The Volokh Conspiracy

On September 2, 2020, the Central District of California denied a preliminary injunction in Harvest Rock Church v. Newsom. The five-page order upheld the Governor's restrictions on houses of worship, based on the reasoning of the (dearly departed) South Bay concurrence:

"Because the Orders restrict indoor religious services similarly to or less than comparable secular activities, it is subject to rational basis review, which it easily passes: by limiting certain activities, the Orders reduce person-to-person contact, which in turn furthers the interest of reducing COVID-19 spread."

One month later, on October 1, the Ninth Circuit denied a motion for an injunction pending appeal. Judge O'Scannlain dissented from that order. He argued, correctly, that South Bay was not a binding Supreme Court precedent:

I first clarify a point that is somewhat obscured by the majority's decision: we are neither bound nor meaningfully guided by the Supreme Court's decision to deny a writ of injunction against California's restrictions on religious worship services earlier this year. See South Bay United Pentecostal Church, 140 S. Ct. at 1613. That decision, which considered a challenge to an earlier and much different iteration of California's restrictions, was unaccompanied by any opinion of the Court and thus is precedential only as to "the precise issues presented and necessarily decided." Mandel v. Bradley, 432 U.S. 173, 176 (U.S. 1977) (per curiam).

Harvest Rock did not seek an emergency application from the Supreme Court for nearly two months. (I am not entirely certain why, but the church seems to have been concerned about pending enforcement actions.) On November 23, 2020, the church filed an application for injunctive relief with the Court. Harvest Rock sought a ruling by November 29. Circuit Justice Kagan said nope, and set the response due by November 30. And on November 25, the Court decided Diocese.

Today, the Court issued an unusual order in Harvest Rock.

The application for injunctive relief, presented to Justice Kagan and by her referred to the Court, is treated as a petition for a writ of certiorari before judgment, and the petition is granted. The September 2 order of the United States District Court for the Central District of California is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to remand to the District Court for further consideration in light of Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020).

What do we make of this order? I see it as a creative punt. I can't recall an instance where the Court granted certiorari before judgment only to then vacate and remand that case in light of a non-merits decision. In other words, the Court GVR'd a shadow docket case in light of another shadow docket case. The more expected route would be for the Court to simply deny cert, and a few Justices would issue a statement respecting the denial of cert, saying "Hey lower court, you should really take another look at this case in light of our recent injunction." But here, the Court–without recorded dissent–GVR'd the entire case.

What happened here? It is possible there were four votes to grant certiorari before judgment, and hear the case ASAP. But, there were likely vehicle problems, as the Governor would almost certainly revise the regulations to moot out the appeal. Thus, the compromise position was to take the unusual step of cert before judgment, with a vacatur of the district court decision.

But, and here is the big but, there is no injunction in place. Vacating the district court decision leaves the Governor's order in full effect. Another two or three full months could elapse before this case gets back to the Supreme Court. Harvest Rock remains subject to the very regime they sought emergency relief on. This punt leaves the church in a very difficult place. I'm surprised Thomas and Gorsuch did not dissent from the vacatur and remand.

It took more than three months from the date of the District Court's decision to the Supreme Court's ruling. Some of that delay was attributable to the plaintiffs. But litigation still takes time. In Diocese, Justice Breyer suggested there was no need for the Court to act with haste because the Justices could "decide the matter in a day or two, perhaps even in a few hours." No. Litigation takes time. The Court was correct to end Governor Cuomo's whac-a-mole game. Alas, Governor Newsom can keep moving the goal posts at the French Laundry.

In any event, give the likely trajectory of the COVID-19 vaccine, it is unlikely the Court will ever have to decide a pandemic case on the merits. Shadow docket rulings can keep things moving along for the next few months. And, I suspect, Fulton will change the landscape of Free Exercise cases. There will be plenty more GVRs come June. And eventually, all of the COVID orders will be lifted. I am grateful that Diocese, and not South Bay will be the final word on this issue.

Here is the data from the Europe Center for Disease Prevention and Control; the blue bars are the totals for Europe (note that the dates are in the European format, DD/MM/YYYY):

And here is the data from Worldometers site for the U.S.:

As you can see, the U.S. daily numbers (the grey bars) are comparable to the April peak, though the 7-day rolling average (the brown line) isn't yet up there. The per capita numbers in Europe (which has a population of about 2.25 times the U.S.'s) are a bit higher than in the U.S., though over the Summer they were much lower. Let's hope those vaccines we're hearing about are coming soon ….

From Bauer v. Brinkman, decided Monday by the Iowa Court of Appeals (in an opinion by Judge Paul Ahlers, joined by Chief Judge Thomas Bower and Judge David May):

The Kendall R. Bauer Trust owns an apartment building in Sloan, Iowa, known as the Bauer Apartments. The trustee of the trust, Richard Bauer, … manages the apartment building. K.L. … owns and operates a dog grooming and boarding business. As part of that business, she began construction on a dog care facility in a lot adjacent to the Bauer Apartments.

During the course of the construction of the dog care facility, Bauer contacted K.L. to express concerns that the outdoor "dog run" may become a nuisance issue and could be in violation of Sloan's zoning ordinance. Bauer also contacted the Sloan city council about his concerns. When his concerns were not addressed to his satisfaction, Bauer filed suit against the city, alleging the city failed to enforce its zoning ordinances.

During the pendency of Bauer's lawsuit against the city, K.L. took to airing her disgruntlement with the situation on Facebook, posting comments about Bauer, Bauer Apartments, and the dispute regarding construction of the dog care facility. K.L.'s adult daughter joined the Facebook fray, as did the defendant, Bradley Brinkman. It was Brinkman's commentary that resulted in this lawsuit, as Brinkman posted the following comment:

It is because of shit like this that I need to run for mayor! Mr. Bauer, you sir are a PIECE OF SHIT!!! Let's not sugar coat things here people, [K.L.] runs a respectable business in this town! You sir are nothing more than a Slum Lord! Period. I would love for you to walk across the street to the east of your ooh so precious property and discuss this with me!

Bauer filed suit against Brinkman alleging Brinkman's statement that Bauer is a "slum lord" constituted libel….

