is that the judge is trying to refer to a juju charm. It’s sometimes written as ju-ju or joujou. I’m not aware of it being referred to as a “jujube” but maybe it’s an obscure usage?

    1. I think that’s right. I’ve never seen “jujube” used for “juju” or its other known variants. Maybe we should send the judge a case of JuJubes, the way the Raisinets people sent a case to Mel Brooks for Harvey (that’s “Hedly”) Korman’s reference to them in Blazing Saddles.

      1. A box of jujubes with a joujou as a prize toy?

    2. Yeah, I think the judge confused the term “jujube” which can mean either (1) the red or Chinese date, a datelike fruit from a tree in Asia, often claimed to have medicinal qualities, eaten to relieve coughs, or (2) a sweeten fruit flavored lozenge or candy, also often with cough medicine added, and the term “joujou”, which can either mean a small toy or plaything or a magical talisman.

  3. On the one hand, Judge Selya himself defined a “juridical jujube” as “a delicately flavored bankruptcy issue of novel impression”. In re Dein Host, Inc., 835 F.2d 402, 403 (1st Cir. 1987). Which sheds little light on these passages, and tends to reinforce the idea that it may be a malapropism.

    On the other hand, three other federal judges have quoted Selya’s description of the All Writs Act (including he “put bluntly” language), so I guess it’s clear enough to them. (In all the other cases I found on Westlaw, it was clear the reference was to the fruit or candy.)

  4. All of which just goes to show that a legal education does not prevent one from being dumb (says I, a lawyer).

    1. It’s surprising that non-lawyers assume lawyers are subject matter experts in so many fields and trust judges to adjudicate important cases.

      When you realize most lawyers have undergraduate degrees in political science, history, or pre-law this assumption really flies out the window.

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Freedom of Speech

The First Amendment and the Hybrid Permanent Injunction

This is the key proposal from my forthcoming Penn Law Review article on Anti-Libel Injunctions -- a way of taming the anti-libel injunction to include important First Amendment procedural protections, but still allow its use to prevent genuine libels.

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[You might also read my earlier posts on the subject, Anti-Libel Injunctions and the Criminal Libel ConnectionThe First Amendment and Criminal Libel LawThe First Amendment and the Catchall Permanent Injunction, The First Amendment and the Specific Preliminary Injunction, and How Specific Anti-Libel Injunctions Underprotect Speech; or you can read the whole article in PDF.]

A. The Hybrid Permanent Injunction

What if, instead of saying either "Don may not libel Paula" (as in the catchall injunction) or "Don may not accuse Paula of cheating him" (as in the specific injunction), the injunction instead says, "Don may not libelously accuse Paula of cheating him"? Like the specific injunction, the injunction has a narrow chilling effect. But like the catchall injunction, the injunction requires that Don not be punished for criminal contempt unless, at the contempt hearing, his speech is found to be libelous. Thus, we have this comparison:

Catchall permanent injunction: "Don may not libel Paula"Specific permanent injunction: "Don may not accuse Paula of cheating him"Hybrid permanent injunction: "Don may not libelously accuse Paula of cheating him"
Deters derogatory speech only about the plaintiffSameSame
Deters derogatory speech only after the injunction is enteredSameSame
Deters all derogatory speech about the plaintiffDeters only particular derogatory statements about the plaintiffDeters only particular derogatory statements about the plaintiff
Speech punished only if found to be false beyond a reasonable doubtSpeech punished based on finding of falsehood by preponderance of the evidenceSpeech punished only if found to be false beyond a reasonable doubt
… at a criminal trial where an indigent defendant would have a court-appointed lawyer… at a civil hearing where an indigent defendant would generally not have a lawyer… at a criminal trial where an indigent defendant would have a court-appointed lawyer
… and where finding is by jury, if judge provides that any criminal contempt trial will be before jury… and where no jury would be present… and where finding is by jury, if judge provides that any criminal contempt trial will be before jury
… and prohibits only future statements that are libelous when spoken… and prohibitions future statements even without a showing that they are libelous when spoken… and prohibits only future statements that are libelous when spoken

As with the catchall injunction, the hybrid injunction thus just opens the door to the possibility of criminal punishment for continued libels; it doesn't purport to authoritatively decide that a particular statement is libelous, but leaves the matter to the jury in any future criminal contempt prosecution. But unlike with the catchall injunction, the hybrid injunction only opens that door for particular statements, and thus has less of a chilling effect.

In a sense, then, the hybrid injunction is close to the opposite of a declaratory judgment. A declaratory judgment that a particular statement is false and defamatory, for instance, wouldn't be a court order, and thus wouldn't criminalize any repetition of the statements; but it would conclusively decide that the statement is false and defamatory, in a way that likely has a binding effect on future civil litigation.-A hybrid injunction does criminalize behavior—the repetition of a particular statement—but it doesn't conclusively decide that the statement is false and defamatory, at least in any way that would bind the jury in any future criminal contempt hearing.

Let's be a bit more specific about what the hybrid injunction should say.

First, it should ban only "libelous" repetition of certain statements. Any injunction that lacks this extra element should be seen as unenforceable—or, alternatively, courts could hold that such an element is necessarily implicit in any anti-libel injunction.

Second, it wouldn't hurt for the injunction to be explicit about the consequences of including this element; the injunction might expressly say something like,

If defendant is prosecuted for contempt of court for making statements that violate this injunction, at any contempt proceeding it must be proved beyond a reasonable doubt that those statements are indeed false, defamatory, and unprivileged, and that the defendant knew that they were false.

Third, the law of anti-libel injunctions should expressly provide that any criminal contempt prosecutions should be conducted with a jury, unless the defendant waives the jury trial at the time of the criminal contempt hearing. [Footnote: Without this provision, criminal contempt trials could be held without a jury, so long as the sentence is six months in jail or less.] As noted above, there is precedent for this in the Norris-LaGuardia Act, which provides for jury trial in criminal contempt prosecutions stemming from labor injunctions. The jury should be expressly instructed that it's not bound by any prior judicial finding that the speech is libelous—a finding that was in any event made only by a preponderance of the evidence— and that its task is to decide the question for itself, beyond a reasonable doubt.

Fourth, the law of anti-libel injunctions should provide that such injunctions cannot be enforced through the threat of jail for civil contempt. Civil contempt would otherwise be a common means of coercing speakers to take down past posts, if the injunctions order such takedowns. But when it comes to libel cases, courts should require that any remedy involving loss of liberty go through the criminal contempt process, so as to enforce the principle that speakers can only be jailed for their speech if the full protections of the criminal law are provided. (Fines as civil contempt penalties should be permissible, so long as the initial injunction was issued following a jury finding that the speech was libelous; just as monetary damages awards in libel cases may be issued without the protections of the criminal justice process, so monetary sanctions for violating anti-libel injunctions may be as well.)

With these protections, hybrid anti-libel injunctions would provide speakers with all the First Amendment protections that they would have in criminal libel prosecutions. Given that criminal libel prosecutions are constitutional, such anti-libel injunctions should be as well.

B. The Futility-or-Vagueness Objection

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5 responses to “The First Amendment and the Hybrid Permanent Injunction

  1. If defendant is prosecuted for contempt of court for making statements that violate this injunction, at any contempt proceeding it must be proved beyond a reasonable doubt that those statements are indeed false, defamatory, and unprivileged, and that the defendant knew that they were false.

    With that EV seems to be trying to nudge the law of libel away from NYT v. Sullivan. I don’t think he is the first to do so. But it’s worth remembering that the libel standard in that case included reckless disregard of the truth, in addition to certain knowledge of falsehood.

  2. If there must be an injunction concerning speech then it should be narrowly tailored, but really what does an injunction accomplish other than to add contempt to the array of defamation enforcement options? The plaintiff still has to prove defamation to establish violation of the injunction: how does that differ from establishing defamation for the sake of a defamation action? Maybe it saves the plaintiff a new filing fee? I don’t think issuing a speech injunction is a good or practical idea.

    1. The injunction adds the threat of criminal punishment — and that’s especially important for judgment-proof defendants, for whom the threat of financial liability is not a real threat.

      1. In addition to what Mr. Volkh states in his response above, the hybrid injunction is ingenious because it helps both the defendant and the plaintiff. The help to the plaintiff is that as a preliminary injunction it provides for some protection against repetition of the libelous and defamatory statements while the case is awaiting trial, which can help insure justice for the plaintiff if the statements are truly libelous and defamatory. And since the violation of the injunction is now a criminal one, the prosecution would fall to the state, thus sparing the plaintiff some of the legal costs of prosecution of a civil tort.

        The help for the defendant is that if that person truly believes the statements are not libelous and defamatory and wishes or needs to continue stating them, the defendant is provided the benefit of the higher standard of proof of libel, i.e. beyond a reasonable doubt, the other benefits to defendants in criminal proceedings and the benefit of a court appointed attorney if the individual cannot afford one. This benefit comes at the cost of a potentially criminal contempt conviction and with it incarceration as opposed to a civil court determination and with it a monetary penalty which the defendant may not even suffer if he or she is insolvent.

        So it looks like this is very close to moving to Pareto Optimality as both parties benefit and the negative aspect of suppression of speech while not eliminated is reduced.

        As I said before once Mr. Volkh clarified things by emphasizing the injunction against ‘libelous’ speech, this is really neat.

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Discrimination

Does Yale Law School’s Antidiscrimination Policy on Subsidies for Student Employment Discriminate on the Basis of Religion?

The answer is no, despite conservatives' claims to the contrary. But that does not entirely resolve questions about the wisdom of the policy.

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Yale Law School recently adopted a policy under which students cannot get school-subsidized grants to support public interest summer jobs, postgraduate fellowships, or targeted loan forgiveness for those working at relatively low-income jobs, if the job in question is with an employer that discriminates on the basis of race, religion, veteran status, marital status, veteran status, or—most controversially—sexual orientation. The policy change was in large part the result of student protests against a Federalist Society-sponsored speaker from the Alliance Defending Freedom, a Christian conservative public interest law firm that had successfully represented the plaintiff in the Masterpiece Cakeshop case.  The owner of the bakery argued that the state of Colorado violated his freedom of speech and freedom of religion by requiring him to bake a cake for a same-sex wedding to which he objected on religious grounds.

In the aftermath of the policy shift, many on the right charged that it amounts to religious discrimination against theologically conservative Christian employers who refuse to hire gays and lesbians because homosexuality conflicts with their religious commitments. In a letter to Yale Law School Dean Heather Gerken, Republican Senator Ted Cruz claimed that the policy violates federal civil rights laws banning discrimination on the basis of religion, and announced his intention to have the Senate Judiciary Committee hold an investigation of the policy. Dean Gerken has issued a public statement denying Cruz's claims. Ironically, this is a case where supposedly pro-free market conservatives want to impose tighter regulations on a private organization, while the left—which normally favors expansive antidiscrimination laws—is defending Yale's freedom of association.

Who has the right of this dispute? When it comes to religious discrimination, Gerken is correct, and her critics on the right are wrong. But these sorts of antidiscrimination policies do raise other difficult questions.

I. Why Yale's Policy Does Not Discriminate on the Basis of Religion.

To see why Yale's policy does not discriminate on the basis of religion, it's worth considering the following hypothetical examples, both of which have real-world analogues:

Employer A refuses to hire gays and lesbians because doing so would violate her religious commitments.

Employer B also refuses to hire gays and lesbians. But in his case, it has nothing to do with religion, but is the result of his entirely secular belief that gays and lesbians violate proper gender roles. He thinks that gays are effeminate and don't qualify as true "manly men," while lesbians fail to live up to what he considers to be proper standards of femininity.

Under the Yale policy, law students who want to work for Employer A and those who want to work for Employer B are treated exactly the same. Both would be denied fellowship funding. This shows that the focus of the policy is discrimination on the basis of sexual orientation, not the religious (or secular) nature of the beliefs underlying that discrimination. The Yale policy is entirely neutral as between religious and secular employers.

Obviously, the policy is likely to disproportionately affect employers with religious objections to homosexuality, since those are likely to be a high percentage of those who discriminate against gays and lesbians. But, in virtually every other context, conservatives are the first to point out that a disproportionate effect on a particular group does not by itself make a policy discriminatory. For example, they rightly argue that the use of grades and test scores in academic admissions does not amount to discrimination against members of groups that are disproportionately likely to be excluded by the use of such criteria. The same principle applies here.

Sometimes, a seemingly neutral policy actually has a hidden discriminatory motive. That argument successfully prevailed in Masterpiece Cakeshop (where the Court ruled in favor of the baker because Colorado officials demonstrated hostility towards his religious beliefs). It should have prevailed in the  Trump travel ban case as well (I am one of the relatively few people who believe the plaintiffs deserved to prevail in both of these cases).

The fact that the Yale policy was adopted in response to the protests against the ADF speaker might be seen as evidence of such a hidden motive. After all, both ADF and their client in the Masterpiece Cakeshop case object to homosexuality and same-sex marriage for primarily religious reasons.

It is hard to be certain about the true nature of Yale's motives. But the strong likelihood is that the religious nature of ADF's commitments was not a decisive factor. If the Federalist Society—or some other student group—had invited a high-profile speaker who opposes same-sex marriage for secular reasons, it would almost certainly have attracted the same sorts of student protests, and led to much the same policy change by the Law School.

The anti-ADF protests were troubling for a number of reasons well-stated by legal scholar Andrew Koppelman (himself a long-time advocate of same-sex marriage). Like Koppelman, I think the Yale Federalist Society was entirely justified in inviting the ADF representative, even though I am—to understate the point—no fan of their beliefs about homosexuality (though, unlike Koppelman, I largely agree with their legal position in the Masterpiece Cakeshop case).

Be that as it may, the protests and the resulting policy were about ADF's hostility to homosexuality and same-sex marriage, not the religious nature of that hostility. A secular organization with similar commitments would have aroused much the same anger.

In this case, and others like it, many conservatives' understanding of liberal motives has things backwards. The reason why many on the left so vehemently denounce groups like ADF is not because of their religiosity, but because of the policies they advocates towards homosexuality and same-sex marriage (among other issues). As a general rule, most gay rights advocates have no problem with religion as such, and are perfectly fine with theologically liberal religious groups that take positions that are more congenial to the political left.

Many argue that religiously motivated objectors to neutral policies deserve exemptions because of the special status of religious beliefs. That is the principle underlying the state and federal Religious Freedom Restoration Acts, for example. There are good arguments for such exemptions, and I myself support them in some situations. But refusal to grant a special exemption to religious objectors is not the same thing as discrimination against religion, even if it might be problematic on other grounds.

 

II. The Danger of Slippery Slopes.

The fact that the Yale policy does not discriminate on the basis of religion does not mean that its rules are above criticism. In my view, private organizations should have broad rights of freedom of association—and that goes double for situations like this one where the school is simply refusing to subsidize students who work for a particular employer, rather than attempting to bar them from taking such positions entirely. Senator Cruz and the federal government should leave Yale alone.

But even if the feds should stay out of the matter, it is still worth asking whether Yale's policy is entirely justified. There are, I think, cases where universities can legitimately choose to deny any financial support to groups with odious hiring practices and agendas. For example, few would object to the Yale policy if it was limited to refusing to fund students working for groups that discriminate on the basis of race, such as those who refuse to hire African-Americans because they believe blacks are inferior to whites. As I see it, employment discrimination on the basis of sex and sexual orientation is comparably odious, and has an almost equally sordid history.

The case for the Yale policy is further strengthened by the fact that Dean Gerken indicates that the school will create "an accommodation for religious organizations and a ministerial exception, consistent with antidiscrimination principles." This exemption could potentially satisfy many of the concerns of those who believe religious organizations deserve special exemptions from some generally applicable rules (though I suspect that the  accommodation is likely to apply only to organizations whose primary purpose is religious, not merely those who have religious motives for various types of employment discrimination). Depending on what counts as a "religious organization," it is even possible that ADF itself would qualify for the exemption!

At the same time, it is also the case that antidiscrimination rules have a strong tendency to expand beyond the relatively easy cases to ones that are far more questionable. The Yale policy already covers some such cases, such as veteran status. There are often good reasons for employers to prefer veterans over non-veterans, or vice versa, that cannot be reduced to some kind of invidious prejudice.

Academic bureaucracies are, to understate the point, not notable for their self-restraint in such matters. There is therefore a danger that the YLS policy will expand over time, in various problematic ways. If Yale's policy for funding student employment becomes subject to a growing list of ideological constraints, it is likely to undermine ideological diversity at the school, and undercut the whole purpose of the funding policy—which is to enable students to work for a wide range of public interest employers.

Gerken emphasizes that the policy is strictly limited to cases of employment discrimination, and will have accommodations for religious groups. But these constraints could be eroded over time. It may be that the slippery slope risk so great, that it's not worth going down this route in the first place. As a practical matter, it is unlikely that more than a very small number of Yale law students will seek out subsidies to work for organizations that discriminate in the ways the current policy seeks to forbid. Letting those few slip through the cracks, as  it were, may be a price worth paying to avoid slippery slopes. At the very least, Yale and other schools with similar policies should consider the risk, and establish institutional barriers to guard against overexpansion of these sorts of policies.

NOTE: I have more than the usual number of personal connections to the subject of this post. I am myself a Yale Law School graduate (Class of 2001). In the summer of 1999, I had a Yale-funded summer fellowship to work at the Institute for Justice, a libertarian public interest law firm. Current YLS Dean Heather Gerken is a friend and a professional mentor of mine. I am also a longtime member of the Federalist Society, and was a member of the Yale Law School student chapter during my time as a YLS student.

