Free Minds & Free Markets


Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

The Most Cited Legal Academics 2013-17

A new report on the academic influence of law faculties and tallies of legal citations by specialty.

As Eugene noted, there is a new, updated study of law school "scholarly impact" by Gregory Sisk, et al. This study looks to measure the impact that different schools' law faculties have upon legal scholarship by looking at citation counts. (VCU isn't ranked, but as Ilya noted, it would apparently do quite well.)

In light of the new study, Brian Leiter has posted updated lists of the most cited legal scholars over the 2013-2017 period. Here are the top ten:






Age in 2018


Cass Sunstein

Harvard University


Constitutional, Administrative, and Environmental Law, Behavioral Law & Economics



Erwin Chemerinsky

University of California, Berkeley


Constitutional Law, Civil Procedure



Eric Posner

University of Chicago


Law & Economics, International Law, Commercial Law, Contracts



Mark Lemley

Stanford University


Intellectual Property and Cyberlaw



Richard Epstein

New York University, University of Chicago


Constitutional Law, Torts, Law & Economics



William Eskridge, Jr.

Yale University


Constitutional Law, Legislation



Akhil Amar

Yale University


Constitutional Law



Thomas Merrill

Columbia University


Administrative, Constitutional, and Property Law



Mark Tushnet

Harvard University


Constitutional Law, Legal History



Jack M. Balkin

Yale University


Constitutional Law, Cyberlaw


In addition, Leiter has started to post lists of the most cited law faculty by subject area. Here are the fields he's tallied thus far:

In addition, Rick Hasen has posted the most cited legal scholars in Election Law over the same period at his Election Law Blog.

I suspect Leiter will post additional subjects in the coming days, and I will update this post as his rankings appear.

Opening a File After A Hash Was Made and Matched to Known Image of Child Pornography is Not a "Search," Fifth Circuit Rules

An interesting case applying the private search reconstruction doctrine.

The Fifth Circuit has handed down a fascinating computer search case in United States v. Reddick. Here's the question: If a private company runs a hash of a file and compares the hash to those of known images of child pornography, and it finds a match to a known image and forwards on the file to the government, is it a "search" for the government to then open the file to confirm it is child pornography? Held, per Judge James Ho: No, it is not a search under the private search reconstruction doctrine.

First, some background. The private search reconstruction doctrine lets the government recreate a private search as long as it doesn't exceed the private search. The idea is that the private search already frustrated any reasonable expectation of privacy. Merely recreating what the private party did is within the private search and is not a new government search. But in the case of computers, that raises difficult issues: What is merely a recreation of a prior private search, and what exceeds the search?

In Reddick, the Fifth Circuit holds that actually opening a file that had matched to a known image of child pornography was not a search because "the government effectively learned nothing from [the agent's] viewing of the files that it had not already learned from the private search." Here's the analysis:

When Reddick uploaded files to SkyDrive, Microsoft's PhotoDNA program automatically reviewed the hash values of those files and compared them against an existing database of known child pornography hash values. In other words, his "package" (that is, his set of computer files) was inspected and deemed suspicious by a private actor. Accordingly, whatever expectation of privacy Reddick might have had in the hash values of his files was frustrated by Microsoft's private search.

When Detective Ilse first received Reddick's files, he already knew that their hash values matched the hash values of child pornography images known to NCMEC. As our court has previously noted, hash value comparison "allows law enforcement to identify child pornography with almost absolute certainty," since hash values are "specific to the makeup of a particular image's data." United States v. Larman, 547 F. App'x 475, 477 (5th Cir. 2013) (unpublished). See also United States v. Sosa-Pintor, 2018 WL 3409657, at *1 (5th Cir. July 11, 2018) (unpublished) (describing a file's hash value as its "unique digital fingerprint").

Accordingly, when Detective Ilse opened the files, there was no "significant expansion of the search that had been conducted previously by a private party" sufficient to constitute "a separate search." Walter v. United States, 447 U.S. 649, 657 (1980). His visual review of the suspect images—a step which merely dispelled any residual doubt about the contents of the files— was akin to the government agents' decision to conduct chemical tests on the white powder in Jacobsen. "A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy." 466 U.S. at 123. This principle readily applies here— opening the file merely confirmed that the flagged file was indeed child pornography, as suspected. As in Jacobsen, "the suspicious nature of the material made it virtually certain that the substance tested was in fact contraband." Id. at 125.

Significantly, there is no allegation that Detective Ilse conducted a search of any of Mr. Reddick's files other than those flagged as child pornography. Contrast a Tenth Circuit decision authored by then-Judge Gorsuch. See United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016). In Ackerman, an investigator conducted a search of an email and three attachments whose hash values did not correspond to known child pornography images. 831 F.3d at 1306. The Tenth Circuit reversed the district court's denial of a motion to suppress accordingly. Id. at 1309. Here, by contrast, Detective Ilse reviewed only those files whose hash values corresponded to the hash values of known child pornography images, as ascertained by the PhotoDNA program. So his review did not sweep in any "(presumptively) private correspondence that could have contained much besides potential contraband." Id. at 1307.

Interesting case.

It seems to me that there are two different questions potentially at work here. One question is whether opening a file after a private party has run a hash on the file exceeds the scope of the private party search for any kind of file. A second question is whether there are special rules for opening images of child pornography under the contraband search cases of Jacobsen and Illinois v. Caballes. On my initial read, I see Reddick as more about the second question than the first.

With that said, I have to think more about whether Reddick is a persuasive application of those cases. Here's why I'm not sure. The key to the contraband search cases of Jacobsen and Caballes is that the field testing and dog sniffing revealed nothing other than the presence or absence of contraband. The drug field testing in Jacobsen either returned positive or negative. The well-trained drug-sniffing dog in Caballes either alerted to the presence of drugs or didn't. It was a binary situation in which the only information learned was the presence or absence of contraband.

When a government agent opens a file, though, is more learned than whether the image is child pornography? I gather the opener of the file sees the full image, and then, after seeing the image, makes a judgement about whether the file is child pornography. The ultimate goal is to confirm that the image is child pornography. But more is learned than that; it's arguably less like using a drug-sniffing dog to alert for drugs than it is actually opening the trunk of the car and seeing the drugs. That latter act would be a search, even if the goal is just to confirm that a dog's alert for drugs was correct and to actually find the contraband.

I suppose this hinges on what the baseline knowledge should be for a opening a file. It's an interesting question. If it is known that a particular hash value corresponds with a particular known image, how do you model what is learned by opening a file that matched that hash? Do you say that the opener of the file already has the knowledge of what that particular image looks like, and that opening the file to see that it is that image really just confirms that it's a match and doesn't tell the agent anything else? Or do you model the agent's knowledge as just being that a file matched with some known image, and that opening the file thus gives the opener more information about what the file looks like? And in trying to answer that, do you consider just the individual opener's knowledge, or do you impose some sort of collective knowledge doctrine under which you consider the knowledge set of some broader group? I'm not sure.

It occurs to me that a related (but perhaps stronger) way for the court to have reached the same result would have been to rely on what some have called the single-purpose container doctrine. This doctrine goes back to a footnote in Arkansas v. Sanders, in which the Supreme Court stated that "some containers (for example a kit of burglar tools or a gun case), by their very nature, cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance." In Robbins v. California, the Court explained that for this doctrine to apply, "a container must so clearly announce its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer."