Drawing the line between opinion and fact … is important because opinions are "absolutely protected under the first amendment." Because drawing this line involves important first amendment issues, its determination is one for the court rather than the fact finder…. To make this determination, courts look to four factors: (1) whether the "statement 'has a precise core of meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous'"; (2) the degree to which the statement is "objectively capable of proof or disproof"; (3) "the context in which the" statement occurs; and (4) "the broader social context into which" the statement fits.

We begin our analysis of the first two factors by noting that the term "slum lord" is not defined in Brinkman's Facebook post. Nevertheless, a legal dictionary defines the term to mean, "A real-property owner who rents substandard housing units in a crowded, economically depressed area and allows the units to fall into further disrepair, esp. while charging unfairly high rents," or simply "the owner of any run-down rental property." …

While slum lord is capable of a definite meaning, its appearance in Brinkman's comment is vague enough that a reader of the post would be left to use his or her own definition, which would result in the term meaning different things to different people. This indefiniteness as to the meaning of the term cuts against a conclusion that it was a statement of fact. Further, the above definitions are not particularly capable of objective proof or disproof ….

Additionally, Brinkman's comment that Bauer is a "slum lord" followed on the heels of calling Bauer a "piece of shit." While understandably offensive and insulting, this type of name calling is generally not actionable….

In 1479, a few months shy of his eleventh birthday, Niccolò Machiavelli left the school where he'd learned to read and write and went to study with a teacher named Piero Maria. The future author of The Prince spent the next twenty-two months mastering Hindu-Arabic numerals, arithmetical techniques, and a dizzying assortment of currency and measurement conversions. Mostly he did word problems like these:

If 8 braccia of cloth are worth 11 florins, what are 97 braccia worth?

20 braccia of cloth are worth 3 lire and 42 pounds of pepper are worth 5 lire. How much pepper is equal to 50 braccia of cloth?

One type of problem reflected the era's shortage of currency. Goods that would sell for one price in coins cost a premium if the buyer paid with other goods. (These problems assume familiarity with trading conventions and therefore present ambiguities to the modern reader.)

Two men want to barter wool for cloth, that is, one has wool and the other has cloth. A canna of cloth is worth 5 lire and in barter it is offered at 6 lire. A hundredweight of wool is worth 32 lire. For what should it be offered in barter?

Two men want to barter wool and cloth. A canna of cloth is worth 6 lire and in barter it is valued at 8 lire. The hundredweight of wool is worth 25 lire and in barter it is offered at such a price that the man with the cloth finds he has earned 10 percent. At what price was the hundredweight of wool offered in barter?

Others were brain teasers dressed up in ostensibly realistic detail.

A merchant was across the sea with his companion and wanted to journey by sea. He came to the port in order to depart and found a ship on which he placed a load of 20 sacks of wool and the other brought a load of 24 sacks. The ship began its voyage and put to sea.

The master of the ship then said: "You must pay me the freight charge for this wool." And the merchants said: "We don't have any money, but take a sack of wool from each of us and sell it and pay yourself and give us back the surplus." The master sold the sacks and paid himself and returned to the merchant who had 20 sacks 8 lire and to the merchant who had 24 sacks 6 lire. Tell me how much each sack sold for and how much freightage was charged to each of the two merchants?

Along with their famed humanist arts and letters, the mercantile cities of early modern Italy fostered a new form of education: schools known as botteghe d'abaco. The phrase literally means "abacus workshops," but the instruction had nothing to do with counting beads or reckoning boards. To the contrary, a maestro d'abaco, also known as an abacist or abbachista, taught students to calculate with a pen and paper instead of moving counters on a board.

The schools took their misleading name from the Liber Abbaci, or Book of Calculation, published in 1202 by the great mathematician Leonardo of Pisa, better known as Fibonacci. Brought up in North Africa by his father, who represented Pisan merchants in the customs house at Bugia (now Béjaïa, Algeria), the young Leonardo learned how to calculate using the nine Hindu digits and the Arabic zero. He was hooked.

After honing his mathematical skill as he traveled throughout the Mediterranean, Fibonacci eventually returned to Pisa. There he published the book that enthusiastically introduced the number system we use today.

Fibonacci's novel methods of pen-and-paper reckoning were ideal for Italian textile merchants, who wrote lots of letters and needed permanent account records. Beginning in Florence in the early fourteenth century, specialized teachers began teaching the new system and producing handbooks in the vernacular. Consistent sellers, the books served simultaneously as children's textbooks, merchants' reference tools, and, with their brain-teasing puzzles, recreational materials.

From the abacists' classrooms, future merchants and artisans typically graduated to apprenticeships and work. But a grounding in commercial math was also common for those like Machiavelli, who were destined for higher education and a career of statesmanship and letters. In a society based on trade, cultural literacy included calculation.

As they drilled generations of children on how to convert hundredweights of wool into braccia of cloth or to allocate the profits from a business venture to its unequal investors, the abacists invented the multiplication and division techniques we still use today. They made small but important advances in algebra, a subject universities scorned as too mercantile, and devised solutions to common practical problems. On the side, they did consulting, mostly for construction projects. They were the first Europeans to make a living entirely from math.

In his seminal 1976 study of nearly 200 abacus manuscripts and books, historian of mathematics Warren Van Egmond emphasizes their practicality—a significant departure from the classical view of mathematics, inherited from the Greeks, as the study of abstract logic and ideal forms. The abacus books treat math as useful.

"When they study arithmetic," he writes, "it is to learn how to figure prices, compute interest, and calculate profits; when they study geometry it is to learn how to measure buildings and calculate areas and distances; when they study astronomy it is to learn how to make a calendar or determine holidays." Most of the price problems, he observes, concern textiles.

Compared to scholastic geometry, the abacus manuscripts, with their problems about trading cloth for pepper, are indeed down to earth. But they don't scorn abstraction. Rather, they wed abstract expression to the physical world. The transition from physical counters to pen-and-ink numerals is in fact a movement toward abstraction. Symbols on a page represent bags of silver or bolts of cloth and the relationships between them.