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117 responses to “Does Yale Law School’s Antidiscrimination Policy on Subsidies for Student Employment Discriminate on the Basis of Religion?

  1. “At the very least, Yale and other schools with similar policies should consider the risk, and establish institutional barriers to guard against overexpansion of these sorts of policies.”

    Does anyone, aside from the sanguine Somin, really believe that Yale and other schools will actually follow through with this? Asking for a friend.

  2. “As a general rule, most gay rights advocates have no problem with religion as such, and are perfectly fine with theologically liberal religious groups that take positions that are more congenial to the political left.”

    Eh, I’m not so sure that’s quite right. The left, as a general matter, tolerates religious groups that submit to left-wing ideology. And is very intolerant of any that don’t submit. But that’s not a matter of not having a problem with religion as such, it’s a matter of being willing to tolerate it only so long as it never gets uppity and asserts any right to disagree with the left.

    That’s not religious liberty, it’s just not totally unremitting hostility.

    1. Brett : The left, as a general matter, tolerates religious groups that submit to left-wing ideology.

      If we move beyond the parochial concerns of modern America, there’s actually a good solid history of the left being vehemently and violently anti-religious. See the French Revolution, the Russian Revolution, the Spanish Civil War etc. And even now we see one or two lefty expressions of delight at the burning down of an 800 year old symbol of Christian oppression and patriarchy in Paris.

      Unlike many leftist ideas, hostility to religion is not inerently nutty (if you’re a lefty.) Religions in general, and Christianity in particular, have traditionally tended to be stalwart supporters of the established legal order, and traditional morality. The Spanish Republicans didn’t burn churches full of priests and their parishioners by accident. They felt they had it coming.

      1. Right. My point was that the left coming up short of the sort of unremitting hatred that would have them attacking even religions that modify their church doctrine to agree with the left’s platform, is not the same thing as not being hostile to religion.

        The left isn’t bothering to attack religions that are willing to become religious fronts for leftism, that’s all. I suppose it’s something, but it isn’t much.

        1. Agreed. Even the Bolshies decided they could put up with a tame Russian Orthodox Church.

      2. Lots of atrocities during the Spanish Civil War, Lee. Many more committed by the Nationalists than the Republicans.

        JFTR.

        1. Not really the point though is it ?

          I’m wasn’t claiming that Spanish lefties were worse than Spanish righties – I was merely claiming that the Spanish lefties had a lot of anti-Church animus, and that this was far from unusual.

        2. “Many more committed by the Nationalists than the Republicans. ”
          An assertion without any real evidence.
          Even left laenin wikipedia says they are similar sized:

          “Some estimates of the Red Terror range from 38,000[11] to ~172,344 lives.[12] Paul Preston, speaking in 2012 at the time of the publication of his book The Spanish Holocaust, put the figure at a little under 50,000.”
          “Estimates of executions behind the Nationalist lines during the Spanish Civil War range from fewer than 50,000[12] to 200,000[124]”

          1. leaning, not “laenin”

        3. But in the lead up to Franco’s putsch there were an awful lot of leftist atrocities. Getting into a scoring game over the Spanish Civil War is an inherently partisan game where you can get any differential you want just by picking a different start date. Pick 1931 and you get an answer the right would love. You can play this game forever

          1. And after the war there were a lot of Nationalist ones.

            And, for Bob, I based my statement on Wikipedia, which has a section on the atrocities, and cites several historians. It also mentions that

            “Franco’s forces were determined to remove the “Protestant heresy” from Spain,” and killed a number of Protestant ministers, so perhaps the hostility was not entirely one-sided.

            1. Oops. I see Bob also looked at Wikipedia. He missed these:

              British historian Antony Beevor wrote in his history of the Civil War that Franco’s ensuing “white terror” resulted in the deaths of 200,000 people and that the “red terror” killed 38,000.[323] Julius Ruiz contends that, “Although the figures remain disputed, a minimum of 37,843 executions were carried out in the Republican zone, with a maximum of 150,000 executions (including 50,000 after the war) in Nationalist Spain”.[324]

              Nationalist atrocities, which authorities frequently ordered so as to eradicate any trace of “leftism” in Spain, were common. The notion of a limpieza (cleansing) formed an essential part of the rebel strategy, and the process began immediately after an area had been captured.[333] According to historian Paul Preston, the minimum number of those executed by the rebels is 130,000,[334] and is likely to have been far higher, with other historians placing the figure at 200,000 dead.

              1. I can quote estimates the other way.

                Estimate is just Latin for guess.

                1. So do it so we can judge the relative value of the estimates!

                  1. How can you judge “relative value” from a one sentence quote? You have to read the book/article, look at the methodology and for a hot button issue, examine the political views of the writers.

                    In any event go to wikipedia, they have Red And White Terror articles for your reading pleasure.

    2. I’m not sure what you mean by “tolerates” here.

      In the US, at least, it’s not up to “the left” to tolerate or not tolerate, but even liberals and leftists are entitled to their opinions.I don’t see what’s wrong with holding a negative view of some religions, or thinking that some of their attempts to influence policy are wrong-headed, and amount to an effort to impose their religious beliefs on others.

      1. Here’s a concrete example: The Little Sisters of the Poor. None of their employees were complaining about the lack of contraceptive coverage. The government none the less attempted to force them to provide the coverage.

        Given the lack of complaint by the employees, what motivation was there here save to force a religious institution to violate its principles?

    3. “most gay rights advocates have no problem with religion as such”

      Who can say that with a straight face?

      1. Anyone who doesn’t think all religeon must be anti-gay.

        1. “advocates” are always fanatics

          They think chicken sandwiches are anti-gay, not a strectch to think they also hate religion

        2. But how much does that apply to gay rights *activists*?

      2. Do you think no gay people are religious?

        1. Ordinary people, sure. Not “advocates”

          1. Why not “advocates?” And how do you define that term, anyway. Is it distinct from “supporters?”

            And here’s a further question: Why is it unreasonable to have a problem with organizations or sets of beliefs that cause their followers to hate you, and want to make your life miserable.

            1. No one hates gays or attempts to make their lives miserable, unless you consider not giving a “marriage” license to celebrate that a man likes to erupt inside another man’s anus “making their lives miserable.”

  3. Anyway, in terms of their proposed religious exception, what of students which select such jobs based on their own religious beliefs?

    1. What of it?

      They’re free to pursue whatever job opportunities they like.
      The question is whether or not YLS should pay/cover the costs for it.

      1. Considering that some of that money is coming from what the students pays, both in tuition and in student fees, and perhaps donated later as an alumnus, why *shouldn’t* YLS pay or cover the costs for it?

        That money doesn’t appear in the coffers of Yale from thin air, after all.

  4. “If Yale’s policy for funding student employment becomes subject to a growing list of ideological constraints, it is likely to undermine ideological diversity at the school”

    Not much chance of that, as you’d have to have diversity to start with…

  5. What form would anti-gay discrimination generally take, in the context of a group which is in a position to offer jobs/internships to Yale Law students?

    Presumably, a group might discriminate with a conduct policy forbidding extramarital sex, with marriage defined the way it was defined before 2015.

    That would certainly qualify as discrimination, since the hypothetical group fails to recognize gay marriage.

    1. This Statement of Faith from the Careers section of the ADF Web site does seem in tension with Yale’s policy:

      “We believe God immutably creates each person as male or female, which reflect the image and nature of God. Rejecting one’s biological sex rejects the created image of God.

      “We believe God designed marriage as a unique conjugal relationship joining one man and one woman in a single, exclusive, life-long union. God intends sexual intimacy to only occur between a man and a woman joined in marriage.”

      https://adflegal.org/about-us/careers/statement-of-faith

  6. Professor, please correct me if I am summarizing your argument incorrectly… you state that the YLS program currently is not discriminating on the basis of religion, but might change to do so at an unspecified time in the future.

    OK, but isn’t it true that any program at any school could change to do so at an unspecified time in the future?

    Note: I was employed full-time while in law school, and therefore didn’t investigate “summer-internship” programs, which were seeing substantial curtailment while I was in law school, anyway. In contrast, the vocational-education institution I worked at, which trained paralegals, included a mandatory externship at the end of the program. AFAIK, students were not limited by the ideology of the employer, so long as they were, in fact, practicing law.

  7. Good to see Prof Somin sticking his head above the parapet and correcting RBG on her yarmulke fallacy.

    Sure most folk who like to wear skullcaps are Jewish. But the Pope wears one too, so that’s all right then. Zillions of Jews, one Pope. Tomayto Tomahto.

    1. Ginsburg’s hypothetical refers strictly to a yarmulke, not a skullcap worn by non-Jews.

      1. 🙂

        Yeah, I wonder why she chose “a ban on yarmulkes” rather than “a ban on skullcaps.”

        But even then it’s still a bust. Caught short a religious Jew could borrow the Pope’s skullcap in perfect religious safety. And ditto the other way round. A skullcap worn by a religious Jew is a yarmulke because it’s a skullcap worn by a Jew for religious purposes.

        That which we call a yarmulke, by any other name would be the same thing.

        1. Ginsburg presumably didn’t say “a tax on skullcaps” because she believes such a tax wouldn’t be a tax on Jews.

          The fact that a religious Jew could skirt the tax by borrowing the Pope’s skullcap doesn’t have any effect on Ginsburg’s conclusion that a tax on skullcaps made specifically to be worn by Jews for religious purposes (i.e., a tax on yarmulkes) would be a tax on Jews.

  8. Employer A wears a yarmulke in accordance with their religious commitments.

    Employer B also wears a yarmulke. But in his case, it has nothing to do with religion, but is the result of his entirely secular belief that yarmulkes are comfortable.

    So you see, a tax on yarmulkes is not a tax on Judaism.

    1. I think that concisely sums up Ilya’s position here.

      1. I don’t think so.

        It is not a question of the employer’s opinions, but of its hiring practices.

        Employer A is an orthodox Jew who wants to hire only orthodox Jewish summer interns.

        Employer B is an orthodox Jew who does not discriminate in hiring.

        The policy only affects B, not A.

        1. Bernard, it’s important to understand that this policy isn’t about the private for-profit sector. It’s about subsidies for public interest jobs, which many law schools offer (look up LRAP). These are nonprofits, charitable organizations, educational organizations, religious organizations, and the like. This was generally applied in a non-discriminatory way, for example probably any 501c3 qualifies. This is a major shift by Yale and essentially excludes any explicitly religious organization, since naturally a religious group will be comprised of people who share certain common beliefs.

          1. “essentially excludes any explicitly religious organization”

            No. It explicitly excludes any organization (of whatever sort) that wishes to discriminate in hiring against gay people (or the other list of things). The organization is being discriminated against not because it is religious, but because it chooses to discriminate. A religious organization that does not discriminate is unaffected by this policy. Non-religious organizations that do decide to discriminate ARE affected by this policy.

            You seem to be making the mistake that any religious group MUST discriminate against gay people. This is not the case. They choose to do so, or not.

            1. The “gay people” issue is mostly a red herring. A religious organization cares whether you share their core religious beliefs.

              Somin’s post says Yale will exclude a graduate from their subsidy programs if they are employed by “an employer that discriminates on the basis of . . . religion.”

              An employer that discriminates on the basis of religion is almost the definition of a religious organization. Not quite maybe, but almost. It’s basic freedom of association. This is like supposing that an Islamic mosque must offer its lead Imam position as open to evangelical Christians, and vice versa.

              1. ” A religious organization cares whether you share their core religious beliefs.”

                Why is it their business what core religious beliefs their employees have? They’re free to choose/limit/restrict what beliefs their members share. They’re free to ensure that their employees are capable of doing the job they’re expected to do.

                A hog farm should not have a policy against hiring Muslims. It might, however, have a policy against hiring people who won’t touch a pig. A religious organization’s role as a religious organization is (largely) separate from its role as an employer.

                1. This is disingenuous. What is the purpose of raising hogs? To sell them to market. Thus, it doesn’t matter if they hire a Muslim willing to handle a pig.

                  What is the purpose of a religious organization? To help the society be moral, in ways that they consider to be moral. If you’re to be employed by such a society for such a position, shouldn’t you agree with the society’s mission?

                  1. The ADF is not a religious organization in the sense of a church.

                    1. It’s a religious organization in the sense of “freedom of association”, “freedom to peaceably assemble”, “freedom to petition the government”, and “freedom to exercise religion”, among other things.

                      Where in the Constitution does it say that the only religious organizations that are protected are churches?

                  2. ” If you’re to be employed by such a society for such a position, shouldn’t you agree with the society’s mission?”

                    Why? If I’m a plumber, my skills lie in the plumbing area, and if an organization hires me as a plumber, it is because they need an employee who understands, and can do, plumbing. Religious belief is not required to do plumbing.

                    When a murderer is caught and put on trial, he needs a lawyer. Is it required that he get a lawyer who believes in murdering? Or is a lawyer who is skilled at defending accused individuals from criminal charges what he needs?

                2. “A hog farm should not have a policy against hiring Muslims. It might, however, have a policy against hiring people who won’t touch a pig.”

                  That’s your opinion. Others of a more libertarian viewpoint might argue that freedom of association is more important, at least outside of unique circumstances where a discrete and insular minority faces pervasive discrimination in society such that they can’t find jobs, hotels to stay in, places to eat or shop, etc.

                  Religious nonprofit organizations are different, though. Religious beliefs, principles, education, charitable pursuits, advocacy etc are literally their “business.”

                  1. “That’s your opinion. Others of a more libertarian viewpoint might argue that freedom of association is more important”

                    Sure, abstract principles of free association are more important than issues of hiring qualified employees. To some people.

          2. “This is a major shift by Yale and essentially excludes any explicitly religious organization”

            Not all religious people are bigots; not all religious organizations are bigoted.

            The argument that bigotry is improved by superstition (or by a pretextual claim cloaked in superstition) is unpersuasive. It’s still bigotry.

            1. And the same can be said about bigotry: bigotry cannot be improved by secularism.

        2. And is purported to be not religious discrimination on the basis that somebody might have a secular reason for the practice.

          Just as you might have a secular motive for wearing a beanie. But probably don’t…

          In any case, does the ADF actually discriminate in hiring against non-practicing homosexuals? I couldn’t find anything at their website saying they do. Is this just assumed because of their advocacy?

          1. If they don’t, what’s the problem?

            1. Um, that Yale won’t let their students intern there on the same basis they could someplace else? Apparently on the basis that Yale doesn’t like their ideology?

              1. That’s not completely accurate. Yale does not have to “let” their students intern anywhere. A student could chose to intern wherever he or she wants. It’s just that Yale won’t provide a subsidy to that that it would to a different group that Yale approves of.

              2. That’s not accurate at all.

                It is discrimination in hiring that the Yale policy objects to. As long as ADF doesn’t do that they can be as bigoted as they like.

              3. Again, Brett, that’s not true.

        3. “It is not a question of the employer’s opinions, but of its hiring practices.”

          Is that really the case? The background — the objection to the ADF — suggests otherwise.

          As I noted below in my comment, would a group that (a) does not discriminate in employment but (b) advocates legal positions that Yale finds discriminatory still qualify or not?

          1. “would a group that (a) does not discriminate in employment but (b) advocates legal positions that Yale finds discriminatory still qualify or not?”

            Would that matter if you’re discussing YLS’s authority to decide how YLS spends YLS’s money? Is anyone, anywhere, required to donate money to organizations whose ideology is contrary to one’s own?

            1. Except this is not an issue of YLS donating to some group. Yale has a program that it supports students who intern or work for certain non-profit groups, on the theory that such are low-paying and it wants to encourage lawyers to work for public service/advocacy groups rather than in high-paying Wall Street type firms So this is an optional benefit to Yale students. As such, Yale cannot operate it in a manner that discriminates against the groups protected under federal law. (Whether this is such discrimination is not all that clear.)

              Apart from that, you write that this is YLS’s money. But in fact it was almost certainly donated by someone, again likely for the purpose of supporting public service work by lawyers. So there may be an issue of deviating from the donors’ intentions. That is beyond this post.

              1. “Except this is not an issue of YLS donating to some group.”

                In the sense that whether or not YLS will donate to some groups is the entirety of the debate?

    2. That is exactly the analogy. My analogy was going to be Yale requiring everyone who participates in this program to come to the Dean’s office and eat bacon. Hey, everyone is covered by this equally.

      It is a subterfuge. The Jim Crow South didn’t get away with literacy tests to vote and Yale shouldn’t be allowed to get away with this.

      This is a sorry article and deeply disapointing coming from a Libertarian even by the low standards that Solim normally sets.

      1. “Yale shouldn’t be allowed to get away with this. ”

        Who, exactly, should be doing the correcting, and what methods should they have at their disposal?

        And after you’ve established the principle that Yale Law School can’t spend its money as it sees fit, whose money is safe?

    3. A yarmulke is inextricably linked to being Jewish. Refusing to hire gays is not inextricably linked to being religious.

      1. Note that “Jewish” denotes a particular religion. You just switched levels of abstraction in the middle of an argument, hoping we wouldn’t notice.

        We did notice.

        1. My argument does not depend on the level of abstraction. A tax on religious head coverings would discriminate on the basis of religion.

  9. “The reason why many on the left so vehemently denounce groups like ADF is not because of their religiosity, but because of the policies they advocates towards homosexuality and same-sex marriage (among other issues).”

    Yale’s policy has absolutely nothing to do with the public policies that groups may advocate or their position on same sex marriage.

