The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

David Lat on the Crystal Clanton Matter


As usual, Lat puts it very well in his "Original Jurisdiction" Substack newsletter (I've paid for a subscription, and highly recommend it):

Last fall, [Chief Judge Pryor] was widely criticized for hiring an allegedly racist law clerk—specifically, Crystal Clanton, now a 3L at George Mason aka Scalia Law. According to a 2017 New Yorker article, Clanton once texted a co-worker at Turning Point USA, the conservative nonprofit where she worked before law school, "I HATE BLACK PEOPLE. Like f**k them all…. I hate blacks. End of story."

At the time, I did not jump on the Pryor-bashing bandwagon. After noting that he's (1) a smart person who knows how to run a Google search and (2) a highly regarded Supreme Court feeder judge, I argued that Chief Judge Pryor "wouldn't want to 'waste' a clerkship on someone who would be radioactive to the justices." So I speculated that there must be more to this story—and that perhaps Justice Clarence Thomas, the nation's highest-ranking and most famous Black jurist, had vouched for Clanton to Pryor. (Clanton worked for Justice Thomas's wife, Ginni Thomas, after getting fired from Turning Point, and Chief Judge Pryor is a leading feeder judge to Justice Thomas.)

It turns out that there was more to the story. After seven members of Congress called for an investigation into Pryor's hiring of Clanton, the Eleventh Circuit referred the complaint to the Second Circuit. Chief Judge Debra Ann Livingston of that court conducted an investigation and wrote up her findings, as reported by Bill Rankin of the Atlanta Journal-Constitution:

In her ruling, Livingston cited one of the Turning Point USA's executives who said Clanton treated everyone with "kindness, respect and fairness." This person also said "the media reports are not accurate," Livingston wrote.

The Turning Point executive "had determined that the source of the allegations against (Clanton) was a group of former employees," Livingston wrote. "One of these employees was fired after the organization learned that this person had created fake text messages to be used against co-workers, to make it appear that those co-workers had engaged in misconduct when they had not."

Pryor and Maze knew about the allegations against Clanton when they interviewed and hired her. And both determined the allegations of racist behavior by Clanton were untrue and found she was highly qualified to serve as a clerk for them, Livingston wrote.

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Free Speech

"The Law Has Already Sawed That Claim in Half"

The latest from Paul Alan Levy (Public Citizen), pushing back against threats of trademark litigation over parody.


From Levy's Consumer Law & Policy Blog post, "Defending the Right to Be Funny" (and check out the demand letter itself):

Late last year, Harrison Greenbaum, a New York comedian and magician, included Christopher Nicholas Sarantakos, better known in the magician trade as Criss Angel, who is, apparently, a very well known magic act, in an annual satirical review that he offers of major figures in the magic trade. A particular point of this performance was a restaurant that Sarantakos opened in a rural area outside Las Vegas called Criss Angel Breakfast Lunch and Pizza, or CABLP. Greenbaum put together a parody of the restaurant's menu, and put the menu online for the performance, using the domain name, which was still available for purchase because Sarantakos, quite logically, chose some much shorter domain names ( and which could much more easily be typed into a browser.

Angel was neither honored to have been included in the satirical hall of honor, nor amused by the jokes. He hired a lawyer in New York to send Greenbaum a demand letter asserting that the parody menu infringes his copyright and his trademark, and that the domain name infringes his trademark, and threatening both to sue for damages and to invoke the Uniform Domain-Name Dispute-Resolution Policy ("UDRP") to seize the domain name. Hoping to achieve a prompt resolution, Greenbaum's initial reaction was to offer to give up the domain name, but at that point Sarantakos got greedy, demanding both a confidentiality clause as well as a commitment that Greenbaum would never again display the parody menu.

The result is that Sarantakos is likely to get nothing besides more publicity for the CABLP Restaurant parody. In a letter sent late last week, I explained both that the domain name for the parody menu is well protected by a line of cases that Public Citizen established back in the first decade of this century, and that the menu itself is a fully protected, noncommercial parody that cannot possibly be confused with Sarantakos' commercial enterprise and in any event is fair use under both trademark and copyright laws….

New Essay: "Judicial Courage"

Coming soon in the Texas Review of Law & Politics issue on "Uncommon Fortitude"


The Texas Review of Law & Politics is devoting its winter issue to the theme of Uncommon Fortitude. I wrote a short essay, titled Judicial Courage. Here is the even-briefer abstract:

What is judicial courage? Supreme Court justices often accuse their colleagues of lacking fortitude, but they seldom explain what this concept means. This essay will provide a brief discourse about judicial courage. Part I considers how Justices on the Supreme Court have used this doctrine—both to praise and to criticize. Part II attempts to define judicial courage. And Part III applies these principles to decisions of the lower courts.