Students learn to ask the question, How do I express this practical problem in numbers and unknowns? How do I better identify the world's patterns—the flow of money in and out of a business, the relative values of cloth, fiber, and dyes, the advantages and disadvantages of barter over cash—by turning them into math? Mathematics, the abacists taught their pupils, can model the real world. It does not exist in a separate realm. It is useful knowledge.

12/3/1996: Printz v. U.S. argued.

From today's Florida Court of Appeal decision in Delgado v. Miller, written by Chief Judge Kevin Emas and joined by Judges Ivan Fernandez and Eric Hendon:

Petitioner Arlene Delgado (the Mother) and Respondent Jason Miller (the Father) are the parents of W.L.D., born in July of 2017. What began as a paternity action and progressed to remaining issues of timesharing and child support, has devolved into escalating rounds of pugilistic litigation. Given the antagonism displayed over the course of the proceedings below, we can only be sympathetic to the sincere efforts of the trial court and general magistrate to reduce the level of discord. There are, however, limits to the exercise of the trial court's broad discretion….

The order at issue arose in the context of the Mother's motion to compel production of certain documentation from the Father in advance of a scheduled final hearing. Although the recommended order (and the trial court's order adopting same) essentially granted the Mother the relief she requested, the general magistrate included three paragraphs at the end of the recommended order which are the subject of this petition:

Neither party shall disclose or reveal to any 3rd party, directly or indirectly, through any social media or otherwise, the details of any financial information, including but not limited to income or employment information, of any nature, of the other party.

Neither party shall contact, directly or indirectly, the other party's existing clients and/or employers and/or contractors or potential clients and/or employers and/or contractors, other than through the legitimate discovery process provided by the Rules of Civil and Family Procedure.

Neither party shall engage in any social media of any nature which comments, directly or indirectly, on the other party's emotional or mental health or personal behavior….

Paragraph fifteen, in particular, commonly referred to as a gag order, represents a classic example of a prior restraint on speech: one that prohibits free speech before it is spoken…. Where a trial court imposes such restrictions on a party's free speech rights, it must make findings that support the need for these limitations, and the order must be "narrowly tailored to preclude only extra-judicial statements which are substantially likely to materially prejudice the trial."

Neither the trial court nor the general magistrate made findings of necessity, nor did they engage in any tailoring to narrow or limit the scope to those extrajudicial statements substantially likely to materially prejudice the trial. Indeed, paragraph fifteen of the order, which purports to prohibit either party from "engag[ing] in any social media of any nature which comments, directly or indirectly, on the other party's emotional or mental health or personal behavior," is so overbroad as to render its boundaries indiscernible.

Paragraphs thirteen and fourteen, though less sweeping in degree than paragraph fifteen, and arguably less onerous in their resulting burden on free-speech rights, nevertheless suffer infirmities similar in kind to paragraph fifteen. These paragraphs also contain terms that are vague and undefined, creating confusion in their meaning and the potential for inconsistent or arbitrary enforcement.

Further, the restrictions contained in all three paragraphs were imposed sua sponte by the general magistrate in its recommended order, and adopted thereafter by the trial court without a hearing. Neither party moved for the imposition of such restrictions, and while the general magistrate informally raised the topic and inquired whether the parties might consent to such restrictions, no such consent was given, nor were the parties placed on notice before the hearing that the imposition of such restrictions would be considered in addressing the merits of the Mother's motion to compel production of documents….

Very much the right result; Florida appellate courts have had several decisions in the last several years that have rightly struck down such overbroad injunctions (e.g., Logue v. Book and David v. Textor).

Lawfare has published my new essay, titled "The Statutory Authority for Barr's Appointment of Durham as Special Counsel." (I previewed some of these arguments yesterday). In many regards, Barr's appointment of Durham tracks Rosenstein's appointment of Mueller. The huge question, of course, is whether President Biden's Attorney General tries to remove Durham. I address that issue here:

There is a significant distinction between a special counsel appointed pursuant to the regulations and a special counsel appointed pursuant to the attorney general's statutory authority, but to whom some of the regulations apply. 28 C.F.R. § 600.7 imposes an important constraint on the executive branch: "The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies." Therefore, if Durham was not actually appointed pursuant to these regulations, the next attorney general could argue that the removal protections are not applicable to Durham.

Writing on Twitter, Lawfare's Benjamin Wittes speculated about two possible paths the next attorney general could take. First, he wrote, the "attorney general could simply amend this order and make clear that the entire slate of special counsel regulations apply—and then remove Durham on grounds that his appointment is not, in fact, compatible with those regulations." I'm not sure this option would work through a simple clarification. Subjecting Durham to new requirements could be viewed as a new appointment altogether, which could amount to removing him from his old position. And that removal would not be made in light of any misconduct. Durham could plausibly claim that the tenure protections for his initial appointment–including 28 C.F.R. § 600.7–were violated. And, in theory at least, Durham could sue the Attorney General to collect lost wages. It isn't clear whether Durham could challenge his termination based on the loss of his salary. This issue was vigorously debated during the Mueller investigation, but never tested. The attorney general could also try to moot any potential litigation by keeping Durham on the payroll, but denying all of his requests to expand the investigation. The attorney general, however, would have to disclose these actions to Congress.

Wittes offers a second option: the next attorney general could "rescind this Barr order applying the special counsel regulations" to Durham. This step, Wittes wrote, would terminate the investigation. I think this approach would stand on a stronger footing. But the attorney general might hesitate to take this step because of external and internal pressures. To the general public, after all, the rescission of Barr's order would be indistinguishable from firing the special counsel. Most people will not grasp the subtle nuance of this move. And given the fact that Barr never removed Mueller from his position as special counsel, there will likely be public pressure to allow Durham to complete his task.