    Instead, the policy is targeting any groups who dare to exercise their freedom of association. The most significant part isn’t even the sexual orientation item, its the “basis of religion” item. A religious group is basically by definition a group of people with certain common religious beliefs. Such nonprofits are responsible for most of the invaluable charitable work that is done in this world. This policy targets all of them for discrimination. The principle at work is that freedom of association will not be tolerated when it comes to religious people or groups. Whether Yale has its own right to discriminate in this illiberal way is a separate question.

  10. Tax the endowment and then Yale will be more tolerant.

    Can’t Yale and its ilk see what happened to labor unions when they became completely associated with one political view?

    1. Your position is that Yale should become more tolerant by appeasing bigots?

      Can conservatives see what is happening to the Republican Party as America’s electorate becomes less rural, less white, less intolerant, less religious, and less backward?

  11. I’m pleased to see the freedom of association mentioned.

    I have been wondering when the various anti-discrimination regimes will reach far enough to affect the general right of free association. It seems we may be getting close.

    Racial anti-discrimination has it’s basis in law dur to the Constitution’s 13th, 14th and 15th amendments. Other categories are not so clearly authorized.

    If one may not discriminate against for example veterans, can one discriminate against non-veterans? I understand that the Federal Civil Service gives a permanent advantage to veterans over non-veterans in employment and advancement within the Federal Civil Service.

    1. They’ve been affecting the general right of free association for decades now. You cite the 13th-15th amendments, but aside from the 13th’s prohibition of slavery, those don’t reach private action, they’re specifically addressed to state actions. But since the 1964 civil rights act, private discrimination, including choices of who to associate with, has been regulated.

      The reach of such laws has been growing like a cancer lately, though.

  12. “The reason why many on the left so vehemently denounce groups like ADF is not because of their religiosity, but because of the policies they advocates towards homosexuality and same-sex marriage (among other issues).”

    Religiosity of any kind is just fine . . . . . so long as it doesn’t involve anything I disagree with! Everybody agrees so long as nobody doesn’t.

    If your religiosity includes something I disagree with . . . . surprise! That’s not your religiosity. I’ll need to redefine it a bit so that I’m OK with it.

    If your religion teaches brutal violence and jihad against others, or the establishment of an oppressive theocratic caliphate, I may need to pretend that it doesn’t. If your religion teaches that there is only one God and the only way to him is through his son Jesus Christ, that’ll need to be a bit more inclusive. Just some minor tweaks and someday, we’ll all make it into the new age religion yet to come.

    1. “Religiosity of any kind is just fine . . . . . so long as it doesn’t involve anything I disagree with!”

      There’s the kind of religiousity in which the rules of the religion are applied to members of the religion. Eating kosher means no eating pork, and each person that has dietary laws decides for themselves whether or not to observe them.

      Then there’s the kind of religiousity in which attempts are made to apply the rules of a religion to people who are not members of that religion. “WE can’t have pork, therefore YOU can’t have pork, and neither can anyone else”.

      If your religion tells you it’s only OK to have sex with your spouse, and that spouse better be a different gender than you are, and you honor that requirement within your own marriage, great! But if that dude over there thinks that all sex is evil, and wants to use the power of government to enforce that rule on everyone… probably not a problem, as there’s only one of him and it takes a majority in the legislature to pass laws. But when there IS a majority of legislators who’d like to enforce their religious views upon non-members of their religion, as in the case of, say, Iran, then you gets a problem.
      Non-establishment is supposed to prevent that problem in the U.S., but isn’t always 100% effective.

      1. That is complete fucking nonsense Pollock. Free expression and free association mean just that. People have a right to assemble and a right to advocate for whatever their public policy position is. Their doing so does not cause them to forfeit their right to free exercise of relgion.

        Sorry, freedom means freedom, not “its okay to do what you want as long as we approve”

        1. “That is complete fucking nonsense Pollock”

          Yes. Try reading what I actually wrote next time, and understanding it, before commenting on it, in future.

      2. People who believe that marriage should be limited to one man and one woman also have secular beliefs as to why that isn’t just a good idea, but necessary to be enforced for the stability of society.

        We still forbid certain pairs of people from being married, to this day: siblings, parent/child, and first cousins, at least one party is a minor, all come to mind. There are certainly arguments to be made that it’s in society’s best interest that these limits are important. Why shouldn’t the the sex of the people involved be a limit that’s up for debate?

        As an anarcho-capitalist, I would go so far as to say that marriage should only be a contractual affair, between two people — but we are nowhere near there. We insist on having government formally recognize marriages. Considering both the secular *and* religious implications concerning marriage, this will *always* be a contentious issue, so long as it’s the *State* that’s in charge of marriage licenses.

        1. “As an anarcho-capitalist, I would go so far as to say that marriage should only be a contractual affair, between two people — but we are nowhere near there.”

          You can set up whatever kind of contractual marriage you like… with as many people as you like… and nobody is stopping you.
          Whether the government recognizes your contractual relationship, and uses it to grant several powers and rights automatically, is a different question.
          Just like how you can organize your business however you like, but if you want the government to give you a liability shield, you have to do it in one of the ways they offer that grants a liability shield.

      3. Agree with you there. It seems a similar concept was referenced in the Bible when Paul said “What business is it of mine to judge those outside the church? Are you not to judge those inside?” I also think your distinction may be partly relevant to the question of what constitutes “religion” under the original meaning of the 1st amendment (it can’t be all of the things in the world that are called “religion” many of which fall into your latter category).

        But this isn’t really pertinent to the issue at hand.

        First, Somin is trying to draw a distinction between “religiosity” and “the policies they advocate.” But there is no such distinction, necessarily. Somin is trying to define what someone else’s religiosity is. But religiosity could involve a belief that one must work to outlaw same sex marriage, or establish a worldwide caliphate and kill infidels and apostates.

        Second, I would point out that advocating “policies,” even toward homosexuals, isn’t necessarily an “attempt . . apply the rules of a religion to people who are not members of that religion.” Questions like who gets what federal tax benefits, who has to pay for someone else’s abortion, whether the government should redefine marriage, and so on are largely questions not of what should be allowed so much as what is the proper role of govt, what should govt subsidize and encourage, etc.

        Finally, we can’t even say that attempting to apply the rules of a religion to others is necessarily a bad thing! It would be nice for our theorizing if it were that simple, but it’s not. Religious belief has long been the usual foundation for the adoption of higher moral principles. Just for one small example, Christians abolished slavery in the United States and Great Britain after years of tireless advocacy founded on what they believed from the Bible.

        1. Christians and Christianity were vividly on the other side of the slavery debate — and fight — too. That some wish to disregard that point does not diminish it.

          1. And who was on the abolitionist side of the slavery debate? Also Christians. In Great Britain and the U.S., everyone was “Christian” at that time and society was Christianity, so in some sense you’re correct, but it was Christians all around. Except the abolitionist Christians were believers who took a moral stance that was deeply unpopular and did not benefit them in any way but cost them socially; the others were going along with tradition, economics and general cultural norms.

            So your assessment seems Western-centric. Are you knowledgeable enough to give a more global assessment? Keep in mind slavery continues today.

          2. What side of the debate was the Democrat party on?

            1. Before or after the bigots (mostly southern) migrated from the Democratic Party to the Republican Party?

              1. Not sure you’re keeping up on current events. Bigotry is alive and well in the Democrat party. Interesting how that party has consistently spearheaded most everything vile in this country for over 100 years. Or maybe it was just some people doing something?

          3. Yes, we know full well that there were religious Democrats who fought tooth and nail to protect slavery. That doesn’t mean that slavery is automatically religious; it’s been a normal part of the human condition up until Christians decided it shouldn’t be.

            Fortunately, anti-slavery politicians were able to beat the Democrats in the resulting civil war. Too bad that Democrats maintained power to implement Jim Crow laws, and it took decades to get rid of those.

            1. If you genuinely objected to the old-timey Democratic Party bigots, conservatives and the Republican Party wouldn’t have welcomed them so enthusiastically when those morally deficient slack-jaws wanted to leave the Democratic Party.

              Carry on, clingers. So far as your betters permit, that is.

              1. Omar and AOC left the party?

        2. “Somin is trying to define what someone else’s religiosity is.”

          We all do that. Furthermore, we all get to do that. Just because you label your actions as “religious” doesn’t mean that I have to agree with you.

          “Finally, we can’t even say that attempting to apply the rules of a religion to others is necessarily a bad thing!”

          “Religious belief has long been the usual foundation for the adoption of higher moral principles.”

          Yeah, no.

          “Christians abolished slavery in the United States and Great Britain after years of tireless advocacy founded on what they believed from the Bible.”

          Christians PRACTICED slavery in the United States and Great Britain, after years of tireless advocacy founded on what they believed from the Bible.

          Yes, we can. I did.

    2. Religiosity of any kind is just fine . . . . . so long as it doesn’t involve anything I disagree with!

      That’s not remotely true. I disagree with Christian theology but if you believe it, fine.

      That does not obligate me to think that all policy preferences that you base on your particular interpretation of Christian moral teachings should be respected.

      1. I agree bernard. And I appreciate that you, like most Americans, are probably generally tolerant of others’ beliefs.

        I guess one of the thoughts I was trying to express is that I’m struck by Somin’s attempt to deny that this Yale policy discriminates against religious public interest groups, when it clearly does. When those groups exercise their freedom to associate on the basis of shared beliefs, that is the same thing as “discriminating” on the basis of religion. So why not just admit it? I guess because it sounds bad to our cultured ears. Sort of like discriminating against Muslims – sounds bad. But in the effort to appear or to be more tolerant, sometimes people go about defining down the religion of others to make it seem more palatable. On the other hand, people also sometimes mischaracterize others’ beliefs for the opposite reason, to make them seem more objectionable. Either way, grand moral truth claims are necessarily exclusionary and bound to be divisive sooner or later.

        In the quoted sentence Somin defined the “religiosity” of “groups like ADF” as something separate from their policy positions on homosexuals. I don’t think that was objectionable, but I think it’s interesting. Why are those things separate, and why would the average reader not even think to question it? I think it’s because the basic conceptual framework of Christianity is deeply ingrained into Western modes of thinking: the assumption of religiosity as being a primarily individualistic relationship to the divine, mankind sharing a universal condition of inherent worth and dignity and equality but also an accountability relative to the divine, etc.

        1. ” I’m struck by Somin’s attempt to deny that this Yale policy discriminates against religious public interest groups, when it clearly does. ”

          You misunderstood the claim, obviously.
          The claim isn’t that the policy doesn’t discriminate against religious public interest groups, the claim is that it doesn’t discriminate against religious public interest groups for being religious.

  13. Interesting view. So, a policy entirely neutral as to sexual orientation does not discriminate? Would (in a hypothetical rational world) a policy providing that only a man (gay or heterosexual) may marry a women (regardless of whether a lesbian or not) be valid because there is no discrimination on the basis of sexual orientation? Isn’t everyone who wants to marry treated exactly the same?

    1. That wouldn’t be discrimination, because while some men marry men because they are homosexual, some men marry other men because they enjoy the tax benefits.

      The policy doesn’t discriminate against homosexuality, so it’s not illegal under Prof. Somin’s reasoning.

    2. What about women who want to marry a woman? It seems to discriminate against them.

      1. Maybe not but that wasn’t the test. Isn’t it a neutral policy? No special treatment for sexual orientation and neutrally applied.

        Of course, one can always redefine an issue to suit an argument, as aptly noted by “Bored Lawyer,” this article mischaracterizes the issue by confusing a group’s employment discrimination with its advocacy position.

    3. “Would (in a hypothetical rational world) a policy providing that only a man (gay or heterosexual) may marry a women (regardless of whether a lesbian or not) be valid because there is no discrimination on the basis of sexual orientation? Isn’t everyone who wants to marry treated exactly the same?”

      Sure. That was the status quo up to about 15 years ago. Then, the California Supreme Court rules that California’s marriage statutes didn’t actually specify that spouses must be differently gendered, and therefore, couples who wanted to be married but were of the same gender could, in fact, be married in California.

      This prompted people in California (plus some outside) to sponsor a constitutional amendment supplying that restriction to marriage… and retroactively applying that restriction to couples already married.
      That’s what was different… the taking away of rights who already had them vs. extending the rights of people.

      1. “That’s what was different… the taking away of rights who already had them vs. extending the rights of people.”

        This is disingenuous: the *only* reason why these people had rights before they were taken away, was because of a court decision that had no input from the legislature or the people, in a controversial topic that can be argued to be best handled by the legislative process.

        This is like saying that we can’t make nuclear weapons illegal (not that there’s anything wrong with peaceable citizens legally owning nuclear weapons!) because before the law made it illegal for citizens to own nuclear weapons, citizens had the right to own them, and thus the law is “taking away of rights who already had them vs. extending the rights of people”.

        1. “This is disingenuous: the *only* reason why these people had rights before they were taken away, was because of a court decision that had no input from the legislature or the people,”

          You know, that’s not really true: They had a lot of input. They just disregarded it, because it was negative.

        2. I wasn’t aware we left basic rights to the whims of the legislature.

          1. Just because we don’t leave basic rights to the whims of the legislature, doesn’t mean there isn’t a good debate to be had, as to what basic rights are.

            And, considering how historical marriage has been regulated over time (and still is regulated, btw), I see no reason why whether or not something so fundamental *shouldn’t* be subject to debate in the legislature.

          2. I wasn’t aware we left basic rights to the whims of the legislature.

            Well it kinda follows from the fact that the California Supreme Court was interpreting the California statutes on marriage that we’re dealing with statutory, not “basic” rights here. Which is the right to have the State recognise your marriage, and even insist that third parties recognise it for various legal purposes.

            If there’s a “basic” right here (which I distinguish from “constitutional” right) it is to marry according to your preferred religious rite or secular bonding ceremony. Whether the State chooses to pay attention is down to its marriage laws.

    4. A policy that says a man can only marry a woman discriminates against gays because only a straight person can marry their lover.

      1. Yeah, and only non-pedophiles, too.

        Before you complain about the comparison, they’re working on normalizing pedophilia. I thought they’d go for polygamy first, but I was too optimistic.

        1. Of course minimum age requirements discriminate against pedophiles and with good reason. I’m not familiar with how “they” are working on normalizing pedophilia.

      2. Josh : A policy that says a man can only marry a woman discriminates against gays because only a straight person can marry their lover.

        I’m not at all sure this works they way you want it to work. A policy that orange people can only marry orange people, and violet people can only marry violet people, would not under your rule discriminate against either orange or violet people. An orange person whose lover is violet is unable to marry his chosen lover. And likewise for the violet lover.

        The only coherent analysis that helps your argument and although it’s superficially attractive i don’t think it really is that attractive) is to look at the individual Mr X and the individual Miss Y and point ou that Mr X can marry Miss Z, but – if same sex marriage is banned – Miss Y cannot marry Miss Z.

        1. Anti-miscegenation laws discriminated against blacks because they were motivated by keeping the races “pure” in order to further white supremacy.

  14. This analysis conflates a group’s employment discrimination with its advocacy position. Suppose the ADF’s position is that it will accept in employment anyone regardless of their sexual orientation. (Assuming they are otherwise qualified — if they need a lawyer, then the person has to have been admitted to the bar, for example.) But it will continue to advocate, including in court, positions that some find discriminatory, but believes are vital for religious freedom. (For example, the successful advocacy of the baker’s position in the Masterpiece case.)

    Is that “discrmiination” under Yale’s definition? If so then Yale is disadvantaging certain positions that are, in the end, grounded in both ideology and religion. Whether that violates federal law can be debated, but frame the issue properly.

    1. No. It’s not discrimination under Yale’s policy. Read Gerken’s statement.

      It says, in part:

      We recently decided that the Law School will require that any employment position it financially supports be open to all of our students. If an employer refuses to hire students because they are Christian, black, veterans, or gay, we will not fund that position.

      1. Just commented above on your comment.

        So assuming that the ADF — the very advocacy group that started the whole kerfluffle — states that it will not discriminate in hiring, then Yale will fund it? That seems like an easy way out of this.

        Presumably, not many homosexuals would want to work for the ADF. But all they have to do is say, sure, we will hire you. But you have to work to support our mission, in whatever capacity we hire you (lawyer, paralegal, etc.)

        1. It would be a very easy way out of the “sexual orientation” discrimination issue, if the distinction between an “orientation” and one’s beliefs, practices and behaviors is recognized. Generally there is resistance to that. But it seems there is an increasingly visible contingent of so-called “ex-gay” people in religious ministries and organizations.

          The bigger problem is with the idea of not being allowed to discriminate on the basis of beliefs, ie religious beliefs.

        2. That’s how I read it.

          Follow Ilya’s link and read the whole thing yourself if you like.

  15. I too have a high level of tolerance for people who agree with me on everything.

    I guess according to Prof. Somin I’m a very tolerant and liberal person.

  16. The argument that Yale does not practice religious discrimination because their policy would also affect (hypothetical) secular people who wish to act the same way is the silliest argument I have ever heard.

  17. Suppose that Yale — or the govt — requires all employees and students to walk across a picture of the Prophet M and spit on it? It requires this behavior irrespective of religion.

    Under Professor Somin’s reasoning, this is a perfectly neutral policy that does not constitute religious discrimination because it applies to everyone.

  18. It’s not ironic at all. Liberals are willing to sacrifice all principles to bring non-whites, Muslims and homosexuals up and the West down.

  19. Yale’ Law School’s statement implies (though it doesn’t actually say) that they are complying with ABA standards for accreditation.

    This would be worth some follow up: Do other ABA-accredited law schools have a policy like Yale’s? Is Yale simply doing what the ABA dictates?

    Do law schools provide stipends for student interns at the Alliance Defending Freedom? Does the ADF actually have discriminatory personnel policies (like a ban on extramarital sex, marriage being interpreted in a pre-2015 way)?

