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Affordable Care Act

The Affordable Care Act Imposes A Mandate. Not a Choice.

The Structure of NFIB v. Sebelius: Parts III.A, III.B, III.C, and III.D


On July 9, the 5th Circuit Court of Appeals heard oral argument in Texas v. United States. The three members on the panel were Judges Jennifer Walker Elrod, Kurt D. Engelhardt, and Carolyn Dineen King. You can listen here.

In my first post, I considered the arguments presented concerning standing. In this post, I will focus on the arguments presented concerning whether the individual mandate is constitutional. 

California (represented by Samuel Siegel) and the House of Representatives (represented by Douglas Letter) did not contend that the ACA's individual mandate could be supported by Congress's powers under the Commerce and Necessary and Proper Clauses. Nor could they. That result was foreclosed by NFIBJudge Elrod's question (at 13:36) raised this point:

"Do you agree that we are not at liberty to uphold this [mandate] based on the commerce or necessary and proper clause, given that there are five votes on the Court against those propositions?"

She's right. Five Justices in NFIB expressly rejected that position. 

Rather, the intervenors argued that the ACA does not impose a requirement to buy insurance; to the contrary, the law gave covered individuals a choice between purchasing insurance and paying a modest, non-coercive tax. In other words, it is irrelevant whether Congress has the power to enact a mandate to purchase insurance, because Congress did not enact such a mandate. (Professor Marty Lederman summarizes this position in a post, aptly titled "There is no 'mandate.'") Therefore, it is completely irrelevant what Congress did with the 2017 Tax Cuts and Jobs Act (TCJA). The "choice" architecture has remained constant. Before 2018, people had a choice: buy insurance or  pay a tax of approximately $700. After 2018, the alternate choice became paying a tax of $0.  

Douglas Letter articulated this position during the oral arguments:

LetterThe Supreme Court majority [in NFIB] said there is a choice. You either shall maintain insurance or you shall pay this tax penalty. [Through the 2017 TCJA,] Congress has now said, we don't want there to be any tax penalty. We want the American people to continue having a choice.

Indeed, Letter argued that this reading was the only permissible reading of NFIB:

Letter: With the proper respect here, you must rule this way because the Supreme court told us in NFIB what the statute means and in 2017 Congress said what it meant in the text and we know.

His reading of NFIB is a common one. Indeed, I have encountered it numerous times over the past seven years while teaching and writing about NFIB. Respectfully, it is an incorrect reading. Chief Justice Roberts only accepted the "choice" argument as part of the saving construction in Part III.C of his controlling opinion. However, that portion of his opinion is no longer controlling because Section 5000A can no longer be reasonably read as imposing a tax. Why? The penalty, which was reduced to $0, now raises no revenue. Part III.A, which held that the "most natural" reading of Section 5000A–imposing an unconstitutional command to buy insurance–is now the controlling opinion. 

To understand why Part III.C is no longer controlling, and why the choice architecture has crumbled, we need to take a stroll down memory lane. This post will quote at some length from my 2013 book, Unprecedented. I do so to demonstrate that the injury-in-fact debate in Texas is not new. It was resolved seven years ago. 

I agree with Chief Justice Roberts that  Section 5000A "reads more naturally as a command to buy insurance than [offering people a choice to pay] . . . a tax." As a threshold matter, the notion that Section 5000A did not impose a mandate, but merely offered people a "choice" was manufactured at some point after the ACA was enacted. This argument was not made, publicly at least, while the law was being debated in 2009 and 2010.

During oral arguments, Judge Engeldhardt posed this question to Samuel Siegel, the lawyer for California (at 19:36):

Judge Engelhardt: Where are the statements from those who voted in 2010 saying, no worries, the individual mandate isn't really a mandate? Even though it says shall, we are voting on it today, and citizens, this is an option, you can pay a tax, or you can buy the insurance… Where are the statements from 2010, saying don't worry about the individual mandate, it's actually not something that requires you to buy insurance.

California: I don't know where those statements might be.

While writing Unprecedented, I searched the legislative history of the ACA to find support for the contention that Section 5000A imposed a "choice," rather than a mandate. I couldn't find anything. (I do not think the existence of such legislative history is necessary to resolve this question, but there are those who do find it useful.) I posed the same question to the ACA's most ardent defenders, including Obama administration officials. They could point to nothing. I remain open to being persuaded otherwise, if anyone can point to any contemporaneous discussion from before March 2010 advancing the "choice" reading of Section 5000A.

Before the Supreme Court, Solicitor General Verrilli advanced the "choice" argument. This position emerged from Judge Kavanaugh's dissent in Seven-Sky v. Holder. From p. 158 of Unprecedented:

Kavanaugh, however, made a point in passing that was not lost on the solicitor general. A statute similar to the one Congress enacted, but without the individual mandate, said the judge, would be absolutely constitutional. Kavanaugh reasoned that a "minor tweak to the current statutory language would definitively establish the law's constitutionality under the Taxing Clause (and thereby moot any need to consider the Commerce Clause)." By "eliminat[ing] the legal mandate language"—that is, by deleting a single sentence—the statute would be transformed from a command on people to purchase insurance to a mere tax on those who do not have insurance. The former was of dubious constitutionality, but the latter would be well within Congress's powers. Kavanaugh was echoing Justice Stone's whisper to Frances Perkins, "The taxing power of the Federal Government, my dear, the taxing power is sufficient for everything you want and need." Like Frances Perkins before him, the solicitor general listened carefully. Simply eliminating one sentence—the mandate—would save the law. With an assist from Judge Kavanaugh, the solicitor general advanced this very argument at the Supreme Court.

