The Volokh Conspiracy

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The Volokh Conspiracy

Short Circuit: A Roundup of Recent Federal Court Decisions

The First Amendment behind bars, illegal antiquities, and architecture as expression.


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

In 2019, IJ, Tyson Timbs, and Tyson's car secured a pathmarking victory for property rights when the U.S. Supreme Court held that the Excessive Fines Clause applies not just to the feds, but to the states as well. That decision didn't get Tyson his car back, though. The case was remanded to the Indiana Supreme Court, which remanded the case to the trial court, which ruled for Tyson again last year—a ruling from which the State of Indiana appealed (seriously) and which, at last, a majority of the Indiana Supreme Court affirmed yesterday. "Reminiscent of Captain Ahab's chase of the white whale Moby Dick, this case has wound its way from the trial court all the way to the United States Supreme Court and back again," says the majority, en route to holding that forfeiting Tyson's car would indeed violate the Excessive Fines Clause. "[T]he seven-plus-year pursuit for the white Land Rover comes to an end." Congrats to Tyson and to White Whales everywhere.

  • African American firefighters in New York challenge the fire department's grooming policy. The men suffer from pseudofolliculitis barbae—a common condition among African American men sometimes called razor bumps—the primary treatment for which is growing a beard. Fire department policy prohibits beards, which it claims interfere with the seal on respirator masks. The firefighters sue, alleging violations of the ADA and Title VII. Second Circuit: Federal safety regulations expressly prohibit the wearing of respirators with beards, so the requested accommodations are unreasonable per se.
  • After the Swiss government seizes thousands of antiquities suspected of having been imported into the country illegally, the American owners of some 1,200 of those antiquities sue in U.S. federal court for their return. Second Circuit: You sued in the wrong federal court system; take it up with Switzerland.
  • Can victims of terrorism hold the terrorist organization's bank liable for their injuries? After over a decade of litigation and four appeals, the Second Circuit now says maybe, at least on an aiding-and-abetting theory, and remands for yet further proceedings.
  • You may see this case as a petty squabble over attorneys' fees, but the Third Circuit sees it as an exciting opportunity to teach us about the difference between supplemental and ancillary-enforcement jurisdiction.
  • In 2018, the Texas Secretary of State issued a press release announcing that voter registrations required ink signatures—but, says the Fifth Circuit, she doesn't actually have the authority to enforce that requirement and so cannot be sued to invalidate it.
  • In which the Sixth Circuit encounters a gentleman who sought to never pay his mortgage again through this one weird trick.
  • Eighth Circuit: Of all sad words of tongue or pen, the saddest are these—your merits defense was waived.
  • Missouri bans most abortions after eight weeks and all abortions when the doctor knows the mother is responding to a diagnosis of Down Syndrome. Eighth Circuit: Looks unconstitutional. Preliminary injunction sustained. (One judge, dissenting in part, thinks the Down Syndrome provision is too narrow to deserve an injunction.)
  • Does the publisher of Prison Legal News and The Habeas Citebook have a First Amendment right to mail unsolicited copies to prisoners? Eighth Circuit (2–1): Maybe. If the postcards-only policy of a jail in Baxter County, Ark. amounts to a total ban on access, that's a problem. Remanded for fact-finding.
  • "These notices of appeal are entirely deficient. They appeal an order entered on a day when no order issued, from a district court that does not exist, to a court of appeals that does not exist." So says the Eighth Circuit, a very real court entering a very real dismissal.
  • Woman is shot in her Orem City, Utah home. Husband says he stepped out of the kitchen upon hearing the shot and saw her falling to the ground. Suicide? The husband says so, but evidence at his ensuing murder trial shows a distance of 12 feet between where the husband says he saw her falling and where her body was found. The husband is convicted of murder. But wait! The diagrams and calculations were inaccurate; the wife moved only about nine inches. The medical examiner retracts his homicide finding, and at a new trial, the husband is acquitted. He sues the prosecutor and police for fabricating evidence. District court: Qualified immunity all around. Tenth Circuit: Not quite. Taking the husband's allegations as true, the prosecutor shared fabricated distance-traveled evidence with the medical examiner, so no qualified immunity for that guy.
  • Can squatters invoke the Fair Housing Amendments Act against their unwilling landlords? Ninth Circuit: Um, no.
  • Circuit Breakers (that's you, dear readers) may recall a September opinion in which two-thirds of a Ninth Circuit panel took issue with a prosecutor's repeatedly telling the jury that the presumption of innocence no longer applies to the defendant. On panel rehearing, three-thirds of that panel now say that the prosecutor's statements probably didn't affect the outcome of the defendant's trial. Or more precisely (because we're in federal habeas land), that the state court's conclusion that the prosecutor's statement was harmless was not an unreasonable application of federal law.
  • Mentally unstable inmate stabs his sleeping cellmate in the eye with a pair of scissors. The cellmate, now permanently blind in that eye, asserts that he had told prison officials he was afraid for his safety and that the mentally unstable inmate had a history of assaulting his cellmates. He files suit under the Federal Tort Claims Act. Eleventh Circuit: No can do. Inmate-housing-placement decisions are a policy-laden endeavor that fall within the "discretionary function or duty" exception to the FTCA. Dissent: The gov't has no discretion to violate the Constitution, so the statute's exception shouldn't extend to tortious acts that are also unconstitutional. (Circuit split alert!)
  • Palm Beach, Fla. man wants to knock down his traditional beachfront mansion and build a 25,000 sq ft midcentury modern home that reflects his philosophy of simplicity in lifestyle. The town: Your proposed house doesn't fit our vision of beauty and harmony, so no permit. Over the course of 136 pages, an Eleventh Circuit panel spars over whether the proposed house is expressive conduct protected by the First Amendment. The majority concludes it is not. Dissent: "That architecture is an expressive art is a proposition that has stood unchallenged for millennia." Otherwise, coin-operated shows of adult films and anodyne elevator music are protected while Monticello and Philip Johnson's Glass House are not.
  • Georgia inmate—a serial litigant who has filed hundreds of federal and state cases and appeals—filed the current suit challenging the prison's enforcement of its beard-length policy. He contends they forcibly shave him in violation of his religious beliefs and in an unsanitary and violent manner. Eleventh Circuit: Please leave us alone. Dissent: The inmate's allegations are worth taking seriously, given the serious risk of hepatitis spreading via dirty razors.

Wayne Nutt is an engineer. He trained as an engineer, and for decades he practiced engineering in North Carolina, which did not require him to obtain an engineering license. Now that he's retired, Wayne wants to talk about engineering—and that, North Carolina says, is a crime. Wayne has teamed up with IJ to protect his First Amendment rights. Learn more here.

Law and Religion

Wisconsin S. Ct. Strikes Down Private School Closure Order


From the majority opinion in James v. Heinrich, written by Justice Rebecca Grassl Bradley and joined by Chief Justice Annette Ziegler and Justices Patience Roggensack and, in relevant part, Brian Hagedorn:

We agree with the Petitioners and hold: (1) local health officers do not have the statutory power to close schools under Wis. Stat. § 252.03; and (2) [the closure order] infringes the Petitioners' fundamental right to the free exercise of religion guaranteed under Article I, Section 18 of the Wisconsin Constitution, which Jacobson v. Massachusetts cannot override. Accordingly, those portions of the Order restricting or prohibiting in-person instruction are unlawful, unenforceable, and are hereby vacated.

