The Volokh Conspiracy

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

The Volokh Conspiracy

Free Speech

"FIRE Statement on Free Speech and Online Payment Processors"

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Seems quite sound to me; here's the introduction and some examples, but read the whole thing:

  • The issue: Online payment processors like Venmo and PayPal often deny Americans access to these vital services based on their speech or viewpoints. 
  • The concern: When these companies appoint themselves the arbiters of what speech and views are acceptable, shutting people and organizations out of the online financial ecosystem for wrongthink, they seriously undermine our culture of free expression.

Imagine you could no longer use PayPal, Venmo, or another online payment processor because you run an organization that defends free speech for controversial speakers, operate an independent media outlet that challenges mainstream narratives, sell erotic fiction or "occult" materials, or … tried to submit an article about Syrian refugees into a newspaper awards competition.

These are not hypotheticals. They're real, and they illustrate why online payment service providers should stay out of the business of policing their users' speech and views.

Access to online payment systems is crucial for the innumerable individuals and organizations that rely on financial support for their expressive activity. It's essential to content creators' ability to earn a living, to websites' and other businesses' ability to raise revenue, to fundraising by political candidates and nonprofit organizations, and to everyday Americans' ability to consume content and support causes they believe in. When payment processing services act as political hall monitors or moral arbiters deciding what speech and viewpoints are out of bounds, they present a grave threat to free expression.

A small number of companies dominate the space, allowing them to wield significant control over the speech environment by denying service to users who express disfavored views or wade into controversial subject matter. PayPal (which owns Venmo), for instance, has 325 million active users. Merchants and individuals put on payment processors' blacklists may find themselves in a financially precarious situation….

Consider these examples:

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Strangers on the Internet: Podcast Episode 8 up

Bad dating advice abounds online and in Hollywood scripts

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I posted the eighth episode of my podcast "Strangers on the Internet" (the direct link for Apple Podcasts is here). In this installment, my co-host, psychologist Michelle Lange and I pick apart dating advice from the Interwebs, (in)famous listicles, and popular tropes such as Hollywood's dating plot lines from the last two decades.

One of the recent reads about online dating worth checking out is the NY Times' retrospective on 10 years of Tinder.

Politics

Wait, What About Roe?—Pseudonymity and Facial Challenges to Government Action

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I've blogged a lot recently about limits on pseudonymous litigation, and readers will have gathered that I think such litigation should generally not be allowed. But "generally" isn't "always" (much more on that here), nor do I think that it should be always. (I explained in my post about Doe v. Volokh why I thought the underlying case I wrote about there was rightly depseudonymized, but that had to do with particular features of that case.)

And of course we've heard of plenty of pseudonymous cases: Roe v. WadeDoe v. ReedSanta Fe Indep. School Dist. v. DoePlyer v. Doe, and more. None of those Supreme Court opinions discuss pseudonymity at length, but they're obviously open to it. What justifies pseudonymity there, where the legal rule is usually strongly against pseudonymity in other cases?

The chief distinction has to do with the key function of identifying parties' names: the ability of the public to supervise the judicial process, and to monitor whether the factfinding related to the parties is sound. And that's why courts are generally more open to pseudonymity in cases that "present[]" "purely legal … issues"—chiefly the legal validity or invalidity of a such statute (as in Roe). In such cases, the courts conclude, "there is an atypically weak public interest in knowing the litigants' identities." (That's from the Second Circuit's leading pseudonymity case, fittingly titled Sealed Plaintiff v. Sealed Defendant, as well as from the Third Circuit's Doe v. Megless.)

Likewise, to quote Publius v. Boyer-Vine (where I was one of the lawyers representing the pseudonymous Publius, though several years before I started actually focusing on pseudonymity as a topic for scholarship, blogging, or litigation),

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Why Are Constitutional Law Professors Angry at the Supreme Court?

Because it's solidly conservative, and they are overwhelminglt liberal and further left.

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At Slate, Mark Joseph Stern writes that constitutional law professors are "giving up on the Supreme Court:"

The problem, it's worth emphasizing, is not that the Supreme Court is issuing decisions with which left-leaning professors disagree. It's that the court seems to be reaching many of these conclusions in defiance of centuries of standards, rejecting precedent and moderation in favor of aggressive, partisan-tinged motivated reasoning. Plenty of progressive professors have long viewed the court with skepticism, and many professors, right- and left-leaning, have criticized the reasoning behind certain opinions for decades. But it's only in recent years—with the manipulation of the justice selection process combined with clear, results-oriented cynicism in decisions—that the problem has seemed so acute that they feel it affects their ability to teach constitutional law.

Actually, the fact that the Court is solidly conservative, and the constitutional law professoriate overwhelming liberal or further left, is exactly the problem. In the past, the left could count on the Court for sporadic big victories: same-sex marriage, affirmative action, abortion. Now they can't, so they have turned against the Court. We all know that left-learning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article.

[Cross-posted at Instapundit]

Politics

The 11th Annual Harlan Institute-Ashbrook Virtual Supreme Court

Teams of two HS students will write a brief and present oral arguments on Students for Fair Admission v. University of North Carolina

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The Harlan Institute and Ashbrook are pleased to announce the Eleventh Annual Virtual Supreme Court Competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year the competition focuses on Students for Fair Admission v. University of North Carolina.