It seems at least plausible that this could apply to opening a file with a known hash. If you know that a particular image has a particular hash, and you then have a file with that hash, then the information you have before you open the file "clearly announce[s] its contents . . . by its distinctive configuration" so that "its contents are obvious to an observer." The contents "can be inferred by [the file's] outward appearance," at least if you take "appearance" to include the hash value of the file. Notably, though, this approach would be broader than just child pornography. It would apply to opening any files with known hashes.

Finally, I gather that Reddick does not implicate the existing circuit split on how the private search reconstruction doctrine applies to computer searches. The existing split is on how to measure how much is "searched" when a private party accesses a computer: Does the private party access search the entire computer, or just the file, or the folder, or what was actually observed? In this case, however, there was apparently just one file at issue.

Anyway, it's a fascinating case. And it was a very well-written opinion from Judge Ho, I thought, at least after you ignore the extraneous citations to legal scholarship.

Short Circuit: A Roundup of Recent Federal Court Decisions

MacGyver, Rumpelstiltskin, and a whole bunch of attorneys behaving badly.

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

The Texas gov't lied to Patricia Mosley. She followed the instructions of an administrative law judge and appealed an adverse decision in court (instead of before an administrative agency). But Texas officials say the judge and the regulation the judge relied upon (which had been on the books for 14 years) were wrong—and that Patricia Mosley should have known. An appeals court agreed and tossed her case. We say the Texas Supreme Court should reconsider. Read more here.

  • "Rumpelstiltskin could spin straw into gold. Rumpelstiltskin, Inc. thought it could do the same for garbage, spinning it into tax credits. The Commissioner of the Internal Revenue Service disagreed. So did the Tax Court. So do we." So writes Chief Judge Garland of the D.C. Circuit.
  • In 2008, the Supreme Court held that Gitmo detainees are entitled to meaningful judicial review of the legality of their detention, but since then the D.C. Circuit has rejected every habeas petition it has considered on the merits. So we should probably take one of these petitions en banc, writes Judge Tatel, to examine whether we're adhering to the Supreme Court's instructions.
  • Husband (American) and wife (Panamanian) have seven kids. Yikes! Wife has affair (with another Panamanian) resulting in eighth child; the child is born in Panama and is raised as part of the family (which relocates to the U.S.). Is the father the American, in which case the now-former child is an American, or is the father the Panamanian, in which case the now-former child is not an American and can be deported (for a pair of drug convictions)? Second Circuit: Nothing in the statute says you need to be a biological parent to be a parent; American citizenship was acquired at birth, so no deporting him. Concurrence: Moreover, the gov't detaining him for almost two years while we sorted this out on grounds that require "no grand innovation of law" is troubling.
  • Police locate car that had been carjacked at gunpoint; the driver leads them on extended high-speed chase through Newark, N.J. He crashes. Driver: I don't deny threatening to kill the officers, but they never shouted any commands at me; they just opened fire. (He's struck at least 16 times. He lives. He didn't have a gun.) Third Circuit: Qualified immunity.
  • Four homeless alcoholics challenge a law making it a crime for a "habitual drunkard" to possess an alcoholic beverage. Fourth Circuit: Although the government cannot punish people for what they are, as opposed to what they do, this is not such a case. The state labels people "habitual drunkards" in civil proceedings, not criminal ones, and the criminal prohibition focuses on the conduct of possessing a beverage. It is irrelevant that the prohibited conduct is compelled by addiction, as otherwise much of our criminal law would be called into question. Concurrence: The majority's conclusion is compelled by circuit precedent, but in my view this statute impermissibly criminalizes otherwise legal conduct by persons suffering from a disease.
  • Allegation: University of South Carolina student group obtains pre-approval from school officials to hold event and then displays posters with words and ideas that caused controversies on other campuses. Other students complain. (One complainant's friend was "violently triggered" by a swastika and feels unsafe on campus.) Officials summon the group to a 45-minute meeting, where it must "answer for and explain each poster that was subject to a complaint." No further action is taken. Fourth Circuit: No First Amendment problem here.
  • Former Marine shoots three Baton Rouge, La. officers dead before being killed himself. An officer grievously injured in the shooting sues Black Lives Matter activists for inciting the shooter. District court: "Plaintiff's Counsel has utterly failed to state a plausible claim." Fifth Circuit: Affirmed. (More on the shooting here.)
  • Texas law requires public universities to permit individuals with concealed carry permits to carry concealed handguns on campus, and the University of Texas at Austin bars professors from barring handguns from their classrooms. Three professors: Which violates the First, Second, and Fourteenth Amendments. Fifth Circuit: It does not.
  • Supreme Court: Life sentences for juveniles violate the Eighth Amendment. Michigan: Okay, we'll resentence all these prisoners, but we're taking away the good time credits that they earned while serving their life sentences. Sixth Circuit: Which has the effect of increasing the punishment attached to their convictions, and so violates the Ex Post Facto Clause.
  • Allegation: Woman is arrested for disregarding jury duty summons, though as a noncitizen she is ineligible to serve. She pulls away from a Lake County, Ill. officer as he handcuffs her and gets charged with resisting arrest as well. She's re-arrested for failing to appear in court on that charge. She declines food, water. Jail staff know immediately she has mental health needs but do not summon medical help. Rather, doctors see her on their routine scheduled visits the following week; she's diagnosed as psychotic, but no further steps are taken. She's transferred to the hospital two weeks into the hunger strike; it's too late; she dies. Seventh Circuit: Some claims against the medical staff should not have been dismissed, but no suing jail officials.
  • A poop emoji in a published opinion? What the deuce? The Seventh Circuit upholds sanctions against Cook County, Ill. corrections officer who threatened (via Facebook post) fellow officers not to testify against her in her discrimination suit against the county—and Judge Sykes reprints the threat word for emoji.
  • Three women driving in Chicago get embroiled in road rage melee with off-duty cop. (Women arrested, charged, and acquitted of battery of a police officer.) One required surgery from the incident. Jury: Now-former cop is liable for $260k for excessive force. District court: Strike that. Plaintiffs' attorneys' contumacious conduct at trial (for instance, repeatedly questioning witnesses about inadmissible topics and leaking info to the media (and then lying about it to the judge)) and plaintiffs' own bad faith conduct merit dismissal of the claim. Seventh Circuit: Affirmed. (Click here for a news story.)
  • Debt collector files lawsuit against debtor on behalf of creditor in appropriate court. While the lawsuit pends, the Seventh Circuit decides a different court is appropriate for such suits and makes the change retroactive. The debtor then sues the creditor and debt collector for filing in the wrong venue, settling with the creditor but winning $200 in damages plus $70k in attorney's fees from the debt collector. Seventh Circuit: Reversed. The settlement moots the debtor's claim against the debt collector.
  • Ten Sleep, Wyo. cattle rancher tells his investment broker to close an account. Instead, the broker does some unauthorized trading and loses $2 mil. The broker obfuscates, then resigns from his firm; the firm seeks to recover the $2 mil from the rancher, first from the rancher's other account at the firm (which has a positive balance less than $2 mil) and then sues for the rest. District court: The rancher got defrauded. But he didn't pay sufficiently close attention to his account statements, so he gets reduced damages. Seventh Circuit: He gets full damages. Fraud victims are expected to take reasonable steps only after they become aware of the fraud; they are not required to take precautions that, with the benefit of hindsight, would have avoided the fraud or ended it sooner.
  • If you live in Naperville, Ill. and want electricity, you have no choice but to buy it from the city, which has smart meters that collect energy consumption data every 15 minutes and store them for up to three years. Concerned residents: The data reveal when people are home or away, their sleeping routines, and more. Seventh Circuit: No Fourth Amendment problem here. The gov't has a significant interest in providing effective utility services, and the risk of the data being used for law enforcement purposes is minimal.
  • Cameron, Mo. prison officers put Ecclesiastical Denzel Washington, an asthmatic inmate, in cell with cigarette smoker, causing asthma attacks. (A rule against smoking in cells is not enforced.) Officers also take away a mask prescribed by medical staff to help Ecclesiastical's breathing. (The warden says he doesn't need it because smoking isn't allowed, and if he witnesses any, he can snitch.) Jury: Pay him $40k in compensatory damages; several prison officials must also pay $71k to him in punitive damages. Eighth Circuit: No need to pay the $71k. (Click here for some journalism.)
  • SWAT visits home of Hot Springs, Ark. homeschooling family after 16-year-old (with history of unsubstantiated allegations) accuses his parents of neglect, abuse. His siblings deny the accusations; health officials find them to be happy, healthy. Nonetheless, they're removed from the home for several months, and it takes 21 months to resolve the charges against the parents. Eighth Circuit: The parents can sue the police. (More on the case here.)
  • At immigration hearing in 2009, ICE lawyer presents DHS form dated January 13, 2000, purportedly signed by immigrant. Yikes! DHS didn't exist in 2000. The form is forged; a judge relies on it to deny permanent residency status to immigrant, who has U.S.-citizen wife and children and is entitled to said status. (The lawyer is jailed for 30 days, prohibited from practicing law for 10 years.) Ninth Circuit: The immigrant can sue the now-former ICE lawyer.
  • Man stands on public sidewalk at least 50 feet from Calexico, Calif. border crossing and snaps a few photos of inspection area; officers handcuff him, threaten to smash his camera when he doesn't delete the photos. Ultimately, he's detained 20 minutes; his camera is returned with nearly all of the photos deleted. Ninth Circuit: Could be a First Amendment violation; this should not have been dismissed.
  • Man confesses to shooting, killing Millard County, Utah officer during traffic stop. He recants, says passenger in his vehicle shot the officer. (It turns out the passenger was the officer's brother.) A state court acquits the man of murder, but a federal jury convicts him of the same. (The brother isn't charged; he dies of an overdose.) Tenth Circuit: Conviction affirmed. No error to withhold evidence of the state court acquittal from the federal jury.
  • Lawyer attaches a smoking gun email to his complaint, refers to it as an "unofficial version." Turns out the email was altered to add critical text. Lawyer refuses to withdraw the complaint or otherwise correct the issue. District Court: That's sanctionable. Case dismissed with prejudice, attorney's fees awarded. Tenth Circuit: Submitting an altered document is deceitful, and refusing to retract the manipulation is doubly so. Affirmed.
  • In which Judge Rosenbaum of the Eleventh Circuit invokes '80s action hero and unconventional problem solver MacGyver in dispute over how tort damages award (arising from doctor causing severe brain damage to infant during delivery, during which the doctor took an eight-minute phone call from his stockbroker) is to be paid.