An excerpt from the majority's explanation of why the law failed strict scrutiny under the state free exercise provision (which had indeed been interpreted by past cases as requiring strict scrutiny of denials of religious exemptions from generally applicable laws):

Heinrich's earlier orders implemented less restrictive means such as specifying classroom student limits, mandating the use of masks, and requiring social distancing. In Emergency Order #8, for example, Heinrich outlined detailed safety protocols for schools, including "[e]nsuring students are at least six (6) feet from other students" and requiring that "employees are provided with and wear face coverings." These nuanced and tailored measures were completely abandoned in the Order at issue, replaced by the drastic step of forbidding in-person religious school education entirely for students in grades 3-12.

The Order distinguishes between the age demographics of students, permitting only students in grades K-2 to receive inperson instruction while relegating all students in grades 3-12 to virtual instruction only. By the Order's own reasoning, this distinction was unnecessary to achieve the government's goals. As stated in the Order's introduction, "[o]utbreaks and clusters among cases aged 5-17 have been rare." Nevertheless, a five- year-old student in kindergarten and an eight-year-old student in third grade, despite comparable infrequencies of COVID-19 transmission, were afforded entirely different educations in Dane County.

Furthermore, while students in grades 3-12 were prohibited from attending school in person, the Order allowed all higher education institutions to continue to provide in-person learning and dormitory housing, subject to certain restrictions. The Order failed to explain why college-aged students could continue to live, learn, and socialize in close communities, while students in grades 3-12 were consigned to computer screens. While the Order demonstrates the availability of less restrictive alternatives and employs them for college students as well as students in grades K-2, the Order denies them to students in grades 3-12.

Justice Rebecca Dallet, joined by Justices Ann Walsh Bradley and Jill Karofsky, dissented; as to religious exemptions, they reasoned:

Section 8 of the Order explicitly exempts religious practices from its in-person gathering restrictions: "[r]eligious entities are exempt from mass gathering requirements for religious services and religious practices" (emphases added). The majority makes no mention of that provision——possibly because it torpedoes the majority's constitutional analysis. If in-person education on every subject, religious or not, is truly religious practice, as some petitioners here claim, nothing in the Order burdens that practice.

Our cobloggers Will Baude and Stephen Sachs' Harvard Law Review article, The Law of Interpretation, is cited three times by the dissent; Randy Barnett's book Our Republican Constitution is cited by the majority.

The Mischief Rule


If you're interested in statutory interpretation–including the relationship of text and context–you'll want to read The Mischief Rule. It has just gone to print, and you can find the final version here.

Although this article is for everyone, textualists and non-textualists alike, it is especially an argument directed at my fellow textualists–an argument that textualism should not be narrowed to an inquiry about words alone, as if the law is simply words on a page, words that can be interpreted without context. Relatedly, it is an argument that context is part of how we decide the meaning at step one–context is not something to invoke only after a statute has been found ambiguous.

The kind of crabbed textualism that rejects the mischief rule is a dangerous path. Although plenty of people will disagree with me, I think that kind of textualism ends in literalism. And a literalistic textualism will not last.

Legal Doctrine and Conventional Criminal Law

Legislatures and courts should assist the development and enforcement of beneficial legal conventions.


In previous posts, I have argued that legal conventions form a de facto common law and that this de facto common law remedies many defects in our statutory criminal law system. Despite these criminal law conventions, however, significant overcriminalization problems remain. Broadly, overcriminalization problems occur in areas of criminal law in which (1) there do not exist any legal conventions, (2) there exist legal conventions, but we have difficulty controlling isolated defections from them, and (3) traditional methods of enforcing legal conventions and controlling prosecutorial discretion substantially break down.

Let me start with the first. Much of the worst overcriminalization problems involve excessive harshness against defendants who are, in fact, guilty of violating some community norm. But we do not have many legal conventions governing plea bargaining and sentencing. Individual judges and prosecutors may have "going rates" for plea bargains. But these rates are often arbitrarily set, not public, and sometimes primarily known only by insiders of that particular courthouse. "Going rates" are not true legal conventions because, even if they are special customs, they are not generally accepted as binding and they are not enforceable through nonlegal sanctions.

Recidivist statutes compound the problems with plea bargaining. Prosecutors often use these provisions to extort guilty pleas, and they follow through with their threats to charge these provisions when defendants will not plead. Moreover, based on their views of what is just, different prosecutors may (or may not) charge such provisions, creating arbitrariness across jurisdictions and, in some cases, within any individual jurisdiction. The breadth of these recidivist provisions often ensnares those for whom the mandatory minimum penalty seems disproportionate, such as defendants who have stolen golf clubs or possessed a single round of ammunition.

A second problem with conventional criminal law is that criminal conventions, unlike constitutional ones, are easily susceptible to isolated deviations. Individual deviations are often low-information events that affect marginalized members of the community. The community may care a great deal if a town's police officers routinely ticket residents who exceed the speed limit by any margin. The community probably does not care if its officers use de minimis speeding as a pretext to detain drivers suspected of drug violations or other crimes. Overbroad statutory law facilitates arbitrary enforcement against isolated individuals in a manner that would not be tolerated if the law were applied in the same way to the wider community.

Isolated deviations create other serious rule-of-law problems. Rudy Giuliani infamously instituted "federal day" for drug crimes in New York City. Ordinarily conventional rules determine which drug crimes are prosecuted in state court (e.g., possession crimes related to personal use) and which are handled in federal court (e.g., interstate and foreign trafficking). But on federal day, which was a random day rotated from week to week, Giuliani had local drug cases diverted to federal court, which imposed more serious penalties. General principles of distributive justice require treating like cases alike, and it is extraordinarily arbitrary to increase someone's penalty because he was caught on Monday rather than on Tuesday.

In a conventional system, the harm from this kind of arbitrary enforcement runs even deeper than just violating norms of distributive justice. Unusual prosecutions unsettle the community's shared understanding of the law and, correlatively, they interfere with the basic requirements of notice, clarity, and prospectivity that underlie the rule of law. An unwritten common law or conventional system can still respect these rule of law values—but only if the law is actually enforced in ways that track widely understood social norms and customs.

A third problem is that, in many cases, traditional legal checks that curb prosecutorial discretion break down. In many misdemeanor cases, defendants lack the right to counsel and to trial by jury. Many poor defendants, moreover, lack adequate money to post bail, leading them to languish in pretrial detention. Prosecuting weak or trivial cases "in the shadow of the jury" looks quite different when the prosecutor knows that the defendant cannot afford to sit in jail for months while he awaits a jury trial.

Because penalties are often small, misdemeanors and traffic offenses may not seem like a huge deal; but they are. Convictions can have lingering effects as defendants face burdens of paying off fines, complying with probation, and getting transportation in the face of suspended driver's licenses. Additionally, more arrests and detentions for small matters lead to more felony arrests, as police use such offenses as pretexts to fish for more serious wrongdoing. Uneven enforcement of misdemeanors and traffic laws leads to uneven enforcement of felonies.

In the article, I offer a series of suggested policy proposals in problematic areas of criminal law. Few are novel. But I want to suggest a different theoretical grounding for them. To continue fixing the defects in statutory criminal law, we need to develop legal conventions. And to do that, we need to provide mechanisms to sanction violations of those conventions.

For example, one option to cabin prosecutorial discretion over the sentencing of guilty defendants is to further empower juries. Judges often recoil at informing juries about a defendant's sentencing exposure. And under Almendarez-Torres, juries do not have to find the fact of a previous conviction, even if it leads to extraordinary high sentencing enhancements (e.g., the Armed Career Criminal Act, which elevates a felon-in-possession gun crime from a maximum of ten years' imprisonment to a minimum of 15 years and a maximum of life for those with three or more qualifying convictions).

Faced with a defendant who unlawfully possessed a single bullet and with an understanding of the sentencing consequences, a jury might return a conviction on simple felon in possession, while acquitting on the recidivist charge. Judges often argue that such proposals invite lawless juries. But this may be the wrong way to look at it. In these cases, the community, through the jury, polices whether the prosecutor has acted lawlessly by overcharging individual cases—that is, by charging them outside of widely understood norms about the cases to which such laws should apply.