The competition is endorsed by the Center for Civic Education's We The People Competition:

The Virtual Supreme Court Competition helps students gain the skills they need to understand, synthesize, and advocate for reasoned legal positions on timely and relevant constitutional issues, and in doing so deepens their commitment to the rule of law. The program directly supports the highest goals of the Center for Civic Education to develop enlightened and responsible members of our society, and it is a privilege to be a part of this important work. Christopher R. Riano President, The Center for Civic Education Member Board of Advisors, The Harlan Institute

 

The Question

Resolved:  

Is race conscious affirmative action consistent with the Fourteenth Amendment to the United States Constitution?

Tournament Instructions

Using historical materials related to the Fourteenth Amendment, and the precedents of the United States Supreme Court, teams of two high-school students will write an appellate brief, and present oral arguments, addressing this question:

  • Is race conscious affirmative action consistent with the Fourteenth Amendment to the United States Constitution?

Petitioners will argue that the Fourteenth Amendment prohibits state universities from using race conscious affirmative action.

Respondents will argue that the Fourteenth Amendment does not prohibit states universities from using race conscious affirmative action.

Phase 1—Research and Write Your Brief

Coaches can register their teams at the Institute for Competition Sciences. After registering, teachers should contact the Harlan Institute and Ashbrook at info@HarlanInstitute.org. We will assign teams to argue on behalf of the Petitioners or the Respondents.

Teams will research and write their briefs. The brief must be a minimum of 2,000 words. Please download this template. The brief should have the following sections:

  1. Table of Cited Authorities: List all of the original sources, and other documents you cite in your brief.
  2. Summary of Argument: State your position succinctly in 250 words or less.
  3. Argument: Structure your argument based on at least five primary historical sources and at least three Supreme Court precedents. The more authorities you cite, the stronger your argument will be–and the more likely your team will advance.
  4. Conclusion: Summarize your argument, and argue how the Supreme Court should decide this issue.

Be sure to proofread your work. The work must be yours, and you may not seek help from anyone else–including attorneys or law students. Students who submit plagiarized briefs will be disqualified.

Please review the winning submissions from previous years:

Phase 2—Virtual Mentoring

Teams that register before November 1, 2022 will be invited to participate in a virtual mentoring session. These sessions will be hosted during the week of November 14, 2022. The Harlan Institute will match each class with a mentor from our network. These sessions will be helpful to finalize your briefs and prepare your preliminary round arguments.

Phase 3—Preliminary Round

For the preliminary round, each team must prepare a YouTube video. The argument must be at least 15 minutes in length. Coaches will ask their students the following ten questions:

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Politics

Oyez! Oyez! Oyez! The October Term 2022 of FantasySCOTUS is now in session

Predict all of the biggest cases at the Supreme Court.

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I am honored to open up the 14th Season of FantasySCOTUS. I launched the site back in 2009 when I was still clerking. Now, more than decade later, thousands of Court watchers have made their predictions. Sign up today at FantasySCOTUS.net to predict the outcome of all the blockbusters this term, including Sackett, Merrill, Students for Fair Admission, Moore, 303 Creative, and others.

Politics

No Religious Exemption from Felon-in-Possession Gun Ban for Muslim Believer in Self-Defense

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From U.S. v. Harper, decided Friday by Judge Leonard Strand (N.D. Iowa):

[Harper is being prosecuted for] possession of a firearm by a felon and unlawful drug user in violation of 18 U.S.C. §§ 922(g)(1) and (3) and § 924(a)(2)…. Harper argues that [he is entitled to a religious exemption from these laws because] he is a Muslim who practices "Sharia Law and its adherence to armed self-defense (including the possession of a firearm.)." …

"Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment." RFRA provides that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the Government "demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering that compelling governmental interest." "RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'—the particular claimant whose sincere exercise of religion is being substantially burdened." …

I will assume without deciding that Harper's practice of possessing a firearm for self-defense was a sincerely held religious belief and that prosecution substantially burdened his exercise of religion. Therefore, it is the Government's burden to prove that prosecution of Harper is in furtherance of a compelling government interest and that it is the least restrictive means of furthering that interest. The Government argues "the gun control regime of the United States is a compelling governmental interest and can only be maintained by a systematic and uniform application."

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Rest In Peace Judge Silberman

We lost a legal legend.

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Judge Laurence Silberman of the D.C. Circuit Court of Appeals died on Sunday. The Wall Street Journal has full coverage, including an obituary, house editorial, and op-ed by Paul Clement. (Indeed, I suspected something was up when the WSJ published Judge Silberman's Constitution Day address at Dartmouth.) He was a legal giant. Few today could ever scale to his height and influence. Here, I will include a short anecdote about my experiences with Judge Silberman.

In November 2021, I wrote about an unusual judicial misconduct issue. Judge Silberman alleged that Judge Sullivan (D.D.C.) should not be able to sit on the District of Columbia's judicial selection committee. Silberman's complaint was grounded in the separation of powers, as well as the code of conduct. Eventually, my post came across Judge Silberman's radar. In April 2022, his law clerk contacted me, and said that the Judge would be happy to chat with me about the matter. By chance, I was scheduled to be in D.C., and asked if we could meet in person. Judge Silberman obliged.

My brief hour with Judge Silberman is a time I will never forget. He explained why he was motivated to bring this complaint. There was noting personal against Judge Sullivan. Rather, he did not want judges getting involved in the political process. Judge Sullivan told me that when President George W. Bush asked him to co-chair the commission on the intelligence failures leading up to the Iraq War, Silberman considered resigning from the bench. However, he learned that he could simply stop all judicial business while performing his role for the executive branch. And so he did. For a period, Judge Silberman did not decide any cases or participate in any court business. Silberman couldn't even use his judicial clerks and staff during that time. Silberman explained that if Judge Sullivan really wanted to serve on this judicial selection committee, he could put on hold all of his court business.