  20. “if the job in question is with an employer that discriminates on the basis of race”

    Unless that race is White. And probably Asian too.

Please to post comments

Freedom of Speech

How Specific Anti-Libel Injunctions Underprotect Speech

I'm continuing to serialize my forthcoming Penn Law Review article on Anti-Libel Injunctions.

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[You might also read my earlier post on the subject, Anti-Libel Injunctions and the Criminal Libel ConnectionThe First Amendment and Criminal Libel Law, The First Amendment and the Catchall Permanent Injunction, and The First Amendment and the Specific Preliminary Injunction; or you can read the whole article in PDF.]

Specific permanent injunctions, unlike specific preliminary injunctions, do follow a civil trial on the merits at which the speech has been found to be libelous. In fact, the trial might even be a jury trial. Perhaps for this reason, [courts in over 30 states] have treated permanent injunctions against libel as generally permissible, at least in certain classes of cases.

But while such specific injunctions are indubitably narrower than criminal libel laws, and even than catchall injunctions, they also fail to provide some of the key procedural protections that even criminal libel laws offer. Consider:

Catchall permanent injunctionSpecific permanent injunction
Deters derogatory speech only about the plaintiffSame
Deters derogatory speech only after the injunction is enteredSame
Deters all derogatory speech about the plaintiffDeters only particular derogatory statements about the plaintiff
Speech punished only if found to be false beyond a reasonable doubtSpeech punished based on finding of falsehood by preponderance of the evidence
… at a criminal trial where an indigent defendant would have a court-appointed lawyer… at a civil hearing where an indigent defendant would generally not have a lawyer
… and where finding is by jury, if judge provides that any criminal contempt trial will be before jury… and where no jury would be present

Because the injunction categorically forbids Don from repeating the cheating allegation (in our hypothetical), the criminal contempt hearing will determine only whether that allegation was repeated. The falsehood of the allegation was conclusively determined at the injunction hearing, where the judge only had to find the allegation to be false, defamatory, and unprivileged by a preponderance of the evidence. Under the "collateral bar" rule (applicable in most states, and in federal courts) the only question at the contempt trial would be whether Don violated the injunction by repeating the statements, not whether the injunction had been properly issued.

Likewise, while Don could get a lawyer at the criminal contempt hearing, that lawyer would be unable to argue to the factfinder that the statement was true, was opinion, was privileged, or was otherwise not libelous. And at the initial civil hearing, when truth, opinion, and privilege were debated, Don had no right to a court-appointed lawyer.

The specific injunction is also more speech-restrictive than the catchall injunction, because it makes repeating a statement a crime regardless of changed circumstances and context. Yet "[u]ntrue statements may later become true; unprivileged statements may later become privileged." Even if after Don's first false statement that Paula had cheated him, Paula did end up cheating him, he'd still be barred from repeating the statement despite its now being true. [Footnote: This is especially likely if the original injunction bans not just a specific, detailed accusation, but, for instance, any claim that plaintiff is "either directly or indirectly, engaged, affiliated or connected with, illegal activity," e.g., Irving v. Palmer, No. 18-cv-11617, at 3 (E.D. Mich. May 29, 2018).]

Relatedly, a statement may be libelous in one context, but hyperbole in another. Yet an injunction simply barring repetition of a statement will prohibit the statement regardless of context. The catchall injunction, which requires a jury finding of libelousness at the criminal contempt hearing, based on whether the statement was libelous at the time it was repeated (rather than at the time it was initially said), doesn't suffer from this problem.

And each of these defects, I think, is of constitutional significance.1.

  1. Proof Beyond a Reasonable Doubt

Before people go to jail for their speech, there should be proof beyond a reasonable doubt that their speech is indeed constitutionally unprotected. This is especially true because jail time not only deters speech, but incapacitates speakers, given that their speech rights are sharply limited when they're in jail. Criminal libel law provides this protection when threatening jail for allegedly false and defamatory statements; a civil injunction, which has the same effect, should embody the same protection.

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8 responses to “How Specific Anti-Libel Injunctions Underprotect Speech

  1. If your concern is that judgment-proof (i. e. poor) defendants won’t be impacted by unenforceable civil libel judgments, and that therefore criminal penalties are needed, hopefully that wouldn’t mean that criminal prosecutions (for criminal libel or for contempt of libel injunctions) are limited to the judgment-proof poor.

    Are there safeguards to make sure that rich libellers get prosecuted if poor ones do?

    1. I agree, see https://reason.com/2019/04/11/the-first-amendment-and-the-catchall-per — “When injunctions are available, they should be equally available whether or not damages are also practically available (for instance, even when the libel defendants do have assets or insurance). There can’t be a rule under which ‘poor people … have their speech enjoined, while the rich are allowed to speak so long as they pay damages’: ‘Conditioning the right of free speech upon the monetary worth of an individual is inconsistent’ with constitutional principles. Yet while this reasoning has sometimes been used to reject injunctions against both poor and rich defendants, it can also be a reason to allow properly crafted injunctions as to both.”

  2. Even if after Don’s first false statement that Paula had cheated him, Paula did end up cheating him, he’d still be barred from repeating the statement despite its now being true.

    I don’t understand why that is even an inconvenience for Don, let alone a bar, or a constitutional defect. If Paula does later do something to cheat Don, why can’t Don simply publish what Paula did, without repeating verbatim the former offending generalization? Concentrating on provable particulars is always the way to avoid libel. It’s what Don should have done in the first place.

    But whatever the history, if something similar happens in a second instance, but with different particulars, there would be no need for any repetition of the first publication. The second instance could be fully described in terms of its different particulars, which, if true, ought to prove it is not a repetition of the original libel, and indeed, not libel at all.

    What am I missing?

    1. Just what I thought. All Don has to do is add a temporal component — “Paula cheated on me after the injunction.” Can’t see how that is contempt. (Although it may be a new libel.)

  3. The problem with this whole argument is that it ignores the whole history of contempt that arises out of injunctive relief in civil cases. It is commonplace to issue injunctions in copyright, trademark and false advertising cases, all of which are entered after civil determinations on the preponderance of the evidence. And in many situations, these kind of cases implicated free speech. (E.g,, an adjudication that a particular form of advertising is false or misleading, and hence actionable, followed by a permanent injunction.)

    The difference, of course, is that such injunctions are much narrower, both as to their scope and their target, then general criminal libel laws. So that is the trade-off for the lower standard of proof.

  4. […] the Catchall Permanent Injunction, The First Amendment and the Specific Preliminary Injunction, and How Specific Anti-Libel Injunctions Underprotect Speech; or you can read the whole article in […]

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Environmental Protection Agency

Revising WOTUS

The Trump Administration is attempting a welcome redefinition of "waters of the United States"

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Although federal courts have rejected the Trump Administration's effort to suspend operation of the Obama Administration's expansive WOTUS ("waters of the United States") rule, the Environmental Protection Agency and U.S. Army Corps of Engineers are moving ahead with their effort to adopt a narrower WOTUS rule that may survive judicial scrutiny.

The reason the WOTUS definition is important is because it defines the scope of federal regulatory jurisdiction under the Clean Water Act (CWA). Historically, both the EPA and Army Corps have interpreted their jurisdiction quite broadly to reach any and all waters and wetlands, and even some not-so-wet-lands, throughout the country. The Supreme Court rejected the agencies' over-expansive interpretation of their own authority in 2001 and again in 2006, but neither agency was in a hurry to revisit the rules.

The Obama Administration finally went through with a new WOTUS definition in 2015, prompting significant litigation and a fair amount of skepticism from lower courts, some of which have enjoined the rule's enforcement. In February 2017, President Trump ordered the EPA and Army Corps to revisit the rule and promulgate a new WOTUS definition that is more restrained and observes traditional limits on the scope of federal power.

The agencies eventually put forward a proposed revision of WOTUS for notice and comment in February of this year. The comment period closed yesterday, but not before I submitted this public interest comment for the GW Regulatory Studies Center.

In the comment I note there are several good things about the proposed revision, including its recognition of the constitutional and statutory limits on federal regulatory jurisdiction and its concern for focusing federal regulatory efforts where federal intervention is likely to do the most good. I also (perhaps uncharacteristically) noted that the agencies may have gone a little bit overboard in their zeal to curtail federal jurisdiction by not asserting direct authority over interstate waters as part of the "waters of the United States." While most such waters may be captured by other parts of the revised WOTUS definition, I suggested that there are both legal and policy reasons to be skeptical of this omission.

The full comment is available here. A summary comment is available here.

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.

18 responses to “Revising WOTUS

  1. In short, expect the new regulations to extend up to, but not past, the point where inconvenience for land development interests begins. And expect increased, not decreased, litigation from conservationists—who will be challenging whether the new regulations faithfully implement the CWA.

  2. Ahh yes, more Trumplaw. Any rule that a judge appointed by the Kenyan doesn’t like is “arbitrary and capricious.”

    1. Do right-wing websites in general (and the Volokh Conspiracy in particular) generate bigotry or, instead, merely attract bigots?

      1. I don’t know, Rev. Why are you here? Obnoxious as DGL’s comment was, he doesn’t hold a candle to your bigotry.

        1. I get the Rev hits you more where you live than AltThreeNames, but the one who wants to actually kill liberals and ban women from voting has some guy who doesn’t like religion and thins conservatives are dumb beat.

          And he does ask a good question – what’s up with all the white supremacists on this website these days? Does it reflect a change in the site? In the Internet? In the GOP? I dunno, but even some of the old-timers have been exploring drastic measures to save Western Civilization from immigrants.

          1. “what’s up with all the white supremacists on this website these days?”

            I’d say it’s two things:

            1) There are maybe 2 or 3 white separatist/supremacist commentators on the site. Assuming that they’re not parodies, or all sock puppets of the same person.

            2) “White supremacist!” is the new “Racist!”; It’s what the left now calls anybody who disagrees with them. Most of the people getting accused of white suprematism these days are getting accused of it on the basis of the left not being willing to admit that there’s any other possible motive for wanting to restrict immigration or oppose racial quotas.

            You demonstrated that yourself: “I dunno, but even some of the old-timers have been exploring drastic measures to save Western Civilization from immigrants.”

            Measures that aren’t white supremacy. And we’re exploring drastic measures because western civilization is under an extreme threat at the moment.

            1. Brett, you quote Camp of Saints as a dark prediction and not racist claptrap, so yeah, I’d say you’re one of those exploring some drastic measures.

              Add in the Replacement conspiracy you’ve got going on, and you walk a dark trail, friendo.

              White supremecy isn’t an action, it’s a paradigm. I tend not to think people are coming from there, but when people explicetly cite white supremecist works and people, I don’t know what else to say.

              1. Yes, I am exploring some drastic measures, because illegal aliens are currently flooding in at a rate in excess of 1.2 million a year, and growing fast, and it seems likely that by the time the lawfare and ‘resistance’ can be overcome, there will be substantial facts on the ground that need to be overturned if America is to survive in anything but name, and maybe even in name.

                I have never read Camp of Saints, my only familiarity with it comes from some descriptions I’ve heard on the radio and the internet, a rough summary of a plot that looks disturbingly like recent history. I’ve heard some people call it a racist novel, but in light of some of the things I’ve seen characterized as ‘racist’, that doesn’t mean squat to me without concrete examples of how exactly it’s ‘racist’.

                The key point here is, I don’t give a fig about race. (Heck, I’m interracially married!) So how the Hell can I be a “white supremacist”?

                I care about CULTURE. America is a successful country because of its culture, not because of the skin color of its citizens. Honduras is a failure of a country for the exact same reason. And importing people from Honduras makes the US more like Honduras.

                Why in the world would we want to be more like Honduras?

          2. Aren’t we all white supremacists these days?

            Anyone that believes in the concept of white privilege obviously thinks whites are supreme.

            Anyone that rejects the concept of white privilege strangely is considered at least white supremacist curious.

  3. I also (perhaps uncharacteristically) noted that the agencies may have gone a little bit overboard in their zeal to curtail federal jurisdiction by not asserting direct authority over interstate waters as part of the “waters of the United States.”

    There is every reason to be skeptical of any environmental proposal put forth by Trump’s EPA. These are not honest people.

    1. “These are not honest people.”

      And, how, exactly, does that make them any different from ANY politician, of any political stripe?

      1. “how, exactly, does that make them any different from ANY politician”

        They’re dishonestly biased in a way that is different from some politicians, and (at the same time) dishonestly biased in away that is similar to some other politicians.
        The difference (as always) primarily lies in who stands to benefit.

    2. Bernard,
      Same could be said for the overzealous Obama EPA that claimed all the dry arroyos in NM as part of WOTUS and wouldn’t allow property owners to clean out the trash or minimize the vegetation.

      1. I can believe that there was an excess of zeal.

        1. Whipsawing back and forth, depending on which party has captured the White House most recently, serves nobody.

    3. Why does a creek going across a state line become anything to do with navigable waters?

      Or even rivers like the Truckee river that goes from Lake Tahoe to Pyramid lake in the Nevada desert?

      We really don’t need the federal government running everything for everyone.

      1. What Kazinski May mean here with the Truckee River is that it cannot be navigable, because the water in it never reaches the ocean. Instead it drains into the desert where it ultimately evaporates.

        1. That goes maybe a bit too far, in the sense that a body of water is perfectly capable of being navigated without ever reaching the ocean. Some of the artificial canals that used to bridge the Midwest come to mind.

          And perfectly capable of not being navigable despite ultimately reaching the ocean, like the 6″ deep creek next to my house.

          Ultimately, “navigable” has to be based on the character of the watercourse. The Truckee River actually IS navigated in places, it gets used for white-water rafting. Probably not what was intended by the term when the statute was enacted, though.

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Oxford Handbook of Fiduciary Law

A major new reference work on fiduciary law

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The Oxford Handbook of Fiduciary Law is now in print. It is an unusually strong collection of papers. And six of them are by Notre Dame authors (Bray, Kelly, Mayer, Miller x 2, Velasco), which is one more indication of the increasing prominence of Notre Dame as a center of private law. Here's the TOC:

Introduction, Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff
Part I. The Doctrinal Canon
1. Fiduciary Principles in Fact-Based Fiduciary Relationships, Daniel B. Kelly
2. Fiduciary Principles in Agency Law, Deborah A. DeMott
3. Fiduciary Principles in Trust Law, Robert H. Sitkoff
4. Fiduciary Principles in Corporate Law, Julian Velasco
5. Fiduciary Principles in Unincorporated Entity Law, Mohsen Manesh
6. Fiduciary Principles in Charities and Other Nonprofits, Lloyd Hitoshi Mayer
7. Fiduciary Principles in Banking, Andrew F. Tuch
8. Fiduciary Principles in Investment Advice, Arthur B. Laby
9. Fiduciary Principles in Pension Law, Dana M. Muir
10. Fiduciary Principles in Employment Law, Aditi Bagchi
11. Fiduciary Principles in Bankruptcy and Insolvency, John A.E. Pottow
12. Fiduciary Principles in Family Law, Elizabeth S. Scott and Ben Chen
13. Elizabeth S. Scott and Ben Chen, Nina A. Kohn
14. Fiduciary Principles in Legal Representation, Richard W. Painter
15. Fiduciary Principles in Health Care, Mark A. Hall
16. Fiduciary Principles and Public Offices, Ethan J. Leib and Stephen R. Galoob
17. Fiduciary Principles and the State, D. Theodore Rave
18. Fiduciary Principles in International Law, Evan J. Criddle
Part II. A Conceptual Synthesis of Fiduciary Law
19. The Identification of Fiduciary Relationships, Paul B. Miller
20. The Fiduciary Duty of Loyalty, Andrew S. Gold
21. The Fiduciary Duty of Care, John C. P. Goldberg
22. Other Fiduciary Duties: Implementing Loyalty and Care, Robert H. Sitkoff
23. Mandatory and Default Rules in Fiduciary Law, Daniel Clarry
24. Fiduciary Remedies, Samuel L. Bray
Part III. Fiduciary Law across History and Legal Systems
25. Fiduciary Principles in English Common Law, Joshua Getzler
26. Fiduciary Principles in the Canon Law, Richard H. Helmholz
27. Fiduciary Principles in Roman Law, David Johnston
28. Fiduciary Principles in Classical Islamic Law Systems, Mohammad Fadel
29. Fiduciary Principles in Classical Jewish Law, Chaim N. Saiman
30. Fiduciary Principles in Contemporary Common Law Systems, Matthew Conaglen
31. Fiduciary Principles in European Civil Law Systems, Martin Gelter and Genevieve Helleringer
32. Fiduciary Principles in Chinese Law, Nicholas C. Howson
33. Fiduciary Principles in Indian Law, Vikramaditya S. Khanna
34. Fiduciary Principles in Japanese Law, J. Mark Ramseyer and Masayuki Tamaruya
Part IV. The Future of Fiduciary Law and Theory
35. The Economics of Fiduciary Law, Richard R.W. Brooks
36. The Philosophy of Fiduciary Law, Charlie Webb
37. Fiduciary Law and Psychology, Tess Wilkinson-Ryan
38. Empirical Analysis of Fiduciary Law, Jonathan Klick and Max M. Schanzenbach
39. Fiduciary Law and Equity, Henry E. Smith
40. Fiduciary Law, Good Faith, and Publicness, Hillary A. Sale
41. Fiduciary Law and Moral Norms, James E. Penner
42. Fiduciary Law and Social Norms, Matthew Harding
43. Fiduciary Law and Corruption, Sung Hui Kim
44. Fiduciary Law and Pluralism, Hanoch Dagan
45. Fiduciary Law and Financial Regulation, Howell E. Jackson and Talia B. Gillis
46. Delaware Corporate Fiduciary Law: Searching for the Optimal Balance, Lawrence A. Hamermesh and Leo E. Strine, Jr.
47. New Frontiers in Private Fiduciary Law, Paul B. Miller
48. New Frontiers in Public Fiduciary Law, Evan Fox-Decent

 

My own contribution is "Fiduciary Remedies" (a prepublication draft is here on SSRN). Three of the points that I think are more important are (1) fiduciary remedies arise out of, and indeed require the performance of, fiduciary duties; (2) monetary remedies for loss in fiduciary law aren't calculated the same way as legal damages; and (3) the remedies of fiduciary law (derived from trust law) are quite different from those of agency law.