James Jenkins runs a home-based business publishing rare, out-of-print books, primarily 18th-century Gothic novels, horror novels, and works by early LGBT authors. This summer, he got a letter from the U.S. Copyright Office demanding free copies of virtually every book in his catalog on pain of fines that could reach $100k. Which is a problem! James prints books on demand and has no inventory lying around; complying would seriously damage his business. It's true the law entitles the Copyright Office to free books, but the requirement is a relic of the old copyright system and no longer serves any purpose. So this week, James teamed up with IJ and challenged the constitutionality of the requirement. Read more here.

Visitors Wearing "Abolish ICE" T-Shirts Barred from Statue of Liberty

Unconstitutional viewpoint-discrimination, and the Park Service has acknowledged it was a mistake.

Gothamist (Jake Offenhartz) reports:

A pair of New Yorkers hoping to pay a visit to the Statue of Liberty last month say they were ordered by federal employees to change out of their "Abolish ICE" t-shirts before approaching the monument. When the couple refused, security guards escorted them out of line for their pre-paid tour—a decision that the National Park Service now admits was a "misstep," and one that qualifies as illegal viewpoint discrimination, according to the NYCLU [New York Civil Liberties Union]....

According to [one of the visitors], the ... security guards cited "what happened on July 4th" as a justification for the ejection—presumably referring to Therese Patricia Okoumou, who was arrested after she scaled the Statue of Liberty and refused to leave until "all the children have been released." Earlier in the day, Okoumou had participated in a demonstration in which a dozen protesters unfurled an "Abolish ICE" banner on the statue's observation deck....

The Gothamist reports that the National Park Service "acknowledged that blocking access to the Statue of Liberty over a political t-shirt is a form of viewpoint discrimination, according to the NYCLU," and that the Service "told Gothamist that 'this never should've happened,' adding that 'it's pretty clear from our standpoint that we don't restrict free speech.' ... 'It was certainly a misstep on our part and we're happy that the couple has elected to take up our invitation to come back' ...."

"Sex Pigs Halt Traffic After Laser Attack on Pokémon Teens"

I agree with Glenn Reynolds (InstaPundit) -- this is indeed the best headline I've seen all the week.

See the whole story from The Local (Sweden) here; the story is from a couple of years ago, but the subject matter is evergreen, as we say in the media biz.

"Islamic Fundamentalist Fervor Seems to Have Intensified, Such That Evangelical Christians May Now Be at Special Risk in Indonesia"

This leads to a rare potential victory for someone who illegally came to the U.S. from Indonesia, and who is seeking to reopen his asylum case.

From Sihotang v. Sessions, decided Wednesday by the First Circuit (in an opinion by Judge Bruce Selya, joined by Judges Rogeriee Thompson and William Kayatta:

Motions to reopen—especially untimely motions to reopen—are disfavored in immigration cases. Consequently, an alien who seeks to reopen removal proceedings out of time ordinarily faces a steep uphill climb. This does not mean, though, that the mountaintop is entirely beyond reach....

The petitioner, Indra Sihotang, is an Indonesian national and an evangelical Christian. In his homeland, approximately eighty-seven percent of the population is Muslim.

The petitioner, then 36 years of age, entered the United States on a bogus crewmember's visa in 2003 and overstayed. On March 26, 2004, federal authorities instituted removal proceedings against him ... After conceding removability, the petitioner cross-applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (another form of withholding of removal).

During his November 2006 removal hearing before an immigration judge (IJ), the petitioner testified that he had experienced persecution in Indonesia on account of his faith. He described three sets of incidents, which he attributed to his religious identity:

  • In 1992, the petitioner and his brother were assaulted while riding on a motor bike in Jakarta. They sustained serious injuries and received medical attention at a nearby hospital. The petitioner ascribed this assault to the Christian cross emblazoned on the T-shirt he was wearing.
  • In 2002, Muslimextremists committed a series of high-profile attacks on Indonesian churches.
  • Later that year, a group of Muslimextremists, using a megaphone, succeeded in disbanding a religious prayer meeting hosted by the petitioner at his home in Jakarta.