Judge Silberman was also bothered by the fact that Congress drafted a statute that required a federal judge to serve on this commission. Now, that problem could be mitigated by having a senior judge who no longer hears cases to serve in that role. But in Silberman's view, it was troubling that Congress seemed to approve a clear violation of the Code of Conduct. And the various apparatchiks within the Judicial Conference seemed to defer to Congress's finding that this practice was valid. Silberman asserted that Congress could not deem unethical conduct as ethical. And he worried about what kind of precedent that could set. I asked him to spell out his thinking a bit more, because I didn't see the slippery slope here. He looked pensive, and said he would think about it. (More on this argument later.)

Then, Judge Silberman took me down a tour of memory lane. He talked about his work on In Re Sealed Case, which became Morrison v. Olson. Justice Scalia's famous dissent largely tracked Silberman's lead. He reminded me that he was the person who began the litigation that challenged Congress's denial of cost-of-living adjustments for federal judges. After he prevailed in that case, Judge Silberman emailed every federal judge in the country to let them know. There was no massive mailing list. His secretary simply compiled every individual address. Of course, Silberman decided Parker v. D.C., which became Heller. And he wrote the principled decision in Seven-Sky v. Holder, which upheld the Affordable Care Act as a valid exercise Congress's commerce powers. (Like Bruno, we do not talk about Justice Kavanaugh's "dissent" in that case.) I agree with WSJ that Silberman was more consequential than most Supreme Court justices.

Silberman told me some great stories about his time in the executive branch. One story stuck out, which he recounted in a 2012 Green Bag essay:

The group approved our proposal and Ehrlichman arranged a meeting with the President. That session in early 1970, according to one of the participants, was one of a very few meetings, perhaps the only one, the President had with an interdepartmental working group to discuss a domestic policy issue. As the accompanying picture shows, I am presenting the proposal to the President with the rest of the working group, as well as Ehrlichman and his deputy, Ken Cole, sitting around the table in the Cabinet Room. You will note that sitting next to the President is a white-haired older gentleman. It was apparent from the discussions that he was an ex-Congressman who had served with Nixon in the House when Taft-Hartley was passed in 1947. The President, after rather careful probing, enthusiastically endorsed the initiative. As I was walking out of the room, I asked Ed Morgan, one of Ehrlichman's assistants, "Who was the white-haired gentleman sitting on the President's side of the table?" Morgan replied, "George MacKinnon." I was taken aback: "You don't mean Judge MacKinnon." Morgan said, "Yes," at which point I pointed out that it was quite inappropriate to have a federal judge sitting in on a White House policy discussion. Morgan asked why, and I explained the judicial canon. I reminded him of what Abe Fortas had done during the prior administration and the ensuing brouhaha when he was nominated as Chief Justice. Late that day or the next, Morgan called me to say that it would never happen again, but he sent me the picture.

Clockwise from left: Richard Nixon, George MacKinnon, John Ehrlichman,
Mike Moscow, Tenley Johnson, Laurence Silberman, Ed Morgan, Jim Lynn,
William Gifford (legislative assistant to George Shultz), Richard Cook (White
House legislative aide), and Ken Cole.

Judge Silberman mentioned a tidbit that did not make it into the Green Bag. Apparently Judge MacKinnon said that he would have recused from any case involving the new legislation, so there was no problem. No harm, no foul, right? Judge Silberman vigorously disagreed. Judges should not get involved with politics, even if there is some way to rationalize it.

Eventually, my session wrapped up with Judge Silberman. I told him I would likely write more his complaint. (I did; he emailed me right away to point out some typos.) I then left Judge Silberman's chambers, and went to visit another judge in the building. About five minutes later, Judge Silberman barreled into chambers. The judge I was visiting thought Silberman was there to see him. No, Silberman was there to see me! Silberman said that he had figured out the slippery slope issue. If Congress could deem unethical conduct as ethical, then Congress could also deem ethical conduct as unethical. In other words, if Congress intervenes, even slightly, to give its imprimatur to dubious judicial behavior, then Congress could intervene to prohibit otherwise proper judicial behavior. He was exactly right.

What struck me was that a man of 86 years, a legend, thought enough to answer my question right away, and storm into another judicial chamber to tell me. I was in awe of how much care and attention he gave to this matter. But this is how Judge Silberman approached every facet of his life.

A few months later, I invited Judge Silberman to moderate a panel at the Federalist Society National Lawyers Convention. The theme was judges picking other judges. He immediately agreed. I regret that he will not be able to share his wisdom with us, one last time. Our panel will now be in his memory, which will be a blessing.

Law & Government

My Collected Supreme Court Commentary for the New Term

and some thoughts about judicial fearlessness

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Tomorrow is the first Monday in October, which marks the start of the newest term at the Supreme Court. In the past few weeks, I've had various pieces of commentary on the Court that I thought I'd collect here.

First, and perhaps best in my book, there are the first two episodes of the newest season of Divided Argument, my "unscheduled, unpredictable Supreme Court podcast" with Dan Epps.

The first episode, Maoist Takeover, was recorded at William & Mary Law School as part of their Scalia-Ginsburg Collegiality Speaker Series, and focuses on how to engage with people across profound disagreement, as well as on the Supreme Court's shadow-docket decisions in Yeshiva University v YU Pride Alliance.

The second episode, Horse Sausage, just dropped today and it previews the extraterritoriality/dormant commerce clause case about California's pork regulations, National Pork Producers Council v. Ross.