(You can read the entire chapter here.)

After Judge Kavanaugh's opinion, I noted, the government's thinking shifted (at p. 163):

The decision to take a second look at the taxing power came from the top. One reporter who covers the Supreme Court told me that Verrilli personally "insisted on pushing" it. Of course, the "obvious problem" was that the word "tax" was not in the individual mandate provision. The word used was "penalty." "Apart from that," I was told by a senior DOJ official with no irony, that the tax argument "had a lot going for it." Judge Kavanaugh's opinion convinced the Solicitor General's office that the "tax argument might be a more conservative and judicially restrained basis to act to uphold as a tax." The "nomenclature was the only serious impediment to winning." Despite this problem, the solicitor general believed that characterizing the mandate as a choice between maintaining insurance and paying a tax was not only a way of avoiding a serious constitutional question, but indeed the best reading of the law. Though it "wasn't ideal," the government determined that it "could manage" this argument. And the key to solving that problem of nomenclature fell directly on the shoulders of Donald Verrilli, with Judge Kavanaugh being credited with the "assist."

The choice argument is not new. Solicitor General Verrilli advanced this argument to the Supreme Court in 2012 (at p. 179):

Verrilli pushed back against any questions about the mandate and rejected any assertions that it was an "entirely stand-alone" requirement to buy insurance. As the government noted in its brief, citing the opinion of Judge Kavanaugh from the D.C. Circuit,"To the extent the constitutionality of [the act] depends on whether [the minimum coverage provision] creates an independent legal obligation [a mandate], the Court should construe it not to do so." In other words, in order to save the ACA, the Court should read the mandate to not be an actual mandate

Here is how Verrilli articulated the position in his brief:

Even in Judge Kavanaugh's view, however, a "minor tweak to the current statutory language would definitively establish the law's constitutionality under the Taxing Clause." Seven-Sky, 661 F.3d at 48. He suggested, for example, that Congress might retain the exactions and payment amounts as they are but eliminate the legal mandate language in Section 5000A, instead providing some- thing to the effect of: "An applicable individual without minimum essential coverage must make a payment to the IRS on his or her tax return in the amounts listed in Section 5000A(c)." Id. at 49. 

In fact, no "minor tweak to the current statutory language" (Seven-Sky, 661 F.3d at 48 (Kavanaugh, dissenting)) is required because Section 5000A as currently drafted is materially indistinguishable from Judge Kavanaugh's proposed revision. Statutory provisions "must be read in * * * context and with a view to their place in the overall statutory scheme." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Michigan Dep't of the Treasury, 489 U.S. 803, 809 (1989)). When understood as an exercise of Congress's power over taxation and read in the context of Section 5000A as a whole, subsection (a) serves only as the predicate for tax consequences imposed by the rest of the section. It serves no other purpose in the statutory scheme. Section 5000A imposes no consequence other than a tax penalty for a taxpayer's failure to maintain minimum coverage, and it thus establishes no independently enforceable legal obligation..

Had the Supreme Court accepted Verrilli's argument, and found that "Section 5000A as currently drafted is materially indistinguishable from Judge Kavanaugh's proposed revision," then the mandate challenge in Texas v. United States would be without merit: the plaintiffs cannot challenge the individual mandate because there is no individual mandate! Letter and Lederman advanced this position. But the Court did not make such a holding. We know the Court did not make this holding because of the structure of Part III.A, III.B, III.C, and III.D of Chief Justice Roberts's controlling opinion. 

I offered the following description of this structure on pp. 9-11 of my article, Undone (which was cited by Judge O'Connor): 

In Part III.A.1, the Chief Justice found that the individual mandate "cannot be sustained under a clause authorizing Congress to 'regulate Commerce.'" In Part III.A.2, the Chief Justice concluded that the mandate cannot be "upheld as a 'necessary and proper' component of the insurance reforms." That is, Congress could not mandate that people purchase insurance in order to implement the guaranteed-issue and community-rating provisions—the guards against adverse selection. However, "[t]hat [was] not the end of the matter." 

In Part III.B, the Chief Justice considered if "the mandate may be upheld as within Congress's enumerated power to 'lay and collect Taxes.'" He posited that "if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress's constitutional power to tax." Yet, he rejected that conclusion: "The most straightforward reading of the mandate is that it commands individuals to purchase insurance." Therefore, the shared responsibility payment was not a tax. Still, that observation was not the end of the matter.

In Part III.C., the Chief Justice developed the so-called "saving construction." He explained that "[t]he exaction the Affordable Care Act imposes on those without health insurance"—that is, the penalty that was not actually a tax—"looks like a tax in many respects." The Chief Justice then listed three guardrails in which the "exaction"—that is, the shared responsibility payment—can be construed as a tax. First, "[t]he '[s]hared responsibility payment,' as the statute entitles it, is paid into the Treasury by 'taxpayer[s]' when they file their tax returns." Second, "[f]or taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status." Third, "[t]his process" of making the payments, "yields the essential feature of any tax: It produces at least some revenue for the Government. . . . Indeed, the payment is expected to raise about $4 billion per year by 2017." These three guardrails are essential to the saving construction.