Another sentencing reform is to have greater transparency in plea bargains. Prosecutors should have to publish their "going rates" for pleas. In a conventional system, information transparency confers several advantages. Among them, publication of information will deter prosecutors from deviating in isolated cases. Disclosure also subjects the information to public scrutiny, including by voters. This facilitates political sanctions against prosecutors who act unreasonably as defined by community norms.

More broadly, increasing transparency in law enforcement may help curtail arbitrary deviations from widely understood criminal law customs. For example, it would be helpful to know the details of the 40 people ticketed in Virginia in 2018 for going fewer than five miles per hour over the limit. Were the drivers engaged in significant speeding but the tickets reduced by the officer? Were drivers going at an unsafe speed through a school zone? Or were these pretextual stops or individuals whom the police arbitrarily selected? Having this information facilitates the application of political pressure against improper enforcement practices.

I am more skeptical of the ability of legal conventions to fix all the problems that overbroad criminal law has on criminal procedure and civil redress. Overbroad statutory law narrows the effective scope of the exclusionary rule because officers may justify detentions and arrests based on objective probable cause that any offense has been committed, no matter how minor or how customary it is for individuals to violate it. Relatedly, overbroad statutory law limits civil redress because officers who have probable cause of any legal violation will have a defense for false imprisonment or malicious prosecution either under state law or when raised as an unreasonable search or seizure under 42 U.S.C. § 1983.

But judges may ameliorate some of these problems by acknowledging that criminal law conventions exist and by facilitating their enforcement. For example, judges may require officers to have subjective good faith when they enforce laws that customarily go unenforced. In Whren v. United States, the Supreme Court said that they were "aware of no principle that would allow [them] to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement." But judges, no less than other members of the community, have general knowledge about customary norms of how laws are enforced. Officers who pull drivers going one mile per hour over the speed limit as a pretext to search are not enforcing the law in accordance with traditionally understood community norms.

The development and recognition of criminal law conventions will not fix every problem of statutory overcriminalization. But in a system like ours in which legislating takes place under nonideal conditions, we primarily improve our criminal law by developing and improving our unwritten customs and traditions.


Judge Denies Request for Injunction to Keep Baseball All-Star Game in Georgia

The disastrous oral argument produced a quick ruling from the bench.


The lawsuit filed by Howard Kleinhendler on behalf of the Job Creators Network to force Major League Baseball to keep the All-Star Game in Atlanta, Georgia is not going well. After a disastrous oral argument, a judge rejected JCN's request for an injunction and poured cold water over the entire theory of the case.

JCN enlisted Kraken-lawyer Kleinhendler to file this suit after Major League Baseball decided to move the All-Star Game as a protest against the passage of a controversial election reform law in Georgia. There are ample bases upon which to criticize MLB's decision, not least that the complaints about Georgia's election reforms are overwrought, but the theory of the lawsuit is borderline ludicrous.

District Court Judge Valerie Caproni rejected JCN's request for a preliminary injunction after what can only be called a cringeworthy oral argument. Judge Caproni concluded JCN lacked standing, but that was only the beginning of the problems. From the Atlanta Journal-Constitution's coverage of the proceedings:

"To say that the legal underpinnings of this lawsuit are weak and muddled is an understatement," the judge said. "Plaintiff alleges that (MLB and the players' union) were members of a conspiracy to violate JCN members' constitutional rights … but I am still at a loss to understand how."

Caproni added: "MLB voted with its feet when politicians in Georgia made a policy decision with which (MLB) strongly disagreed. For all this court knows, many of the small business owners in the Atlanta area agree with MLB that the policy decisions reflected in the new Georgia election law are poor policy choices. But whether small business owners as a group agree or disagree, are deeply divided or are agnostic on that issue, it is hard to see how MLB's decision had an impact on the equal protection rights of small business owners as a group."

If anything, the judge was gentle. To get a better picture of how bad the argument went, read these real-time threads by Mike Dunford and Akiva Cohen to believe it. (I will post a link to a transcript if one becomes available.) Indeed, Kleinhendler's arguments were so bad and nonsensical that the opposing attorneys largely rested their case.

Judge Caproni allowed that JCN could continue to press for damages, but her ruling from the bench left little doubt how she would be likely to rule.

This outcome should not be particularly surprising. Kleinhendler filed numerous claims concerning the 2020 election, including some of the Kraken complaints filed by Sidney Powell (e.g., here and here) and a lawsuit by Rep. Gohmert against Vice President Pence. He has also been the subject of legal malpractice claims.  Based upon yesterday's performance, it would not surprise me to see more such claims in the future.

Emotional Influences on Judges

Despite a veneer of logical dispassion research shows that sympathy and other emotions influence judicial decision making.


The great Clarence Darrow argued that emotion was everything in the courtroom. He asserted that juries "seldom convict a person they like or acquit one that they dislike" and thus "the main work of a trial lawyer is to make a jury like his client, or, at least, to feel sympathy for him; facts regarding the crime are relatively unimportant." Although his view on emotions is extreme, most people believe emotions influence juries. But what about judges? Especially when they are deciding issues of law, we expect that judges will set aside their sympathies.

In fact, judges routinely assert that sympathy and emotions have no role in their decision making. In her confirmation hearings Justice Sotomayor stated explicitly that "it is not the heart that compels conclusions in cases. It's the law." Similarly, when asked by Senator Chuck Grassley whether she agreed that "the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?" she replied that "it's law all the way down." The public expects judges to affirm a dispassionate commitment to the law.

Some judges, however, admit that emotion plays a role in shaping the law. Justice William Brennan asserted that "[s]ensitivity to one's intuitive and passionate responses … is … not only an inevitable but a desirable part of the judicial process." Justice Robert Jackson likewise asserted that a dispassionate judge was a mythical being, much like "Santa Claus or Uncle Sam or Easter bunnies."

Are judges free from the influence of sympathy or is that ideal a myth? To shed some light on the question, we undertook a series of experiments to evaluate the role that sympathy might play in the decision making processes of sitting trial judges. In each of our experiments, we asked judges to evaluate a hypothetical case involving either a sympathetic or an unsympathetic litigant.

We recognize, of course, that for the trial judge, emotion might be directly relevant in some cases. For example, judges are obliged to consider background characteristics of a defendant in rendering a criminal sentence, which invariably will create sympathy or antipathy. In our studies, however, we asked judges to make rulings of law, ensuring that the individual characteristics of the litigants were not relevant to the decision being made.

In one study, we asked judges to determine whether an undocumented alien had committed fraud when entering the country. We informed the judges that the defendant had pasted a forged visa into his genuine Peruvian passport in order to gain admission to the United States. He was clearly guilty of illegally entering the United States, which is a misdemeanor.

The prosecutor, however, also wanted to add a charge of forgery of an identification document. If found guilty of this charge the defendant would spend some time in prison before being deported. The defendant admitted that the visa was a fake but argued that pasting a fake visa on a genuine passport did not satisfy the statutory definition of forgery.

For half of the judges, we described the defendant as having entered the United States in an effort to earn extra money for his sick daughter; for the other half, he was trying to track down an individual who had stolen money from a drug cartel. Among the judges who evaluated the father, 44% ruled that he had also committed forgery; whereas 60% ruled against the would-be assassin. Even though the reason for his entry into the United States is not relevant to the statutory definition of forgery, it influenced the judge's choice.

We found similar effects in four other studies. When being asked for a ruling on a legal issue involving drug possession, the judges made a more favorable interpretation of a statute for the defendant when we indicated that he was a 55-year old with a serious illness than a 19-year old with a mild illness. We found that bankruptcy judges were more apt to discharge credit-card debt accrued by a young woman deliberately overspending to help her ailing mother than that of a young man running up debt on a spring break trip.