But I've also found myself getting lured into some more general Supreme Court commentary. I appeared on this virtual panel at Harvard Law School on "Law and Politics in the Roberts Court" with Amanda Hollis-Brudsky, Adam Liptak, Leah Litman, and Janai Nelson, where I took the unpopular position that the Court tries to pursue a vision of law that is quite independent of politics, even though the Justices were put there by politics.

I also had some related and more wide-ranging discussion of the Court (and the state of our institutions more generally) with Bill Kristol on his show, Conversations with Kristol.

And finally, I gave an interview to Ruth Marcus of the Washington Post which resulted in this passage in her opinion essay on the coming Supreme Court term:

"Fearless." That's the adjective that University of Chicago law professor William Baude applies to this court, and in his view, that's not a bad thing. "The court's not sitting out the hard cases now," he said. "Change happens. New Justices were put in the court by politics, and that's how the court's supposed to work. Everybody understands that putting new justices on the court who are different from the old justices has consequences. That's never been something the court could or should try to immunize itself from."

This passage has gotten a lot of attention on Twitter, and to my mind the most interesting response is this thread from Richard Re, beginning:

and ending:

Relatedly, there are Rick Pildes's and Orin Kerr's earlier posts about the concept of judicial courage. And also Scott Alexander's "Against Bravery Debates."

One upshot of all of these is that I think it's probably not helpful to try to characterize one Court or set of Justices as particularly more fearless than an another. Just as with the discussions of law and politics more generally, a lot of these characterizations may in the end reduce more fundamentally to legal disagreements, about what our law is and what it demands of our judges.

Anyway, that's enough of that kind of commentary for now. For some slightly more extended arguments about the Court's role, you can read my recent-ish articles on The Real Enemies of Democracy or on Supreme Court reform (Reflections of a Supreme Court Commissioner).

Supreme Court

Will Sackett v. EPA Clarify the Scope of Federal Regulatory Jurisdiction Over Wetlands?

Ten years after their unanimous Supreme Court victory against the Environmental Protection Agency, the Sacketts return to One First Street for another round.

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On Monday, the first day of the new Supreme Court term, the justices will hear oral argument in Sackett v. Environmental Protection Agency, in which the Sacketts are challenging the EPA's authority to regulate the use of their land under the Clean Water Act. Specifically, the Court will consider how courts should determine whether a given parcel is subject to regulation under the Clean Water Act (CWA) as a part of the "waters of the United States." The resulting decision could have dramatic implications for the scope of federal wetland regulation.

If the case name Sackett v. EPA sounds familiar, that is because it should. Ten years ago, the Supreme Court heard another case with that same name, involving the same litigants, and the same Idaho property. In the first Sackett case, the issue was whether the landowners could obtain judicial review of an EPA administrative compliance order, directing them to restore their property or face ruinous financial penalties. The Court ruled unanimously for the Sacketts, recognizing the profoundly unjust nature of the EPA's position. This time around, the question is whether the EPA has authority to regulate the Sacketts at all.

The precise question before the Court is whether the court below (in this case, the U.S. Court of Appeals for the Ninth Circuit) applied the proper standard when it concluded that the Sacketts' property contained wetlands, subject to regulation as part of the "waters of the United States," subject to regulation under the CWA. (I discussed the Ninth Circuit's decision here.)

The reason there is some uncertainty about the proper test is because the last time the Court considered this question, in Rapanos v. United States, the Court splintered 4-1-4. While a majority of the Court concluded that the federal government's was asserting regulatory authority beyond that which the CWA authorizes (as they had in SWANCC v. U.S. Army Corps), the majority could not agree on the proper test. Justice Scalia (joined by three other justices) concluded that "waters of the United States" only covered those waters and wetlands connected to navigable waters through a relatively continuous surface-water connection. Justice Kennedy, on the other hand, thought the proper test was to determine whether a given water or wetland has a "significant nexus" to waters of the United States.

In the current case, the Sacketts are asking the Court to embrace a test based upon Justice Scalia's Rapanos plurality. Such a test, they argue, is more consistent with the CWA's text, and ensures that federal regulation does not extend beyond the scope of Congress's power to regulate commerce among the several states (which is the purported basis for the CWA's regulations).

The Solicitor General, on the other hand, is asking the Court to embrace Justice Kennedy's concurrence. This latter position is itself notable, as the federal government seems to have abandoned the less bounded conception of federal regulatory authority it had pushed in Rapanos and SWANCC, and which had commanded the support of the Court's liberal justices in those prior cases. This is also notable because the Obama Administration had sought to define "waters of the United States" in a more expansive fashion, and reaffirms the impression that the Biden Administration is adopting a more restrained approach.

Should the Sacketts prevail, the EPA and Army Corps of Engineers will have greater difficulty asserting regulatory authority over properties that are not clearly connected to waters that are themselves connected to navigable waters. This would meant that a significant portion of the nation's wetlands would no longer be subject to federal regulatory control, though state governments would be free to adopt more expansive regulations, and federal agencies could still pursue wetland conservation through other means (such as through fiscal measures, land acquisition, and incentive programs).

Should the Court's decision provide greater certainty about the outer limits of federal regulatory authority, this would help clarify where federal authority ends and exclusive state regulatory authority begins. This would put the onus on state governments to adopt conservation measures within their jurisdiction, but would also make it easier for states to act.