Finally, the controlling opinion acknowledged that the shared responsibility payment can still be saved as a tax, despite the fact that it was primarily designed to "affect individual conduct," not to raise revenue. However, that design cannot be achieved unless, in the first instance, the payment can be saved as a tax. Why? All of the exactions cited by the Chief Justice raised revenue as the means to "affect individual conduct." In other words, people modified their conduct to avoid having to pay extra money to the government. For example, "federal and state taxes can compose more than half the retail price of cigarettes, not just to raise more money, but to encourage people to quit smoking." Some people will quit smoking to avoid having to pay the taxes, but even those who continue smoking will pay the tax. But Congress must have the power to enact the exaction in the first place. Critically, Justice Ginsburg, as well as Justices Breyer, Sotomayor, and Kagan, joined Part III–C of the Chief Justice's opinion. As a result, there were five votes for the proposition that the individual mandate could be upheld as an exercise of Congress's Taxing Power.

I've created a diagram to explain Part III of Chief Justice Roberts's controlling opinion.

The Structure of NFIB v. Sebelius
The Structure of NFIB v. Sebelius

During oral argument, Texas Solicitor General Kyle Hawkins concisely explained why Part III.A is the only relevant portion of NFIB; parts III.B and III.C are now irrelevant:  (starting at 56:36)

Hawkins: My friend Mr. Letter is seriously misreading the Supreme Court's decision in NFIB. NFIB holds that the individual mandate is unlawful. It holds that 5000A(a) is best read as a command to buy insurance. And it held that that command, despite being unlawful, can only be saved if it is fairly possible to read the law as a tax. It follows, if the law cannot fairly be read as a tax, then the original holding stands and the mandate is unlawful. I think it is crucial to understand the structure of Chief Justice Roberts opinion to see how he gets there. In Part III.A of Chief Justice Roberts's opinion, he looks at the mandate. Only the mandate. Not the penalty. He says that the best way to read that is as a command to buy insurance. And then he says two things about it… That it's a command to buy insurance. And two, that command cannot be justified by the Commerce Clause or by the Necessary and Proper Clause. That's the end of III.A. He then shifts gears. In III.B and III.C of his opinion, where he says, given our holding in Part III.A we need to determine whether there is some way to save the individual mandate. And that's what he finds out in III.B and III.C is that given the fact that there is a penalty provision, and given that the penalty is raising revenue for the government, he says that we can glue the individual mandate provision to the penalty provision, and once they are glued together, then they function as a tax. Such that the law can be saved by construing it as a tax, and that tax is available under the federal government's taxing power.  Now what happened in 2017 is Congress took away everything that supported III.B and III.C of Chief Justice Roberts's opinion. This [penalty] is no longer raising any revenue for the federal government. It no longer can be fairly characterized as a tax. So in light of the Tax Cuts and Jobs Act, Part III.B and IIII.C of Chief Justice Roberts's opinion are irrelevant. The only thing we are left with then is Part III.A of Chief Justice Roberts's opinion, where he holds that is a command to buy insurance.

At that point, Judge Elrod asked if the court should "sever" Parts III.B and III.C from NFIB. Exactly! I framed the analysis this way in Undone:

Therefore, the predicate of Part III.C of the controlling opinion in NFIB is no longer relevant. Or, to put it differently, Part III.C has now been severed from the opinion.

Virtually every critic of Texas treats Part III.C as controlling. It isn't. Indeed, all of Chief Justice Roberts's observations in Part III.C were hedged, offered as conditional statements. For example:

  • "While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful."
  • "That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws."
  • "It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance."

None of these statements are premised on the best reading of the ACA; rather, they can only be supported in light of the saving construction; a construction that is no longer permissible. Part III.A held that the mandate was unconstitutional. Section 5000A was only saved by virtue of that saving construction.(I am perplexed by co-blogger Jonathan Adler's assertion that Randy and I argued that the mandate was somehow "resuscitated" by the 2017 tax bill. Zeroing out the penalty in no way affected the mandate, which was a separate statutory provision. Indeed, we made the exact opposite claim: the mandate has been unconstitutional since 2012.)

Hawkins offered this explanation: 

Hawkins: Your honor, I think we read the Supreme Court's opinion fairly in light of subsequent events. It is crucial to do so here. The entire basis for III.B and III.C is now off the table. Now Chief Justice Roberts in IIIA holds that this is a command, not justifiable. That is fully supported by the four dissenting Justices. There is no doubt, there were five votes, that it is a command not justifiable by the commerce power or necessary and proper clause. 

Perhaps you don't believe me. Maybe you argue that this reading of NFIB is incorrect, and that Part III.C is still the holding, regardless of the saving construction. If so, look no further than Part III.D of NFIB. It is only two paragraphs, but Chief Justice Roberts explains the structure of his own opinion:

Justice Ginsburg questions the necessity of rejecting the Government's commerce power argument, given that §5000A can be upheld under the taxing power. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction. The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.

Section 5000A can no longer "reasonably be read as a tax." Therefore, we are left with a statute that "reads more naturally as a command to buy insurance." And "[t]he Federal Government does not have the power to order people to buy health insurance." As a result, Section 5000A(a) is now unconstitutional because it "read[s] as a command."