Please email me with any comments or feedback.


Supreme Court

Are the Supreme Court Justice "Happy Campers"?

Nina Totenberg reports on potential strains among the justices and Justice Gorsuch's decision not to wear a mask at argument.


NPR has posted a story by Nina Totenberg suggesting that there are simmering tensions among the justices on the Supreme Court. From the article, "Supreme Court justices aren't 'scorpions,' but not happy campers either":

 . . . anybody who regularly watches Supreme Court arguments is used to seeing some testy moments in both big and little cases. But you don't have to be a keen observer these days to see that something out of the ordinary is happening.

Some of it is traceable to the new conservative supermajority, including three Trump appointees, a court that may well end up more conservative than any since the 1930s. It's a majority that has evidenced less and less respect for precedent, or the notion of deference to Congress in setting policy.

So it's not surprising that the court's three liberal justices would be upset. . . .

It's not simply an ideological split, according to Totenberg. She reports that the conservatives may have some frustrations with each other.

There isn't a lot of love lost among the court's six conservatives either. They often agree on the outcome of a case but not the legal reasoning, with Chief Justice Roberts sometimes trying to rein in the court's most aggressive conservatives. If you watch carefully, you can see conservative eyes rolling from time to time.

If so, this would not be particularly new. The late Justice Scalia was repeatedly critical of Chief Justice Roberts' minimalist approach.

The opening of Totenberg's story is getting a particular amount of attention, as it addresses how the justices have handled concerns about Covid-19. All of the justices have worn masks to oral argument, except for Justice Gorsuch, and Justice Sotomayor has been participating in oral argument remotely. From Totenberg:

It was pretty jarring earlier this month when the justices of the U.S. Supreme Court took the bench for the first time since the omicron surge over the holidays. All were now wearing masks. All, that is, except Justice Neil Gorsuch. What's more, Justice Sonia Sotomayor was not there at all, choosing instead to participate through a microphone setup in her chambers.

Sotomayor has diabetes, a condition that puts her at high risk for serious illness, or even death, from COVID-19. She has been the only justice to wear a mask on the bench since last fall when, amid a marked decline in COVID-19 cases, the justices resumed in-person arguments for the first time since the onset of the pandemic.

Now, though, the situation had changed with the omicron surge, and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.

They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices' weekly conference in person, joining instead by telephone.

Based upon this report, it seems like Justice Gorsuch is acting like an uncourteous cad, but is all what it seems? The particular wording of Totenberg's report (italicized above) caught my eye. What does it mean that the Chief Justice asked the other justices "in some form"? Totenberg is a careful reporter, so this extra language is there for a reason. Just as reporters are often very careful about how they characterize anonymous sources, this qualifying language is serving some purpose. At the least, it suggests that there was not a formal, direct request from the Chief to all of the other justices, but something less than that (or that is all Totenberg's source was willing to say. [And, for those who care, all the justices are vaccinated, so they are all compliant with the OSHA ETS rejected in NFIB v. OSHA, which did not require masks or testing for vaccinated employees.]

An additional reason for caution about Totenberg's report is that some are quick to presume the worst about the Court's conservatives or to see scandal when it is not there. Recall that when Justice Breyer joined Justice Sotomayor in participating remotely in oral argument, some commentators were quick to presume this was a response to Gorsuch's decision not to wear a mask. Yet this was not so. Justice Breyer participated remotely because he had tested positive with a remote test.

So if the Chief Justice asked all the justices to wear masks to-from argument out of respect to Justice Sotomayor, and Gorsuch refused, I think it's fair to call him out on that. Based on this report, however, I am not certain that is what happened. There may be more to the story.

Crime Victims Allege Baltimore Police Department Unconstitutionally Seized (and Destroyed) Their Property

A federal court has allowed the case to go forward, including on a theory that the Department does this as a "pattern and practice."


From Judge Stephanie Gallagher's opinion Thursday in Cottman v. Baltimore Police Dep't:

The following facts are assumed to be true for purposes of adjudicating Defendants' motions. The Amended Complaint alleges that the BPD engages in a "pattern and practice of unconstitutionally searching, seizing, retaining, and destroying the personal property of victims of violent crimes in Baltimore" in violation of the Fourth … and Fourteenth Amendments to the United States Constitution….