Despite the petitioner's testimony and his documentary submissions, the IJ denied the petitioner's application for relief, but granted him a two-month voluntary departure window "for humanitarian reasons." The BIA dismissed the petitioner's appeal on May 14, 2008. The petitioner did not seek judicial review of that dismissal.

Notwithstanding the expiration of the voluntary departure period, federal authorities allowed the petitioner to remain in the United States under an order of supervision for almost ten years. [Footnote: This order of supervision arose out of Operation Indonesian Surrender, a humanitarian program initiated by Immigration and Customs Enforcement (ICE). Under the program, Indonesian nationals subject to final orders of removal could make themselves known to ICE and, in ICE's discretion, receive temporary stays of removal, accompanied by renewable orders of supervision.] During that interval, the petitioner married an Indonesian Christian with ethnic Chinese heritage (an ethnicity strongly associated with Christianity in Indonesia). They have four American-born children, one of whom has Down syndrome. The petitioner abided by the terms of his supervision, worked regularly, and was the family's sole source of income. In addition, he provided his disabled son with daily physical therapy.

The world turned upside-down for the petitioner and his family on September 7, 2017. At that time, the petitioner went to an ICE field office in New York for the purpose of renewing his supervision paperwork (as he had done on several prior occasions). This time, he was taken into custody by ICE officers.

On October 12, 2017—while still in custody—the petitioner moved to reopen his removal proceedings. Because the petitioner's motion was not filed within 90 days of the final administrative decision in the initial removal proceeding, the BIA deemed the motion time-barred. Seeking to avoid this temporal barrier, the petitioner averred that country conditions in Indonesia had changed materially since the time of his merits hearing.

In support, he submitted new evidence in the form of published news articles and country conditions reports. He also submitted a detailed 66-page affidavit signed by Dr. Jeffrey A. Winters, an academician specializing in Indonesian political economy, labor, and human rights.


Another EPA Loss in Court

For the second time this week, a federal court has rejected the EPA's effort to delay an Obama Administration rule.

Today, in Air Alliance Houston v. EPA, the U.S. Court of Appeals for the D.C. Circuit rejected the Trump Administration's attempt to delay the effective date of an Obama Administration rule. Specifically, the court held that the EPA's effort was both contrary to its statutory authority and arbitrary and capricious. This is the second time this week a federal court has rejected an Trump EPA effort to delay an Obama EPA rule.

At issue in the Air Alliance Houston was the so-called "Chemical Disaster Rule," a set of revisions to regulations designed to help prevent accidental chemical releases from chemical plants by, among other things, requiring the development of risk management plans, investigations of accidental spills and releases, and coordination with local first responders.

The rule was promulgated in January 2017, during the waning days of the Obama Administration, with an effective date of March 14. Industry groups sought reconsideration of the rule, which is provided for under the Clean Air Act. The catch is that the CAA only allows delaying the implementation of a rule pending reconsideration for three months. The Trump Administration, however, sought to delay the effective date of the regulation until February 2019. This, the D.C. Circuit concluded, it could not do.

The court's per curiam opinion explained:

Section 7607(d)(7)(B) provides that reconsideration of a final rule pursuant to that section "shall not postpone the effectiveness of the rule" and that the "effectiveness of the rule may be stayed during such reconsideration . . . for a period not to exceed three months." It is beyond dispute that EPA relied upon Section 7607(d)(7)(B) when delaying the Chemical Disaster Rule in response to reconsideration petitions. . . .Throughout the Delay Rule, EPA repeatedly justified delay of effective dates on the basis that it needs more time to reconsider the Chemical Disaster Rule than was provided under Section 7607(d)(7)(B). . . . The only justification offered in EPA's short summary of the Delay Rule is that it "allows the Agency time to consider petitions for reconsideration of the [Chemical Disaster Rule] and take further regulatory action, as appropriate." . . . But regardless whether EPA "believe[s] that three months [is] insufficient to complete the necessary steps in the reconsideration process," . . . that is not EPA's call. Congress saw fit to place a three-month statutory limit on "such reconsideration," . . . and this court "must give effect to the unambiguously expressed intent of Congress," . . . . Because the Delay Rule arose from reconsideration petitions under Section 7607(d)(7)(B) and EPA's reliance on its authority to delay a rule for reconsideration under that provision, that statute's limitations apply.

The EPA sought to defend its actions by relying upon other grants of general rulemaking authority, but the court wasn't buying it:

EPA cannot escape Congress's clear intent to specifically limit the agency's authority under Section 7607(d)(7)(B) by grasping at its separate, more general authority under Section 7412(r)(7). That would almost always allow EPA to avoid the restrictions of Section 7607(d)(7)(B) by simply insisting it was invoking Section 7412(r)(7), even when it is indisputably responding to a Section 7607(d)(7)(B) petition and reconsidering a rule under that specific provision. Such an unreasonable interpretation "would deprive [the more specific authority] of virtually all effect." . . .

The EPA's efforts to get around these constraints, the court concluded, made "a mockery of the statute."

By delaying the effective date, EPA has delayed compliance, reduced or eliminated the lead-up time to achieve the compliance that EPA had earlier found necessary, and thus has delayed life-saving protections. EPA may not employ delay tactics to effectively repeal a final rule while sidestepping the statutorily mandated process for revising or repealing that rule on the merits. EPA states that it "does not wish to cause confusion among the regulated community and local responders by requiring these parties to prepare to comply with, or in some cases, immediately comply with, rule provisions that might be changed during the subsequent reconsideration." . . . . But this "confusion" stems solely from the confusion EPA has caused by the almost two-years' reconsideration it desires in order to decide what it wants to do, not compliance concerns relevant to regulated facilities' implementation of the Chemical Disaster Rule. That is not a basis for delaying protections. That the pre-existing rule remains in effect during the delay period does not show the Delay Rule satisfies Section 7412(r)(7). In promulgating the Chemical Disaster Rule, EPA had found, and the record shows, that there was a need for improvements to protect worker and community safety, and to reduce facilities, injuries, life disruption, and other harm.

Were that not enough, the court also concluded that the EPA's actions were arbitrary and capricious because it failed to provide adequate explanations for the agency's changed views on the rule and the proper implementation schedule.

Air Alliance Houston was a per curiam decision for Judges Rogers and Wilkins. Judge Kavanaugh had initially been part of the panel, but is listed as not participating (as is common for judges to do when a nomination to another court is pending).

This decision is merely the latest legal setback for the Trump EPA. It helps confirm that the EPA, under Scott Pruitt, was more interested in making a show of reducing regulatory burdens than actually doing the hard work to revise and reform existing regulatory programs. A big question going forward will be whether Acting EPA Administrator Andrew Wheeler forces the agency to adopt a more cautious and deliberate approach, even if that means being more selective in which regulatory measures to target.

In addition, the EPA's legal troubles may be compounded by a lack of support from elsewhere in the Administration. Among other things, the Administration was slow to staff up the EPA and the top environmental law position within the government remains vacant. Jeff Clark's nomination to be Assistant Attorney General for the Environment and Natural Resources Division at the Department of Justice has languished for more than a year. Not only is the EPA taking hard-to-defend actions, it's doing so without the benefit of a full complement of defenders (defenders who, I might add, could help the agency make stronger arguments in support of its desired aims). If this doesn't change, more legal setbacks for the Trump deregulatory agenda are sure to follow.