Judges were more apt to find a city jail's mandatory strip-search policy for new inmate unconstitutional on its face when the plaintiff was a college co-ed arrested at a protest as opposed to a male arrested for a violent crime, even though the judges knew that the ruling would apply to all inmates. And we found judges to be more willing to rule evidence of drug possession admissible under the fourth amendment when the drug was several bags of heroin (accompanied by a contact list at a high school) than when it was two marijuana cigarettes.

In all of our studies, the facts that created sympathy or antipathy were not relevant to the interpretation of law we had asked them to make. It might be unreasonable to suppose that judges will be able to ignore their emotions, however. As Professor Terry Maroney has argued, it may even be counterproductive for judges to try. We agree with Professor Maroney to some extent, but we worry about pernicious influences of emotion. Relying on sympathy creates different law for different people. Furthermore, emotion might be the means by which implicit biases creep into the judicial process.

Our last example of emotion in judges provides a case in point. We asked a large group of Minnesota judges to award punitive damages in an environmental pollution case. The plaintiff was a Minnesota farmer who suffered severe poisoning when swimming in a lake on his property into which the defendant had dumped his company's hazardous waste.

For half of the judges, we indicated that the defendant was also a Minnesota company; for the other half, it was a company from Wisconsin. Although the state of origin could hardly matter, the judges treated the Wisconsinite as an outsider, awarding 50% more in punitive damages against him than against the Minnesotan. We also found similar results with several other pairs of states. Other characteristics that define group membership, such as race, gender, and religion, likely matter far more than state citizenship.

With the greatest of respect to Justices Kagan and Sotomayor, emotions matter to judges. Judging is apparently not "law all the way down." As with all of our research on judges, we find (to quote the great Jerome Frank) that they are human beings after all.

We are grateful to Professor Volokh for the opportunity to present some of our research in his blog this week. We are also grateful to the thousands of state judges, U.S. federal judges, Canadian judges, and Dutch judges for participating in this research. We undertook this project to educate judges and to improve their decision making abilities. We have been fortunate to find receptive and attentive audiences of judges to participate in our efforts.

Our full article on the emotional influence on judges: Andrew J. Wistrich, Jeffrey J. Rachlinski & Chris Guthrie, Heart Versus Head: Do Judges Follow the Law or Follow Their Feelings, 93 Texas L. Rev. 855 (2015).

Civil Asset Forfeiture

Indiana Supreme Court Finally Puts an End to the Timbs Asset Forfeiture Case— "Reminiscent of Captain Ahab's Chase of the White Whale Moby Dick"

The case has generated three state supreme court decisions, plus a landmark ruling by the federal Supreme Court.


Tyson Timbs, with his now-famous Land Rover.


Earlier today, the Indiana Supreme Court issued a ruling that is likely to finally end the long-running saga of Indiana v. Timbs, a major asset forfeiture case that has resulted in three separate rulings by the state supreme Court, and a path-breaking decision by the federal Supreme Court, ruling that the Excessive Fines Clause of the Eighth Amendment is "incorporated" against state governments. The case arises from the state's efforts to use civil asset forfeiture to seize Tyson Timbs' Land Rover, which he had used on trips to purchase illegal drugs and (in one instance) try to sell some to a man who turned out to be an undercover police officer.

Civil asset forfeiture is a process by which the government can seize property that was allegedly used in the commission of a crime, often even if the owner was never charged or convicted of any offense. In many states, law enforcement agencies are allowed to keep the proceeds from the property they seize. The system is the source of extensive abuses, which I summarized in my 2019 testimony before the Arkansas State Advisory Committee to the US Commission on Civil Rights.

In this case, Timbs admits that he committed the crimes in question. But he argued that the forfeiture of the Land Rover vehicle violated the Excessive Fines Clause of the Eighth Amendment, in large part because the value of the Land Rover (about $42,000) is vastly greater than the fine for the crimes he committed.

When the case first got to the Indiana Supreme Court in 2017, the justices ruled that the Excessive Fines Clause doesn't even apply to state governments (it was one of the few parts of the Bill of Rights that had never been "incorporated" against the states by the federal Supreme Court). That ruling was overturned in a unanimous 2019 decision by the federal Supreme Court, which held that the Excessive Fines Clause does indeed apply to the states, and that it imposes at least some constraints on asset forfeiture.

However, the Supreme Court did not resolve the issue of how to determine what qualifies as an "excessive" forfeiture, nor whether the forfeiture of Timbs' property was excessive. Thus, the issue went back to the Indiana Supreme Court, which, in October 2019 issued a decision setting out standards for what qualifies as "excessive."

Based on that ruling, the trial court in the Timbs case concluded that the seizure of his vehicle was indeed "excessive," and finally ordered to the return of the Land Rover last year. Even after that, the state persisted. They appealed the case to the state Supreme Court, arguing that the trial court ruling was wrong, and, more generally, that the state supreme court should adopt an approach to measuring excessiveness that is more favorable to law enforcement.

Finally, today, the state Supreme Court ruled in favor of Timbs, in a 4-1 decision:

We chronicle and confront, for the third time, the State's quest to forfeit Tyson Timbs's now-famous white Land Rover. And, again, the same overarching question looms: would the forfeiture be constitutional? Reminiscent of Captain Ahab's chase of the white whale Moby Dick,1this case has wound its way from the trial court all the way to the United States Supreme Court and back again. During the voyage, several points have come to light. First, the vehicle's forfeiture, due to its punitive nature, is subject to the Eighth Amendment's protection against excessive fines. Next, to stay within the limits of the Excessive Fines Clause, the forfeiture of Timbs's vehicle must meet two requirements: instrumentality and proportionality. And, finally, the forfeiture falls within the instrumentality limit because the vehicle was the actual means by which Timbs committed the underlying drug offense. But, until now, the proportionality inquiry remained unresolved—that is, was the harshness of the Land Rover's forfeiture grossly disproportionate to the gravity of Timbs's dealing crime and his culpability for the vehicle's misuse? The State not only urges us to answer that question in the negative, but it also requests that we wholly abandon the proportionality framework from State v. Timbs, 134 N.E.3d 12, 35–39 (Ind. 2019). Today, we reject the State's request to overturn precedent, as there is no compelling reason to deviate from stare decisis and the law of the case; and we conclude that Timbs met his burden to show gross disproportionality, rendering the Land Rover's forfeiture unconstitutional….

[T]he Land Rover's forfeiture is not unconstitutional just because Timbs was poor. Or because he suffered from addiction. Or because he dealt drugs to an undercover officer and not someone who would use them. And it's not simply because the vehicle's value was three-and-a- half times the maximum fine for the underlying offense. Or because he received the minimum possible sentence for his crime and wasn't a sophisticated, experienced dealer. Or because the car, his only asset, was essential to him reintegrating into society to maintain employment and seek treatment. Rather, it's the confluence of all these facts that makes Timbs the unusual claimant who could overcome the high hurdle of showing gross disproportionality…

Applying the proportionality framework set forth in Timbs II, we conclude that Timbs met his high burden to show that the harshness of his Land Rover's forfeiture was grossly disproportionate to the gravity of the underlying dealing offense and his culpability for the vehicle's misuse. Accordingly, we affirm the trial court; and the seven-plus-year pursuit for the white Land Rover comes to an end.

Chief Justice Rush's majority opinion in Timbs III compares the case to Captain Ahab's ill-fated effort to catch Moby Dick. I previously   compared it to Inspector Javert's prolonged  quest to track down a man whose only offense was breaking parole on a sentence for stealing a loaf of bread to feed his sister's starving children. Readers can decide for themselves which literary analogy is better!