The attorney general may also face internal pressures in this direction. The Department of Justice has, historically at least, adhered to certain institutional principles. One of those norms is that investigations should be allowed to proceed to completion without undue influence. Recall that Attorney General Janet Reno gave Independent Counsel Kenneth Starr full support throughout his investigation of President Bill Clinton. If Durham crosses a line and engages in misconduct, Biden's attorney general will have to decide if termination is appropriate. ut if the attorney general preemptively removes the special counsel without any cause, the Department of Justice may set a harmful precedent. After all, perhaps Durham will play by the books, and his investigation will turn up bupkis. A premature termination would foreclose that outcome. Moreover, removing Durham threatens to undermine, and potentially delegitimize future special counsel appointments. In theory, a Republican administration in 2025 could simply terminate any ongoing special counsel investigations, citing the Biden administration's precedent. Keeping Durham on board gives the department flexibility to appoint and protect other, more controversial special counsels in the future.

There are thus a number of institutional reasons to let this investigation run its course. If Durham falters, the attorney general can use a tighter leash. Unless a new attorney general announces otherwise, however, the presumption should be that Durham is protected from at-will removal.

My conclusion offers a preview of what lies ahead:

Soon enough, many of the fights from the Mueller investigation may be rekindled, but with the roles reversed. Congressional Democrats will criticize the Durham investigation as a partisan proceeding. Congressional Republicans will celebrate the investigation as a way to uncover illegal conduct. After a few years, the report will be completed, and the next attorney general will be under pressure to release as much of the report as possible. Afterwards, Congressional Republicans will sue to un-redact confidential grand jury materials. And, throughout the process, the press will receive a never-ending drip-drip-drip of allegations. Here we go again.

And I'll flag one final point. Durham may ask current President, and former Vice President Biden to sit for a deposition to discuss an important meeting held in the waning days of the Obama administration. Everything is old is new again.

In pre-industrial economies, textiles have many of the characteristics essential to a good currency. They're durable, portable, and divisible. Bolts can be produced in standard sizes and uniform quality. The quantity is limited, since cloth takes a long time to produce and it flows out of the money supply as it's transferred to everyday use, thereby avoiding inflation.

We tend to think of money as something established by central authorities, and sometimes cloth currency was just that. (In The Fabric of Civilization I discuss how China's Tang dynasty, short on coins, defined silk bolts as legal tender.) But that need not be the case. Elsewhere in the world, textile money emerged out of commercial usage, supported but not created by law.

Set in the mid-eleventh century, the Icelandic tale of Audun begins in the early summer, when a Norwegian merchant name Thorir arrives on the island's northwestern Westfjords peninsula. Living in a land inhospitable to forests or farming, Icelanders relied on imports for timber and grain. They paid for these goods in the same currency they used locally: a woolen twill cloth called vaðmál (or wadmal). Thorir could sell his goods in Iceland and return with a ship laden with textiles. But there was a problem. The customers didn't have enough cash—vaðmál— on hand.

"If the Norwegian was to get paid for his flour and timber, the Icelandic buyer was unlikely to have enough cloth woven until later in the summer at best," explains William Ian Miller, a legal historian and Icelandic saga scholar. "The merchant would have to wait until you literally made your money to pay him and not infrequently the merchant had to stay the long winter to get his payment." Meanwhile, the grain might go bad.

Fortunately for Thorin, the story's Icelandic hero Audun identifies creditworthy customers. If Thorin gives them grain now, he can reliably expect cloth in time to set sail in the late summer. As a reward for his credit-reporting services, Audun gets passage on the ship, setting in motion the tale's events.

Iceland's vaðmál wasn't just a commodity. Woven to specific standards, it was a legally recognized medium of exchange and store of value, the primary form of money during Iceland's Commonwealth Period (930–1262 CE). As a unit of account, the third function of money, a piece of vaðmál two ells wide and six ells long (about a yard by three yards) was, writes anthropological archaeologist Michèle Hayeur Smith, "ubiquitous as a measure and medium of exchange in Icelandic legal texts, sales accounts, church inventories, and farm registers into the seventeenth century." (This image, from an Icelandic manuscript, depicts measuring out an ell of vaðmál.)

The archaeological evidence backs up the written records. Microscopically examining more than 1,300 archaeological textile fragments, Hayeur Smith found clear indications of cloth becoming money. The material from the Viking Age, before 1050, includes many different weave structures and widely varied thread counts. Medieval fragments, by contrast, are much more uniform—overwhelmingly the dense twills recognized as legal money. The analysis, she writes, reveals "such degrees of standardization and ubiquity that one can only conclude that cloth truly had become a unit of measure, a type of 'legal cloth currency' produced and circulated among households of all ranks across the island." In the Middle Ages, "Icelanders were weaving money in abundance."

In West Africa, too, merchants at least as far back as the 11th century used textiles to create the currency they needed to conduct trade. For many West African fabrics, narrow strips are sewn together to form a larger textile, which is worn as a single piece. (Kente cloth is one example.) Unlike colorful textiles for apparel, a strip intended as currency would be left undyed and wound into a tight, flat coil as it came off the loom. Merchants could roll such coils on the ground, sling them on either side of a pack animal, or carry them flat on the head with other goods added on top. Since weaving widths varied from place to place, if a market attracted more than one type, traders established a standard rate of exchange. A given strip length, usually that of a woman's wrapper, would be the primary monetary unit, with a full cloth forming a larger denomination.

Although African currency cloth functioned primarily as money, it did have a consumer market among the poor and desert dwellers to the north, who had no cotton. Going north, therefore, a unit of cloth bought more; going south, it bought less. Traders adjusted their travel expenditures accordingly. "A merchant from Upper Volta, for example, going to Timbuctu to buy salt with cloth produced in his home area, would use cloth to pay his way on the northward journey," writes historian Marion Johnson, "but on the return journey he would prefer to use salt which appreciated in value as it moved southward, even if he had first to sell it for local cloth money.

The same was true of silver and gold flowing from the Americas, where it bought less, to Europe and Asia, where it bought more. Cloth money was actually more self-regulating and less prone to shortages or inflation than metallic currencies. When its value rose, weavers would make more. If it became less valuable, consumers would take more. The result was a fairly constant value over time, set by the cloth's price as a commodity.

Money is a self-perpetuating social convention, a token that we trust will be valuable in future exchanges. If buyers and sellers, courts and tax authorities, accept textiles as payment, they are money.