Whether states would fill the conservation void is an interesting question. At present, half the states already protect wetlands and waters more broadly than does the federal government. The other half do not, and some have existing laws that constrain state agencies from adopting measures more stringently than federal law.  Whether state legislatures would reform such laws is unclear, but it is interesting to note that State and local wetland regulation began a decade before wetlands were regulated under the CWA, and the pattern of state wetland regulation was the opposite of that predicted by "race to the bottom" theory (in that those states that would have been predicted to regulate last and least actually regulated first and most aggressively). (I surveyed this history in this article from 1999.)

Should the Sacketts prevail, another important question will be how a narrowing of "waters of the United States" affects the EPA's ability to enforce the CWA's traditional pollution-control provisions. The definition of "waters of the United States" will apply to the entire Act, but the EPA may retain broader authority to regulate traditional polluting activities on lands not otherwise subject to CWA jurisdiction given the Court's prior holding in County of Maui v. Hawai'i Wildlife Federation. As Robin Kundis Craig suggests , even if a given parcel (such as the Sackett's property) is not part of the "waters of the United States," activities on that parcel that result in pollution reaching regulated waters could be sufficient to subject such activities to federal regulation. In other words, a Sackett victory could deregulate wetland development at the federal level without deregulating much traditional water pollution control.

As some readers may know, the scope of federal regulatory jurisdiction has been a longstanding subject of interest for me, and I have published multiple papers on the subject.  I will have more to say about the case after Monday's oral argument. In the meantime, those interested in learning more about the case and the issues involved should check out this webinar on Sackett sponsored by the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law, featuring Professor Royal Gardner of Stetson and Jonathan Wood of PERC.

For those interested in my prior writings on the subject, here are a few:

Giving Yale Law School The Heave-Ho

Another way to understand the boycott of YLS grads.

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A federal clerkship is a coveted position. Judges wield vast amounts of power in selecting their clerks–so vast that fear of reprisals have forced many clerks to stay quiet in the face of abuse. I even proposed eliminating clerkships as a way to eliminate this imbalance of power. But so long as federal clerkships remain, judges will still exercise nearly-unfettered discretion over who they hire.

At a minimum, clerk candidates should meet certain legal competencies: careful reading, clear writing, and sharp acumen. Beyond these checkboxes, the decision to hire one candidate over another will often come down to fit–the fit between the judge and the candidate; the fit between the candidate and other clerks in chambers; the fit between the candidate and clerks in other chambers (inter-chamber shuttle diplomacy is an undervalued attribute of clerking); and so on. Every judge will understand "fit" differently.

Some judges will also hire based on a candidate's potential for success in the future. We know all about the so-called "feeder" judges who hire clerks with an eye towards recommending them for the Supreme Court. When a Justice hires such a super-star, the "feeder" judge looks good! So "feeder" judges have every incentive to identify clerks–who often only finished 1 or 2 semesters of law school!–with the potential to go upstairs.

Fortunately, potential for success is not limited to One First Street. Many non-elect clerks will pursue distinguished careers in different fields: big law, public interest, criminal defense, academia, government, etc. I think it is very common for judges to give preferences to candidates who seek to enter one field over another. Some judges, for example, are known to feed clerks to the academy. So they may favor candidates who have published, and want to go into teaching. Other judges may have experience in public interest litigation, and provide a benefit to candidates who want to use the law degree to make the world a better place; those candidates who want to cash out in big law may be disfavored. And let's not be blind to the ideological screen. Some Democratic-appointed judges will only hire liberal clerks. Some Republican-appointed judges will only hire conservative clerks. Of course many judges (including my own) hired an ideologically heterogenous cohort. But many do not–and with the abolition of the filibuster, I suspect the number of ideologically-homogenous chambers will increase.

In short, judges evaluate a candidate based on a host of personal factors–dare one call it holistic. What has the candidate already done? And what might the candidate do in the future–or more precisely, what could the candidate accomplish if the clerkship is now on his/her resume? Yes, bestowing a clerkship on a candidate can be the key or his or her success. It opens up so many doors, including access to a clerk alumni network.

This background brings me to Judge Ho's plan to stop hiring graduates from Yale Law School. Judge Ho offered a host of reasons that support his decision, which I won't address here. Rather, I will offer another way of understanding this boycott.

Imagine you are a senior in college. You were accepted to Yale Law School, as well as several other top-tier schools. Mazal tov! Now you have a choice. How do you choose between Yale, Harvard, Columbia, Stanford, Chicago, and Virginia? Perhaps there are financial constraints–some schools may give more aid than others. There may also be personal constraints, such as the need to be close to family. More likely than not, neither of these factors would tip in favor of Yale. I doubt that YLS gives substantially more generous financial aid packages, and New Haven is a pain to get to. Instead, I think an applicant would choose Yale over those other schools because of prestige. Yale is the number-one ranked law school. It looks like Hogwarts. It has the top-ranked scholars. It pumps out circuit and SCOTUS clerks at a really high rate. Many applicants have a glide-path into academia. Your classmates will go on the highest ranks of government. And so on.

Now, imagine you are a right-of-center senior in college. More likely than not, you are familiar with recent episodes on campus, including the "Traphouse" imbroglio. And even if you are not familiar with it, you will find out. How? I am reliably informed that the Harvard Law School admissions office is working with the HLS FedSoc chapter to identify conservative applicants, and persuade them to choose Harvard over Yale. And others outside of Yale are giving similar messages:

Knowing how inhospitable Yale is to conservatives, why would an applicant still pick Yale over other more tolerant places? The answer, again, is prestige. And the desire to obtain that prestige trumps a commitment to values like free speech and academic openness.