While this result is a happy outcome for Timbs, it may have only limited impact on asset forfeiture more generally. The Court emphasized that only "grossly disproportionate" forfeitures qualify as "excessive," and that such cases are rare.

Moreover, there is some merit to the concurring and dissenting opinions' claim that the majority's multi-part test for determining what counts as "gross disproportionality" is imprecise and subjective. While some may worry that this will enable defendants to keep property they supposedly should not, I worry that lower-court judges sympathetic to the War on Drugs (which accounts for a high percentage of asset forfeitures) can use the test in ways that make it very difficult for property owners convicted of drug offenses to ever get a forfeiture overturned.

Today's result is better than the even more permissive standard advocated by the state, and certainly better than the pre-Timbs world in which the Excessive Fines Clause wasn't even applied against state governments. Among other things, this decision and Timbs II provide strong protection for owners who have not in fact committed any crime. But we still have a long way to go to fully eliminate the massive abuses caused by the asset forfeiture system, not all of which can be addressed through even the most rigorous enforcement of the Excessive Fines Clause.

Fortunately, legislative reforms have been enacted  in many states. There are also ongoing efforts to challenge asset forfeiture under both state and federal constitutional provisions. The Biden Justice Department could help by repealing the Trump administration's 2017 revival of the federal "equitable sharing" program, under which state and local asset forfeitures are "adopted" by the federal government.  The feds then share the proceeds with state and local law enforcement agencies—even in cases where state law otherwise bars the latter from profiting from the seized assets.

Like Moby Dick, the struggle against asset forfeiture is a long and tangled tale, of which the Timbs case is just one extraordinarily lengthy chapter. Hopefully, it will ultimately have a happier ending than Captain Ahab's voyage.

NOTE: Tyson Timbs is represented by the Institute for Justice, a prominent public interest law firm, with which I have longstanding connections, and for which I have done pro bono work on other property rights cases. I did not, however, have any involvement in this particular case. IJ commented on the latest Indiana Supreme Court ruling here.

Supreme Court

Why Didn't Justice Kagan Join Justice Sotomayor's Opinion Respecting Certiorari in National Coalition for Men v. Selective Service System?

Many were surprised that the K-named Justice joining Justice Sotomayor was Justice Kavanaugh instead of Kagan.


On Monday, the Supreme Court denied certiorari in National Coalition for Men v. Selective Service System, an Equal Protection challenge to only requiring men to register for the military draft.

Justice Sonia Sotomayor offered an opinion respecting the denial of certiorari, suggesting the Court's 1981 decision in Rokster v. Goldberg is incompatible with the Court's subsequent Equal Protection jurisprudence on sex-based classifications. Her opinion was joined by Justices Stephen Breyer and Brett Kavanaugh. Josh Blackman commented on Justice Kavanaugh's decision to join Sotomayor's opinion. Yet what explains Justice Kagan's refusal to join? Her absence may be no less conspicuous than Kavanaugh's join.

One possibility is that Justice Kagan did not want to join an opinion implicitly suggesting a Supreme Court decision should be overruled. Although her opinion suggested a willingness to wait for Congress to reconsider the policy of only requiring men to register, "at least for now," the opinion carried an implicit message of disapproval.

In an earlier post this week, Ilya Somin suggested Justice Kagan is almost certainly a fourth vote to overturn Rokster. Ilya may be right, but I am not so sure–and I think it quite unlikely that Kagan would want to signal as much right now.

In multiple recent opinions Justice Kagan has positioned herself as the champion of stare decisis on the Court, taking every opportunity to defend the importance of precedent and shame the Court's moderate conservatives into following the Court's prior cases. Indeed, Justice Kagan has gone out of her way to highlight her willingness to follow precedents with which she disagrees, most recently in Edwards v. Vannoy. The first footnote to Kagan's Edwards opinion reads:

I dissented in Ramos precisely because of its abandonment of stare
decisis. See 590 U. S., at ___−___ (slip op., at 5–9) (ALITO, J., dissenting);
see also Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455 (2015)
("Respecting stare decisis means sticking to some wrong decisions"). Now
that Ramos is the law, stare decisis is on its side. I take the decision on
its own terms, and give it all the consequence it deserves.

Given some of the cases the Court has yet to decide this term (most notably Fulton v. City of Philadelphia)–and tests of other landmark precedents on the horizon–Kagan has reason to be thinking about stare decisis. Whatever one thinks of the merits, it would be understandable if Kagan did not want to join an opinion casting shade on a prior Supreme Court opinion, even one with which she might disagree, while urging her colleagues to let (what they see as) erroneously decided cases to stand. After all, the Supreme Court under Chief Justice Roberts has been a "stare decisis court," overturning prior court precedents at a lower rate than its post-War predecessors. Justice Kagan would like to keep it that way.

UPDATE: For a critical take on Justice Kagan's approach to stare decisis, see this recent piece by Illinois Law Dean Vikram David Amar.


On the Continuing Relevance of Frank Meyer's Fusionism

Liberty and virtue are not merely compatible, but complementary, or so I would suggest.


This month, Liberty Fund's "Liberty Matters" focuses on Frank Meyer's "fusionism," and whether his attempt to reconcile individual liberty and moral virtue remains relevant in the 21st century.

Reason's Stephanie Slade has the lead essay, "Freedom and Virtue: Masters of Their Own Domains."  My own contribution, "Is Fusionism a Zombie Ideology?" was just posted. My essay begins:

In "Freedom and Virtue: Masters of Their Own Domains," Stephanie Slade adroitly summarizes the late Frank S. Meyer's "fusionist" political philosophy, highlighting Meyer's insight that liberty and virtue, properly understood, are not in conflict with each other. To the contrary, true virtue can only be achieved under individual liberty.  Accordingly, a proper concern for virtue is not merely compatible with an individualist political philosophy, it requires it.

The key question, and one to which Slade devotes inadequate attention, is whether Meyer's fusionism retains any contemporary relevance. Some of Meyer's specific policy views seem outdated and out-of-place in 21st century America, as Slade readily concedes. This is no surprise, as the issues of the day in the 1950s and 1960s, when Meyer did most of his writing, seem quite distant from the discrete policy fights of today. Accordingly, one may be tempted to discard Meyer's fusionism as something of a Cold War relic that provides little guidance for today's political questions, a zombie philosophy that survives in some corners but lacks any enduring insight. This view may be tempting, particularly for those who believe we have a new nationalist age, but it is mistaken.

In the days ahead, Liberty Matters will post additional contributions by Henry Olsen and William Dennis, followed by some rejoinders. While I largely agree with Stephanie's take, I am not sure that will be true of everyone in the exchange.

For more on Meyer and fusionism, here's a 2006 post from the VC archives and a paper I wrote for Publius on fusionism and federalism.


Free Speech

Eighth Circuit Agrees to Rehear Arkansas Anti-BDS Statute Challenge

The three-judge panel struck down the statute by a 2-to-1 vote, but now the entire Eighth Circuit will consider the case en banc.


So the court just ordered this afternoon; here is my summary of the February panel decision:

An Arkansas statute generally bans the government from contracting with companies that are boycotting Israel. It defines such boycotts as

  • "engaging in refusals to deal,
  • terminating business activities,
  • or other actions that are intended to limit commercial relations

with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories, in a discriminatory manner" (bullets added).

District Court Judge Brian S. Miller refused to issue a preliminary injunction against the statute, and granted the state's motion to dismiss the challenge. The court concluded that "other actions …" should be read as dealing with other commercial behavior, and not, say, speech urging boycotts:

While the statute also defines a boycott to include "other actions that are intended to limit commercial relations with Israel," this restriction does not include criticism of Act 710 or Israel, calls to boycott Israel, or other types of speech. Familiar canons of statutory interpretation, such as constitutional avoidance and [ejusdem] generis ["[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words"], counsel in favor of interpreting "other actions" to mean commercial conduct similar to the listed items.