Plaintiff Faye Cottman alleges that a stranger shot her and her 11-year-old son at a playground near the Cherry Hill neighborhood in Baltimore on March 14, 2019. While she was in a disoriented state, Defendant Officer Destinee Macklin seized her jacket, phone, wig, and shoes without her consent. At some point thereafter, Defendant Macklin and/or other unnamed BPD officers illegally searched Ms. Cottman's phone without her consent or a warrant.

In a subsequent conversation at the hospital, Defendant Macklin told Ms. Cottman that her phone was evidence, even though Ms. Cottman told Defendant Macklin that she had no prior relationship with the shooter and had never seen the shooter before. In September, 2019, the Baltimore City Circuit Court found the shooter not criminally responsible, committed her to a psychiatric institution, and closed the case. In May, 2020, Defendant Macklin was contacted regarding Ms. Cottman's property. After initially agreeing to return it, Defendant Macklin did not respond to further attempts to contact her, and Ms. Cottman's property remains in BPD custody.

On March 20, 2020, Plaintiff Amber Spencer attended a cookout to celebrate her boyfriend's birthday, where she was shot by a stranger. While at the hospital, Defendant Officer Jeffrey Converse seized Ms. Spencer's cell phone, jeans, shirt, shoes, and approximately $400 in cash. Someone from the BPD also seized the key to her car. When Ms. Spencer later contacted Defendant Converse, he stated that he was unable to return her property, and that she could retrieve her property once the State of Maryland and the City of Baltimore entered "Phase 3" of the COVID-19 recovery. Ms. Spencer's property remains in BPD custody.

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Defying Criminal Demands

The Right to Defy Criminal Demands: Introduction


I've just finished up a rough draft of this article (6 years in the making), and I thought I'd serialize it here, minus most of the footnotes (which you can see in the full PDF). I'd love to hear people's reactions and recommendations, since there's still plenty of time to edit it. You will also be able to see all the posts, as they come up, here.

[* * *]

Craig is trying to force Danielle to do something, by explicitly or implicitly threatening to criminally retaliate if she doesn't go along. And, as often happens, Craig's threatened crime is endangering not just Danielle but also innocent bystanders.

Should the legal system require Danielle to comply with the demands, on pain of civil liability (for negligent injury or nuisance), or even of criminal punishment (for disturbing the peace or perhaps reckless endangerment)? Or should Danielle have, in effect, a right to defy Craig's demands, even if this means a higher risk to bystanders?

These questions can arise in many different situations:

  1. Danielle's abortion clinic has been firebombed in the past, by people who want it to close or at least to leave town. Neighbors sue the clinic, claiming its operation is a nuisance, because it makes them fearful that future attacks will harm them as well.[1] If the neighbors win, that in effect means that Danielle had a legal duty to comply with the arsonists' demands (at least to the extent of moving to a place that may be more expensive for her, and less convenient for patients).
  2. The clinic is indeed attacked again, and neighbors or visitors who are injured sue the clinic for negligently increasing the risk of such attack. The same can of course apply to any controversial business or enterprise, such as a church, synagogue, or mosque; an animal experimentation facility; a political organization; or a bookstore that sells books that contain the Mohammed cartoons or other material that highly offends some people.[2]
  3. A store is being robbed. Danielle, a store employee, refuses to go along with the robbers' demands that she turn over money, so they injure a customer to accentuate those demands. The customer sues the store, claiming the employee's actions foreseeably increased the risk of the injury.­­­ If the customer wins, that in effect means that Danielle had a legal duty to comply with the robber's demands.
  4. Craig kidnaps Danielle's employee, and demands ransom. Danielle refuses to pay, so Craig kills the employee; the employee's family sues Danielle for negligence, claiming that she had a duty to pay the ransom.
  5. Danielle and her fellow protesters carry signs insulting a religion. Craig and a group of his friends start throwing things at the protesters. The police order the protesters to leave, hoping to keep the confrontation from escalating,[3] and threaten to punish them with prosecution for breach of the peace or for resisting a lawful order if they don't comply.

A version of this problem also arises when Craig hasn't expressly demanded that Danielle do something, but rather Craig obviously doesn't want Danielle to do it:

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Free Speech

No First Amendment Violation in Removal of Billboard After S.F. Mayor Had Criticized It


From Zhou v. Breed, decided Friday by the Ninth Circuit (Judges John Owens and Michelle Friedland, and visiting Sixth Circuit Judge Danny Boggs):

Appellants allege that both [S.F. Mayor London] Breed and Clear Channel violated their First Amendment right to free speech. To the extent that Appellants argue that Breed, or any public official, violated their First Amendment rights simply by speaking critically of a billboard or calling for its removal, that theory is squarely foreclosed by precedent.