How, then, should a judge assess a conservative applicant who chooses to go to Yale? This person knowingly walked into the traphouse for the sake of an elite degree. I think it is reasonable for a judge to conclude that the applicant exercised poor professional judgment. Indeed, the judge may not want to rely on someone who would sacrifice their principles for prestige. In this regard, the Judge would choose to not hire any conservative YLS graduates because they are unreliable, and maybe even untrustworthy. They have already sold out on their values to go to YLS, and will likely sell out in similar ways in the future. In this view, choosing to go to Yale, with full information, is a failure of moral character. Who needs them? Judge Ho's boycott directly punishes the students for the choices they made, and indirectly punishes the school for failing to address its deficiencies.

Judge Ho's idea isn't entirely new. I proposed a variant of it last year during the "Trap House" scandal. I wrote:

At this point, there is only one way to make YLS suffer: deny it the prestige it so desperately seeks. Specifically, conservative and libertarian 1Ls and 2Ls should transfer out en masse to ensure that other schools can take credit for their appellate and SCOTUS clerkships. Good luck placing clerks with only three of the nine Justices and half the federal judiciary. As a plus, students who transfer out may actually learn something about the law–a useful skill for any clerkship.

I do not know if any YLS students actually transferred out. If they did, I will shake their hands. Perhaps some students chose to stay at Yale as a way to reform the institution from the inside. Good luck to them. Maybe some students were unable to transfer for a host of personal reasons. I understand. But there is some sliver of students who said, "yeah, things are awful here, but I am this closes to a Yale JD and I am not going to throw it away." These are precisely the type people who Judge Ho would not want to hire. Ditto for future graduates who knowingly choose Yale over Harvard or Chicago.

Will Judge Ho's boycott catch on? To be effective, there must be a critical mass of federal judges who participate. I am reliably informed that some judges have quietly stopped hiring from Yale Law School. They are not willing to be as vocal as Judge Ho is. If you are a judge who stopped hiring those students who willfully go to YLS, and sacrificed principles for prestige, contact me. I can serve as an anonymous clearinghouse.

I don't think the risk of a boycott is limited to the judiciary. A future Republican administration can categorically label every YLS grad a squish. It is quite feasible for President DeSantis (a HLS grad) to simply boycott all Yale grads who matriculated after 2021. Good luck with explaining why you chose to stay at YLS for that shiny brass ring as some Chicago grad gets the nom.

At some point Dean Gerken will have to take note when the annual clerkship statistics tank–especially those coveted SCOTUS slots. Eventually, she will actually have to discipline those students who break the law school's rules. And I don't mean some slap on the wrist. Expulsion would get the message across. Then, law school applicants, and federal judges, can take a second look at Hogwarts.

Free Speech

Writing About People Who Don't Want to Be Written About

How, if at all, should we try to be nice in an inherently not-nice occupation?

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The discussion on the Doe v. Volokh thread struck me as quite interesting, and I was particularly intrigued by some commenters taking the view that, while I have the legal right to write about Doe, I shouldn't, because she's asked me not to. Here's one comment that I think captures this view particularly well:

So this woman contacts you and asks you to stop writing about her, and to remove your prior writings about her. You respond that you have a legal right to to write about her. She files suit against you, you prevail, and then you write about the whole affair, thus adding to your public writings on the woman who initially sought to have you not write about her.

You're such a classy person.

I don't think that's the right approach, but I think it's an important and difficult question, and one that is routinely faced by people who write about court cases, including newspaper reporters, magazine writers, academics, and bloggers. "Be classy" or "be kind" can't really capture the right analysis, I think, perhaps because news reporting (which I use broadly to cover also opinion and analysis related to news, litigation, and the like) is inherently an unkind phenomenon—or perhaps, in aiming to be good to people seeking information, it may necessarily be unkind to people seeking to conceal information. Still, it bears some deeper discussion.

The problem is that, for many court cases, one or both parties would very much prefer not to have the case be discussed. (I set aside the separate point that the case should be discussed accurately; I surely have no quarrel with that.) To give just the most obvious examples,

  • Criminal defendants would usually prefer not to have the allegations against them (whether true, false, or, as is often the case, a mix) publicized.
  • Civil defendants would often take the same view, for instance if they're accused of malpractice or embezzlement or assault (sexual or otherwise) or a wide range of other offenses.
  • Libel plaintiffs would often not want to have the allegedly libelous statements about them further publicized.
  • Other plaintiffs (e.g., ex-employees) would often not want the defendants' responses ("I fired him not because of his race, as he alleges, but because he was sexually harassing coworkers") publicized in association with the plaintiff's name.
  • Still other plaintiffs (again, such as ex-employees) would often not want future employers to know that they had sued someone, since they think many employers prefer not to hire litigious workers.

Often the concerns are about reputation and future employment prospects. But sometimes people might be worried that coverage of accusations against them (e.g., that they had raped someone, or that they had falsely accused someone, or that they had defrauded someone) might lead to harassing phone calls or e-mail, to threats, to vandalism, or even to physical attacks. Indeed, these risks are probably higher for mainstream newspaper articles than for blog posts (or certainly than for law review articles), just because such articles tend to have a higher readership.

What should a reporter, or a blogger, or an academic make of all this?

[1.] One possibility is to take the view that parties' names should be included only if it's "necessary." But in most situations, it's not actually strictly necessary to include the parties' names: We could just replace everyone's names with pseudonyms in our stories (even if the underlying cases aren't pseudonymized).