On October 19, 2020, Attorney General Barr appointed John Durham, the U.S. Attorney for the District of Columbia as special counsel to investigate "certain intelligence and law-enforcement activities surrounding the 2016 presidential election." I have seen the letter Barr sent to Congress, but I have not seen the letter Barr sent to Durham.

#Durham #NewEvidence READ: Letter to House + Senate Judiciary committees obtained @CBSNews AG Barr says he expected Durham to complete his criminal investigation by Summer 2020 but it was delayed due to COVID-19 + "additional evidence (Durham) uncovered." Barr said Special pic.twitter.com/Y4BPLyN0id

— Catherine Herridge (@CBS_Herridge) December 1, 2020

The appointment was made pursuant to 28 C.F.R. § 600.4-600.10. I am having awful flashbacks to the Mueller appointment in 2017. (I wrote about those regulations here, here, and here).

28 C.F.R. § 600.3 requires that "The Special Counsel shall be selected from outside the United States Government."

Did Durham quietly step down as U.S. Attorney? Perhaps he had to quietly resign so as not to raise hackles about being appointed as special counsel? Has Durham signed any indictments, or other criminal proceeding documents over the past month? Certainly, a defendant could challenge this dual-office holding. As of November 24, his office was issuing a press release with his name on it.

In any event, it is time for everyone to switch sides on the special counsel regulations. Now, Democrats will favor Durham's removal to end a partisan witch hunt. And the Democratic Attorney should decline to release the entire Durham report–a summary should suffice. Plus, confidential grand jury materials should be redacted. And Republicans in Congress will sue to see the redacted materials. Keep calm and carry on.

Update: Ah, Barr did not rely on 28 C.F.R. § 600.3. He cited. 28 C.F.R. § 600.4-600.10. Barr relied on other statutory authority to make the appointment: 28 U.S.C § 509, § 510, and § 515. (Still trying to track down the memo, but I have been reliably informed of these citations). The last statute is the most relevant:

Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney.

Update 2: Here is the memo

#Durham READ: Order Establishing Special Counsel. Language matters. Criminal. Scope FBI + Mueller team "The Special Counsel is authorized to investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, pic.twitter.com/FNp5LyIWDM

— Catherine Herridge (@CBS_Herridge) December 1, 2020

Update 3: I have published an essay on Lawfare, titled The Statutory Authority for Barr's Appointment of Durham as Special Counsel.

Michael Balsamo of the Associated Press reports:

In an interview with The Associated Press, Barr said U.S. attorneys and FBI agents have been working to follow up specific complaints and information they've received, but they've uncovered no evidence that would change the outcome of the election.

"To date, we have not seen fraud on a scale that could have affected a different outcome in the election," Barr told the AP. . . .

"There's been one assertion that would be systemic fraud and that would be the claim that machines were programmed essentially to skew the election results. And the DHS and DOJ have looked into that, and so far, we haven't seen anything to substantiate that," Barr said. . . .

"Most claims of fraud are very particularized to a particular set of circumstances or actors or conduct. They are not systemic allegations and. And those have been run down; they are being run down," Barr said. "Some have been broad and potentially cover a few thousand votes. They have been followed up on."

These comments reflect what careful observers of the 2020 election have already concluded. The various viral claims of widespread voter fraud are bunk. The only think surprising about AG Barr's comments is that he is willing to contradict so directly the wild election frauds claim made by President Trump. While AG Barr may be willing to take the President's direction about what matters and which people to investigate, he is not wiling to make up facts or discredit the electoral process.

Jonathan Adler's post sets out some of the legal problems with a purported self-pardon by the President. (For more, see the arguments that Andrew Hyman laid out here.)

Those arguments make sense to me, but there's also a practical problem involved. An attempt at self-pardon might also be self-defeating: it might encourage precisely the federal prosecution it's intended to prevent.

Winning candidates usually don't try to jail the losers. That's for good reason: you want the incumbents to leave office peacefully, and you want the challengers to seek office peacefully.

Many people objected to the chant of "Lock Her Up" in 2016. It wasn't because—or wasn't just because—they believed Secretary Clinton to be factually innocent of any infraction of federal law whatsoever. It was also because a world in which elections determine who goes to prison is a world in which you can expect even more electoral mischief than we might see today.

Prosecuting former presidents is, in general, a bad precedent to set. That's one reason why it's important to deny the office to those whose conduct might force the issue. Whatever its virtues, the system of criminal law enforcement is not that great at handling crimes by those in high office. There's a good deal of discretion and rough-justice inherent in the system, and when high officers are in the crosshairs, that can reallocate political power to the wrong people. (Cf. why J. Edgar Hoover was bad.)

Normally, the real checks on presidential lawbreaking aren't criminal prosecutions and prison sentences. Rather, a presidential lawbreaker will face election losses, damage to their political party, and the undermining of a broader policy agenda. (Which is another reason why it's important to deny the office to those who are relatively indifferent to such things.)

An attempted self-pardon, though, threatens to set precedent in the other direction. If future Presidents think they can get away with it, they might try all sorts of unusual things while in office, secure in their ability to self-pardon before they leave.

So, if President Trump claims to issue himself a pardon, the Department of Justice in a Biden Administration might see the balance as pointing the other way. They might see it as crucial to restore a consensus that such pardons are invalid. And the only effective way to do that, once a President has challenged the consensus publicly, would be to bring such a prosecution and to have the pardon tested in court.

In other words, an attempt by President Trump to grant a pardon to himself could well result in the very prosecution that the Biden DoJ might otherwise forgo.

(It's yet another way in which the current administration can be both a symptom of the decay of crucial norms of behavior, and a cause of further such decay.)

Here's "God's Grandeur" (1877) by Gerard Manley Hopkins (1844-1889).