And as thus limited to commercial behavior, the court held, the statute likely didn't violate the First Amendment. (Michael Dorf, Andrew Koppelman, and I filed an amicus brief on appeal agreeing that the law is constitutional if read as limited to commercial refusals to deal.)

[February 12], the Eighth Circuit (in an opinion by Judge Jane Kelly, joined by Judge Michael Melloy, with Judge Jonathan Kobes dissenting) interpreted the "or other actions" clause more broadly, to include speech promoting boycotts, and therefore held that the law was unconstitutional. The majority expressly didn't opine on the constitutionality of the "refusals to deal[ or] terminating business activities" portion of the law; the majority said,

Assuming without deciding that the Act would not run afoul of the First Amendment if it were limited to purely economic activity, our focus is on whether the term "other actions" includes activity that is constitutionally protected.

The court therefore "reverse[d] and remand[ed] for further proceedings consistent with this opinion."

But what's going to happen now? Here's my sense:

[1.] The District Court, following the Eighth Circuit mandate, will deny the state's motion to dismiss the challenge, and will likely grant a preliminary injunction against the "or other actions" prong.

[2.] But nothing in the panel's decision requires the judge to change his mind as to the constitutionality of the ban on doing business with companies that refuse to deal or terminate business activities. Under Arkansas law (which governs the question whether the provisions of a statute are "severable," so that invalidating one wouldn't require invalidating others),

Except as otherwise specifically provided in this Code, in the event any title, subtitle, chapter, subchapter, section, subsection, subdivision, paragraph, subparagraph, item, sentence, clause, phrase, or word of this Code is declared or adjudged to be invalid or unconstitutional, such declaration or adjudication shall not affect the remaining portions of this Code which shall remain in full force and effect as if the portion so declared or adjudged invalid or unconstitutional was not originally a part of this Code.

So the "refuse to deal" and "terminate business activities" still stand, and likely won't be blocked by the District Court.

[3.] The challengers will appeal that decision not to block those provisions, with the "are boycotts constitutionally protected?" question that the Eighth Circuit ducked being back before that court. The can has been kicked down the road, but it's still visible a few houses down, and the Eighth Circuit will come up to it again soon enough.

Justice Thomas Takes One For The Team in Borden v. U.S.

"This case forces us to choose between aggravating a past error and committing a new one. I must choose the former."


Borden v. United States presents yet another Armed Career Criminal Act (ACCA) case. Justice Kagan's controlling opinion summarizes the issue:

The Armed Career Criminal Act (ACCA), 18 U. S. C.§924(e), mandates a 15-year minimum sentence for persons found guilty of illegally possessing a gun who have three or more prior convictions for a "violent felony." The question here is whether a criminal offense can count as a "violent felony" if it requires only a mens rea of recklessness—a less culpable mental state than purpose or knowledge. We hold that a reckless offense cannot so qualify. 

For more than a decade, the Court has sharply divided about the ACCA. This case was no different. Justice Kagan announced the Court's judgment: the Sixth Circuit's judgment was reversed. But only three other Justices joined her opinion: Justices Breyer, Sotomayor, and Gorsuch. Justice Thomas only concurred in judgment. Justice Kavanaugh wrote a dissent, joined by Chief Justice Roberts and Justices Alito and Barrett.

What exactly did the Court hold? Justice Kagan and Kavanaugh quibble about how the votes lined up.

Justice Kavanaugh offers his rundown in Footnote 3.

3Just to explain today's lineup: Four Justices form the plurality. JUSTICE THOMAS concurs in the judgment. He agrees with the plurality's result but not its reasoning, and concludes that the phrase "use of physical force" alone excludes reckless offenses such as reckless assault or reckless homicide. The Court reached a different conclusion in interpreting a similarly worded statute in Voisine v. United States, 579 U. S. 686 (2016). But JUSTICE THOMAS indicates that he will not follow that precedent in this case. (Importantly, unlike the plurality, JUSTICE THOMAS does not rely on the phrase "against the person of another.") 

JUSTICE THOMAS further explains that reckless offenses were covered by ACCA under the residual clause. But that clause was declared unconstitutional in Johnson v. United States, 576 U. S. 591 (2015). Although JUSTICE THOMAS disagrees with Johnson, he indicates that he will today follow the Court's Johnson precedent, albeit not the Voisine precedent. 

So we find ourselves in an unusual situation. In Voisine, seven Justices agreed that the phrase "use of physical force" in a similarly worded statute covers reckless offenses. And eight Justices today accept that the phrase "use of physical force" covers reckless offenses. Moreover, five Justices today agree that ACCA's text, properly interpreted, would cover reckless offenses. And only four Justices conclude that the phrase "against the person of another" addresses mens rea and excludes reckless offenses. Yet despite all of that, Borden prevails, and reckless offenses are now excluded from ACCA's scope. That outcome is anomalous. 

This footnote reminds me of Kavanaugh's June Medical rundown.

Justice Kagan counted to five differently. And she chides Kavanaugh for whining about the "unfair" divide:

The dissent also goes through a complicated counting exercise about how different Justices have divided in this and two other cases, apparently to show how unfair it is that the dissent's view has not prevailed here. See post, at 4, n. 3. But there is nothing particularly unusual about today's line-up. Four Justices think that the "use" phrase, as modified by the "against" phrase, in ACCA's elements clause excludes reckless conduct. One Justice thinks, consistent with his previously stated view, that the "use" phrase alone accomplishes that result. See post, at 2 (THOMAS, J., concurring in judgment). And that makes five to answer the question presented. Q: Does the elements clause exclude reckless conduct? A: Yes, it does.

The real losers here are the lower courts. How will they follow this decision? Indeed, Justice Thomas cast his vote to give the lower courts a lifeline. He wrote:

Yet I reluctantly conclude that I must accept Johnson in this case because to do otherwise would create further confusion and division about whether state laws prohibiting reckless assault satisfy the elements clause.3

3 Voting to affirm petitioner's sentence here would lead to a 5 to 4 judgment that petitioner's sentence is correct even though five Justices conclude that Tennessee reckless aggravated assault does not satisfy the elements clause. That kind of fractured reasoning would be difficult for lower courts to apply.

Here, Justice Thomas took one for the team. This statement reminds me of Justice Souter's concurrence in Hamdi v. Rumsfield. He and Justice Ginsburg joined the plurality to give it effect:

Since this disposition does not command a majority of the Court, however, the need to give practical effect to the conclusions of eight members of the Court rejecting the Government's position calls for me to join with the plurality in ordering remand on terms closest to those I would impose.

Here, I'd like to highlight Part II of Justice Thomas's Borden concurrence. He raised two foundational points about federal jurisprudence.

First, he reiterates a truth that judges, attorneys, and professors refuse to accept: courts cannot "nullify" laws. Here, Thomas favorably cites Jonathan Mitchell's Writ-of-Erasure Fallacy.

First, to "pronounce that the statute is unconstitutional in all applications . . . seems to me no more than an advisory opinion—which a federal court should never issue at all." Chicago v. Morales, 527 U. S. 41, 77 (1999) (Scalia, J., dissenting). Courts have no authority to "'strik[e] down'" statutory text. See United States v. Sineneng-Smith, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring) (slip op., at 6); see also Mitchell, The Writ-of-Erasure Fallacy, 104 Va.  L. Rev. 933, 936 (2018). Nor may courts resolve "generalquestions of legality" by "provid[ing] relief beyond the parties to the case." Trump v. Hawaii, 585 U. S. ___, ___, ___ (2018) (THOMAS, J., concurring) (slip op., at 6, 8). A court may only "'adjudge the legal rights of litigants in actual controversies.'" United States v. Raines, 362 U. S. 17, 21 (1960). 