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Free Speech

Court Refuses to Order Me to Remove References to Frequent Litigant from Law Review Article

My argument: "Petitioner Jane Doe—a frequent unsuccessful litigant—is asking this Court to impose unconstitutional prior restraint to prevent a law professor from writing about important, publicly available cases about pseudonymity."

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I'm writing about this both because it strikes me as an interesting example of what litigants sometimes try to do (and occasionally succeed), and also because I thought our readers ought to see what the litigant accused me of—perhaps some of you may agree with her—and see my response. That's particularly so because some readers might view this as influencing my general views on harassment restraining order cases, which I'll doubtless blog about more in the future; I should note, though, that I've been writing and litigating about these matters extensively long before this petition was filed against me (see, e.g., this 2013 article and this 2021 article, plus too many blog posts and briefs to list here).

Several months ago, I wrote about a frequent litigant, in connection with a federal case of hers in in which (1) she was first allowed to proceed pseudonymously but then (2) was depseudonymized by the judge after evidence related to her past cases had emerged. I used her name in connection with that case, as the judge had, and also drew connections (based on public records) between that case and other cases that she had been litigating pseudonymously. [UPDATE: I used this in part to illustrate the difficulty that courts and defendants might have in tracking potential vexatious litigants, given that counting an adversary's past unsuccessful lawsuits may be much harder if they were all pseudonymous.]

Several weeks ago, the litigant filed Doe v. Volokh, No. 22STRO05198 (L.A. Superior Ct.), a petition for a "harassment restraining order" in California court. She stated in her declaration that,

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Free Speech

Laura Loomer Must Pay CAIR and CAIR Florida Nearly $125K in Attorney Fees

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From Illoominate Media, Inc. v. CAIR Florida, Inc., decided today by Judges Charles Wilson, Britt Grant, and R. Lanier Anderson III:

This suit over attorney's fees and costs stems from allegations that the CAIR Foundation and CAIR Florida, Inc. (CAIR) had a hand in convincing Twitter to ban Loomer's account. CAIR removed the first amended complaint to federal court on August 22, 2019. Counsel for Loomer and her corporation (Illoominate) moved for a remand to state court the next day. In its response two weeks later alleging fraudulent joinder of CAIR Florida, Inc., CAIR filed a sworn statement from Nathan Bernard. He explained that he pranked Illoominate by fabricating evidence to convince "Loomer that CAIR Foundation was the reason Twitter banned her account." In the interim, CAIR had filed a motion to dismiss in late August.

On October 2, 2019, CAIR sent Illoominate an "offer of judgment" proposing to settle the entire case for a nominal $1, including costs and attorney's fees. Illoominate had 30 days to respond. On October 22, the district court dismissed CAIR Florida from the suit and scheduled a hearing on CAIR's motion to dismiss for November 18. Nevertheless, Illoominate chose litigation over settlement. On October 31—shortly before the offer of judgment deadline—Illoominate filed a response to CAIR's motion to dismiss, where it voluntarily dismissed all its claims except Count II (for tortious interference with an advantageous business relationship). Once the deadline passed, the district judge dismissed the remaining claim at the November hearing, and this Court affirmed the dismissal in December 2020. On April 12, 2021, CAIR filed a motion seeking reimbursement from Illoominate pursuant to a Florida law requiring select parties who decline an offer of judgment to pay their opponent's reasonable costs and attorney's fees. Fla. Stat. § 768.79(1).

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Politics

Short Circuit: A Roundup of Recent Federal Court Decisions

Padded cells, hidden cash, and official duties.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New cert petition: Anthony Novak was jailed for four days and prosecuted for making a fake Facebook page satirizing the Parma, Ohio police dept.—an obvious First Amendment violation! And yet the Sixth Circuit granted qualified immunity to the officers involved, so IJ is asking the Supreme Court to step in and settle a deep split among the circuits on what to do when probable cause rests on speech. Or, better yet, the Court could nuke the doctrine of qualified immunity into the sun. Read all about it at Cleveland.com.