Fifth Circuit Rejects Constitutional Challenges to "Campus Carry"

Texas, like some other states, allows law-abiding adults who have concealed carry licenses to carry at public universities as well as elsewhere; this was challenged on First Amendment, Second Amendment, and Equal Protection Clause grounds.

From yesterday's Fifth Circuit panel decision in Glass v. Paxton (curly braces used to mark moved text), written by Judge Leslie Southwick and joined by Judges Carolyn Dineen King and James Ho:

Three professors from the University of Texas at Austin challenged a Texas law permitting the concealed carry of handguns on campus and a corresponding University policy prohibiting professors from banning such weapons in their classrooms. The professors argued that the law and policy violate the First Amendment, Second Amendment, and Equal Protection Clause of the Fourteenth Amendment. The district court dismissed the claims. We AFFIRM….

[I. First Amendment]

[Plaintiff Prof. Jennifer Glass] … argued her classroom speech would be "dampened to some degree by the fear" it could initiate gun violence in the class by students who have "one or more handguns hidden but at the ready if the gun owner is moved to anger and impulsive action." In an affidavit she expressed particular concern for "religiously conservative students [who] have extreme views," as well as "openly libertarian students," whom she "suspect[s] are more likely to own guns given their distaste for government." …


Delaware Court Rejects Temporary Restraining Orders Against Alleged Libel

Even if permanent injunctions against speech that has been found to be libelous are constitutional, preliminary orders based on a mere finding that the speech is likely libelous -- or just might be libelous -- are generally unconstitutional.

American courts have, in recent decades, debated whether they can issue permanent injunctions against libel. Historically, the answer has baeen "no"; such injunctions, court had held in the past, are unconstitutional prior restraints. Civil damages liability for libel is permissible, assuming the plaintiff can prove that the statements are false and injure reputation, and (usually) that the defendant knew the statements were likely false, or (if the plaintiff is a private figure) was neglligent about that. Even criminal punishment for libel would be permissible in many such cases, in those states that retain criminal libel laws. But injunctions are forbidden. Some courts have recently reiterated this view.

But several state supreme courts have held that, once a court has found speech to be libelous—and especially once a jury has handed down a verdict so concluding—an injunction against repeating such speech (or an injunction ordering the takedown of the speech) is constitutionally permissible. Libel, these courts reason, is constitutionally unprotected speech that can lead to civil and criminal liability, and thus should be equally subject to injunctions. One of these courts (the Texas Supreme Court) has allowed only takedown injunctions and not injunctions against future speech.

What about preliminary injunctions or temporary restraining orders? They last for a limited time, unlike permanent injunctions—but they are also not based on a finding after a full trial that speech is libelous and therefore constitutionally unprotected. They are often satisfied with a mere showing of "likelihood of success on the merits," or even that a claim is merely "colorable," which in this context essentially means "non-frivolous." Mark Lemley and I have argued that such injunctions and orders are unconstitutional, precisely because they are issued prior to a full evaluation of the merits; and cited many cases that supported that view.

Yesterday's CapStack Nashville 3 LLC et al. v. MACC Venture Partners, decided by Vice-Chancellor Sam Glasscock III, one of the five members of the Delaware Court of Chancery, discusses this issue in some detail, and I think offers a very good analysis:

The road to a temporary restraining order ("TRO") is well-worn; it typically requires only that a movant show a non-frivolous claim of wrongdoing, and resulting threatened imminent irreparable harm, to trigger equity's solicitude. If a weighing of the equites then demonstrates that injunctive relief to maintain the status quo pending a final hearing is appropriate, Chancery will, typically, enter a TRO, limiting the freedom of action of the responding party.

Preventing harm is a public good, but it is not the only public good. In certain cases, other values trump maintenance of the status quo. In the Anglo-American judicial system, freedom of speech is a jealously guarded right. Historically, equity denied itself jurisdiction over restraints on speech, leaving determinations of the actionability of potentially slanderous speech to a jury of the speaker's peers at an action at law. Both the Delaware and Federal Constitutions have enshrined the right to speak, casting further doubt on the ability of Chancery to place prior restraints on speech, particularly before a determination of whether the speech is entitled to constitutional protection following a hearing on the merits. See, e.g., Hill v. Petrotech Res. Corp., 325 S.W.3d 302, 309 (Ky. 2010) (adopting "the modern rule that defamatory speech may be enjoined only after the trial court's final determination by a preponderance of the evidence that the speech at issue is, in fact, false, and only then upon the condition that the injunction be narrowly tailored to limit the prohibited speech to that which has been judicially determined to be false").

This TRO request illustrates this tension. Essentially, the movants contend that the respondents, the movants' business partners, have made false statements about the movants' conduct of the business, and threaten to make further such statements to investors and regulatory authorities, in an attempt to extort a business advantage. The respondents assert that the statements, and pending statements, are true. The movants' claims are colorable. For a number of reasons, however, I must decline to employ equity in prior restraint of the respondents' speech. I explain below....


Public Utility's Recording of Home Energy Consumption Every 15 Minutes Is A "Search," Seventh Circuit Rules

An important ruling in the wake of Carpenter v. United States.

In a fascinating new decision, Naperville Smart Meter Awareness v. City of Naperville, the Seventh Circuit has held that a public utility commits a "search" of a home when it records every 15 minutes how much electricity the utility is providing the home, at least until the smart readers that enable this data collection come into general public use. At the same time, the court says, the utility's search of the home is reasonable and therefore permitted without any cause or suspicion. The Seventh Circuit's analysis relies on Carpenter v. United States for a significant step in its reasoning. Given that, the new decision is an interesting measure of where Fourth Amendment law may be going in the post-Carpenter era.

I. The Facts

First, the facts. The City of Naperville provides electricity to its residents. The City received a grant to update the old analog electricity meters with new digital meters. The old meters were the traditional kind that you have to read in person every once in a while. The new meters are digital and can be programmed to send back the energy consumption at the home at short intervals. The city installed the new meters at every home, and it programmed its meters to record consumption at 15 minute intervals and to keep the consumption records for three years. (It is unclear to me fro the options if the meters read only the overall amount of consumption over the most recent 15-minute period or the instantaneous rate of consumption every 15 minutes, but I'm guessing it's the former.)

A group of citizens sued the city, arguing that the city's recording how much energy homes were consuming violated the people's Fourth Amendment rights. Specifically, the citizens argued that if you know how much electricity a home is using every 15 minutes, you can get some ideas as to what is happening inside the home. You might be able to tell when people are home, when they're awake, and when they are doing things that require a lot of electricity such as cooking dinner or charging up their electric cars. This surveillance searched the homes and violated the Fourth Amendment, they claimed.

II. The Legal Ruling

In a decision by Judge Kanne, joined by Chief Judge Wood and Judge Bauer, the Seventh Circuit agreed that the city's close monitoring of how much energy the city was giving to homes was a "search" of those homes. Much of the reasoning was based closely on Kyllo v. United States, in which the Court held that directing a thermal-imaging device to get a temperature reading of the home was a search. Obtaining electricity readings of a home was a search much like using a thermal imaging device:

"Where … the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search.'" Id. at 40. This protection remains in force even when the enhancements do not allow the government to literally peer into the home. In Kyllo, for instance, the intrusion by way of thermal imaging was relatively crude—it showed that "the roof over the garage and a side wall of [a] home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex." Id. at 30. The device "did not show any people or activity within the walls of the structure" nor could it "penetrate walls or windows to reveal conversations or human activities." Id (quoting Supp.App. to Pet. for Cert. 39–40). Nevertheless, the Supreme Court held that law enforcement had searched the home when they collected thermal images. Id. at 40.