Federalism

Justice Department Decides Not to Appeal Court Ruling Striking Down Federal Law Banning Female Genital Mutilation

The decision is likely to be unpopular. But it is the right thing to do nonetheless, as the law is unconstitutional. Not every evil must be addressed by a federal law.

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On Friday, the Justice Department announced that it will not appeal a federal trial court decision ruling that the federal law banning female genital mutilation (FGM) is unconstitutional. This is likely to be an unpopular move. But it is right thing to do nonetheless. The federal FGM ban exceeds the scope of Congress' power under the Constitution. I summarized the reasons why in this post on the trial court decision:

Article I of the Constitution does not give Congress any general power to suppress crime or child abuse. Therefore, the federal government tried to shoehorn the FGM ban into the Commerce Clause, which gives Congress the power to regulate interstate commerce. On first principles, it is pretty obvious that, at least in most cases, FGM is not a form of interstate commerce. It is generally performed within one state and often isn't even a commercial transaction. However, misguided Supreme Court decisions have interpreted the Commerce Clause so broadly that they now allow Congress to regulate virtually any form of "economic activity," even if it is only performed within a single state, and even some forms of "noneconomic" activity, so long as banning it is part of a broader "regulatory scheme" aimed at an interstate market. But… the FGM ban does not fit even these broad criteria, and is also at odds with previous Supreme Court decisions, including United States v. Morrison (2000), which make it clear that the Commerce Clause does not give Congress the power to ban local violent crime…

If Congress does not have a general power to forbid violence against women or other violent crime—such as rape and murder—it also does not have the power to ban FGM. Like other crime, FGM, of course, has some effect on interstate commerce. But if the Commerce Clause gave Congress the power to forbid any activity that affects interstate commerce in some way, it would have the power to ban virtually anything, as almost any type of human behavior has some effect on what people buy, sell, or transport in interstate trade.

As Judge Bernard Friedman explained in the trial court decision:

FGM cannot, by any stretch of the imagination, be classified as an economic or commercial activity. There is no suggestion that the procedure is done for money…. Nor is there any suggestion that this "service" is offered within anything approaching an established interstate market, as exists for illegal drugs and pornography. Committing FGM is comparable to possessing a gun at school, i.e., a criminal act that "has nothing to do with commerce or any sort of economic enterprise." [United States v.] Lopez, 514 U.S. at 561.

The federal government also claimed that the law is authorized by a combination of the treaty power and the Necessary and Proper Clause, as an exercise of Congress' authority to enforce US obligations under Article 3 of the International Covenant on Civil and Political Rights (ICCPR), which requires states to "to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant," and Article 24,  which states that "[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State." These are stronger arguments than the Commerce Clause theory. But they still fall short for reasons explained in Judge Friedman's opinion and in my earlier post on the case.

Female genital mutilation is a terrible crime. But that does not mean it has to be dealt with by the federal government. As Judge Friedman explains, FGM is already illegal in every state. It is either banned by targeted anti-FGM laws, or by general laws against child abuse and assault. Just as there is no need for a federal law against murder or assault, so there is no need for a federal anti-FGM law.

Some experts who agree that the anti-FGM law is unconstitutional nonetheless condemn the Justice Department's decision not to appeal, because they believe DOJ has a duty to defend the constitutionality of any federal law for which a plausible defense can be offered. I disagree for reasons outlined here and here. The Justice Department's highest legal duty is to defend the Constitution, not federal laws that violate it.

For what it is worth, I have maintained that view under both the Obama administration (with respect to its decision not to defend the Defense of Marriage Act) and the Trump administration (respecting its refusal to defend Obamacare). My objection to elements of the latter policy was due to the fact that DOJ's position was wrong on the merits, not the idea that the Department has a duty to defend the constitutionality of all federal laws that have a plausible legal rationale.

DOJ's decision on the FGM case is a welcome departure from the Trump Justice Department's generally awful record on constitutional federalism, lowlighted by its policies targeting "sanctuary cities," which have been ruled unconstitutional in numerous court decisions by both Democratic and Republican-appointed federal judges. The Trump administration also supports passage of the Protect and Serve Act, which would make it a federal crime to assault a police officer. The proposed act is unconstitutional for much the same reasons as the federal anti-FGM law. The Protect and Serve Act failed to pass last year, because it was bottled up in the Senate, but was recently reintroduced in the House of Representatives.

It is, therefore, a mistake to conclude that the Trump DOJ is a consistent champion of federalism. Very far from it. That said, Friday's decision may be the result of the influence of the Attorney General William Barr, who appears to be more supportive of federalism than his predecessor, Jeff Sessions. Being better than Sessions in this respect is, of course, a pretty low bar for Barr to exceed. But a small measure of progress is much better than nothing.

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.

68 responses to “Justice Department Decides Not to Appeal Court Ruling Striking Down Federal Law Banning Female Genital Mutilation

  1. It would, I think, be a different matter if the federal government was enforcing genital mutilation as a constitutional right – in such a case, the issue having already been federalized, then I would hope that it would at least be federalized in the *anti*-FGM direction.

    But since the FGM issue has not previously been federalized, we shouldn’t start now.

    1. The 14th Amendment grants Congress the power to enforce rights, but it doesn’t go the other way

  2. A reasonable alternate view is that the DOJ has the responsibility to preserve as much as possible of the federal law that does not offend the Constitution. So, for example, the federal government could criminalize paying someone for FGM. (That, clearly, is commerce, and under the current expansive view, reaches interstate commerce at least as much as does the production of, say, cocaine alkaloids or methamphetamines.

    1. How expansive is the view of interstate commerce?

    2. The fact that previous abuses of the definition of “interstate” have been tolerated does not mean that your or I or the DoJ have any obligation to support further abuses of that definition. If Congress wants a version of this law that does not offend the Constitution, it is their job to do it.

      1. You or I… true. The DOJ, however, belongs to the executive branch. They’re supposed to execute the laws, not pick and choose which ones they like.

        1. Prosecutorial discretion says they can.

          And while prosecutorial discretion has lots of potential for abuse, there are strong arguments that it’s necessary to prevent unjustly rigid application of laws to situations that the Legislature clearly did not anticipate.

          Of course, the better way to solve this would be to make the Legislature responsible for defending the constitutionality of their laws, not the Executive.

          1. “Prosecutorial discretion says they can.”

            Re-read the oath of office the President takes when sworn in.

            ” there are strong arguments that it’s necessary to prevent unjustly rigid application of laws to situations that the Legislature clearly did not anticipate.”

            That’s what the pardon power is for. Cases where the law was applied correctly, but that application was unjust.

            1. When pretty much every court everywhere disagrees with your interpretation, you might want to consider that maybe you’re wrong. Prosecutorial discretion has been challenged many, many times. About the only time the challenges win are when they can prove malicious or discriminatory intent. Mere choices about which laws to enforce have never been upheld.

              And, no, pardon power is not sufficient to resolve the problems of strict interpretation. Or do you really think the President should pardon everyone who drives two miles over the speed limit?

              1. “When pretty much every court everywhere disagrees with your interpretation, you might want to consider that maybe you’re wrong.”

                Wrong about what, specifically?

                “do you really think the President should pardon everyone who drives two miles over the speed limit?”

                No, for several reasons. First, and most basic, is the fact that speeding isn’t a federal offense, and therefore the President has no pardon power for speeders. Also significant, the pardon power is for cases where application of the law as written was done correctly, but the result is unjust. Your argument that getting a speeding ticket when you were speeding is somehow unjust because you were only speeding by a little bit is going to fall on deaf ears, and rightfully so. Now. If you were to have your brakes fail at the top of a long hill, and you safely avoid hitting anyone but get clocked over the speed limit on your way down, and get a ticket for speeding… that’s a case where application of the law, although factually correct, is unjust.

                1. Actually, involuntary acts are usually an exception to any law. If you could actually prove that your brakes failed and you COULDN’T slow down, you wouldn’t be convicted.

                  1. You’re trying to alter a hypothetical.

    3. What’s the difference between FGM and gender reassignment surgery?

      If FGM can be outlawed at least for minors so can gender reassignment.

      I’m happy leaving that power to the states.

      1. “What’s the difference between FGM and gender reassignment surgery?”

        Mostly? Whether or not the patient wants it done.

        1. A good bit of the classic research on the subject in North Africa suggests that young girls want(ed) the procedure, though it now looks like those attitudes have changed, especially in the U.S. I don’t think Kazinski is worried about FGM so much as sex reassignment surgery, which is, as far as I know, always performed on adults at their own request. There are numerous forms of elective surgery that Kazinski could have mentioned, so choosing sex reassignment surgery is telling.

          1. “research on the subject in North Africa suggests that young girls want(ed) the procedure”

            Which brings up the second part of the ethics… INFORMED consent.

            1. So people are only informed if they agree with you? If they disagree with you, they are brainwashed and therefore cannot disagree?

              1. You’re projecting more than a little bit, there, Ben.

            2. @James: As a physician I am well aware of the limitations of “informed” consent, but I suspect that the additional issue with FGM in the U.S. might be practicing medicine without a license — there was a physician in Michigan, as I remember, who was recently charged with performing FGM, but my understand is that this is usually done by someone who is not a physician — the line is sometimes fuzzy between what counts and what doesn’t count as practicing medicine.

              1. ” I suspect that the additional issue with FGM in the U.S. might be practicing medicine without a license”

                Alterations of male genitalia are also performed by persons with religious rather than medical training.

                I think I’ll stand on my previous position… people who are adults and choose to have their genitalia altered can go right ahead, but limits should be placed on adults who decide for other people, particularly other people who are not adults.

      2. “Watch with us as the concept of ‘consent’ continues to confuse and elude Modernicus Conservativicus…”

  3. If Congress does not have a general power to forbid violence against women or other violent crime – such as rape and murder – it also does not have the power to ban FGM.

    Someone please explain this to me, because it doesn’t make any sense.

    1. Why can’t Congress pass laws against crime?
    2. What about the “Violence Against Women Act” that’s been re-authorized several times??

    1. VAWA is unconstitutional (except as applied to D.C., the territorties, and the maritime jurisdiction.)

      1. It would also include national parks (where state law has no jurisdiction) military bases and any other federal facilities.

    2. Congress simply doesn’t have a general police power, so it can’t “pass laws against crime.”

      (Whatever THAT even means. Passing a law against crime?)

      1. >(Whatever THAT even means. Passing a law against crime?)

        It can be viewed generously as the idea that Congress can pass a law against a crime against Natural Law I guess.

        1. It could also mean that they could pass a law against a crime that already exists somewhere else.

    3. To understand why Congress does not have a generalized power to enact criminal laws you must first understand that the Constitution establishes a federal system, with authority distributed between the Federal government, the States, and the People. The Federal government was established as, and was intended to be, a government of limited and enumerated powers, exercising control over ONLY such areas as had a truly national impact – defense against foreign invaders, regulation of foreign and interstate commerce, relations between the states, authorizing patents and copyrights to protect intellectual property on a nationwide basis, uniform laws on bankruptcy, etc. General criminal laws, laws against murder, theft, assault, etc., were the proper province of the States, NOT the Federal government. Consequently, the Federal government can only enact criminal laws which either have a direct relationship to Federal territory – territories like Puerto Rico, Guam, American Samoa, the U.S. Virgin Islands, or military posts and national parks, OR which have a direct relationship to other Federal powers (i.e., postal laws and bank regulations).

      1. “The Federal government was established as, and was intended to be, a government of limited and enumerated powers, exercising control over ONLY such areas as had a truly national impact …”

        This is so old fashioned. How is Congress going to control the peasants if this sort of thinking takes hold?

    4. re: #1 – What DJDiverDan said.

      re: #2 – The Violence Against Women Act had several parts. It funded a bunch of programs “toward investigation and prosecution of violent crimes against women”, it imposed automatic and mandatory restitution on those convicted, it allowed civil redress in some cases, and it established the Office on Violence Against Women within the Department of Justice.

      Congress can fund pretty much anything they want without violating the Commerce Clause. That includes establishing new federal agencies. I wish they didn’t have such open-ended funding discretion but they do.

      The civil redress part is the only part that really counts as “passing a law against crime” and that was found unconstitutional in US v Morrison.

      Okay, maybe the restitution part is also “a law against crime”. To the extent it is, it’s on shaky ground. But as far as I know, it hasn’t been tested against a federalism claim yet.

  4. Serious question: If there is a strong case that a law is grossly unconstitutional for reason A, which the Court has, (Wrongly, in th opinion of the DOJ counsel.) rejected, and a lower court strikes it down on somewhat more dubious basis B, are they REALLY obliged to defend the conditionality of a law they still believe unconstitutional on the appeal?

    1. Maybe if they feel a law being struck down on “B” imperils some other law, whereas if it struck down on just “A” leaves other precedent intact.

      I think this is conceptually why the Obama admin defended the Bush admin’s regulatory change that allowed the concealed carry of guns in national parks. They were sued because, get this, proper environmental review wasn’t done on that decision according to anti-gun groups, as if it needed an environmental review for some occasional visitor to pack heat. The Obama admin defended their POWER to rulemake, rather than the change itself.

      1. One of the problems with guns isn’t that being perforated with lead causes death to wildlife, but the fact that having lots of lead in the environment poisons the wildlife even if the projectile misses said wildlife in its initial entry to the environment.

        So, yes, allowing carrying of firearms in a place does suggest that a review of the environmental impact of the change is warranted. In cases where hunting is contemplated, this could be a significant effort, resulting in regulation of what ammunition is OK to use.

        1. Actually, an awful lot of lead in ammunition has been phased out of use. Almost all (maybe all) shotgun ammo is now loaded with steel shot; it doesn’t have the mass of lead, and so it doesn’t have quite the same ballistic characteristics. It’s been a LONG time since last I went hunting, but steel shot was required for all waterfowl hunting along the Mississippi River and in Iowa and South Dakota, and I understand that most states now impose non-toxic shot requirements for most shotgun use. Lead is still widely used for rifle ammunition and for handgun rounds, but eliminating lead from shotgun ammo removes a lot of the lead pollution.

          1. “Actually, an awful lot of lead in ammunition has been phased out of use.”

            Actually, duh. Why do you suppose that is? (Hint: it’s the law.)

        2. They allowed carrying guns in national parks, they didn’t make using a gun in a national park legal, so any actual use is going to be rare and in an emergency situation. I can’t see any significant environmental impact from that.

          1. Is firing a gun the only way lead can get left behind? Or can ammunition be dumped or dropped or otherwise find its way into the environment?

            No, I don’t find it likely that this adds up to a significant problem, either… but rather than assuming the answer, some people like to check for themselves. It’s a valid concern.

  5. This isn’t a civil rights violation?

  6. *pulls up chair and bag of popcorn*

    How long till someone compares female genital mutilation to circumcision and said debate ensues?

    1. It’s already been done. The law in issue (18 USC 116(a)) doesn’t prohibit “mutilation” but various other acts with respect to female genitalia, including circumcision. And, of course, some people think that male circumcision should be illegal.

      1. ” some people think that male circumcision should be illegal.”

        Depends on whether or not you are talking about people who’ve chosen to have their body modified, or people who have not.

    2. I’ve long made this comparison. Female circumcision that isn’t very different in its physiological consequences from male circumcision -and something of the pinprick variety is that or less – should get treated the same constitutionally. Since under any semi-robust reading of the Free Exercise clause, male circumcision would be protected, so should female circumcision.

      Moreover, the emotional horror people feel about it isn’t that different from the emotional horror of sacrifice people had in Lukumi Bablo Aye.

      And equal protection works against it. The state can’t forbid female priests just because male priests are the more traditional practice and female priests a relatively new one. So why in the world should it be able to ban female circumcision while permitting male circumcision, just because male circumcision is a traditional practice that it’s used to, while female circumcision isn’t?

      1. Female circumcision that isn’t very different in its physiological consequences from male circumcision

        The World Health Organization begs to differ.

        1. There are several different degrees of female circumcision, from a pin prick to removal of the clitoris. A pin prick is certainly less life changing than removal of a male infant’s foreskin.

          Ritualized injury to genitalia of infants/children is all a bunch of religious clap-trap.

          1. Here we go with the “removing the foreskin is an injury” nonsense. Go ahead and tell me how I feel no pleasure and my reproductive ability is negatively impacted even though we’ve survived for 6,000 years and continue to grow no matter how many people kill us. Or tell the 1b+ Muslims that they literally can’t have children properly because they made a covenant with God.

            1. Assault is not improved by superstition.

              1. “Assault is not improved by superstition.”

                Arthur must own stock in a private prison company.

      2. FGM isn’t a religious practice unless you consider the cult formed by the pedophile warmonger to be a religion.

        1. The “not a real religion” exception to the First Amendment?

          If Muslims want to claim this as part of their religion, so be it, but I think the govt has a compelling interest here.