Second, the Court cannot halt the enforcement of a law where that enforcement would be lawful.

These errors show that this Court in Johnson not only misapplied the Due Process Clause but also exercised the legislative role. Legislatures alone have authority "to prescribe general rules for the government of society." Fletcher v. Peck, 6 Cranch 87, 136 (1810). Courts, by contrast, have authority to provide only those "remed[ies that are] tailored to redress the plaintiff 's particular injury." Gill v. Whit-ford, 585 U. S. ___, ___ (2018) (slip op., at 21). Simply put, where enforcement of a law would conflict with the Constitution, a court has authority under the Supremacy Clause to enjoin enforcement, but a court cannot, consistent with separation of powers, enjoin enforcement of a statute where enforcement would be lawful. Johnson, however, conducted the "quintessentially legislative work" of altering the legal rules that would apply in cases where the residual clause could lawfully be enforced. See Planned Parenthood of Northern New Eng., 546 U. S., at 329–330. 

This statement reflects Thomas's broader view that modern overbreadth doctrine is invalid.

Justice Thomas is playing in his own league. More judges should internalize this way of understanding the judicial role. I wish Justice Gorsuch had joined this opinion. Instead, once again, he voted wtih the progressives on a textualist question. Bostock will not be an outlier.

Finally, Justice Kagan offers a favorable citation to Heller. And she calls Justice Scalia one of the Court's "great wordsmiths."

As in those examples, ACCA's"against" phrase modifies volitional conduct (i.e., the use of force). So that phrase, too, refers to the conduct's conscious object. Indeed, the Court has made a similar point before, in an opinion by one of its great wordsmiths. When citizens "bear [a]rms against" some entity, Justice Scalia wrote, what follows the word "against" is "the target of the hostilities." District of Columbia v. Heller, 554 U. S. 570, 586 (2008) (internal quotation marks omitted). That is just as true when someone, as in the elements clause, actively employs physical force.

I am grateful for the Heller cite. Very few majority opinions have cited that landmark case. Alas, Scalia's argument about "bear arms against" is one of the weakest parts of his opinion. He made up that argument. It did not appear in any of the briefs. And my research suggests his "bear arms against" argument was incorrect. But a great wordsmith, he was.

Update on Predicting SCOTUS Assignments for the November Sitting

Justice Kagan wrote Borden. The Chief likely has the Obamacare case, and Justice Alito likely has Fulton.


On Sunday, I observed that there were three outstanding cases from the November sitting: Borden v. U.S., Fulton, and California v. Texas. And four Justices had not yet written a majority opinion: Chief Justice Roberts, and Justices Breyer, Alito, and Kagan.

I predicted that Justices Breyer or Kagan would write Borden, an ACCA case. Today, Justice Kagan wrote controlling opinion in Borden. The split in this case was fractured. Justice Kagan announced the judgment of the Court, and wrote an opinion joined by Justices Breyer, Sotomayor, and Gorsuch. Justice Thomas concurred in judgment. Here, I think that Justice Breyer would have assigned the opinion to Justice Kagan, since Justice Thomas only concurred in judgment. Justice Kavanaugh dissented, joined by Chief Justice Roberts, and Justices Alito and Barrett.

Now, we have two remaining cases from the November sitting: Fulton and California v. Texas. I am skeptical that Justice Breyer will write either case. Lord help us professors if he does. I adore SGB, but his constitutional law decisions are impossible to teach. (See, for example, Comstock and Noel Canning). Therefore, we are likely left with the Chief writing on Obamacare, and Justice Alito writing Fulton.

We only had one opinion announced today. Forget Blue June or Red June. So far we have Slow June. The end of the term is going to be a blitz.

Reaching Equilibrium: How Do Criminal Law Conventions Develop?


Justice Scalia's celebrated dissent in Morrison v. Olson, which argued that the independent counsel statute was unconstitutional, contains two important themes. The first concerned separation of powers and explained why Congress had unconstitutionally removed an officer exercising purely executive power from the supervision of the President. But Part V of the opinion heads in a different direction: checks and balances. Quoting Justice Jackson, Justice Scalia explained, "With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone." To curtail prosecutors' expansive formal legal power, Justice Scalia understood that "the primary check against prosecutorial abuse is a political one."

While statutory criminal laws may be broad, they are narrowed by unwritten criminal law conventions. And criminal law conventions develop because executive officials face political sanctions for violating them.

Observe, for example, the dispute over federal enforcement of marijuana laws. Between 2009 and 2013, the Department of Justice instructed U.S. Attorneys not to prosecute those growing and using marijuana lawfully under state law. At first, the guidance was applied to medical marijuana, but the Department later expanded it to cover recreational marijuana in states that had legalized it. Five years later, President Trump was in office. His Attorney General, Jeff Sessions, opposed marijuana legalization and rescinded the memo. The political backlash was swift. Senator Cory Gardner—a Republican from Colorado, which had legalized recreational marijuana—responded by blocking the confirmation of about twenty Department of Justice nominees. With a member of his own party refusing to confirm nominees, President Trump promised (despite his duty to "faithfully execute the laws") that the Department of Justice would not interfere with Colorado's marijuana industry. Thus, even though Sen. Gardner could not successfully get Congress to amend or repeal the federal law on marijuana, he attained de facto decriminalization by raising the political price of enforcement beyond what the executive branch was willing to pay.

Prosecutors face significant pressures from a multitude of directions. Legislatures may pass broad and vague criminal laws, which empower prosecutors. But then legislatures curb that power by controlling enforcement agencies and threatening legal reform if prosecutors become overzealous. Legislatures also strip power from prosecutors who underenforce the law. Larry Krasner, the Philadelphia District Attorney, has come under severe criticism for his proposed leniency in cases involving violent crimes and gun crimes. The Pennsylvania legislature responded by giving the state Attorney General concurrent jurisdiction to prosecute certain gun crimes in Philadelphia, thereby weakening Krasner's ability to set criminal justice policy in the city.

Many prosecutors face electoral pressures. In some jurisdictions, this makes it difficult for prosecutors to be excessively lenient. More recently, however, excessive enforcement has become politically toxic, with many cities electing "progressive prosecutors." Federal prosecutors are appointed, not elected. But their conduct affects the president's political fortunes, and many U.S. Attorneys harbor ambitions for higher political office. So they are often responsive to voters' concerns.

Juries make it difficult for prosecutors to bring cases against sympathetic defendants or defendants who, although they may have technically breached some law, have not violated community norms. Faced with improperly brought cases, jurors may nullify. And even if they do not nullify, jurors may review the evidence in the light most favorable to a sympathetic defendant. Although few cases today go to juries, enforcement decisions take place in the shadow of the jury. The threat that the defendant may take the case before the jury influences and disciplines how prosecutors act. (See, for example, Anna Offit's article Prosecuting in the Shadow of the Jury.)

Judges have a variety of tools to combat prosecutorial abuse. Some are legal. Faced with vague or overbroad laws, judges may construe them to contain strict mens rea requirements, by narrowing the actus reus, or by striking them down as unconstitutional. A few jurisdictions have adopted Section 2.12 of the Model Penal Code, which gives judges power to dismiss "de minimis infractions." Appellate judges may also be more apt to reverse convictions of sympathetic defendants for trial errors that, for less sympathetic defendants, may be written off as harmless. And judges have soft-power tools. They can encourage prosecutors to drop charges or plead them out at reduced sentences. In many cases, a judge may lack the legal power to stop a determined prosecutor from seeking a maximum sentence. But prosecutors are repeat players who are incentivized not to anger judges before whom they appear.