The technology-assisted data collection that Smart Meter Awareness alleges here is at least as rich as that found to be a search in Kyllo. Indeed, the group alleges that energy-consumption data collected at fifteen-minute intervals reveals when people are home, when people are away, when people sleep and eat, what types of appliances are in the home, and when those appliances are used.5 (R. 102-1 at 14.) By contrast, Kyllo merely revealed that something in the home was emitting a large amount of energy (in the form of heat).

The Seventh Circuit then noted Kyllo's apparent limitation to devices not in general public use. Digital meters are not in general public use, at least yet, so their use is a search today even if it may not be a search in the future:

Under Kyllo, however, even an extremely invasive technology can evade the warrant requirement if it is "in general public use." Id. at 40. While more and more energy providers are encouraging (or in this case forcing) their customers to permit the installation of smart meters, the meters are not yet so pervasive that they fall into this class. To be sure, the exact contours of this qualifier are unclear—since Kyllo, the Supreme Court has offered little guidance. But Kyllo itself suggests that the use of technology is not a search when the technology is both widely available and routinely used by the general public. See id. at 39 n.6 (quoting California v. Ciraolo, 476 U.S. 207, 215 (1986) ("In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet.")). Smart meters, by contrast, have been adopted only by a portion of a highly specialized industry.

At this point you're probably thinking, hey, wait a second. In Kyllo, the government brought a new tool to the home and used it to obtain the heat profile from inside the home without the homeowner's awareness. That's really different from the facts here. The public utility is just keeping records on what the public utility is doing. That is, the public utility is connected to the home, and the people inside the home are using electricity by drawing it from the public utility. At bottom, the utility was just monitoring how much electricity the utility was transfering to the home. In traditional Fourth Amendment law, that would make a big difference. That's the basic idea of the undercover agent cases and the third-party doctrine based on them: When you have a transaction with someone, the person you're transacting with is allowed to record what they're experiencing without their experience being a "search" of you.

But that's not an issue under Carpenter, the Seventh Circuit holds. Everyone in Naperville has to use a smart meter for electricity. Thus a person's interactions with the government public utility aren't voluntary, and the fact of the government recording its part of the transaction is still a search:

The third-party doctrine rests on "the notion that an individual has a reduced expectation of privacy in information knowingly shared with another." Carpenter, 138 S. Ct. at 2219. But in this context, a choice to share data imposed by fiat is no choice at all. If a person does not—in any meaningful sense—"voluntarily 'assume the risk' of turning over a comprehensive dossier of physical movements" by choosing to use a cell phone, Carpenter, 138 S. Ct. at 2220 (quoting Smith, 442 U.S. at 745), it also goes that a home occupant does not assume the risk of near constant monitoring by choosing to have electricity in her home. We therefore doubt that Smith and Miller extend this far.

(Even there, the court is unsure the third-party doctrine is relevant: "As a threshold matter, Smart Meter Awareness challenges the collection of the data by Naperville's public utility. There is no third party involved in the exchange," the court notes.) As I understand the reasoning, the city's recording the city's transmission of electricity to the home is a "search" of the home because it might enable inferences as to what is happening inside the home that a user can't escape. As in Carpenter, the switch to a new technology enabled more surveillance than before and the extra surveillance makes the closer monitoring -- even the government's monitoring of what the government's service is doing -- a search:

The ever-accelerating pace of technological development carries serious privacy implications. Smart meters are no exception. Their data, even when collected at fifteen-minute intervals, reveals details about the home that would be otherwise unavailable to government officials with a physical search. Naperville therefore "searches" its residents' homes when it collects this data.


Federal Court Rejects EPA Attempt to "Suspend" WOTUS Rule

The Trump Administration faces another legal setback in its effort to reform federal environmental regulation.

A federal district court in South Carolina has issued an injunction against the Trump EPA's attempt to "suspend" the Obama Administration's WOTUS ("waters of the United States") rule pending the agency's completion of an attempted regulatory re-write. As a consequence of this ruling, the Obama EPA WOTUS rule will be in effect in 26 states. A separate injunction issued by a separate federal court in separate litigation has enjoined enforcement of the Obama WOTUS rule in the remaining 24 states.

At issue is the federal regulatory definition of "waters of the United States," which determines the scope of federal regulatory jurisdiction under the Clean Water Act (CWA). The CWA prohibits the unpermitted discharge of pollutants, including the deposit of soil or fill material, in "waters of the United States." The broader the definition of "waters," the broader the federal government's regulatory reach over potentially polluting activities and much normal land-use that is covered by the CWA's provisions.

Beginning in the 1980s, the EPA and Army Corps of Engineers adopted an aggressive and expansive interpretation of their CWA jurisdiction. Litigation ensued, and the Supreme Court twice rebuked the agencies for adopting an overly expansive interpretation of "waters of the United States." As these decisions should have made clear, the agencies needed to adopt a new regulatory definition of "waters consistent with the CWA's text and broader federalism princples, yet the Bush Administration balked at taking any such step, lest they provoke an unnecessary environmental controversy.

The Obama Administration eventually stepped up to the plate with a new regulatory definition of "waters" under the CWA, the so-called WOTUS rule. As one might have anticipated, this definition -- while narrower and more thoroughly substantiated than the approach which had drawn the Supreme Court's ire -- was quite expansive, and threatened to reach many lands and waters that have a minimal connection to interstate waters.

More litigation ensued, resulting in a trip to the Supreme Court to resolve where legal challenges to the WOTUS rule should be filed, and an injunction against the WOTUS rule's enforcement in 24 states which had sought to challenge the rule.

In the meantime, the Trump Administration began working toward the eventual repeal of the WOTUS rule, and its replacement with a less expansive definition that would constrain federal regulatory authority. Such revisions take time, however. In order to prevet enforcement of a rule the Administration does not support, the EPA issued a rule purporting to "suspend" the effective date of the WOTUS rule so as to allow time for the adoption of a new definition. The only problem is the Administration adopted this rule on the fly, without much consideration or comment on the merits of this approach.

Environmentalist groups sued to challenge the suspension, resulting in today's injunction. As the district court explained, the effect of the suspension rule was to reinstate the prior regulatory definition and this sort of substantive change requires a more fulsome administrative process, and opportunity to comment, than the EPA (and Army Corps) provided.

The agencies refused to engage in a substantive reevaluation of the definition of the "waters of the United States" even though the legal effect of the Suspension Rule is that the definition of "waters of the United States" ceases to be the definition under the WOTUS rule and reverts to the definition under the 1980s regulation. . . . [T]he agencies' decision to promulgate the Suspension Rule without allowing the public to comment on the substance of either the WOTUS Rule or the 1980s regulation . . . renders the notice-and-comment rule making infirm under the APA. An illusory opportunity to comment is no opportunity at all.

On this basis the court issued a nationwide injunction against the suspension rule. However, because the WOTUS rule itself is also enjoined in parts of the country (due to litigation noted above), the practical effect is that the WOTUS rule applies in 26 states, and the pre-WOTUS rule applies everywhere else. Sean Hecht has more on the court's decision at Legal Planet here.