Part III.C of NFIB saved Section 5000A as a whole–with the mandate and penalty glued together as a "tax" on going uninsured. That opinion did not hold that the mandate (Section 5000A(a)), in particular, was constitutional. Kyle Hawkins, the Texas Solicitor General, explained this premise during oral argument:

Hawkins: The best evidence that I'm right about this is Justice GInsburg's dissent. In dissent she faults Chief Justice Roberts for discussing the commerce clause, for reaching the commerce clause holding. Justice Ginsburg said, look, this is obviously is a tax, and just say that it is a tax and be done with it. We don't have to say anything about the commerce clause. But Chief Justice Roberts rejected that. And this is in Part III.D of his opinion. He responds to Justice Ginsburg III.D and he says, no, I have to reach a commerce clause holding because this is best read as a command to buy insurance. So I have … to give it the best reading possible. Then I have to assess whether that best reading is constitutional or not. And only after doing that analysis, then do I get to the taxing issue. I think that interplay between Chief Justice Roberts and Justice Ginsburg shows that our reading is correct, and the other side's reading is incorrect because it elides the differences between those four different parts of Section III of Chief Justice Roberts's opinion. 

At bottom, NFIB held that Section 5000A(a) creates a free-standing obligation. That obligation was unconstitutional in 2012. It was unconstitutional in 2017. And it is unconstitutional in 2019. Section 5000A(a) could be read as offering a "choice" to taxpayers from 2012 through 2017. Chief Justice Roberts reached this conclusion, as did then-Judge Kavanaugh. But Section 5000A(a) can no longer be read that way. Now, under the reasoning of both Roberts and Kavanaugh, plus that of the remaining joint-dissenters (Justices Thomas and Alito), Section 5000A(a) imposes an unconstitutional command to buy insurance.

The Article II Executive Power and the Rule of Law (Part II)

The limited, Whig conception of executive power best fits the text and structure of the Constitution.


The first post set out a conceptualization of the executive power, the Whig executive, according to which it is the ability to operate in an environment of legal rules that empower and constraint officials but does not itself provide any of those rules.  That post began the argument that the executive power of Article II consists entirely of that ability.  The first step was to point out that the limited view was one well-known understanding at the time of the framing.

The next step is to see that the Whig view was a natural understanding of "executive."  Some officials "carry into execution," in the words of the Necessary and Proper Clause, the law in that they conduct the operations of the government.  They transform the abstract rules of the law into actual conduct in the world, from operating post offices to inspecting incoming vessels.

The capacity to perform that function can reasonably be attributed to the executive power itself, which operates whenever the function is performed.  The rules that empower and constrain, by contrast, cannot plausibly be attributed to the executive power.  That concept is far too general to give any specific information about the existence or content of the many roles that implementing officials play.  Article II says nothing about the number or function of park rangers.

The armed forces are part of the executive component of government, subject to the law.  Their composition and funding are determined by Congress, not by Article II.  Commanders, including commanders in chief, are subject to the law.  The President's status as Commander in Chief establishes civilian control of the forces but does not supply any of the law that governs them.

The Whig understanding of execution fits into the three-part division of government power found in the first sentences of Articles I, II, and III.  Legislative power makes and changes legal rules.  Executive power, which is distinguished from legislative power in the three-way conceptual scheme and separated from it in the Constitution's institutional structure, is subject to rules made elsewhere.

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Mark Kleiman, Leading Drug Policy Scholar (and Early Blogger), Dies at 68


I knew Mark when he was at the School of Public Policy at UCLA, and much enjoyed his company; I highly recommend the substantive and gracious obituary here at Reason by Jacob Sullum, who worked in the same field as Mark did. An excerpt:

Back in 1989, Mark Kleiman published a book, Marijuana: Costs of Abuse, Costs of Control, that exemplified his calm, methodical, just-the-facts approach to drug policy. Kleiman argued that federal efforts to curtail cannabis consumption were ineffective and diverted resources from programs that had a better public safety payoff. Three years later, in Against Excess: Drug Policy for Results, he came out in favor of legalizing marijuana, arguing that the costs of prohibition outweighed its benefits. At a time when three-quarters of Americans still supported marijuana prohibition, Kleiman's position was striking, especially coming from a widely quoted and consulted academic who had the ear of policy makers….

I did not always agree with Kleiman's conclusions [such as Kleiman's support for continued criminalization of drugs other than marijuana and psychedelics], but I admired his method, which acknowledged subtleties and uncertainties, anticipated counterarguments, and insisted on empirical support for claims that were frequently asserted as articles of faith.

"Eventually we must learn to discuss our drug policies without raising our voices," Kleiman wrote in Against Excess"A drug-crazed drug warrior can be as great a public menace as a drug-crazed addict." He never lost sight of the burdens imposed by coercive drug policies, even when he supported them.


More on Liberals and Federalism

In this follow-up to my Washington Post article on the same subject, I consider whether current liberal support for federalism is purely opportunistic, and whether the political left is inherently pro-centralization.


My recent Washington Post article on growing liberal support for federalism generated considerable interest. In this follow-up, I am going to further explore two possible reasons why liberal interest in federalism might turn out to be largely ephemeral: the possibility that it's all a matter of "fair weather federalism" and the idea that modern liberalism is inherently centralizing, and therefore inherently inimical to constitutional limitations on federal power.