For the rest of my playlist, click here. Past poems are:

"Ulysses" by Alfred, Lord Tennyson
"The Pulley" by George Herbert
"Harmonie du soir" by Charles Baudelaire
"Dirge Without Music" by Edna St. Vincent Millay
"Clancy of the Overflow" by A.B. "Banjo" Paterson
"Лотова жена" ("Lotova zhena", "Lot's wife") by Anna Akhmatova
"The Jumblies" by Edward Lear
"The Conqueror Worm" by Edgar Allan Poe
"Les Djinns" by Victor Hugo
"I Have a Rendezvous with Death" by Alan Seeger
"When I Was One-and-Twenty" by A.E. Housman
"Узник" ("Uznik", "The Prisoner" or "The Captive") by Aleksandr Pushkin

There's a good new article on hendiadys in the Constitution, and it suggests that this hendiadys thing is getting out of hand already. As the title of the article puts it, Hendiadys in the Language of the Law: What Part of "and" Don't You Understand?. The article is by Elizabeth Fajans and Mary R. Falk, and is published in Legal Communication & Rhetoric.

(What is hendiadys, you ask? A figure of speech in which two terms separated by a conjunction work together as a single unit of meaning. The examples I discuss in "Necessary AND Proper" and "Cruel AND Unusual": Hendiadys in the Constitution range from the colloquial, as in Julia Child's "good and dry"; to the literary, as in William Shakespeare's "law and heraldry"; to the legal, as in "necessary and proper.")

The argument by Fajan and Falks is thoughtful, clear, generous, and not about trivialities but first principles. It is a model critique, and I'm delighted to have seen it. They also discuss synecdoche and metaphor, which they do think have some place in legal interpretation. Perhaps more on that in time, but I will focus in this post on their argument about hendiadys.

The gist of the argument is that hendiadys is a literary figure that emphasizes "doubt, self-deception, multiplicity, complexity, and ambiguity." Those characteristics make this figure of speech "sit uncomfortably in legal texts or, for that matter, in instructional materials on assembling an IKEA couch." But it is not merely unlikely that hendiadys appears in legal texts. Fajans and Falk conclude that it should be a priori excluded from the interpretive options:

Beginning our research, we found sparse mention of hendiadys—until Professor Bray's article was published, eliciting considerable comment and other explorations of hendiadys in law. We soon became convinced that not only was it unlikely that many, if any, binomial expressions in the law are hendiadys, but even if some are, that its use as an interpretive strategy is inappropriate. Hendiadys can only serve legal interpretation by betraying its own essence, which is multiplicity and complexity. . . . Our takeaway is therefore simple: some literary devices, like hendiadys, have no proper place in the language of the law or in its interpretation . . . .

Let me mention three points of agreement and three points of disagreement between me and Fajans and Falk.

Agreement 1: Hendiadys is often used in literary contexts as a means of unsettling language and expressing ambiguity. In such contexts, the effect produced by hendiadys can be to make the author's words and phrases like the shattered pieces of two small whaling boats in Moby Dick: "the odorous cedar chips of the wrecks danced round and round, like the grated nutmeg in a swiftly stirred bowl of punch."

Agreement 2: plain speech is an aspiration in the law, and in our culture of legal production it would be inappropriate to include such self-conscious literary pyrotechnics in a constitution, statute, or rule.

Agreement 3: in the places where I argue a hendiadic reading is best, a non-hendiadic reading is possible. That is, we could read "cruel and unusual" and "necessary and proper" as each offering distinct requirements, as each expressing a tautology, as each being a hendiadys, and so on.

Disagreement 1: I see no reason to rule out, as a matter of definition, all the non-literary uses of hendiadys. Here is the key move by Fajans and Falk (footnotes omitted):

Because hendiadys requires a seeming mismatch, most literary scholars would exclude from this literary device everyday expressions with clear and settled meanings like "nice and hot"; phrasal collocations or tautologies like "lord and master" or "high and mighty," in which two words are used simply for emphasis and elevation, and expressions using related terms, like "pen and ink" or "wind and rain." For conjoined terms to be hendiadys, the element of the unexpected must be present . . . .

Once that move is made, the rest of the argument follows. But the premise is contestable. There is debate about how broadly or narrowly to define this figure of speech (as discussed by Fajans and Falk and by me). And although our figures of speech may seem sharply defined, that is a bit illusory, for they are our ways of demarcating phenomena that are much more overlapping and spectral (in spectral's two senses).

Nevertheless, hendiadys pervades oral and colloquial speech (e.g., "tried and true" and many other examples in my article). And I also don't think we can draw such a sharp line between the literary and the "everyday." It is especially at the oral, the ritual, the poetic, and the proverbial that the separation of "literary" and "everyday" is most likely to mislead us. Consider the Book of Common Prayer, and its "general confession" (which would have been said by George Washington and John Marshall and others every time they attended church services). In this prayer the worshipper says to God: "We have erred and strayed from thy ways like lost sheep." "Erred and strayed" is a hendiadys, not quite a tautology, and it can be subjected to the multiplicity and ramifying meanings that are common with this figure in literary texts. But it is also everyday. In fact, twice-a-day: it is part of daily Morning and Evening Prayer. It is because the Founders were steeped in a literary and oral culture in which this figure appeared–"pervasively" would be too strong, but still the point is that it appeared with some frequency and was not marked as only "literary"–I think we should be unsurprised if the Founders would have used the figure instinctively, as a way to get close to what was meant, rather than for conscious artistry.

Disagreement 2: although plain speech is good in a law, it is not as easy as it seems. Fajan and Falk are alert to this, recognizing that the search for "fixed meaning" in legal texts may be "[q]uixotic[]." But I would go further. No matter what the skill or good intentions of the drafters, law will pervasively have an edge (and maybe an interior) of indeterminacy. This is so because, as Aristotle recognized, circumstances arise that are unforeseen by the lawmaker. But it is also so, even on day 1 after the passage of a statute, because of the slipperiness of language itself. (This is one reason I think interpreters should consider pragmatics as well as semantics–see The Mischief Rule–but I digress.) If you think law is going to have a non-trivial amount of indeterminacy, at least law when it is at issue in not-subject-to-Rule-11-sanctions litigation, then we should be alert to how figures of speech can help us to understand or misunderstand, resolve or create, ambiguity.