We have previously joined a "host of other circuits" in holding that "public officials may criticize practices that they would have no constitutional ability to regulate, so long as there is no actual or threatened imposition of government power or sanction." Am. Fam. Ass'n, Inc. v. City & County of San Francisco (9th Cir. 2002); see also id. ("[L]etters which encouraged but did not threaten or intimidate landowner to terminate lease with billboard owner did not violate billboard owner's First Amendment rights." (citing R.C. Maxwell Co. v. Borough of New Hope (3d Cir. 1984))). Appellants have not alleged that, in criticizing one of Appellants' billboards, Breed or any public official made any threats of government sanction against Zhou, AAFPAC, Clear Channel, Outfront Media, Inc. …, or anyone.

Appellants' argument that their First Amendment rights were violated when Clear Channel, a private company, removed one of their billboards also fails. "A threshold requirement of any constitutional claim is the presence of state action." We "start with the presumption that private conduct does not constitute governmental action." Appellants do not allege any facts or put forward any plausible legal theory that would support treating Clear Channel as a state actor in this case.

The mere fact that Breed or other public officials criticized a billboard or called for its removal, without coercion or threat of government sanction, does not make that billboard's subsequent removal by a private party state action. See also Am. Mfrs. Mut. Ins. Co. v. Sullivan (1999) ("Action taken by private entities with the mere approval or acquiescence of the State is not state action."). Nor does the fact that companies that own billboards might be subject to some government regulations convert Clear Channel's decision to take down the billboard following public officials' criticism into state action. See Manhattan Cmty. Access Corp. v. Halleck (2019) ("Put simply, being regulated by the State does not make one a state actor."); Mathis v. Pac. Gas & Elec. Co. (9th Cir. 1989) ("[T]hat PG & E is a public utility subject to extensive state regulation … without more, is insufficient to infuse its conduct with state action."). Because Appellants have failed to allege state action, the district court properly dismissed their First Amendment claim.

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Civil Rights

Martin Luther King on the Ethics of Resistance to State Authority

Georgetown philosopher Jason Brennan offers a valuable summary of King's thought on these issues.


Martin Luther King, Jr.


Today is Martin Luther King Day, an appropriate time to honor and examine King's legacy. One of the things King was most famous for was his advocacy of civil disobedience, and - more generally - the idea that disobeying laws enacted by governments is sometimes justified.

Georgetown philosophy Prof. Jason Brennan, himself the author of an important book on the morality of resistance to government power, has a useful summary of King's views on these issues. As Brennan points out, King believed that disobedience to unjust laws is often entirely justified, even when the laws in question were enacted by democratic governments:

Many people assume that we almost always have a duty to obey the law, even unjust laws. King argued that unjust laws are no laws at all. Or, more precisely, he argued that if a law is unjust, there is no obligation to obey it and no right to enforce it.

He argued there could be all sorts of reasons why a law lacks legitimacy and authority. King denied that something evil could be rendered permissible if a democracy voted for it. He thought we had genuine rights and these rights are not created by government fiat or social agreement.

He also thought laws could lack legitimacy and authority because they were passed by an unfair procedure. For instance, many countries in Southern states were even majority Black, but only the white minority could vote.

I think King was right about this, and that, for many unjust laws, we have no obligation to obey. I outlined some of the reasons why in this 2014 piece about why most undocumented immigrants have no moral obligation to obey laws denying them the right to move to another country (see also follow-up post here). The same reasoning applies to many other unjust laws, at least those that inflict great harm on their victims.

Brennan is also right to note that, on King's view, justified disobedience to unjust laws may not always require accepting punishment. He favored such acceptance, in some cases, for largely tactical reasons:

Let's distinguish between two different kinds of reasons for accepting punishment. One reason could be that you deserve punishment for breaking an authoritative law. But, as King makes clear in his writings, he generally thought the laws he broke lacked authority. Breaking these laws was not merely permissible, but heroic and good.

So, a second possible reason to accept punishment is strategic; by accepting punishment, a person can engage in a public act of protest. They can show that they did not break the law out of convenience or criminal intent, but from concern for justice. Accepting punishment could also induce the public to sympathize with the victims of the law.

Civil disobedience is a public act in which a person not only breaks the law, but makes sure others see them doing it. The point of civil disobedience is to change that law.

Sometimes, the goal of disobedience is not to effect a change in law (which, may, for political reasons, be impossible at the time), but simply to prevent injustice in that particular case. For example, many of the people who violated the Fugitive Slave Acts in the 19th century did not turn themselves into the authorities and accept punishment. And they were entirely justified in so doing. Accepting punishment would, among other things, have impeded their efforts to help escaped slaves. At least for a long time, they had little hope of getting Congress to repeal the Fugitive Slave Acts. But they could and did help individual slaves escape their reach.