I. Is Fair-Weather Federalism Inevitable?

Fair-weather federalism is all too common. Both liberals and conservatives routinely invoke federalism when their opponents control Congress and the White House, only to ignore it when they hold the same reins of power themselves. There are plenty of recent examples during both the Obama and Trump administrations. If a Democratic president is elected in 2020 or 2024, liberal support for federalism could wane, much as many conservatives are now willing to turn a blind away to the Trump administration's undermining of constitutional limits on federal power in its attempts to coerce sanctuary cities.

However, it is not true that attitudes towards constitutional limits on federal power are purely opportunistic. While there have been many cases of such opportunism, there are plenty of counterexamples, as well. With the exception of one unusual case, conservative judges have almost invariably ruled against the Trump administration's recent attempts to coerce sanctuary cities by attaching new conditions to federal grants. In Gonzales v. Raich (2005), all four liberal Supreme Court justices ruled that the Commerce Clause allows the federal government to ban the possession of medical marijuana, even though these justices likely favored the state policy that got overridden by the federal government (3 of 5 conservative justices voted to strike the policy down, even though they probably sympathized with the federal ban on policy grounds). I  believe Raich was a terrible decision. But it's hard to deny that at least 7 of the 9 justices who voted on the case prioritized their general principles over immediate policy priorities.

More generally, from the New Deal until quite recently, conservatives tended to favor tighter judicial enforcement of federalism than liberals did; and this remained true across a wide range of administrations. Some specific policy controversies were obvious exceptions to this general rule. But the existence of exceptions does not prove that the rule was totally absent. Generally speaking, judges have tended to be more consistent in their positions on federalism than politicians and activists, in part because they are more removed from short-term policy debates, and have less incentive to sacrifice principle for the sake of immediate policy advantage.

It is easy to be cynical about not only federalism, but pretty much any other constitutional principle. Just as there are cases of fair-weather federalism, there are also cases of fair-weather separation of powers, fair-weather freedom of speech, fair-weather protection for the rights of criminal defendants, and so on.

In each of these fields, we can find people who support rigorous judicial enforcement of limits on government power when it benefits their side of the political spectrum, and a highly deferential attitude when it does not.  Even so, there is broad agreement that each of these types of rules needs to be enforced with at least some substantial consistency and courts often do just that, even when the judges don't  particularly like the immediate political consequences. For example, many of the Court's most important free speech decisions involve communist and neo-Nazi speakers whom few if any mainstream jurists feel any sympathy for.

The key question is whether judicial enforcement of federalism can become one of those principles for which there is substantial cross-ideological support. For the reasons outlined in my Washington Post article, I think liberals—as well as conservatives—have good reason to conclude that the answer should be "yes," even if they did not think so in previous eras.

Among other considerations, federalism—like freedom of speech—provides valuable "insurance" against situations where your opponents hold the reins of power in Washington. Such insurance is especially valuable during periods of severe political polarization, like the one we are in right now. At such times, we need more protection against political adversaries than may otherwise be the case, because they are especially likely to enact policies deeply inimical to our values or interests. More generally, tighter limits on federal power can help promote coexistence in a large and highly diverse society.

The fact that liberals have good reason to commit to federalism doesn't mean they necessarily will. The "fair weather" approach is still tempting to many (as is also the case with many on the right). But it is not inevitable  they will succumb to it. Moreover, we can achieve adequately broad support for federalism even if not all liberals (or all conservatives) are genuinely committed to it. We just need a large enough cross-ideological coalition of committed federalists that they can make their influence strongly felt, often by working together with "fair weather" types on a case-by-case basis.

Some fair-weather federalism is probably inevitable. But it is not inevitable that it will dominate the system.

II. Is the Left Inherently Centralizing?

A deeper reason for pessimism about liberal interest in federalism is the concern that the  political left is inherently pro-centralization. If their ultimate goal is to enforce uniform national policies on most significant political issues, then they are unlikely to ever support meaningful limits on federal power, except perhaps as an occasional short-term expedient.

This concern is not unreasonable. At least since the early twentieth century, the political left in the US has favored extensive federal government control of the economy, and—often—increased federal regulation of a wide range of "non-economic" issues.

In its most extreme "democratic socialist" variant, the modern left probably really is inherently inimical to federalism. It is difficult to think of any area that socialists would be willing to leave beyond the scope of federal power. And the kind of large-scale central planning required by socialism is ultimately incompatible with any significant autonomy for sub-national governments. While modern "democratic socialists" claim they do not advocate government ownership of the means of production, the extent of federal control they want to impose by less direct means, nonetheless amounts to central planning of the lion's share of the economy.

The nonsocialist left is a different story. There is no inherent incompatiblity between advocating extensive—but not comprehensive—federal spending and regulation, while also recognizing significant limits on federal authority, including even on some "economic" issues. Liberals of this type could support broad federal power to spend money on "universal" entitlement programs, while also barring federal spending on a variety of local projects and giveaways to narrow special interests. In this way, they could support meaningful limits on federal power to spend money under the General Welfare Clause.  Similarly, nothing in the non-socialist liberal agenda requires unlimited federal power to pressure states through "commandeering" or conditional spending grants. Indeed, as the sanctuary cities cases demonstrate, limits on that power can actually help protect liberal values.

Looking around the world, it is simply not true that the left universally rejects structural constraints on central government power within federal systems. In nations such as Canada, Australia, Germany, and Switzerland, the enforcement of such constraints enjoys broad support and does not systematically divide people along right-left ideological lines.