Disagreement 3: To understand whether a phrase should be read as a hendiadys, we need other interpretive resources, including (for the Constitution) the ratification debates and early practice and judicial interpretation. Fajans and Falk note that they are not offering a rejoinder on those fronts. But I don't think the question of whether or not to adopt a hendiadic reading can be settled by the text. The text can be interpreted hendiadically and non-hendiadically. So when Fajans and Falk point out that non-hendiadic readings are possible, I agree. But the next step–unless one excludes hendiadys a priori–is to consider which of the readings is most consonant with the modalities and other resources of interpretation in our legal tradition.

If hendiadys were limited to literary texts like Hamlet, Fajans and Falk are right that it would be out of place in statutes and constitutions. But it appears in many kinds and registers and genres of speech. We should not be surprised that it appears in law.

First, some background: Early this year, the Ninth Circuit decided a case called Park v. Barr, involving a woman who had illegally overstayed her visa:

Woul Park, a Korean citizen, married Byung Gug Choi in Korea in 1988. Park came to the United States on a B-2 tourist visa in 2003. Park overstayed her visa and has resided in California ever since. Park and Choi jointly filed a Request for Divorce at the Korean Consulate in California, and the divorce became valid and final under Korean law as of May 12, 2009. Following the divorce, Park married James Yong Park, a United States citizen, in California. Park applied for and received lawful permanent residency based on this putative marriage. Park then applied for naturalization in 2014.

USCIS denied Park's application for naturalization because it determined that Park's divorce from Choi was invalid under California law, thus invalidating her marriage to James Yong Park. USCIS found that both Park and Choi were California domiciliaries when their Korean divorce decree was executed. The agency then concluded that Park's purported 2009 divorce would not have been recognized under California law because California Family Code § 2091 bars the state from recognizing a foreign divorce when both parties are California domiciliaries.

This finding set off a cascade of legal consequences. If Park's divorce from Choi was invalid under California law, then Park's marriage to James Yong Park was similarly invalid. Park's application for permanent residence was dependent on her lawful marriage to a United States citizen. Since Park's marriage was invalid at its inception, USCIS reasoned, Park could never have been lawfully admitted for permanent residency. And finally, since Park had to show that she had been lawfully admitted as a permanent resident in order to naturalize, see 8 U.S.C. § 1427(a)(1), USCIS denied her application for naturalization….

We [disagree] and hold that Park, as a B-2 nonimmigrant whose lawful status had lapsed, was precluded from establishing lawful domicile in California by operation of federal law. Her divorce and subsequent marriage were therefore valid under California law, she was properly admitted for permanent residency based on her marriage to a United States citizen, and she is entitled to naturalization.

So Ms. Park won, because federal law preempted state law, and this made her Korean divorce (and thus her later California marriage, which doesn't require California domicile) valid. But a few months later, a Nevada court applied the same reasoning against a noncitizen lawfully present on a student spouse visa, in Senjab v. Alhulaibi (Nev. Dist. Ct. Clark Cnty. June 17, 2020):

Ahed Said Senjab and Mohamad Abulhakim Alhulaibi … are citizens of Syria. They married in Saudi Arabia on February 17, 2018. The parties have one minor child, Ryan …, who was born on February 16, 2019.

[Alhulabi] obtained an F-1 [student] Visa and came to the United States to attend graduate school at UNLV in 2018. Mr. Alhuliabi alleged that [Senjab] applied for an F-2 Visa [for spouses and dependent children of F-1 student visa holders] in August, 2018, and that an F-2 Visa was granted to her and the parties' child at the end of 2019….

The parties and their child arrived in Las Vegas, Nevada, on January 13, 2020. On February 14, 2020, [Senjab] filed an Application for Protective Order …. The court granted the request and extended the protective order until February 14, 2021. The Extended Protective Order [basically gives Senjab custody during the week and Alhulaibi on weekends].

[Senjab] filed a Complaint for Divorce on March 24, 2020. Ms. Senjab seeks a divorce, child custody and support orders, and spousal support….

For this Nevada court to have subject matter jurisdiction to grant a divorce, one of the parties must be a bona fide resident of the state of Nevada [for at least 6 weeks before the suit was brought]…. Residence is synonymous with domicile. Physical presence, together with intent, constitutes bona fide residence for divorce jurisdiction. Aldabe v. Aldabe (Nev. 1968)….

This court finds that pursuant to state law, undocumented immigrants who physically live in Nevada have been able to access Nevada courts to obtain a divorce so long as they have been physically present in Nevada, and so long as they establish a subjective intention to make Nevada their home.

[But t]he Ninth Circuit Court of Appeals, in Park v. Barr, held that federal law has preempted state law. The holding in Park bars nonimmigrants who come to the United States on a visa issued pursuant to Title 8 of the United States Code [such as these parties] from establishing the subjective intent that is required to give this Nevada court subject matter jurisdiction to grant a divorce….

The federal law, prohibiting a nonimmigrant from establishing domicile, continues even if a visa is overstayed. In Park, Woul Park, a nonimmigrant, came to the United States on a B-2 Visa, and stayed in the United States after the lawful status had lapsed. The Ninth Circuit Court of Appeals held that Woul Park was precluded from establishing lawful domicile in California by operation of federal law….

Under federal law, nonimmigrants that come to the United States through F-1 and F-2 visas are required to maintain a residence in their country of citizenship with no intention of abandoning it. [Senjab] and [Alhulabi] were permitted to enter the United States on an express condition not to abandon the foreign residence. Congress has not permitted [Senjab] and Mohamad Abulhakim Alhulaibi to lawfully form a subjective intent to remain in the United States….

[Senjab]'s subjective intent to make Nevada her home is precluded by Congress' definition of the nonimmigrant classification. This court concludes that Nevada lacks subject matter jurisdiction to grant a divorce….

The case is now on appeal to the Nevada Supreme Court. Immigration law isn't my area of expertise, so there may be something I'm missing here, but this seems to be practically quite significant.

Back in January, I pledged to donate 50% of all royalties generated by my book Free to Move: Foot Voting, Migration, and Political Freedom to charities benefiting refugees. Today is Giving Tuesday, and therefore as good a time as any for me to begin to implement my pledge.