          1. Some people who happen to be Muslim claim it is a religious practice, but some other people who also happen to be Muslim say that it isn’t part of the religion, but rather a cultural practice.

            Anyone can say anything is part of their religious observance.

            1. It’s up to the individual what they believe, if they believe in this practice the government has a compelling interest in suppressing it which can’t be satisfied with less restrictive means.

              1. You also see this from time here in the states, with some alleged Christians saying that Jesus told them to hate gay people, and other alleged Christians insisting that Jesus never said any such thing.

                I find that pretty much whenever someone starts talking about what God wants, it turns out that what God wants is pretty much identical to what that person wants. God wants you to send me some money…

  7. I agree the law exceeds the commerce power. I also think that even if enacted by the state it would have Free Exercise problems. Circumcision, like sacrifice, has a long history as a religious practice. Female circumcision may be novel, as religious circumcision has historically been limited to males. But female priests are also novel historically.

    So long as a practice is mild enough that its physiological effects aren’t meaningfully different from male circumcision, it is an exercise of religion with no more compelling reason against it than religious practices the state has long tolerated. The fact that people find it abhorrent isn’t a sufficient reason to ban it. Indeed, under Lukumi Bablo Aye, it is a reason to protect it.

    1. The issue is, the practice often isn’t nearly as mild as male circumcision. Indeed, as opposed to just “nicking”, often it can be the entire exterior female genitalia and/or sewing the opening closed. A closer analogy would be just removing the first inch of the penis, or perhaps the entire thing.

      Likewise, the physiological effects can be major. These include bleeding, UTIs, epidermoid cysts, gangrene, and more.

    2. Countering that, of course, is the question of whether person A’s religious freedom extends to doing to person B.

      The state can certainly limit the “free exercise” of FGM to adults who choose if for themselves.

  8. That said, I think the Attorney General has a duty to defend acts of Congress. And because all my reasons for thinking the law unconstitutional are debatable, I think the duty applies here. The Supreme Court has struck down only a handful of laws on Commerce Clause grounds, and the outer limits are hardly crystal clear under its precedents. Similarly, the expansive reading of the religion clauses I favor is definitely debatable. Finally, one can debate my claim that where not much happens physiologically, there isn’t really much actual harm involved and people’s abhorrence of the practice is largely emotional. Indeed, I’m only arguing that banning it doesn’t pass heightened scrutiny (and that the religion clauses should require heightened scrutiny). It would pass rational basis.

    For these reasons, not defending it was a mistake and reflects the politicization of the Executive Branch. Congress’ power to override a veto is meaningless if the executive can nonetheless refuse to enforce a law, with complete impunity, whenever it doesn’t like it.

    1. I’d say that if the President refuses to enforce a statute of Congress, there should be some form of judicial review, perhaps even in a forum where the judges will give a presumption in favor of Congressional authority. In such a forum, if the judges deem the statute to be constitutional, they would have the power to remove the President from office for obstructing the statute, and even keep him from holding federal office thereafter.

      Perhaps the U. S. Senate, in proceedings initiated by the House, could be that tribunal. They’ll have an institutional interest in upholding a constitutionally valid law and removing a President who thwarts such a law. Maybe if they think the President acted in good faith, with a view toward having his actions reviewed in the Supreme Court, they might cut him a break, or if they think the law was unconstitutional they could likewise acquit, otherwise they would be able to kick the President out of office.

      1. The above is one possible interpretation of the Andrew Johnson impeachment. Assuming Johnson violated the Tenure of Office Act (there was some dispute), was this automatically impeachable, or if it was unconstitutional could he violate it, or could he in good faith set up a lawsuit to test his powers (as he said he did)?

        Even in a forum which was unsympathetic (a Republican Senate which had passed the challenged statute), Johnson didn’t get convicted. There were some real constitutional arguments against the statute.

  9. Article I of the Constitution does not give Congress any general power to provide medical care or regulate same. Therefore, the federal government tried to shoehorn the ACA into the Commerce Clause and taxing ability, which gives Congress the power to regulate interstate commerce and set taxes. On first principles, it is pretty obvious that, at least in most cases, medical care is not a form of interstate commerce. It is generally performed within one state and often is provided by non profit hospitals or with time and labor by medical professionals. However, misguided Supreme Court decisions have interpreted the Commerce Clause so broadly that they now allow Congress to regulate virtually any form of “economic activity,” even if it is only performed within a single state, and even some forms of “noneconomic” activity, so long as banning it is part of a broader “regulatory scheme” aimed at an interstate market.

    1. “Article I of the Constitution does not give Congress any general power to provide medical care”

      Yes, it does. Article I, Section 8, clause 1. It has a little bit of regulatory authority from interstate commerce clause (FDA is constitutional).

  10. So FGM is not a hate crime?
    And hate crimes are still legit?

  11. Are we going to have anywhere near the outcry to ban circumcision/MGM or do people largely not give a sh#t about anything that does not advance the ‘women are always the victims’ narrative?

    1. Ban MGM? But they made such good movies.

    2. MGM is code for Jewish and Islamic genocide.

  12. >FGM cannot, by any stretch of the imagination, be classified as an economic or commercial activity.

    Frankly, I’m surprised by that finding. I’ve always assumed there was at least a ‘customary donation’ to some religious group, if not an actual mohel-like job category.

Please to post comments

Freedom of Speech

The First Amendment and the Specific Preliminary Injunction

I'm continuing to serialize my forthcoming Penn Law Review article on Anti-Libel Injunctions.

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[You might also read my earlier post on the subject, Anti-Libel Injunctions and the Criminal Libel Connection, The First Amendment and Criminal Libel Law, and The First Amendment and the Catchall Permanent Injunction; or you can read the whole article in PDF.]

Let's now shift from an anti-libel injunction that I argue is constitutionally permissible (even if perhaps unsound in other ways)—the catchall injunction—to one that is broadly understood to be unconstitutional: the specific preliminary injunction. Paula sues Don for libel, arguing that Don lied when he said that Paula had cheated him in business. She gets a preliminary injunction, just weeks after filing, or even a temporary restraining order (whether or not ex parte) just days after filing. That injunction says, "Don shall not accuse Paula of cheating him," and lasts until trial (which could be years or at least many months in the future). It is specific rather than catchall because it bans only the repetition of a specific allegation or set of allegations (here, of cheating).

Such specific preliminary injunctions have been sharply condemned by most appellate courts that have seriously considered them—even by courts that authorize specific permanent injunctions—because those injunctions suppress speech without a finding on the merits that the speech is unprotected. In the words of the California Supreme Court in Balboa Village Island Inn, Inc. v. Lemen, the most influential recent decision allowing permanent injunctions against libel,

In determining whether an injunction restraining defamation may be issued, … it is crucial to distinguish requests for preventive relief prior to trial and post-trial remedies to prevent repetition of statements judicially determined to be defamatory…. "… The attempt to enjoin the initial distribution of a defamatory matter meets several barriers, the most impervious being the constitutional prohibitions against prior restraints on free speech and press …. In contrast, an injunction against continued distribution of a publication which a jury has determined to be defamatory may be more readily granted…."

Likewise, when the Kentucky Supreme Court authorized permanent injunctions against libel, it expressly rejected preliminary injunctions:

[T]he speech alleged to be false and defamatory by the Respondents has not been finally adjudicated to be, in fact, false. Only upon such a determination could the speech be ascertained to be constitutionally unprotected, and therefore subject to injunction against future repetition. We are mindful that the rule announced herein delays the availability of injunctive relief during the time it takes to litigate the issue. Thus, while the rule may temporarily delay relief for those ultimately found to be innocent victims of slander and libel, it prevents the unwarranted suppression of speech of those who are ultimately shown to have committed no defamation, and thereby protects important constitutional values.

The Nebraska Supreme Court took the same view:

A jury has yet to determine whether Sullivan's allegations about Dillon and his business practices are false or misleading representations of fact. For these reasons, we conclude that the temporary restraining order, as well as the permanent injunction restraining Sullivan's speech, constitute unconstitutional prior restraints in derogation of Sullivan's right to speak.

Or in the words of the Alaska Supreme Court, "Preliminary injunctions are almost always held to be unconstitutional burdens on speech because they involve restraints on speech before the speech has been fully adjudged to not be constitutionally protected." And while the court went on to say that, "A preliminary injunction barring speech may be permissible only if the trial court has fully adjudicated and determined that the affected speech is not constitutionally protected," the injunction that it was authorizing this way isn't really so preliminary.[1] The few cases that have upheld preliminary injunctions against libel have not squarely responded to this criticism.[2]

More generally, the Supreme Court likewise held in Vance v. Universal Amusements, Inc.[3] that alleged obscenity cannot be enjoined simply based on a pretrial showing that the speech was likely to be obscene—at least absent the procedural protections offered by Freedman v. Maryland—even though it could be enjoined after a finding of obscenity on the merits. Likewise, in Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, the Court upheld an injunction against an illegal advertisement only "because no interim relief was granted," so that "the order will not have gone into effect before our final determination that the actions of Pittsburgh Press were unprotected."

The problem with the specific preliminary injunction, then, is that it doesn't just lead to punishment of speech that a jury has found libelous beyond a reasonable doubt (or even by a preponderance of the evidence). It leads to punishment of speech that a judge has found will likely be shown to be libelous, and this finding may have been based on a highly abbreviated (and sometimes even ex parte) adjudicative process.

 

[1] See also Mishler v. MAC Systems, Inc., 771 N.E.2d 92, 98–99 (Ind. Ct. App. 2000) (condemning a preliminary injunction issued "after only the most preliminary of determinations by the trial court"); St. Margaret Mercy Healthcare Centers, Inc. v. Ho, 663 N.E.2d 1220, 1223–24 (Ind. Ct. App. 1996) (dissolving a preliminary injunction on First Amendment grounds, because speech cannot be restricted "before an adequate determination that it is unprotected by the First Amendment"); Hartman v. PIP-Group, LLC, __ S.E.2d __ (Ga. Ct. App. 2019) ("We have found no Georgia case upholding an interlocutory injunction prohibiting speech. Our Supreme Court has noted that although 'it has never been held that all injunctions against publication are impermissible,' such an injunction has been upheld only when it 'was entered subsequent to a verdict in which a jury found that statements made by [the defendant] were false and defamatory.'"); Anagnost v. Mortgage Specialists, Inc., 2016 WL 10920366, *3 (N.H. Super. Ct.) ("[B]y asking for a preliminary injunction, the plaintiffs seek to enjoin Gill from making statements that have not yet been found to be unprotected."); Paradise Hills Assocs. v. Procel, 1 Cal. Rptr. 2d 514, 519 (Cal. Ct. App. 1991) ("A preliminary injunction is a prior restraint."); Cohen v. Advanced Med. Group, 496 S.E.2d 710, 710-11 (Ga. 1998) (overturning a preliminary injunction against libel on the grounds that the injunction was not "'entered subsequent to a verdict in which a jury found that statements made by [defendant] were false and defamatory'" (quoting High Country Fashions, Inc. v. Marlenne Fashions, Inc., 357 S.E.2d 576, 577 (Ga. 1987))); Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993) (stressing that an injunction of charitable solicitation was permitted only "after a final adjudication on the merits that the speech is unprotected").

[2] But see Gillespie v. Council, 2016 WL 5616589, *3 (Nev. Ct. App. Sept. 27) (reluctantly allowing preliminary injunction in libel case, because a 1974 Nevada Supreme Court had allowed such injunctions); San Antonio Community Hosp. v. Southern Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1233–39 (9th Cir. 1997) (concluding that a preliminary injunction in a labor union libel case was not a prior restraint because the statements were so misleading as to be fraudulent, and "[t]he First Amendment does not protect fraud"); Bingham v. Struve, 591 N.Y.S.2d 156, 158-59 (Sup. Ct. App. Div. 1992) (ordering a preliminary injunction against a libel on a matter of private concern, concluding that the libel was constitutionally unprotected but not considering the prior restraint problem); Parland v. Millennium Const. Servs., LLC, 623 S.E.2d 670, 673 (Ga. Ct. App. 2005) (allowing a preliminary injunction so long as there is a showing of irreparable harm); Barlow v. Sipes, 744 N.E.2d 1, 10 (Ind. Ct. App. 2001) (allowing preliminary injunction as to speech on matters of "primarily private concern").

[3] 445 U.S. 308 (1980); see also Blount v. Rizzi, 400 U.S. 410, 420 (1971) (holding that a determination by a judge of "probable cause" that speech is obscene is insufficient to justify a restriction); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 240 (1990) (reaffirming this principle as to "prior restraint[s] in advance of a final judicial determination on the merits"); State v. Book-Cellar, Inc., 679 P.2d 548, 553-55 (Ariz. Ct. App. 1984) (upholding a statute that authorized preliminary injunctions against the distribution of obscenity by requiring "that a final judicial determination [be] made by the end of 60 days from the issuance of a preliminary injunction," a safeguard compelled by Freedman v. Maryland, 380 U.S. 51 (1965)); City of Cadillac v. Cadillac News & Video, Inc., 562 N.W.2d 267, 270 (Mich. Ct. App. 1996) (overturning down a preliminary injunction of obscenity on the grounds that the injunction would permit "removal of allegedly obscene materials from circulation before a judicial determination whether the material is obscene, with none of the safeguards" established in Freedman v. Maryland, 380 U.S. 51, 59 (1965)).

Commenting on the New Platform

Just click on the little fuchsia speech-balloon at the end of the post, on the right hand side.

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A reader was confused by this at first, so it led me to think that some other readers might be, too.

Guns

The Second Amendment in Public Housing

The East St. Louis Housing Authority stipulates to allowing residents to possess guns.

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From Doe v. East St. Louis Housing Authority, filed Thursday:

The parties stipulated to this following order enjoining Defendants from taking any action to enforce any provisions in the ESLHA Lease … [barring] residents who are permitted under Illinois [and local and federal] law to possess firearms, from possessing functional firearms that are legal in their jurisdiction for self-defense and defense of others in their residences ….

Among whatever else, the Second Amendment protects the right of a law-abiding individual to possess functional firearms in his or her home for lawful purposes, most notably for self-defense and defense of family. See District of Columbia v. Heller, 128 S.Ct. 2783, 2818 (2008). The Second Amendment is applicable to States through the Fourteenth Amendment. See McDonald v. City of Chicago, 130 S.Ct. 3020 (2010)…. The Court concludes that the Stipulation should be approved, and judgment should be entered in favor of Plaintiffs.

This isn't much of a legal precedent for other cases, because it's based on the parties' stipulation; but it might be a practical precedent, as other housing agencies conclude that, if East St. Louis, San Francisco, and Warren County (Illinois) have folded on this, they should, too.

The legal precedents in this field are surprisingly mixed:

A. Constitutional rights generally seem to apply to public housing, though there have been few cases on the subject. See, e.g., Pratt v. Chicago Hous. Auth., 848 F. Supp. 792 (N.D. Ill. 1994) (holding that the Fourth Amendment barred warrantless sweeps through public housing projects); Resident Action Council v. Seattle Hous. Auth., 174 P.3d 84 (Wash. 2008) (evaluating restriction on public housing residents' posting materials on the outside of their apartment doors the same way the U.S. Supreme Court had evaluated restriction on private residents' rights to post materials in their windows).

B.2014 Delaware Supreme Court decision held that public housing tenants have a right to bear arms under the Delaware Constitution's right to bear arms provision — "A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use" — even in common areas of the building. (The court noted that the Delaware Constitution's language may justify broader protection than that given by the Second Amendment, and indeed a federal district court had upheld the ban on gun possession in common areas under the Second Amendment; but given the individual rights reading of the Second Amendment in D.C. v. Heller, I'd view the Delaware Supreme Court's reasoning as potentially influential in other states, too.)

Nonetheless, the main limitation of the case is that the government "conceded that after [McDonald v. City of Chicago], as a landlord it may not adopt a total ban of firearms." This meant that the Delaware court didn't focus on analyzing whether banning guns in people's public housing apartments was unconstitutional; instead, the court reasoned that, accepting that the inside-apartment ban would be unconstitutional, a ban on possession in common areas was, too.

C.nonprecedential 2004 Michigan appellate court decision upheld a ban on gun possession in public housing against a challenge based on the Michigan Constitution's right to bear arms provision ("Every person has a right to bear arms for the defense of himself and the state"):

While the right to possess arms is acknowledged within the Michigan Constitution, this right is subject to limitation. Jurisprudence in this state has consistently maintained the right to keep and bear arms is not absolute. This Court has determined that "the constitutionally guaranteed right to bear arms is subject to a reasonable exercise of the police power." The state has a legitimate interest in limiting access to weapons.

It is recognized that public housing authorities have a legitimate interest in maintaining a safe environment for their tenants. Infringements on legitimate rights of tenants can be justified by regulations imposed to serve compelling state interests which cannot be achieved through less restrictive means. Restrictions on the right to possess weapons in the environment and circumstances described by plaintiff are both in furtherance of a legitimate interest to protect its residents and a reasonable exercise of police power. This is particularly true given defendant's failure to make any allegation she feels physically threatened or in danger as a resident of plaintiff's complex necessitating her possession of a weapon to defend herself.

But this can't be a sound argument, because it doesn't explain why governmental restrictions on guns in public housing projects are any different from governmental restrictions on guns in private housing. After all, the government has a "legitimate interest" in "maintaining a safe environment" for everyone; there are few "environment[s] and circumstances" in which guns lose their dangerousness; and the government's "police power" extends to private property as well as to government property. Yet the government can't just ban guns in private housing using the argument given above — and the Michigan opinion doesn't explain why the rules for guns in public housing should be any different.

(A Maine trial court took the same view in 1993, but its analysis was similarly weak.)