The main factor that has made the US different for most of the last 70-80 years is the association between "states' rights" and oppression of racial and ethnic minorities. There is indeed anawful history of state governments repressing minorities.  And, at several crucial points, federal power has curbed that oppression—most notably during the abolition of slavery and the triumph of the Civil Rights Movement in the 1950s and 60s.

Thus, many on the left came to the conclusion that the state autonomy is inimical to minorities, while federal power is their friend. The idea that this is  true as a general  general rule is, in my view, an oversimplification of American history. But, whatever may have been the case in earlier eras, it is not true today, for reasons well-explained by Yale Law School Dean Heather Gerken. As I emphasized in my Washington Post article,  the Trump era is a dramatic illustration of this point, which Gerken began to make long before.

When it comes to federalism, the political left is currently flux, as it also is on a number of other issues. It is difficult to say where they will ultimately come down. It may turn out that liberals will continue to differ among themselves on federalism for some time to come.

But there is a real chance that left-wing support for robust limits on federal power will continue to increase. That tendency began to emerge before Trump. But the liberal reaction to his administration has given it a major boost. To the extent that the developments in American law and politics that gave rise to Trump go beyond his personal idiosyncracies (and I believe they do), the changing ideological valence of federalism might well outlive his time in the White House.




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  1. As long as American politics remains in the grip of corporate managers, the left has little choice. It must oppose federalism and favor activist central government. State governments—and especially smaller state governments—have proved again and again that they are easy targets for pro-corporatist political corruption.

    Apparently it takes a government of considerable size to face down big corporations, with the economic clout they can wield on a local scale. I suggest that if Somin really wants to see more federalist support from the left, the place to start would be to use the federal government to strip corporations of much of their political clout—at both the state and federal levels. After that, advocacy on behalf of federalism might make more sense to leftists.

    That’s a pipe dream of course. Whether Somin knows it or not, much of the rightist energy in favor of federalism is coming from corporations—precisely because they know that compared to the federal government, most state governments are push-overs.

    A possible constructive compromise? Instead of calling for more federalism, call instead to restore more power to congress, and especially to the house of representatives. Fans of more limited government on the right would see a reduction in executive power. The left would get more help against corporate encroachment on politics from the most-accessible branch of the only government big enough to make a difference. Maybe in time that would provide enough leverage against corporatism to pave the way for the kind of federalism Somin wants.

    Of course, when you think about it, re-empowering the house of representatives is likely to be another non-starter for plutocrats.

    1. And if a proposed new regulation or law is costly, well, why shouldn’t politicians here get a piece of the pie by reducing or canceling it in exchange dor donations, legal or otherwise, like they do around the rest of the world, or through all human history.

      It is a fool’s errand in such an analysis to put on blinders and ignore that people go into government for the purpose of getting in the way of things. This is the basis for corruption around the world. Had to bring $200 to the DMV or wait two years for a license lately? Paid 10% of the cost of a new building or be denied a permit?

      Here they just have to hide it better behind memes for useful idiots to fall for. Hence $600,000 for an environmental study before you can tear down a mural. Same interference for the same reason.

    2. Whether Somin knows it or not, much of the rightist energy in favor of federalism is coming from corporations—precisely because they know that compared to the federal government, most state governments are push-overs.

      Whether you know it or not (I’ll go with “not”), Somin knows that this is overly simplistic and mostly wrong. Small corporations may like federalism, for the same reason individuals do: it allows them to vote with their feet and choose the legal regime they operate under. But big corporations have to operate nationwide, so they prefer centralized regulation so that they have only one set of rules they have to comply with rather than having to deal with 50 different sets of regulations.

      (We can see this dynamic at play right now with some of the big tech companies like Facebook. Faced with California enacting a bunch of onerous “privacy” regulations, they are now heading to Washington to try to get a single set of laws that are laxer and override state laws.)

  2. ” There is no inherent incompatibility between advocating extensive—but not comprehensive—federal spending and regulation, while also recognizing significant limits on federal authority, including even on some “economic” issues. ”

    Actually there is. The reason is that those “significant limits on federal authority” are constitutional in nature. They derive from the same Constitution which denies the federal government that “extensive” reach the left wants to exercise.

    The left has already recognized the Constitution as an obstacle to their program, and targeted it for destruction. You can see this, for example, in the way they teach that the Constitution’s purpose was to safeguard slavery, and attribute every facet of the Constitution that gets in their way to this purpose.

    The left’s goals are utterly incompatable with limited government, let alone federalism, and they know it. There may be occasional expedient alliances on the topic, where the right, out of principle, joins with the left in attacking some right-wing program that runs contrary to federalism. But don’t expect the left to join any such alliance where the target is something that advances their own goals.

  3. Brett, once again delving deep into the liberal soul and finding that they are all villains but lying about it.

    1. “delving deep ”

      Not really. Its a surface trait.

    2. If the shoe fits

    3. I take it you disagree with that? What are the signs that characterization is incorrect? What would they do differently if they actually were villains?

      Would they spend the last 25 years working to increase racial and class division within the US for profit and political gain? Is that what villains would do? That’s what liberals do now.

      What’s the non-villainous explanation for Antifa? They’re actually out walking their dog in those masks?