As of a few days ago, Oxford University Press indicates that we have sold some 1100 copies of the book, since it went into print in late May (after a delay caused by the Coronavirus crisis). By my admittedly rough calculations, 50% of the royalties for that number of sales amounts to about $1200.

I am therefore donating that amount to HIAS, one of America's oldest, largest, and most respected refugee-assistance organizations. That choice is partly guided by HIAS' high status and record of success in the refugee assistance field, and partly by the fact that other donors have promised to double any donations up to $21,000 given to HIAS during Giving Tuesday. Thus, the donation will have twice its "normal" effect.

I have consulted about other potential recipients for donations with leading experts on immigration and refugee policy, and will be giving future donations to some of those organizations, as well. I will announce those donations in due course. I should have additional funds available as more copies of the book are sold, and the publisher gives me more detailed data on how many copies of which type have been purchased (as the royalty amounts are slightly different depending on the format of the book, and we have hardcover, digital, and audio versions). My pledge also covers royalty income from potential foreign-language translations, which I am in the process of exploring.

For those interested, I will note that among the other organizations currently on my radar screen are Freedom For Immigrants and the Florence Project (both of which provide services to immigrants and refugees trapped in our awful immigration detention system), and Second Tree (which provides integration assistance and other services to refugees from the Syrian Civil War and other recent conflicts in the Mediterranean region).

The Covid-19 pandemic and associated economic crisis have made the plight of refugees even worse than usual. So whether or not you ever read or buy my book, I urge those who have the means to do so to consider contributing to charities assisting refugees. Perhaps my admittedly modest donation can play a role in stimulating efforts by others.

One of the many interesting scholars I met while researching The Fabric of Civilization was Cécile Michele, a French Assyriologist who has translated many of the 23,000 cuneiform tablets excavated from a site in Turkey. Here she is teaching us the basics of how to write in cuneiform.

The tablets, known as the Old Assyrian private archives, are about 4,000 years old. They were found in the homes of expatriate merchants in the city of Kanesh, now the archaeological site called Kültepe. These letters and legal documents preserve the practices and personalities of a thriving commercial culture. They are our oldest records of long-distance trade.

Capturing dilemmas and decisions still faced by commercial businesses, these ancient records testify to the central role of textiles in the innovations that enable economic exchange. Here, the inventions aren't material artifacts or physical processes but "social technologies": the records, agreements, laws, practices, and standards that foster trust, ameliorate risks, and allow transactions across time and distance. Four millennia later, we can still hear the voices they record.

Lamassī was doing her best to keep up with the demand for her fine woolen cloth, fickle though the requirements seemed to be. First her husband asked for less wool in the fabric, and then he asked for more. Why couldn't he make up his mind? Maybe it was his customers in that distant country. Maybe they didn't know what they wanted. At any rate, her latest batch of cloth, or most of it, would soon be on its way. She wanted Pūsu-kēn to know it was coming. She wanted him to know she was doing her job. She wanted a little appreciation.

Lamassī rolled a small ball of damp clay between her hands, then flattened and smoothed it into a neat, pillow-shaped tablet, which she cupped in her left palm. She picked up her stylus and began to write, pressing wedge-like characters into the wet clay.

Say to Pūsu-kēn, thus says Lamassī

Kulumāya is bringing you nine textiles. Iddin-Sîn is bringing you three textiles. Ela refused to take any textiles and Iddin-Sîn refused to take another five textiles.

Why do you always write to me, "The textiles that you send me each time aren't good!" Who is this person living in your house and denigrating the cloth that I send to you? For my part, I do my best to make and send you textiles so that for every trip at least ten shekels of silver can reach your house.

The Volokh Conspiracy

SCOTUS Creatively Punts in COVID Appeal from 9th Circuit: Grants Cert Before Judgment, then Vacates and Remands

Given the likely trajectory of COVID-19, the Court may never have to decide a pandemic case on the merits.

Coronavirus Deaths Return to March/April Levels in Europe, U.S.

Calling Neighbor "Slum Lord" on Facebook Found to Be Constitutionally Protected Opinion

at least in the context of a Facebook squabble.

Pen-and-Paper Arithmetic Is Useful When You're Selling Textiles

Somebody had to invent those techniques you learned in elementary school.

Today in Supreme Court History: December 3, 1996

"Neither Party Shall Engage in Any Social Media … Which Comments … on the Other Party's Emotional or Mental Health or Personal Behavior"

Another unconstitutionally overbroad injunction, struck down by the Florida Court of Appeal.

New on Lawfare: The Statutory Authority for Barr's Appointment of Durham as Special Counsel

Barr's appointment of Durham mostly tracks Rosenstein's appointment of Muller

When Cloth Was Money, Literally

Before industrial production, textiles could make excellent currency.

John Durham, U.S. Attorney for the District of Connecticut was appointed as Special Counsel (Updated)

But 28 C.F.R. § 600.3 requires special counsels to be "selected from outside the United States Government." (Barr did not rely on 600.3)

Attorney General Barr Says There Is No Evidence of Election Fraud that Would Have Changed Election Outcome

Either the AG is acknowledging reality, or he's joined the anti-Trump deep state conspiracy.

Another problem with self-pardons

A "self-pardon" might bring about exactly the prosecution it seeks to avoid.

Poetry Tuesday!: "God's Grandeur" by Gerard Manley Hopkins

A challenge to hendiadys in the law

"What part of 'and' don't you understand?"

Can Married People on Long-Term Student Visas Get Divorced in the U.S.?

A Ninth Circuit decision that had helped a noncitizen (who wanted her foreign divorce recognized, so she could remarry) has now led to a ruling against a noncitizen in a Nevada case.

Implementing my Pledge to Donate Royalty Payments to Charities Benefiting Refugees

Giving Tuesday is an appropriate time for me to begin carrying out my pledge to donate 50% of the royalties generated by my book "Free to Move" to charities benefiting refugees.

Four Thousand Years Ago, Textile Traders Invented a Basic Social Technology: Mass Literacy

When there's business to be done over long distances, you don't want to depend on a scribe.

Today in Supreme Court History: December 1, 1897

Firearms Litigation: Liability, Regulation, and the Constitution

Free CLE program on Dec. 1

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