Finally, the expansion of federal criminal law paradoxically may curb some prosecutorial abuses. Duplicative federal criminalization can make it difficult for local officials to be too lenient. Krasner's leniency led the Philadelphia U.S. Attorney to indict some violent-crime defendants under harsher federal law. Excessive harshness or leniency can also trigger "uncooperative federalism" among federal and state agencies. Federal and state law enforcement are interdependent. State governments have far more police and prosecutors, while the federal government has sophisticated investigative resources and provides grants to state and local governments. Prosecutors who defy norms may strain this relationship.

Given the variety of checks on prosecutorial power, one question that emerges with unwritten conventions is whether the conventions are national or local in nature. I think there are some of both. Unwritten English law recognized both "general customs," which Blackstone called "the common law, properly so called" and "particular customs" which Blackstone described as unwritten laws that "affect[ed] only the inhabitants of particular districts." In our federal system, I think criminal law conventions have a similar structure. Some conventions are national—e.g., the decriminalization of consensual sex offenses. Others may be local, such as cities that widely tolerate some personal use of recreational drugs or refuse to enforce certain gun crimes.

Having multiple layers of customs promotes development in the law. As local governments experiment with new norms, some local customs (e.g., drug decriminalization) may spread nationally. In other cases, national norms can override pernicious local customs. For example, in the 1960s, the federal government, faced with local legal systems in the South that widely tolerated violence against African Americans, began prosecuting some racially motivated violence under federal civil rights laws. Duplicative federal-state criminalization, thus, provided a countermeasure against local customs that left African Americans vulnerable to violence by underenforcing the law.

In summary, indirect sanctions discipline prosecutors and curb the effective scope of their discretion. To restate a point that I made in my last post, I do not think that current criminal law conventions solve all that ails our criminal justice system. Obviously, it does not. My final post tomorrow will tackle some of those issues. But the existence of considerable constraints on prosecutorial discretion does much to mitigate the potential harms of our imperfect statutory criminal law.

Gains and Losses: The Arbitrary Effect of Decision Frame

The outcome of a lawsuit can sometimes turn on an arbitrary reference point.


Imagine that you bet a friend $50 that the Kansas City Chiefs would win Super Bowl LV in February of 2021. In a triumph of experience over youth, Tom Brady and the Tampa Bay Buccaneers beat Patrick Mahomes and the Chiefs. How would you describe the outcome of your bet? Most people would say something like, "I lost $50." That is only partly accurate, however. You have not only lost $50, but you have also failed to win the $50 that your friend would have paid you had the Chiefs won. In reality, Tom Brady's outstanding performance cost you $100 (sorry Brady-haters, it was outstanding).

The bet above demonstrates the widely studied, deeply powerful phenomenon that psychologists Amos Tversky and Daniel Kahneman called "framing." Framing is the tendency to treat an improvement from the status quo (gains) differently than a deterioration from the status quo (losses). Losses hurt more than identical gains feel good. In the Superbowl bet, the loss of $50 attracts much more attention than the foregone gain of $50. People work harder and take more risks to avoid losses than to obtain comparable gains. They also value their possessions more than comparable goods that they do not yet own (the endowment effect). Treating gains and losses differently can be sensible, but it often occurs when the status quo is arbitrary or even meaningless.

The influence of framing can be found in many areas of law. The Supreme Court interprets constitutionally enshrined federalism as precluding the federal government from imposing penalties (losses) on states for failing to enact legislation, but federal statutes that withhold federal highway funds (foregone gains) for failing to enact legislation are constitutionally acceptable. A New York statute forbids the use of surcharges (losses for those who use credit) on credit card transactions but allows discounts for cash (foregone gains for those who use credit). The Clean Air Act regulates new sources of air pollution (which can reduce potential profits from future facilities) far more aggressively than existing sources (which would impose losses on existing facilities). As the late Professor Patrick Atiyah put it: "To deprive somebody of something which he merely expects to receive is a less serious wrong, deserving less protection, than to deprive somebody of the expectation of continuing to hold something which he already possesses."

In research on sitting trial judges, we have found that framing has a big influence on how judges think. We conducted a series of eight experiments with trial judges. In each experiment, judges read a hypothetical case in which we varied the reference point of a lawsuit; half of the judges read a case involving a foregone gain for a litigant, while the other half read the same case recast as involving a loss for that litigant. For example, in one study, we asked trial judges to award compensatory damages for medical malpractice that left a patient permanently blind. For half of the judges, the surgery was necessary to restore vision to a patient who had recently lost it; for the other half, the surgery was necessary for the patient to avoid losing his vision. The judges awarded a median of $1.5 million in compensation for an operation that failed to restore the plaintiff's eyesight, but $2.5 million for an operation that deprived the plaintiff of his eyesight. The judges thus assigned a higher price to the loss of sight than to the foregone opportunity to regain vision.

In another study, we explored whether judges would react differently to evidence of age discrimination based on whether the alleged discrimination occurred in firing an employee as opposed to failing to hire a job applicant. We informed the judges of a state statute forbidding an employer from discriminating on the basis of age—a prohibition that applied with equal force to both hiring and firing. For half of the judges, the complainant was one of five finalists for a residence director job at a local college who ultimately lost out to four much younger applicants. For the other half, the complainant was one of five residence directors faced with a layoff due to staff reductions, and whom the college ultimately let go instead of four much younger employees. In both cases, the evidence that the college had favored younger applicants or employees was identical. Only 14% of the judges determined that age was a "substantial motivating factor" in the college's decision not to hire the complainant, compared to 30% of the judges who evaluated the decision to lay off the complainant. The same evidence seemed more compelling when the employee had been terminated than simply not hired.

In a third study, we asked judges whether they would rescind a contract based on mutual mistake. For half of the judges, the plaintiff seeking rescission was a buyer who had purchased a collectible he had thought was valuable but which actually turned out to be worthless. For the other half, the plaintiff was a seller who had sold a collectible he had thought was worthless but which was actually valuable. In both cases, the parties were ignorant of the item's actual value and had made no representations about its worth. Upholding the contract imposed a loss on the disappointed buyer but was a foregone gain for the disappointed seller. Although the doctrine of mutual mistake does not distinguish between buyers and sellers, the judges in our study did. Among those evaluating buyers, 82% favored rescission, as compared to only 41% of those evaluating sellers. We also found the same framing effect among a group of elite arbitrators who considered this same problem.

We also found that framing had a robust influence on contractual damages, wage disputes, water rights, settlement offers, liability for vaccines, and bankruptcy reorganization plans. In all of our experiments, the frames created an arbitrary influence. A lifetime of eyesight is not more valuable when it is lost rather than when a simple surgery that should restore it fails. Likewise, being fired is usually worse than not being hired, but the same evidence should not be evaluated as more probative of discrimination merely because firing rather than hiring is at stake. And finally, the mistake in our contracts case was just as costly to the seller as it was to the buyer, even though judges treated them differently.

An arbitrary reference point creates a powerful illusion. So long as they recognize the influence that frame has, however, judges can "imagine the opposite" by considering whether the case would come out differently if the stakeholder were in the opposite position. Also, even though research shows that lawyers are at least as vulnerable to the influence of framing as judges, lawyers can try to reframe how they present cases to judges. We suspect, however, that even with such efforts, frame will continue to influence case outcomes.

Our full article on framing in judges: Jeffrey J. Rachlinski & Andrew J. Wistrich, Gains, Losses & Judging: Framing the Judiciary, 94 Notre Dame L. Rev. 521 (2018).

Tomorrow: Emotional Influences on Judges