      1. They’re disgusting, evil people who seek to destroy the West for their own power.

  4. “most extreme “democratic socialist” variant”

    in other words The Democratic Party in 2019

    Have you heard the presidential contenders?

    Open borders, taxpayer funded abortion without limits, gun confiscation, confiscatory taxes, complete government takeover of health insurance.

    Somin is painfully naive [at best] to think liberal federalism is anything other than a OrangeManBad tactic.

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How to survive a big data breach

Episode 273 of the Cyberlaw Podcast


Today, I interview Frank Blake, who as CEO brought Home Depot through a massive data breach. Frank's a former co-clerk of mine, a former Deputy Secretary of Energy, and the current host of Crazy Good Turns, a podcast about people who have found remarkable, even crazy, ways to help others. In addition to his insights on what it takes to lead an organization, Frank offers his views on how technology can transform nonprofit charitable initiatives. Along the way, he displays his characteristic sense of humor, especially about himself.

In the News Roundup, I ask Matthew Heiman if Google could have had a worse week in Washington. First Peter Thiel raised the question of whether it's treasonous for the company to work on AI with Chinese scientists but not the US Defense Department, then Richard Clarke, hardly a conservative, says he agrees with the criticism. And, inevitably, President Trump weighs in with a Thiel-supporting tweet. Meanwhile, on the Hill, Google's VP says the company has "terminated" Project Dragonfly, an effort to build a search engine that the Chinese government would approve. But that doesn't prevent conservatives from lambasting the company for bias against conservatives and an unfair subsidy in the form of Section 230 of the Communications Decency Act. The only good news for Google is that despite all the thunder, no lightning has yet struck. Or so we thought for about five minutes, at which time Gus Hurwitz noted that Google is likely to face multimillion-dollar fines in an FTC investigation of child Internet privacy violations, not to mention a rule-making designed to increase the probability of future fines.

Speaking of which, European lightning struck Amazon this week in the form of new competition law scrutiny. Gus offers skepticism about the EU's theory, and I offer counter-skepticism.

Julian Assange has completed his transformation from free-speech crusader to feces-speech crusader. Nick Weaver is astonished at the way Julian Assange managed to turn the Ecuadorian embassy into a fist-fighting, feces-smearing, election-meddling command post.

Nick also predicts that Kazakhstan will lose its war with Silicon Valley browser makers over a man-in-the-middle certificate the Kazakh government is forcing on its citizens in order to monitor their Internet browsing.

And in short hits, Gus questions whether $650 million is a harsh settlement of Equifax's data breach liability; Nick closes the books on NSA hoarder Hal Martin's 9-year prison sentence; and Nick explains the latest doxing of an intelligence agency – this time a contractor for the Russian FSB.

Download the 273rd Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.


New Essay: "Originalism and Stare Decisis in the Lower Courts"

When and How Can Lower-Court Judges Be Originalists?


Most discussions about originalism and stare decisis are SCOTUS-focused. That is, the Supreme Court established some non-originalist precedent in the past, and now the Justices are considering whether to reverse that precedent. However, scholars seldom discuss how lower-court judges–such as Circuit Court Judges or State Supreme Court Justices–should balance originalism and stare decisis.

My new essay, Originalism and Stare Decisis in the Lower Courts, opens up that discussion.

Here is the abstract:

The tension between originalism and stare decisis is well known. Many of the Supreme Court's most significant constitutional decisions are completely unmoored from the original public understanding of the Constitution. A Supreme Court Justice may recognize that a given precedent is non-originalist, but follow it anyway because of the doctrine of stare decisis. Or, a Supreme Court Justice may decide to deviate from stare decisis because that precedent is non-originalist. The Supreme Court's unique status, which is perched atop our judiciary, affords its members leeway to make either decision.

Lower court judges, however, do not have that sort of discretion. Consider a judge on a federal circuit court of appeals. First, she is bound by Supreme Court precedents interpreting the Constitution, regardless of whether those precedent are originalist or not. No matter how wrong a given Supreme Court case is, that precedent must be followed. Second, she is bound by circuit precedent interpreting the Constitution, regardless of whether that precedent is originalist or not. Only an en banc majority can reverse circuit precedent, and those proceedings are quite rare.

An originalist circuit judge would only have free jurisprudential rein in the rare case of first impression, where neither the Supreme Court nor the circuit court had considered a particular constitutional question. Those cases are even rarer. Even then, the circuit judge would still be at a disadvantage. Circuit courts seldom receive the wealth of originalist party and amicus briefs that are directed to the Supreme Court. Here, the circuit judge will often have to do all of her own originalist research—the proverbial law office history report—without the benefit of the adversarial process.

In short, it's tough for a lower-court judge to be a constitutional originalist. But it can be done. Part I of this essay explains when a lower-court judge can be an originalist. Part II explains how a lower-court judge can be an originalist.

I welcome any suggestions or comments–especially from judges who agree, or disagree with my approach.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. This is probably a Law 101 question, but in the case of conflicting SC precedents, must the circuit court majority comply with the most recent precedent, or the greatest number of precedents? Or are they allowed in such a case to consider other criteria such as originalism?

    1. I’m not up to Law 101 myself, but I would assume the answer is yes they are supposed to go with the latest one, as the later one presumptively overrules the previous ones. But only if they’re on the same point.