At times, King seems to have endorsed a more categorical duty to accept punishment, as when he wrote that "One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty." But that was in the context of writing about civil disobedience intended  "to arouse the conscience of the community over its injustice" and thereby facilitate reform. In situations where such reform is impossible or highly unlikely, Brennan is right to suggest that King's logic leads to the idea that refusal to accept punishment might well be justified.

Brennan also points out, contrary to much conventional wisdom, that King was not an advocate of absolute non-violence, but merely supported it as a strategy for the civil rights movement on tactical grounds:

King was not a pacifist. He believed violence in self-defense and in defense of others is permissible. He owned firearms for self-protection and even tried to get a concealed carry permit. And, as we saw, he needed those firearms because he received constant death threats and was in fact murdered.

King defended nonviolence on strategic grounds for the purpose of changing the law. He argued that if activists fought back against the police–even if they thought the police had it coming–by returning violence for violence, the public would probably side with the police and the government against the people. He thought the public would condemn the activists and their cause. In contrast, but refusing to fight back, the victims of injustice could win the public's support and possibly even the sympathy (or "friendship," King says) of those attacking them.

While King was not, on principle, opposed to all violent resistance to injustice, it is important to emphasize that he did oppose violence targeting innocent civilians, including that caused by rioting. In 1968, he warned that "riots are socially destructive and self-defeating" and that, "[e]very time a riot develops, it helps George Wallace." He opposed the riots of his own time on both moral and instrumental grounds. While we cannot know for sure, it seems likely he would have felt the same way about the last year's riots in the wake of the brutal killing of George Floyd by Minneapolis police.

The obvious criticism of views like King's is that many people may have poor judgment about which laws are unjust. For example, those who stormed the Capitol on January 6, 2021 likely believed that enforcement of the laws against doing so would be unjust, because (in their view) Donald Trump had a right to stay in power. Similarly, both left and right-wing terrorists often believe they are justified in violating laws against murder and assault.

But the risk that individual citizens may be mistaken about matters of justice has to be balanced against the danger that government can be wrong about such things, as well. Even in democratic societies, there is a long and awful history of the latter.  Throughout American history, many more people have been killed and oppressed by unjust exercises of government power than by individuals acting on mistaken assumptions about which laws are morally defensible. The toll of slavery and segregation (both imposed by law) alone easily outweighs that of all morally motivated private disobedience to law combined. The extent to which people should defer to the government's judgment on questions of justice depends heavily on how good that judgment is. All too often, the answer is that it is, at best, highly unreliable.

Even when governments are acting unjustly, there should nonetheless - for reasons well-articulated by King's critique of riots - be a very strong presumption against violent action that might harm innocents. But the threshold for defensible peaceful disobedience is much lower.

King's views on the ethics of disobeying laws do not definitively settle the debate over this age-old question. Even a great historic icon like King was not infallible, and could be wrong on some issues. Still, his ideas on this vital issue are well-worth exploring, and have obvious continuing relevance, even many years after his tragic death.

UPDATE: I have made a few additions to this post.

UPDATE #2: Many of King's views on obedience to law and resistance to state authority are set out in his famous 1963 "Letter From a Birmingham Jail."

Economic Liberty

Claim that "Certificate of Need" Law Lacks a Rational Basis Can Go Forward

“[T]he great deference due state economic regulation does not demand judicial blindness to the history of a challenged rule or the context of its adoption nor does it require courts to accept nonsensical explanations for regulation.”


From Slaughter v. Dobbs, decided Thursday by Judge Carlton Reeves (S.D. Miss.):

This case is a constitutional challenge to Mississippi's Certificate of Need ("CON") program. Under consideration are a set of laws that require health care facilities to apply and receive a state-issued CON before opening, expanding, relocating, changing ownership, or even acquiring major medical equipment. Also at stake are 40-year-old moratoria which bar the issuance of CONs to certain new health care facilities, particularly those that offer at-home health care services.

From 1985, three years after the creation of the moratorium, to 2014, the Mississippi State Department of Health reports that demand for at-home health services tripled. Amidst the COVID-19 pandemic, agencies offering these services have taken on critical importance as many of us seek alternatives to hospitals, nursing homes, and other care facilities that increase the risk of exposure to the virus. To protect ourselves and our loved ones, and in our collective effort to stop the spread, some of us turned to agencies like those at issue in this case.