An appeal is likely, as are additional proceedings in the parallel WOTUS litigaiton. As a consequence, it's only a matter of time before WOTUS makes its way back to SCOTUS.

[Note: I cleaned up some imprecise langauge about the operation of the CWA.]

Originalism's Final Frontier: Is Trump's Proposed Space Force Constitutional?

The issue was recently raised by legal scholar Michael Dorf, and goes back to earlier debates about whether originalism implies that the Air Force is unconstitutional.

A proposed logo for President Trump's Space Force.A proposed logo for President Trump's Space Force.

President Trump recently proposed the establishment of a new branch of the armed forces: the Space Force. And it's going to be a "separate but equal" force, according to the President. By that, - hopefully - he means that it will be separate from the Army, Navy, and Air Force, rather than racially segregated. Many experts have questioned the wisdom of establishing a Space Force. But Cornell law Professor Michael Dorf raises the issue of whether it is even constitutional, at least from standpoint of originalism. He does so in the context of a longstanding debate over whether the Air Force is permissible under an originalist interpretation of the scope of federal power.

As with the debate over the Air Force (an issue raised mainly by academic critics of originalism), the point of Dorf's post is less to criticize the Space Force (though he is actually no fan of the idea) than to attack originalism. If originalism would forbid the establishment of military services that seem vital to national security, that may be a good reason to reject the theory. Dorf analyzes a brief 2007 post in which I addressed the Air Force issue and offered two reasons why an air force can be compatible with originalism. Here's what I said:

One argument that is often made against originalist and textualist approaches to constitutional interpretation is the claim that they would render the Air Force unconstitutional. Article I, Section 8 of the Constitution seems to give Congress the authority to creat an Army and Navy, but not an Air Force. It grants Congress the following relevant powers:

To raise and support Armies .....;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

Citing this text, critics of textualism and originalism claim that the Air Force must be considered unconstitutional under these theories of interpretation. I think there are at least two compelling answers to this claim:

1. At most, the argument suggests that it is unconstitutional to have an independent air force. But air forces that are part of the Army and Navy are surely permissible. That is in fact the arrangement we had during WWII, and could go back to again. The mere fact that planes are a new technology that flies through the air surely does not forbid their use by the military, even under a very narrow view of textualism. Planes that fly through the air are no more constitutionally problematic than bullets that fly through the air, or balloons (whose military use was contemplated even at the time of the Founding).

2. Even an independent air force could potentially be justified by the Necessary and Proper Clause. If, under modern conditions, it really is militarily important to have an independent air service...., then the creation of an independent air force is "necessary" to the implementation of Congress' other Article I powers even in the narrow sense of the word, and is also "proper" in the sense that it doesn't seem to infringe on federalism or on other aspects of the constitutional structure.

I think these points apply to a Space Force in much the same way as the Air Force.

Dorf writes that these arguments are "pretty good" and notes that he "do[esn't] think the Air (or Space) Force problem fatally undercuts originalism." But he also argues that the Air Force/Space Force issue "is not quite as easy to dismiss as one might think" because "the analytical moves needed to do so render originalism indistinguishable from living Constitutionalism and other nonoriginalist approaches." In particular, he argues that the Necessary and Proper Clause rationale for the Air Force (or Space Force) requires deviation from the text of the Constitution, which - if allowed - would justify lots of other deviations, including many advocated by living constitutionalists:

[T]here's a potential problem with using the N&P Clause this way that's rooted in [Chief Justice] Roberts's opinion in NFIB v. Sebelius. He argues there, based on language in McCulloch v. Maryland, that certain "great substantive and independent powers" can only be granted in terms, not by implication from the N&P Clause. Neither John Marshall in McCulloch nor John Roberts in NFIB provides much guidance as to how exactly one is supposed to go about determining which powers fall within this category, but one textually-minded way of thinking about it would be to take cues from the language of the Constitution itself.

If the framers and ratifiers had thought that the need for support from one type of military force was sufficient to make that force fall within the scope of a N&P inference, then they would not have needed to provide for the power to create both "armies" and "naval forces." After all, "naval forces" will often be necessary (and thus, a fortiori, "necessary and proper") to transport armies by water or to provide protection for land forces against an attack from the sea. So the enumeration of both categories of forces tends to rule out an inference of other kinds of forces via the N&P Clause--at least if one accepts the "great substantive and independent powers" line drawn by the Chief Justice in Sebelius.

Notice that this critique is entirely focused on my second argument (the one based on the Necessary and Proper Clause). It doesn't address my first point: that an Air Force - or, today, a Space Force - is perfectly constitutional so long as it is part of the Army or the Navy. That structure is compatible with a great deal of institutional autonomy for the Space Force, as is true of the Marines today (which are part of the Department of the Navy, but nonetheless enjoy considerable autonomy) and was also true of the Army Air Force during World War II (before it became a fully independent Air Force in 1948). Indeed, as Dorf suggests, limited autonomy might well be superior to full autonomy, because modern military operations require strong interservice cooperation, which can be impeded by interservice rivalries. That is one of the reasons why the armed forces have, over time, moved towards greater integration.

Regardless, this sort of structure avoids the nightmare scenario of forbidding the establishment of of essential military forces, and thus neutralizes this potential criticism of originalism. And it does so without stretching the text or opening the door to living constitutionalism. Even if the Necessary and Proper Clause does not allow the creation of a fully independent Air Force or Space Force, we can get most of the same benefits by other means.

But I think Dorf's critique also fails when it comes to the Necessary and Proper Clause argument itself. If I am right that the power to establish an army and navy gives Congress the authority to create partly autonomous air and/or space forces lodged within those services, then the establishment of a fully independent air force or space force would not be a a "great substantive and independent power," but merely imposing a new form of bureaucratic organization on a military force that Congress already has the power to create elsewhere. While Chief Justice Roberts' NFIB v. Sebelius opinion argues (correctly, in my view) that the use of a "great and independent power" would not be "proper" even if "necessary," the same does not apply to a minor power ancillary to authority Congress already has under one of its other enumerated powers. I discuss NFIB and the meaning of "proper" in greater detail in this article.

Dorf's best point is the possibility that the Necessary and Proper Clause argument renders the power to establish a navy superfluous, since naval forces are surely often "necessary" for the support of land forces. But, in the 18th century context, naval forces of an oceanic seapower like the United States often operated at a vast distance away from any of the country's land forces, with no ability to quickly communicate or cooperate with ground units. Thus, much of the Navy in that era had little plausible connection to the Army. In an age of electronic communications and fast airlift, by contrast, US naval forces are in constant communication with other branches of the service and each can call on the other at short notice (and routinely do). The same point would apply to a Space Force (at least one focused primarily on operations in earth orbit, primarily intended to support satellites used by intelligence agencies, other branches of the armed forces, and the like).

There are plenty of serious objections to originalism. But originalists need not worry too much about the Air Force issue - or the Space Force.

The fact that Trump's Space Force may be constitutional does not, of course, mean that it is a good idea. I am very skeptical that it is. On the other hand, I would be happy to see the return of the "Star Blazers" Star Force, which was my favorite armed force back when I was in elementary school. The Star Force's wave motion gun could truly make space warfare great again!


"Rock & Roll Judges"

A fun article by Jeff Breinholt, describing how judges (and which judges) have been citing rock lyrics.