  • In 2019, President Trump publicly denied a woman's accusation that he raped her in a department store changing room in the 90s. She sues him in his personal capacity for defamation, but the feds intervene, seeking to substitute the federal gov't as the defendant, which would mean the case is toast (since the feds have sovereign immunity in defamation cases). District court: No dice, feds. Second Circuit (over a dissent): Actually, we'd like to ask the D.C. Court of Appeals whether, under D.C. law, the president's comments to the press were within the scope of his official duties. (If so, this case is toast.)
  • Connecticut police wish to transfer a mentally disturbed inmate to a padded cell. The inmate gets mouthy and learns what happens when you bring words to a baton/K9/taser fight. Second Circuit: Qualified immunity. Dissent (Calabresi, J.): Not only shouldn't there be qualified immunity in this case, there shouldn't be qualified immunity in any case.
  • New Jersey highway cops find three plastic bags with heart-shaped candies and arrest the motorist—but do not test the candies for two months. Whoops! They are not drugs. And even knowing that, it takes an additional four months to drop the charges. District court: Could be false arrest and malicious prosecution. No qualified immunity. Third Circuit: And the officers can't appeal that just yet because the motorist subsequently amended his complaint (at the district court's invitation), and that's not interlocutorily appealable.
  • Fort Worth, Tex. officer shoots allegedly unarmed septuagenarian dead after going to wrong home to investigate burglar alarm. Plaintiffs: And the city is liable because of its policies: pairing rookie cops together on the midnight shift, not training officers that odd-numbered and even-numbered houses are on opposite sides of the street, and more. District court: Those things are all too attenuated from the actual shooting. The city is off the hook, but the excessive force claim against the officer can go to a jury. Fifth Circuit (unpublished): Sounds right to us.
  • Last year, Texas officials flagged over 11k registered voters as potential noncitizens. Must the state turn over info identifying these folks in response to a public records request from the ACLU and other groups? District court: Yup, turn over the records. Fifth Circuit: Reversed. The plaintiffs may be entitled to the info, but they haven't shown how they—as opposed to the public at large—would be injured if it's withheld. No standing. Judge Ho, concurring: But that should be pretty easy to get around in a subsequent suit and, unlike the rest of the panel, I don't think it's gratuitous to say so.
  • Allegation: Texas Justice of the Peace—a former Pentecostal preacher—opens court with a prayer delivered by a local faith leader. During the prayer, the judge scans the audience to see who is participating. Half-hearted participants can expect a surly reception when their case comes up for argument. Fifth Circuit: The evidence of bias is too speculative to support an Establishment Clause violation. Dissent: There's at least enough to go to a jury.
  • In which Kim Davis—of Kentucky-clerk-cum-marriage-license-denier fame—loses her second bid for qualified immunity in the Sixth Circuit (unpublished). Back the case goes to the district court for a trial on damages, after which Ms. Davis gets to appeal to the Sixth Circuit for a third time.
  • If law enforcement from eight different federal, state, and local agencies ever raid your home (with a warrant), search your place of business (without a warrant), and ignite a flashbang grenade near your sleeping 1-year-old, the Seventh Circuit has some (published and unpublished) advice on how and whether your suit for damages might proceed if, among other odds and ends, the roles and identities of the officers involved is a tad unclear—and irrespective of whether you are now serving a lengthy sentence for drug dealing. (Ethics query: Should the magistrate judge who signed the allegedly defective warrant recuse from these proceedings? Or is it okay because he isn't making dispositive rulings?)
  • In 1989, the director of the Oregon Dept. of Corrections, who'd been brought in to root out corruption, is murdered at work—stabbed through the heart. A parolee confesses to the murder several times on different days, giving details not publicly known and corroborated by physical evidence. Nevertheless, investigators shift their attention to another man who steadfastly maintains his innocence. No physical evidence ties him to the crime, but he's barred from introducing evidence of the parolee's admissions and is convicted on the basis of witness testimony. He's sentenced to life and spends nearly thirty years in prison before the district court grants habeas and orders him released. Ninth Circuit: Nearly all the witnesses have recanted, claiming they lied because of police misconduct, and it was super unconstitutional to exclude the parolee's confessions. No reasonable juror would've voted to convict with the recantations and other confessions. (Yes, there is a podcast and movie about the crime.)
  • Grants Pass, Ore. has more homeless residents than shelter beds, forcing some homeless to sleep in public spaces. Easy fix, says the town, we'll just make that illegal. Ninth Circuit: You can't ticket the involuntarily homeless just for being homeless. Dissent: Even if that's right, it has to be assessed person by person, not on a class basis.
  • Police seize cash hidden in Las Vegas armed robbery suspect's attic (in 2014) and then in his mattress (in 2017). But wait! Charges in first matter are thrown out due to prosecutorial misconduct, and he's never charged with anything to do with the second. (He is, however, convicted of a different armed robbery.) But the gov't just sits on the cash, a cool $65k, taking none of the steps necessary to civilly, criminally, or administratively forfeit it. Ninth Circuit: Neither the robber nor the gov't can have it.
  • Does federal law preempt California's attempt to regulate prisons run for the federal gov't by private contractors? Ninth Circuit (en banc): Have you read McCulloch v. Maryland? This is not too different from that.
  • Congress authorizes a California dam in 1954 and seems to say it shouldn't let water go downstream to help the local steelhead. Two decades later Congress passes the Endangered Species Act, which, once the steelhead is listed as endangered, seems to mean that perhaps the dam should do just that. Ninth Circuit: Some expansive language in the original act means it doesn't contradict the ESA, so back to the district court to work out maybe releasing some more water. Dissent: That's not what the language says. But if it does it's nondelegation doctrine time.
  • Without a warrant, Long Lake Twp., Mich. officials repeatedly fly a drone over family's home, curtilage, and five-acre wooded property, recording in HD. (They discover some old cars that can't be seen from a public vantage point.) Michigan Court of Appeals: Which is not a problem because the Fourth Amendment only protects against police searches, and this was code enforcement.
  • And in cert grant news, the Michigan Supreme Court will consider whether the state's civil forfeiture statute authorizes the forfeiture of a vehicle based on Detroit police's allegations that a nursing student transported—not drugs—but a person who bought and immediately consumed a small amount of drugs in her car. (Not for nothing, but the allegations are applesauce. This is an IJ case.)

In the nearly 10 years since Los Angeles entrepreneur Ryan Crownholm started MySitePlan.com, he's created over 40,000 informal maps, called site plans, to help people with a huge variety of projects—hotels looking to guide guests from the lobby to their rooms, homeowners and contractors showing local building departments where they'll build a fence or shed, and much more. Basically anytime someone needs a handy map, MySitePlan.com can make one using publicly available information. But California licensing officials are trying to shut Ryan down because they say he is illegally practicing land surveying. Which is madness. Ryan doesn't claim to be making the authoritative legal surveys necessary for bigger projects, and no one has ever been confused. Taken literally, the state's position would mean anytime someone hand-draws a map on a napkin, they'd risk criminal liability. So this week IJ and Ryan filed suit in federal court. Click here to learn more.

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