Plaintiff Charles Slaughter alleges that the CON regime, including the moratoria, violates the equal protection and substantive due process clauses of the United States and Mississippi Constitutions. Specifically, he claims that the regime harms Mississippians, protects monopolies, and worsens the very goals it claims to advance. For support, he relies on 40 years' worth of research finding that CON laws stifle innovation in the health care industry and merely protect established companies from competition….

By way of background, CONs were a national phenomenon of the 1970's. The National Health Planning and Resources Development Act of 1974 conditioned federal funding upon states adopting CON programs that met federal guidelines. In 1979 the Mississippi legislature, like many other states, adopted CON laws. By 1982, every state except for Louisiana had implemented some version of a CON program. See National Conference of State Legislatures.

In 1987, however, Congress repealed the law. Since then, widespread scholarly and government research has admitted that the experiment was misguided. See Complaint at 70 n.1 (collecting research). Specifically, CONs are ineffective in achieving the desired outcome: less expensive, more accessible, and better-quality health care. Still, today 35 states retain CON laws.

The Board and Health Department, the agencies that administer the CON program, disagree with the research consensus. Citing the State Health Plan, they claim the CON regime is designed to "prevent unnecessary duplication of health resources; provide cost containment; improve the health of Mississippi residents; and increase the accessibility, acceptability, continuity and quality of health services." They review the CON program annually and have recommended it continue….

[T]he CON application and approval process … is lengthy and costly, and ultimately the process can result in what is essentially a trial with attorneys, consultants, exhibits, and written motions. Any "affected persons," including current home health providers, can oppose the application. After the proceeding, the Board and Health Department evaluate whether the applicant has demonstrated need based on several factors, including 16 criteria (e.g., "economic viability," "consistency with the state health plan," and "access by health professional schools") as well as a regional formula to define "need."

Even so, there is a categorical ban on certain new facilities applying for CONs at all. In 1982, the predecessor to the Health Department determined that no new home health care agencies were needed and issued an administrative moratorium on their licensure. During the subsequent legislative session, the administrative moratorium was codified into state statute. It was expanded in 1986. This moratorium, or some version of it, has remained in place for 40 years. Four decades! And, since this moratorium was imposed, the number of home health patients has increased by at least 194 percent. Now, one can only enter the market if a current operator is willing to sell their CON….

Plaintiff's federal due process and equal protection claims are subject to rational-basis scrutiny. Under this standard, Mississippi is afforded great deference. Those attacking the rationality of a legislative decision have the burden of negating "every conceivable basis which might support it."

That is not to say that rational-basis review is a rubber stamp. "Between 1970 to 2000, applying rational-basis review, the Supreme Court struck down at least a dozen economic laws as violating either the Equal Protection Clause or the Due Process Clause." Tiwari v. Friedlander (W.D. Ky. Aug. 14, 2020) (collecting cases). The Fifth Circuit and district courts in this Circuit have also struck down laws applying the same. E.g., St. Joseph Abbey v. Castille (5th Cir. 2013).

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Supreme Court

The Important Choice of Law Questions Lurking in Tomorrow's Stolen-Pissarro Argument

The applicability of Klaxon v. Stentor Electric Manufacturing -- no, wait! I promise it's important . . . .


Tomorrow the Supreme Court is supposed to hear argument in Cassirer v. Thyssen Bornemisza Collection Foundation. The facts are a somewhat dramatic story of a Pissarro painting looted by the Nazis that is now in a Spanish museum (here's a case preview by Suzanna Sherry). But the legal question presented is a technical question of choice of law: "Whether a federal court hearing state law claims brought under the [Foreign Sovereign Immunities Act] must apply the forum state's choice of law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law."

This implicates a classic federal choice-of-law case, Klaxon v. Stentor Electric Manufacturing, that I've written a bit about, so I wanted to offer a few thoughts.

Three points of background: In diversity cases, the Supreme Court generally applies state law, pursuant to the Rules of Decision Act which says that "The laws of the several states … shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply."

But where do they apply? This is answered by a field called choice of law, but what is the federal choice of law rule for these cases? In Klaxon, the Supreme Court said that "in diversity cases the federal courts must follow conflict of laws rules prevailing in the states in which they sit." I.e., the U.S. District Court for the Central District of California should apply whatever law a California state court law would apply. This might be California law or it might be another jurisdiction's law. Meanwhile a federal district court for the District of Nevada would apply different law -- the law selected by the choice of law rules of Nevada's state courts -- even though both are in the Ninth Circuit.

Finally, the Foreign Sovereign Immunities Act, which operates under federal question jurisdiction, says that a foreign state (Spain, here) "shall be liable in the same manner and to the same extent as a private individual under like circumstances."