You can read the whole article here, with more details, citations, and analysis, but here is some of the data:

Here is a list of the top specific rock songs or lyrics cited by state and federal judges in court opinions:

  1. Bob Dylan, "You dn't need a weatherman to know which way the wind blows" - 16 opinions
  2. Bob Dylan, "The Times They Are A-Changin" - 15 opinions
  3. The Beatles, "The Long and Winding Road" - 8 opinions
  4. The Rolling Stones, "You Can't Always Get What You Want" - 7 opinions
  5. Simon and Garfunkel, "The Boxer" - 6 opinions
  6. Joni Mitchell, "Big Yellow Taxi" - 5 opinions
  7. The Beatles, "All You Need Is Love" - 4 opinions
  8. Simon & Garfunkel, "The Sounds of Silence" - 4 opinions
  9. The Byrds, "Turn, Turn, Turn" - 3 opinions
  10. Elvis Costello, "Less Than Zero" - 3 opinions

... Here are the rock artists who are spontaneously mentioned most often in court opinions without the references being to a particular song:


Muslim Male Inmate Objects to Strip Search by Apparently Anatomically Female Transgender Guard

An interesting case now being litigated in federal court in Wisconsin.

From West v. Kind (E.D. Wisc. July 31, 2018):

The plaintiff [Rufus West] alleges that in 1995 he embraced Islam. He states that Islamic law prohibits him from exposing his nakedness to anyone except his wife. The plaintiff also states that under Islamic law, "males and females are identified and determined by the sex that Allah (i.e., the Creator) created them with at birth." …

The plaintiff says that on July 2, 2016, after a visit with a friend, he went to the strip search area to be strip searched under a policy that requires all prisoners to submit to a strip-search after a contact visit. Several officers were conducting strip searches.

According to the plaintiff, when it was his turn to be strip searched, defendant Buhle, a female correctional officer, approached him and ordered him to strip. The plaintiff states that he asked defendant Buhle how she was able to do that and she responded, "I'm a dude." The plaintiff says he looked at the other correctional officers, "to see if this was a prank," but that they avoided eye contact with him. He alleges that at this point, he "started to panic because he knew that Officer Buhle was a female based on her female features (breasts, face, voice and demeanor) and that exposing his nakedness to her would be in violation of his Islamic beliefs ….

The plaintiff indicates that "[i]t was later brought to [his] attention that Officer Buhle is a female claiming to be a male and therefore is afforded all of the duties that the male officers perform without discrimination."

The plaintiff alleges that in anticipation of another encounter with defendant Buhle, he wrote defendants [GBCI Security Director John Kind and GBCI Warden Scott Eckstein] and requested an "[e]xemption from exposing my nakedness to the opposite sex ... because it is against Islam." On July 12, 2016, defendant Eckstein allegedly denied the plaintiff's request: "I have reviewed your correspondence and have also discussed your concerns with our Security Director. I have reviewed the situation and the officer in question is a male and is qualified to complete these duties. If in the future you are directed to submit to a strip search by this individual or any other male staff member it is my expectation that you will comply."

The plaintiff alleges that in his denial of the plaintiff's request, defendant Kind stated, "This person is a male and any further issues on this will result in discipline for you." …

"RLUIPA prohibits prisons receiving federal funds from imposing a substantial burden on an inmate's religious exercise unless prison officials can demonstrate `that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.'" Assuming that GBCI receives federal funds, the plaintiff has alleged that Buhle, Kind and Eckstein imposed a substantial burden on his First Amendment free exercise rights.

He has also alleged that there was no compelling government interest in having Buhle search him, or observe the search; there were male officers available in the strip search area. The plaintiff may proceed on his RLUIPA claim against Buhle, Kind and Eckstein.

Of course, this is not a finding that the plaintiff will win his claim, only that the case can go forward.

What if the Volokh Conspiracy Bloggers Were a Law School Faculty?

The Volokh Law School "faculty" would outscore every other law school in the land in the most recent Leiter ranking of law schools by scholarly impact.

The latest Brian Leiter law faculty "scholarly impact" ranking based on law journal citation counts of each school's top ten tenured faculty is now out. This ranking was first developed by University of Chicago law professor Brian Leither, but is now conducted by Prof. Gregory Sisk and two of his colleagues at the University of St. Thomas Law School (here is their complete paper). Yale Law School came out on top with a mean of 540 citations for its top 10 tenured profs in the years covered by the study (2013-17) and a median of 394. But what if the the Volokh Conspiracy bloggers were a law faculty? If so, we would outperform all the schools on the list. Here are the scores for the top 10 regular VC contributors who are tenured law professors themselves (I apologize if I have inadvertently missed someone):

Orin Kerr: 1316
Eugene Volokh: 1280
Randy Barnett: 1064
Jonathan H. Adler: 637
Ilya Somin: 595
David Bernstein: 480
Todd Zywicki: 387
Will Baude: 299
David Post: 250
Eugene Kontorovich: 227

While I have copied the Leiter-Sisk methodology as precisely as possible, there are likely some minor errors in these figures. And they probably include a few 2017 cites that may not have been in the database yet when Prof. Sisk and his coauthors conducted their citation counts in May of this year. Still, the VC's score comes out to a mean of 622 and a median of 538. Our combined score, using the Leiter scale (doubling the mean and adding the median), would be 1782. That easily tops the other schools even after modest discounting to account for new 2017 citations that were not in the Westlaw data base in May, but are there now. And that does not even factor in such points as that several of us are much younger than the top ten profs at Yale and other such schools, so have not had as much time to accumulate cite-producing articles and books.

Also, only one of us (Baude) is at a school ranked in the top ten in the more conventional US News ranking, and there is probably some school-prestige bias in citations. George Mason University's law faculty, home to several of the VC bloggers (including myself) is ranked no. 41 in US News, but a much higher no. 19 in the Leiter scholarly impact ranking.

With these ten people, plus the rest of the VC crew, we can cover nearly all major law school classes. The putative Volokh Law School faculty has major publications/teaching experience in constitutional law, property, contracts, torts, legislation, law and economics, antidiscrimination law, bankruptcy, environmental law, international law, intellectual property, cyberlaw, criminal law, speech, law and religion, and much else. We have also written about many other less conventional subjects, including piracy, slippery slopes, and the politics of Star Wars! If necessary, we can hire additional faculty/conspirators to fill any pesky gaps in the curriculum. And if you think the Volokh Law School would lack intellectual diversity by virtue of being too "right-wing," I will point out that Hillary Clinton got virtually the same percentage of the known VC vote (45%) as the national popular vote (48%), and Trump got a lot less VC support (9%) than popular support (46%).

All we need to establish the most productive law school faculty in the land is an elite university that does not yet have a law school and can endow the Volokh Law School (or perhaps it should be called the Conspiracy Law School), and appoint Senior Conspirator Eugene Volokh as the first dean. Dartmouth, Brown, Princeton, Rice, etc., this is a deal you can't pass up!

Sadly, there probably will never be a Volokh Law School. But it's an interesting thought experiment nonetheless!

Note: Co-blogger David Bernstein first looked at the VC bloggers as a possible law faculty in a 2008 post, using the standards of an earlier version of the Leiter study. His post gave me the idea for this one.

UPDATE: VC blogger and University of Utah law professor Paul Cassell points out that he scores a 282 on the Leiter-Sisk scale, and therefore would be in our top ten. I am sorry to have overlooked him. Including him would raise our mean to 628 and our combined score to 1794.


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