D. A 1988 Oregon Attorney General opinion, applying the Oregon Constitution's right to bear arms ("The people shall have the right to bear arms for the defence of themselves"), took the opposite view from the Michigan court:

It is well settled that the government may not condition entitlement to public benefits, whether gratuitous or not, upon the waiver of constitutional rights that the government could not abridge by direct action. The United States Supreme Court has repeatedly upheld that principle under the United States Constitution….

… Although the Oregon Supreme Court has not ruled on the issue directly, from [various state court] authorities we believe that, if faced squarely with the question, the court would hold that this "unconstitutional condition" principle applies under the Oregon Constitution….

Eligibility for low-income housing provided by a housing authority plainly is a public benefit or privilege. Subject to certain federal limitations, a housing authority lawfully may condition eligibility for low-income housing on satisfaction of income criteria and other factors designed to ensure that only responsible tenants reside in that housing. However, we conclude that a housing authority may not require an otherwise-eligible individual to surrender rights under article I, section 27 in order to obtain low-income housing.

The problem here is that, though all the cases cited by the Oregon Attorney General indeed rejected government demands that someone waive a constitutional right to get a benefit, many other cases uphold such demands. A plea bargain may be conditioned on a waiver of the right to trial. Welfare benefits, or membership on a high school sports team, may be conditioned on a waiver of some parts of the recipient's rights to be free from searches without probable cause. A government paycheck may be conditioned on a promise not to reveal certain things the employee learns in confidence.

More broadly, the government may sometimes refuse to allow the exercise of constitutional rights on its property, especially setting aside traditionally open places such as parks and sidewalks. It could, for instance, insist that abortions not be performed in government-owned hospitals. It could bar a wide range of speech in government buildings.

I'm inclined to think that the Oregon AG reached the right result: Public housing is a home as well as a government building, and government control over people's exercise of their constitutional rights in their homes — as a condition of getting a benefit that may often be economically necessary for them — is an especially serious burden. Indeed, even the case that allowed some restrictions of rights in the home as a condition of an economically necessary benefit, Wyman v. James (1971), stressed the narrowness of the intrusion: The case held that the Fourth Amendment did not bar a policy under which welfare recipients had to allow home visits by case workers; but the Court stressed that the nature of the "search" was quite limited, with the case worker limited to seeing what can be seen in plain view, rather than "snooping." I doubt that this could be properly extended to a categorical prohibition on the exercise of all of one's Second Amendment rights in one's home.

Nonetheless, the analysis has to be more careful than what the Oregon opinion offers, precisely because the precedents on whether "the government may … condition entitlement to public benefits, whether gratuitous or not, upon the waiver of constitutional rights that the government could not abridge by direct action" are so mixed.

E. Finally, I think a public housing authority could regulate guns that it sees as especially dangerous in its buildings, where apartments are separated by only a single wall, which increases the risk that a bullet would injure or kill a neighbor. But this concern has never been seen as justifying total bans on all gun possession in all apartment buildings. It would in any case not justify bans on shotguns, which fire small pellets that are highly unlikely to go through a wall or retain their lethality even if they do. And it wouldn't justify bans on handguns that are loaded with special frangible ammunition, which is designed to similarly not go through walls.

For citations to some of the sources mentioned above, see my Implementing the Right to Keep and Bear Arms article, pp. 1529-33.

Here, by the way, is an excerpt from the Complaint, which tells a pretty compelling story:

[2.] Plaintiff N. DOE, filing anonymously, is a resident of Auburn Terrace, a public housing facility in East St. Louis, Illinois, administered by the East St. Louis Housing Authority. She is a customer service representative for a medical supply distributor, who due to health issues of her family and herself, became in need of governmental assistance in the form of subsidized housing. She has a valid Illinois FOID card, and has trained and educated in the safe use of firearms. She wishes to possess a handgun in her residence for self-defense, and did at one point, but has been forced to refrain from doing so due to the threat of losing her subsidized housing. At the present time, she resides with her two teenage children in her residence….

[6.] N. DOE has an ex-husband who was incarcerated for murder. He was released on probation, and during that time was violently abusive to N. DOE on multiple occasions, including choking her to unconsciousness, and beating her so badly that she had internal bleeding. He threatened, on multiple occasions, to kill N. DOE and her two children if she ended her relationship with him. As a result of this violence, he was returned to prison with his probation revoked. He has since been released, and N. DOE has recently received word that he is still "very angry" with her and is looking for her.

[7.] Further, in January, 2017, N. DOE was beaten and raped in her home by a family acquaintance, who decided that since N. DOE was suffering from a hand injury, that she was unable to fight back. During the rape, N. DOE was able to call for help from her children, who stopped the attack by threatening to brandish the firearm, that at the time was in the residence, at the attacker and getting the attacker to leave N. DOE's residence.

[8.] On two occasions, N. DOE has to call the police due to shootings in nearby residences. Shootings are common enough to be called routine in the subject ESLHA property….

[17.] Section IX.(p) of the ESLHA Lease, entitled "RESIDENT'S OBLIGATIONS," requires that N. DOE is "[n]ot to display, use, or possess or allow members of [DOE's] household or guests to display, use, or possess any firearms, (operable or inoperable) … anywhere in the unit or elsewhere on the property of the Authority."

[18.] Section XI.E. of the ESLHA Lease, entitled "SPECIAL INSPECTIONS," states that "ESLHA staff may conduct a special inspection for any of the following reasons: … Suspected lease violation."

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12 responses to “The Second Amendment in Public Housing

  1. I presume the lease also says the landlord/government is strictly responsible for the welfare of residents and guarantees their personal safety?

  2. This law makes perfect sense: people in East St Louis are famous for adhering to laws against stuff like possession of illegal guns and murder. It’s just the sort of place a person would want to surrender his right to bear arms.

  3. This is one of those cases where there is a line, and while I’m not sure if I can articulate exactly where that line is, nonetheless I feel confident which side of the line it’s on.

    That there must be a line is clear by realizing that almost everybody receives some form of government benefit. Could government condition receiving government benefits like social security, or for that matter police protection, or electricity, sewage, water or trash if municipal benefits, by signing over ones right to vote to the current leadership, or agreeing not to say anything bad about them? That’s obviously got to be over the line.

    At the same time, it’s clear that when writing a class paper in a public college, or acting as a police officer, or filing a case in court, what one says in these contexts is governed by rules and one can’t say whatever one wants without consequences. One isn’t merely being a private person who happens to be passively receiving a generally applicable benefit. One is actively participating in a limited voluntary government program. I’m not sure passive vs. active, or limited vs. general, makes all the necessary distinctions.

    But I think it’s somewhat on the right track. In this case public housing seems much more like a public benefit that one passively receives than a program one actively participates in, more like water and trash pickup than like being a college student or an employee or a service provider like a doctor.

    That said, there would seem to be an obvious difference between personal and common areas. Potentially anybody can come into common areas and pick up a gun that’s there. That would seem to both increase the public safety element and reduce the private-right status.

  4. I am quibbling here and it doesn’t address the central point, but it would take a really careful choice of shotgun ammunition to avoid penetrating half an inch of drywall. Any such ammo would provoke controversy over whether it could penetrate flesh deep enough to cause injuries that would end a fight.

    1. Nor the point that the people whom the residents desire guns to protect themselves from don’t tend to worry about penetration of shotgun pellets nor of other ammunition, which is often why kids are put in bathtubs at the first sound of gunfire.

      The point is that disarming residents for that reason gives those who don’t obey the law the power to intimidate those residents through their own distain for those rules and laws.

    2. Let me add that these projects are probably the most dangerous place to live in this country. What that means there are a large number of young males, many armed, preying on the residents. Are the residents safer if they are disarmed, and only the violent young men have guns, even considering that many of the guns used by those young men are stolen? I suspect the answer might be more positive if it weren’t possible to acquire guns from outside the projects, but that isn’t the case. Still, I don’t think that it is right to deny these residents the right of self defense just because their guns might get ultimately be stolen, or the pellets or bullets me get overpenretrate.

  5. If the RKBA isn’t sacrosanct on public housing, what other parts of the Constitution can they ignore? Can they administer cruel and unusual punishments? Forbid the free exercise of religion? Keep slaves?

  6. […] The Second Amendment in Public Housing The East St. Louis Housing Authority stipulates to allowing residents to possess guns. […]

  7. PLEASE learn something about firearms before you post based on “movie knowledge”. Ex. “Frangible ammo” is a product of Hollywood and snake oil sales. It was sold, at a profit, to air marshalls because of the “James Bond” effect of shooting thru an airplanes hull while pressurized. It is an urban myth. Why do SWAT teams use AR’s and full auto M4’s? Think their “superior training” somehow prevents them from making mistakes”? An old Russian saying is “It is GUN, is DANGEROUS” and a 22 rimfire will kill you just as dead as a 50 cal.

    1. Everything gun and ammo related has been subject to Hollywood myth and snake oil sales, but frangible bullet ammo is a real product with real (but limited) uses.

      Bullets or bullet cores made of compressed powdered metal are designed and intended to be used for target practice without ricochet or overpenetration.
      The ammunition used in shooting gallery guns at carnivals was frangible bullet ammo that turned into powder when it hit a sheet metal backstop.
      The powdered metal core 6.5x52mm Italian that Roy F. Dunlap found in North Africa (and puzzled over in Ordnance Went Up Frount with speculation about its purpose) was frangible bullet meant for rifle practice at base ranges in built up areas.

      (I am not counting the Glaser Safety Slug (birdshot in a metal jacket) as a frangible bullet. Unlikely decompression from penetrating the airliner skin is not a reason to use frangible bullets or Glaser Safety Slugs in air marshals’ guns. It is to avoid over penetration that may kill or injure people beyond the target, or damage wiring or hydraulic lines inside the hull.)

      1. Ordnance Went Up Front

        An edit feature with a time limit would be a nice addition (to allow correction of typos but not to allow people changing their comment in response to reply rather than admitting error).

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Courts

Short Circuit: A Roundup of Recent Federal Court Decisions

Cherry regulation, landfill corruption, and taking some air.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Nashville prohibits people who run home businesses from allowing customers to visit. Want to teach piano lessons in your living room? Illegal. Have a soundproofed recording studio in your basement? No renting that out. Run a one-chair salon? Keep your clippers to yourself. Which is ridiculous—and also unconstitutional. Click here for some in-depth reporting on Nashville's client prohibition from Reason.com.

  • Allegation: Man steps outside his home in Southeast D.C. to take some air. He's obstructing no one, but police officer in a passing patrol car yells at him to move along, arrests him when he declines. Weeks later and a few blocks away, the same officer arrests another man who stepped outside for a smoke (on Christmas Eve) and who was also not obstructing passersby. D.C. Circuit: A D.C. law that authorizes police to arrest (after a warning) people who obstruct pedestrian traffic is not unconstitutional in all its applications.
  • Columbia law prof disappears from NYC subway in 1956, never to be found. Perhaps he was murdered by agents of Dominican dictator, whom he'd criticized. Alleged to be involved: a former FBI agent who worked for the dictator and was convicted (later reversed) of failing to register as an agent of a foreign government. May historian obtain the ex-agent's grand jury records? District court: Generally, courts can authorize grand jury records' disclosure if historically significant. D.C. Circuit (over a dissent): Not so. Grand jury secrecy is the rule, the only exceptions to which are expressly enumerated, and none provides a blanket exception for historically significant documents.
  • In 2012, [REDACTED] sent a big chunk of money to a corporation, which sent a big chunk of money to a nonprofit, which sent a big chunk of money to a political action committee. That violates campaign finance law, and the Federal Election Commission ultimately settled the case with a fine of $350k on the corporation, the nonprofit, and the PAC, but not [REDACTED]. May the FEC now release documents that would disclose [REDACTED]'s identity, over [REDACTED]'s objections? D.C. Circuit: [REDACTED] loses. Dissent: [REDACTED] should win.
  • Certain Dallas landlords refuse to accept "Section 8" vouchers, which are federal rent subsidies for low-income tenants. (Landlord participation in Section 8 is voluntary.) But the users of those vouchers are disproportionately members of racial minorities. And—since a 2015 Supreme Court case—the federal Fair Housing Act can prohibit housing policies that disproportionately affect minority groups. So does the refusal to accept Section 8 vouchers violate the Fair Housing Act? Fifth Circuit (2–1): It does not. The Supreme Court said to be careful of claims like this, which take disparate impact liability too far.
  • Near the start of the 2013–14 school year, Mississippi truancy officer calls 6-year-old student's listed contact person to figure out why student is missing school. Beats me, says the contact, I'm his aunt; he doesn't live with me. The officer apologizes for the confusion. Fast-forward to the end of the school year: Student has 16 unexcused absences, so the truancy officer swears out an arrest warrant for … the aunt? She's handcuffed, taken to jail, and strip-searched before the mistake is discovered. Fifth Circuit: No qualified immunity for that.
  • The great philosopher David Hume argued that if you see one billiard ball strike another, after which the first ball stops and the second ball acquires motion, you don't really see the first ball cause the second to move; you just see one event follow the other. A Humean district court judge might apply similar reasoning to this New Orleans waste disposal company, which made $20k in illegal campaign contributions through four shell corporations to former New Orleans Mayor Ray Nagin (who was sentenced to 10 years in prison for accepting (unrelated) bribes), after which Mayor Nagin canceled a competing waste disposal company's landfill contract. Fifth Circuit (over a Humean dissent): This RICO case by the aggrieved competitor should have gone to a jury.
  • Georgetown, Ky. police officer shoots driver "at some unspecified point" after the driver hit a police cruiser with her car. The driver later pleads guilty to wantonly endangering the officer's life. Does this plea bar the driver's excessive force lawsuit? Sixth Circuit: It depends. If the officer shot because he was in danger, the claim is barred. If he shot after the threat had ended, it isn't. Remanded for limited discovery.
  • Some cases deal with issues so earthshaking that they invoke "ordered liberty" itself. There's also this case, in which the Sixth Circuit holds that a particular cooperative of cherry growers was lawfully a member of the federal Cherry Industry Administrative Board—a regulatory body that we are not making up.
  • "These appeals, unfortunately, are not Nora's first encounter with attorney discipline. See, e.g., [string cite]." You can probably tell from the opener that the Seventh Circuit upheld Ms. Nora's suspension from practice in the Western District of Wisconsin. But don't overlook the additional sanctions imposed for her conduct during the appeal.
  • Woman is convicted of assault for slapping a fellow passenger on flight from Minneapolis to Los Angeles. (She's fined $760.) Ninth Circuit (creating a circuit split): Conviction reversed. The trial was held in federal district court in Los Angeles, but the assault happened before the plane reached that district's airspace. Dissent: Asking victims to pinpoint and the gov't to prove the precise moment an assault took place will make prosecutions (of crimes much more serious than this one) on board aircraft well-nigh impossible.
  • Man spends over four years in jail awaiting trial. That's too long! Kansas court orders him released, and the Kansas Supreme Court affirms, holding that the Sixth Amendment's Speedy Trial Clause applies to civil commitment proceedings. Tenth Circuit: But he can't sue the state official in charge of civil commitments for not taking action sooner; some of the delay was on him for asking for new lawyers and judges.
  • And in other news, the Second Circuit has withdrawn its decision holding that landlords can be liable for tenant-on-tenant harassment under the Fair Housing Act.

This week, IJ launched two new cases. Up in Pennsylvania, Lancaster and Berks County prosecutors are refusing to turn over to a local journalist records that detail how much property they take through civil forfeiture and how the proceeds are spent—despite a ruling from the state's Office of Open Records that those records should be available to the public. Click here to learn more. And in Indiana, IJ is challenging a law that bars patients from utilizing telemedicine to obtain prescriptions for eyeglasses or contacts. The tech is safe and effective, but it threatens some optometrists' profits, and they prevailed on the legislature to ban it. Click here for more.

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.

19 responses to “Short Circuit: A Roundup of Recent Federal Court Decisions

  1. Glad to see that at least two judges in the Fifth Circuit can recognize timed when disparate impact is absurd.

    On the other hand, the fact that one judge felt the ICP had a “plausible” case is embarrassing, and that judge should be sent to remedial math courses until basic statistics have been pounded into his head.

  2. Many liberal states and cities have “source of income” laws which actually prohibit landlords from refusing Section 8 vouchers. Now, many cities have banned cashless stores, as they “disproportionately affect the poor and non-white.” Is there ANYTHING at all liberals expect non-whites to take responsibility for? Landlords don’t want to take your vouchers because you people are largely criminals and destroy the apartments. There’s no reason that landlords should have to provide private charity.

    1. The end goal for Democrats seems to be heavy socialism leaning on communism. So no, they dont want individuals to have responsibilities at all.

  3. Is there any reason grand jury records shouldn’t be subject to the Freedom of Information Act?

      1. It’s good to know that the FOIA exemptions on privacy, national security, etc. aren’t good enough to protect the integrity of grand jury material.

    1. There are actually several.

      1. …but those reasons are themselves confidential, apparently.

  4. “Nashville prohibits people who run home businesses from allowing customers to visit. […] Which is ridiculous—and also unconstitutional.”

    The often-overlooked amendment that reads “Neither Congress, nor the States, nor any political subdivisions within them shall have the power to regulate home businesses.” strikes again!

    1. It’s right next to the Abortion Amendment and the “feds get to regulate home-grown weed” amendment.

  5. The link to the Nashville stuff goes to the Atlanta page (i. e. the 404 ::))

  6. Cherry Industry Administrative Board

    Are you sure you’re not making this up?