Hence, the QP of whether Klaxon, the diversity case, extends to the FSIA. Okay, now my thoughts:

1: I think the question presented is confused. It is framed as a choice between the "forum state's choice of law rules" or a "federal common law" choice of law rule. But Klaxon, the source of the forum-state-choice-of-law doctrine, is itself a federal common law rule. Moreover, the Ninth Circuit's version of "federal common law" was just the Second Restatement of Conflicts, even though it's not at all obvious why the Second Restatement should be the federal common law rule if one does believe in a federal common law rule.

So the real question presented is apparently: since everybody seems to want to use federal common law to decide choice of law questions under the FSIA, which one should we use as the federal common law -- the Klaxon rule or the Second Restatement?

2: As I argued in my article, there are often good reasons not to extend the Klaxon rule to federal question cases. In particular, under Klaxon you cannot know what the law is until a lawsuit is filed. This is a special kind of disaster for anybody who needs to apply the rule in advance of litigation, like the executive branch administering a federal statute. (It is not a coincidence that when the executive branch had to come up with a federal choice of law rule for federal statutes dealing with marriage, they didn't use Klaxon.)

3: That said, those reasons might not be present here.

3a: The executive branch is not complaining about having to apply Klaxon under the FSIA (though somebody should ask them why not).

3b: And maybe more importantly, the text of the FSIA provides some argument for using Klaxon. Klaxon is the common-law choice of law rule that would currently apply to private parties in federal court, because they would be present on diversity jurisdiction. If that counts as "like circumstances," then that's a good reason to apply Klaxon to an FSIA defendant.

3c: So assuming that Klaxon is correct, it may be appropriate to apply it here.

4: But that doesn't mean that it is always appropriate to use Klaxon in all federal question cases -- that could be a disaster for executive administration of federal law. And it also doesn't mean Klaxon is correct in the first place -- indeed, as an ipse dixit application of federal common law that broke with historical practice, there is plenty to criticize about it. But figuring out whether Klaxon was right and if not what to do with it is a big and hard question that receives almost no attention in the briefs. So hopefully the Court will at least manage to do no harm on that front.

In sum, it may well be that the Ninth Circuit should be reversed, but I also hope that the Court will avoid saying things about the correctness of Klaxon or its applicability to all federal statutory cases that it might later come to regret.

How North Dakota Is More Like Windows than UNIX

If your official name is YATES, you can't (and presumably needn't) file a petition to change it to Yates. "Petitioners have offered no authority or reasoned argument that there is any legal significance to the capitalization of their names."


From a decision of the North Dakota Supreme Court in In re Yates (Jan. 6):

Shane Lance Yates and Amy Jo Yates petitioned the district court to change their respective names from "SHANE LANCE YATES" (in all uppercase letters) to "Shane Lance Yates" and "AMY JO YATES" (in all uppercase letters) to "Amy Jo Yates." They requested the changes to "terminate the guardian-ward relationship and to distinguish from all other aliases, correct any mistakes, errors or identity confusion that exists in relation to the ALL CAPS STATE CREATED NAME." The district court denied the petitions … [in part on the grounds that] they did not seek to change from one name to another and the requested change would not affect any action or legal proceeding or other right, title, or interest, as was the stated purpose….

[T]he district court concluded the Petitioners are not requesting a change from one name to another name. On this record, we agree. In effect, the Petitioners request a change in the capitalization of their names from all capital letters to initial capital letters followed by lowercase letters. Petitioners have offered no authority or reasoned argument that there is any legal significance to the capitalization of their names. The district court did not abuse its discretion in denying the petitions….

Prof. Philip Hamburger (Columbia) on the Nondelegation Doctrine


Prof. Hamburger has a very interesting article on this, Nondelegation Blues; the abstract:

The nondelegation doctrine is in crisis. For approximately a century, it has been the Supreme Court's answer to questions about transfers of legislative power. But as became evident in Gundy v. United States, those answers are wearing thin. So, it is time for a new approach.

This Article examines the Constitution's treatment of the problem. Whereas other scholarship tends to focus narrowly on a single concept, whether delegation or vesting, this piece takes a more ecumenical approach. It uncovers layers of relevant concepts, showing how each contributes to the Constitution's vision.

For example, it is necessary to consider the principles of consent, different powers, separation, and exclusivity before one gets to delegation. Although the Framers voted against permitting any congressional delegation, they did not rest content with delegation language. Instead, they drafted the Constitution in terms of vesting. But not just vesting, for Constitution says that its powers "shall be vested." Far from merely a transfer of the powers, this was an express declaration of their mandatory location.

The Article thereby goes far beyond existing scholarship in showing how fundamental principles, drafting assumptions, and text were all aligned in barring transfers of power among the branches of government. Rarely in constitutional law does a conclusion about a highly contested question rest on such a powerful combination of underlying principles, framing assumptions, and text.

The Article also shows the refinement of the Constitution's approach. The Constitution's sophistication has not been much appreciated in the scholarly literature. But it will be seen that the Constitution was anything but crude in barring transfers of powers. For example, it adopted the separation of powers not in an absolute way, but as a default principle.

While it precluded the transfer of legislative power, it left much room for executive rulemaking. Even though its powers were externally exclusive, they were not always exclusive internally—that is, some of them could be subdelegated within the branches of government. And the eternally exclusive powers permitted much nonexclusive authority to be exercised under those powers. Wherever one stands on the transfer of legislative power, these distinctions are important and need to be recognized as qualifying the larger point about the location of legislative power.

Not merely a technical doctrinal question about the distribution of powers, the problem here is bound up with more visceral social and political values. Judges and academics tend to discuss it if it were merely a matter of doctrine, unconnected to larger questions of expanded suffrage and untainted by unwholesome animosities. But this fails to acknowledge the underlying legacy of prejudice and the enduring reality of discrimination and disenfranchisement.

Today in Supreme Court History

Today in Supreme Court History: January 17, 1973 and January 17, 1996


Frontiero v. Richardson (1973) and United States v. Virginia (1996) were argued on the same day, twenty-three years apart. Ruth Bader Ginsburg argued the former case, and wrote the majority opinion in the latter case.

Administrative Law

Woolhandler on Public Rights, Taxation and Delegation at the Founding

Another contribution to recent scholarship on whether the Nondelegation Doctrine is properly rooted in the Constitution's original meaning and founding era understandings.


The past two years has seen a burst of new scholarship challenging and defending the historical pedigree of the Nondelegation Doctrine. As I noted in this post, several important articles question whether founding era understandings and practice support the existence of a constitutional (and judicially enforceable) constraint on the delegation of legislative power to the executive branch. In addition to the papers cited in that post, there is additional recent work by Michael McConnell and Jed Shugerman that bears on this subject.

Among the most powerful challenges to conventional originalist accounts of the Nondelegation Doctrine was Nicholas Parillo's Yale Law Journal article "A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s." This paper has drawn a new response.

In "Public Rights and Taxation: A Brief Response to Professor Parrillo," Ann Woolhandler questions whether Parillo's article undermines originalist claims for the existence of a nondelegation doctrine as much as some might think. Here is the abstract:

A division exists between scholars who claim that Congress made only limited delegations to executive officials in the early Republic, and those who see more extensive delegations. In A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, Professor Nicholas Parrillo claims that congressional delegations under the direct tax of 1798 undercut arguments that early delegations of rulemaking either addressed unimportant issues or were limited to special categories. Nondelegation scholar Professor Ilan Wurman responded to Parrillo in the volume of the Yale Law Journal in which Parrillo's article appeared, particularly arguing that Congress itself addressed the important issues as to the 1798 tax. This paper instead focuses on Parrillo's claim that the 1798 tax did not fall within any limited special category for nondelegation purposes. Admittedly, Parrillo's evidence undermines some generalizations that early rulemaking was not "coercive and domestic." Taxation, however, falls into the category of public rights, which could include matters that were domestic and coercive, but that nevertheless allowed for a more lenient application of separation of powers strictures.

One point that Woolhandler's comment underscores is that contemporary characterizations of the scope, nature, importance of particular delegations may not track with those of the founding period. Indeed, the prevailing categories and characterizations of 1787 might not even make much sense to modern commentators. But insofar as the original meaning of the Constitution does place limits on the delegation of legislative power, founding era characterizations and understandings would be more important than those of today.

Having Fun with Law Review Prose

Machine-splaining academic writing


Everyone could use a laugh right now, so check out the tl;dr Papers site that transforms scholarly writing to a second-grade level for you. Originally developed to use for scientific abstracts, it works equally well for law review articles (as I discovered thanks to Prof. Chad Oldfather). Here is the abstract for my "Tinder Lies" article, transformed:

The rise of Internet dating has been a real problem for lots of people. People can use their phones to find dates, and it's easier for bad people to lie about who they really are. For example, some people lie about how old they are, or how rich they are, or even what kind of person they are.

And here is their version of "Secret Jurisdiction", my piece with Cassandra Robertson:

The government has a secret list of people who are not allowed to fly on airplanes. The government won't tell you if you're on the list, and they won't tell you why. But you can't fly on airplanes if you're on the list.