    1. I don’t know, but if it’s a hoax they’re already building a Web site – albeit not what you’d call a state-of-the-art Web site:

      http://www.cherryboard.org/CIABContactInfo.html

      1. Apparently, this board controls the production of tart cherries, which are not the kind you buy at the grocery store and munch on while reading the VC, but which have other uses.

        So we have yet another government-sponsored cartel, and yet another plaintiff who wants to be exempt from supply restrictions while getting the benefits of the price-fixing.

        What a mess.

  7. “Some cases deal with issues so earthshaking that they invoke “ordered liberty” itself. There’s also this case, in which the Sixth Circuit holds that a particular cooperative of cherry growers was lawfully a member of the federal Cherry Industry Administrative Board—a regulatory body that we are not making up.”

    Hello to the great big world
    I’m your ch ch ch ch ch cherry board
    You’ll be merry as you take our cherries
    I’m your ch ch ch ch ch cherry board

  8. So many Redacted, what is this SCP?

  9. The DC sidewalk obstruction case illustrates a common hole in our legal structure. When laws are applied, few can afford and those who can don’t find it worthwhile to mount a legal challenge over a fine or small sentence, for the simple reason that defendants who win can’t cover their legal fees.

    But facial challenges, where plaintiffs who win can recover their legal fees, don’t work in many circuits unless the law is entirely constitutional.

    And so it is that a law with sufficient potential constitutional application to survive facial challenge can be applied unconstitutionally much, even most, of the time. And so long as each individual penalty is small enough that paying for a lawyer would be devastating in comparison, and so long as challenging a law in court is complex enough to require a lawyer to be likely to succeed, there basically is no recourse. Blatantly unconstitutional conduct becomes normative.

    1. This is a good point.

  10. On the Cherry Board, I suspect that a significant number of people in Western Michigan would, if asked, indeed consider that cherries – or at least affordable, decent-quality cherries – to be implicit in the concept of ordered liberty, such that neither liberty nor justice could exist without them. I mean, if you didn’t have cherries, how could liberty or justice be possible?

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Death Penalty

Death and the Shadow Docket

The Supreme Court's efforts to shift procedures in death penalty litigation.

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A couple months ago, the Supreme Court lifted a stay of execution in Dunn v. Ray, allowing Alabama to execute a man despite the prison's refusal to let his imam attend to him in the execution chamber. While much of the controversy about the case was about the religious discrimination angle, the Court's opinion stressed an issue of timing—the Court claimed that he had raised the issue too late in the day, and that this was an independent reason to deny his claim for relief. Four Justices joined a very powerful dissent written by Justice Kagan. (I wrote about this here.)

Then in late March, the Supreme Court granted a stay of execution in Murphy v. Collier, a similar case out of Texas (this one involving a Buddhist). Two Justices, Thomas and Gorsuch, announced their dissent. Justice Kavanaugh, who had necessarily joined the majority in Dunn v. Ray, wrote an opinion explaining why he ruled in favor of the prisoner on the religious discrimination issue. He also included a footnote announcing that the case was different from Dunn v. Ray on the timing issue because "Murphy made his request to the state in a sufficiently timely manner, one month before his scheduled execution."

Many observers were not convinced that the timing was that different, since Ray had made his request to the state two weeks before his execution, and the difference between two weeks and a month seems somewhat arbitrary. Indeed, Ray actually filed his lawsuit sooner than Dunn. Ray sued ten days before his execution; Murphy sued in state court eight days before his execution and in federal court two days before his execution. But Ray died and Murphy lived.

Because both of these decisions were dealt with on the orders list (or the "shadow docket") rather than the merits docket, the Court provided only very brief explanations of its decision. Justices Gorsuch and Thomas did not explain their dissent in the Murphy case. We also do not know how Justice Alito or Chief Justice Roberts voted in Murphy. Unlike with merits opinions, it is possible for a Justice to dissent from an order without publicly noting it, so the decision might have been 7-2, 6-3, or 5-4. And if those justices voted with the majority in Murphy, we don't know whether they agreed with Justice Kavanaugh about how to distinguish Dunn. But the combination of the cases prompted various explanations, such as the possibility that different lawyering or different amicus participation made the difference, or that the Court had felt the blowback from its Dunn decision and was quietly beating a retreat.

Then the plot thickened. In Bucklew v. Precythe, a merits case about an Eighth Amendment challenge to an execution protocol, Justice Gorsuch's opinion for the Court included a 2-page section at the end of the opinion raising general concerns about litigation that delayed the death penalty. The Court reiterated that "federal courts can and should protect settled state jugments from undue interference by invoking their equitable powers to dismiss or curtail suits that are pursued in a dilatory fashion or based on speculative theories." And it doubled down on Dunn v. Ray, including a long footnote reiterating Ray's claim had involved undue delay. So it doesn't seem like there is a retreat.

Finally, last night in Dunn v. Price, the Supreme Court divided 5-4 over another request to lift a stay. The Court lifted a stay imposed by the Eleventh Circuit because Price's complaint was too late—but he had challenged his April execution in February (though he had also "submitted additional evidence … a few hours before his scheduled execution time") rather than electing that method of execution last June. Justice Breyer wrote a dissent joined by four Justices that began "Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way, let that person review the following circumstances as they have been presented to our Court this evening." He emphasized that he had just wanted to delay discussion until today, when the Justices could discuss the case in person, rather than dealing with it in the middle of the night. Ironically, the Court's own decision that Price's litigation came too late itself came too late. Apparently because the Court's decision didn't come out until after 1 am EDT, Alabama's death warrant expired and will have to be renewed in a month.

It seems clear to me that the Court is attempting to signal a significant shift in how it handles death-penalty litigation, but it is struggling over how to carry it out, and also likely divided over whether that shift is a good idea in any event. This problem is significantly exacerbated by two procedural features of the death penalty shadow docket. One is that these decisions are made with a modest amount of briefing, no oral argument, and without the Justices meeting in person to talk about them. The other is that these issues come up on a tight time frame, often in the middle of the night. Both the majority and the dissent are trying to respond to these features, but in different ways that each presuppose the correctness of their proposed solutions.

I say this as somebody with a great deal of sympathy for the Court, who thinks that the death penalty is justifiable and constitutional, but: this is no way to run a railroad. If the Court wants to regularize its death penalty procedures or stop the last-minute filings, it might be time to consider any of the following: promulgating a new Supreme Court rule setting out some deadlines or timeliness rules; adopting a general presumption of deference to the lower court in last-minute filings; adopting a general presumption of deference to the district court in last-minute filings; granting certiorari and oral argument in one of these shadow-docket cases so that some specific timeliness principles could be discussed, adjudicated, and adhered to; keeping all of the Justices in the building on execution night so that they can discuss controversial orders in the conference room. I'm sure somebody else can think of better ideas.

But I fear that muddling through these cases on the shadow docket will not produce the procedural regularity or early filing that the majority claims to want, and if it goes on much longer, it may also give Justice Breyer's accusations of arbitrariness the unfortunate appearance of truth.

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42 responses to “Death and the Shadow Docket

  1. Conservatives and Republicans reflexively, aggressively question government’s motives, role, credibility, and performance, and seek to toss sand in its gears — until the government wishes to kill someone (often a poor person, or a black or brown person), at which point they ardently contend that government is trustworthy (if not infallible), well-meaning, empowered, and effective.

    Justices Gorsuch and Kavanaugh have recently appeared to become roughly as “often libertarian” (or “libertarianish”) as is the Volokh Conspiracy.

    Carry on, clingers. So far and so long as your betters permit, that is.

    1. You’re right, I reflexively question democrat sponsored infanticide and democrat endorsed antisemitism. But you’re wrong, I don’t think the government effectively implements the death penalty. The process is far too slow.

  2. ” the unfortunate appearance of truth.”

    Hard to accept that phrase, since the evidence cited in the post is fairly strong that Breyer’s statement not only has the appearance of truth but is truth itself.

    One has to remember that although the opinions in the decisions and discussions like this cite the prisoner as the one arguing and filing etc, it is actually the prisoner’s attorney and the prisoner is likely partially or completely ignorant of the law, the procedures or anything else regarding the appeals. And so the prisoner is punished for the sins of an attorney, in many case an inexperienced court appointed novice. One can call this many things, but calling it justice is difficult if not impossible.

    1. “And so the prisoner is punished for the sins of an attorney…”

      And precisely what is that punishment? Price participated in that murder in 1991, about 28 years ago, in a home invasion killing a minister and severely wounding his wife when they were wrapping wrapping Christmas presents for their grandchild. I guess the punishment is not being to delay his execution indefinitely.

      The only question for the court was whether he could change his method of execution from lethal injection to nitrogen hypoxia, causing further delay, because he had not chosen his method of execution by the deadline in the hopes of causing further delay.

      You are against the death penalty, that’s an honest argument, but not winning that argument, you dishonestly try to change the argument to nitpicking and delaying.

  3. Wait, a general presumption of deference to the district court in last-minute filings? That seems like an odd one, given how that would influence everyone’s incentives when the case is still at the Court of Appeals.

  4. What is the interest in timeliness here?

    In a civil lawsuit, delay is bad because it leaves the wronged party without a remedy while the delay continues.

    Public safety is equally well served if executions are rushed or delayed. A murderer on Death Row is safely isolated from the public.

    If relatives of the victim are bloodthirsty for revenge, the whole premise of the criminal justice system is that the offense is an offense against the state, which then preempts and prevents their vengeance.

    1. The interest of timeliness here is that you can have any number of last minute delays. If you defer to the lower court issuing stays each time, the stay becomes permanent.

      Obviously if you don’t think the death penalty benefits the public, then delaying its execution does no harm. But if you take the opposite view, delay is harmful to the public, and permanent delay even more so.

      We’re already up to delays of 20 years or more, 40 years would be worse. And never worse still.

      1. In most of the cases above, the delay wouldn’t have been 20 or 40 years. The inmates weren’t asking to live forever. They were asking to be killed with a different method, or in the presence of different people.

        1. Price committed his crime in 1991, delay is the only purpose for these continued motions and appeals.

          1. I had assumed that the purpose of the motion was to be killed by a different method, since that’s what it was asking for. And the law already permits that method. Since his execution was delayed (due to a delay by the Supreme Court), he’s probably going to get the nitrogen he asked for.

        2. NTOJ : In most of the cases above, the delay wouldn’t have been 20 or 40 years.

          Ray 24 years, Murphy 18 years (and counting), Bucklew 23 years (not sure whether we’re still counting), Price 28 years and counting

          The inmates weren’t asking to live forever.

          Of course not . They were asking for a deferral. And when that deferral is at 11.59pm they’ll ask for another one. If Prof Baude’s “defer to the lower court” presumption applies, you can keep this going forever. Remind me never to hire you as a debt collector.

          1. The years are from prior delays that have nothing to do with the present requests. These are people asking to be murdered in a particular way. Price will be rescheduled, but not for 40 years from now.

            “If Prof Baude’s “defer to the lower court” presumption applies…”

            That was a proposed solution to the current problem, which is inconsistency at the high court. He had another solution; promulgated deadlines at the Supreme Court. That seems like a much more efficient way to deal with this problem, rather than ad hoc. Don’t you agree?

          2. NTOJ : The years are from prior delays that have nothing to do with the present requests.

            Of course, and next time, we will be able to say exactty the same !

            Tomorrow and tomorrow and tomorrow all add up. Before you know it, you’ve made it to the last syllable of recorded time. Unlike the person who was actually murdered.

    2. “bloodthirsty for revenge”

      28 years patiently waiting for justice. Some “thirst”.

      The only bloodthirsty person here is the convicted murderer.

    3. “the whole premise of the criminal justice system is that the offense is an offense against the state, which then preempts and prevents their vengeance.”

      Wrong. The premise of the justice system is that citizens give up their right to take vengeance themselves, on the promise that the state will take vengeance for them, if the evidence warrants that. The idea is not to prevent vengeance, but to make vengeance orderly, regular, and fair.

  5. adopting a general presumption of deference to the lower court in last-minute filings

    That would simply ensure the abolition of the death penalty in any zone covered by a Court of Appeals with a liberal majority. Since the CoA would always vote for a stay, and there are an unlimited number of “last minutes.”

    If you want a general presumption it should be based on each CoA’s “batting average” in death penalty cases. So if a CoA is batting below .500 in appeals to SCOTUS in death penalty cases, there should then be a calculation of its direction of error. Does it err more often in preventing the death penalty proceeding (too wussy) , or allowing it when it shouldn’t (too rabid)?

    The presumption should be to defer to the appeal court if it is going against its previous error flow – eg a rabid court voting for a stay. But to overrule the appeal court if it is going with its previous error flow – eg a wussy court voting for a stay.) If it’s batting above .500 though, then it should be deferred to anyway.

    An alternative would be to go with the automatic deference to the lower court, but when SCOTUS finally gets round to considering the substance, if it decides that the lower court should not have granted a stay then one of the erroneous lower court judges (chosen by lot) should be invited to resign, or join the convict in the chamber.

    1. Not sure why you’re assuming “lower court” would mean the COA here instead of the district court, since it’s the district court that does the actual factfinding and analysis in these last-minute cases.

      1. Presumably because Prof. Baude listed that deference as a separate option.

  6. Forgive me if I believe a significant part of these last minute appeals is a conscious and planned tactic of the anti-Death Penalty Bar and their allies.

    Over an extended period these lawyers argued against the former methods of execution and when new methods were introduced to overcome those objections the makers of the various drugs were pressured to withhold them from use in executions. The lawyers argue for extension after extension then turn around and say it takes too long and costs too much.

    It seems most of these last minute appeals could easily have been raised months before.

    1. You’re forgiven.

      I’m as shocked as you are to find lawyers exhausting all legal avenues on behalf of their clients.

      1. They can and should exhaust all legal avenues, but they should do so on a timely basis. Especially if SCOTUS is looking unfavorably at unneeded delays.

        1. Well, if delay is going to hurt their client’s case, sure, but not otherwise.

          I suppose the objective is to keep the client alive as long as possible, while maybe hoping for some miracle to stop the execution altogether.

          In that sense waiting as long as possible looks like good strategy.

    2. Pressured to withhold them?

      Nope.

      And it has nothing to do with the legal profession.

      For the record I am against all state executions.

      1. Including abortion and euthanasia?

  7. Four Justices joined a very powerful dissent written by Justice Kagan.

    If 4 justices joined Kagan, wouldn’t that be 5 justices for Kagan’s position, making it a majority opinion and not a dissent?

    BTW, your link to what you wrote previously is 404.

    1. I think the theory is that four justices joined the dissent, rather than joined Kagan, allowing Kagan to join her own dissent.

      1. What happens if a justice refuses to join her own dissent?

        1. She stays on top of the mountain?

    2. Justice Kagan is one of the four justices who joined the dissent.

  8. In the time it takes these people to put down a mad dog, I could – from scratch – produce a child and grandchild. Or at least a child and the possiblity of a child. The problem seems to be that executions aren’t carried out swiftly enough in the first place, allowing for endless appeals. When they’re taking the big dirt-nap, they can’t appeal. Just do it.

  9. “No United States District or Court of Apeals may issue a stay of a death penalty within 72 hours of the scheduled execution except by a vote of 6 justices of this Court.”

    For the rare truly needed stay, a super majority safety valve. Otherwise, a delay discouraging deadline.

    1. Not worded very well

      “No United States District or Court of Appeals may issue a stay of a death penalty within 72 hours of the scheduled time of execution. This Court may by a vote of 6 justices issue a stay based on a petition or motion filed at least 36 hours prior to the scheduled time of execution.”

      1. That rule is clearly unconstitutional.

        I don’t know why it’s unconstitutional: we’d have to wait to find out until the first time a state tried to invoke it. But it would be far too effective at cutting down on frivolous appeals to be allowed to stand.

        1. Funnily written, yet absolutely true.

  10. Dreadful to think of the State putting to death a person innocent as a babe unborn, despite an investigation and public trial. Of course, Reason staff whoops for the putting to death of actual babes unborn without any judicial or procedural review at all.

    It’s a funny old world.

  11. Well, by the time you reach the Federal collateral challenge, you’re percolating rainwater. With the further disadvantage of minimizing the finality and solemnity of state direct review and Habeas. That said, to a casual observer, it seems that the Court has been lifting lower court stays rather freely this term, so kvetching about being brought into things at the last moment might be protesting a bit too much.

    Perhaps an automatic en banc poll at the Circuit level in capital cases. That would at least allow the dust to settle after the panel holding, and any glaring (if not plain) errors to be addressed with or without briefing and reargument. This isn’t my area of things, but perhaps the luck of the panel draw is one reason the cert backstop is presently so necessary.

    Alternatively, you could, you know, stop killing the prisoners.

  12. For some reason the medical profession refuses to participate in this.

    You want state executions? Firing squad, hanging, head chopping, electric chair, those work.

    1. The law could simply be changed so that tools and techniques for killing now reserved to medical professionals could also be used by executioners. Administering drugs takes training and skill but it aint rocket science.

      1. The main bit of skill needed for medical professionals with regard to the drugs used in executions is to not kill the patient, with executions you don’t really have that problem.

    2. The medical profession is content to kill innocents, not those that actually deserve it.

  13. How can we execute these scum faster and more cheaply? Really, that’s the only question we should be asking ourselves. Too many Libertarians cry about personal liberty then sit around defending criminals who attacked other people’s personal liberty. If you believe government has a role at all, executing violent felons should be part of that role.

    1. Yeah, can’t imagine why a group skeptical about the power of government might not be for giving the government this life-or-death power.
      Or, apparently, vastly expanding that power to apply to all violent felonies and have a lot less oversight in service of speed and expense.

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