      In practice of course if SCOTUS doesn’t say, when they hand down a judgement saying black is white, that they are overruling their earlier precedent that black is black, that gives the lower court judge lots of cover for arguing that the precedents are not on quite the same point. Otherwise surely SCOTUS would have mentioned it, giving the lower court judge the opportunity to pick the precedent he prefers by a bit of sophistrical distinguishing.

  2. How quaint. Josh thinks modern lower-court judges think of themselves as constrained by the Constitution, originalism, stare decisis or even SCOTUS itself.

    1. Yeah, that made me smile too.

      The point is vaguely remininscient of the Obamacare mandate / penalty thing. If there’s no penalty can there still be said to be a mandate ?

      If there are no consequences to a judge making stuff up unconstrained by all these hypothetical constraints, are there in fact any constraints ?

  3. No matter how wrong a given Supreme Court case is, that precedent must be followed.

    Ahem. Says who?

    The Constitution is clear that the Constitution is the supreme law of the land, and at no point does it mention precedent. While precedent is, under an originalist understanding, part of the “Laws of the United States”, the binding nature of such laws is explicitly limited to those made in pursuance of the Constitution, not those made contrary to it. The Constitution no more allows an unconstitutional Supreme Court ruling to be law than it allows an unconstitutional Act of Congress to be law.

    There is, in fact, nothing in the Constitution that even permits a court, federal or state, to privilege precedent over the Constitution, much less requires a court to. As a practical matter, the Supreme Court may well use its appellate jurisdiction to keep forcing an unconstitutional precedent on an inferior court, but that does not change the inferior court’s duty to always make its initial judgment in accordance with the Constitution itself.

    (Yes, sure, there are precedents to the contrary. And those precedents are no more than precedents, unable to change the fact that the Constitution is still the supreme law of the land, superior to any precedent.)

    1. The Constitution specifically references the common law, and makes clear that congressionally established courts are “inferior” to the “Supreme Court”.

      That’s conclusive.

      1. The Constitution specifically references the common law

        Only in the Seventh Amendment, in reference to a) what we would now call civil suits, and b) on the rules for re-examining facts determined by juries.

        But even if the Constitution did “specifically” reference “the common law” in the sense of judge-made law in general, there is no provision of the Constitution privileges a ruling contrary to the Constitution above the Constitution. Rather, the Supremacy Clause makes it clear that judge-made law cannot trump the Constitution.

        1. Holmes answered your argument. The law is not a brooding omnipresence in the sky.

          The Constitution is not a regulatory code. It is a bunch of broad vague dictates that gain content through the iterative process of common law decisionmaking which the framers adopted. Our courts carried the common law over from the British system.

  4. Consider, e.g., the 7th Circuit opinion in the case known as MacDonald v. City of Chicago, which later came to stand for incorporating the Second Amendment against the states. In the Circuit’s opinion, they were bound by an earlier 2A case decided by the S.Ct. in the 1880s which upheld a Chicago[-area] local law banning people from marching armed against a 2A challenge. The 7th Cir. said they would have ruled for MacDonald and against Chicago’s gun control laws, but for the precedential power of that old case and their duty to follow precedent from the S.Ct. They also said that it was only for the S.Ct. to overrule its own prior decisions.
    The 7th Cir. provided a number of reasons why they thought the old case should be overruled, some of which (IIRC) made it into the S.Ct.’s ultimate decision.
    That is about as far as a lower court can reasonably be expected to go.

    That kind of opinion is to be distinguished from the opinion of a state Supreme Court addressing, say, a 4A search-and-seizure issue in a state-law criminal case. There, state Supreme Courts will often say they start with the 4A law as decided by the US S.Ct. as a baseline of the minimum protections 4A gives. They will then go on to say that their interpretations of 4A (often coupled to their interpretations of their state constitution’s analog) are more defendant-favorable and give broader protection than the S.Ct.’s. I cannot think of a case in which the S.Ct. has overruled a state Supreme Court for making such a decision, but that is not going contrary to precedent.

  5. The Constitution adopts a common law legal system and a hierarchy of courts, so stare decisis is required.

    In contrast, “originalism” is just one of many competing judicial philosophies, not addressed at all by the Constitution.

    So lower court judges should just forget about originalism and apply precedent.

  6. The whole post goes on the assumption that originalism is the only and obvious way to interpret the Constitution:

    A Supreme Court Justice may recognize that a given precedent is non-originalist, but follow it anyway because of the doctrine of stare decisis.

    Or maybe follow it because it’s correct.

    Consider a judge on a federal circuit court of appeals. First, she is bound by Supreme Court precedents interpreting the Constitution, regardless of whether those precedent are originalist or not. No matter how wrong a given Supreme Court case is, that precedent must be followed.

    So non-originalist (whatever flavor is in fashion this month) equals “wrong,” per Blackman.

    1. The whole post goes on the assumption that originalism is the only and obvious way to interpret the Constitution

      Well, obviously. Blackman is an originalist. But {originalism} in his post is substitutable by any theory of interpretation that the judge may adhere to whether that be {purposivism}, {evolving standards of decency-ism}, {think up a reason once you’ve reached yur conclusion-ism}, {whateverism}

      Whatever theory you have for resolving cases for which there is no binding precedent, is going to carry a risk of generating a different answer from the precedent if there is one.

      From that pespective Blackman’s essay is not even about originalism, it’s about the effect of precedent on the conduct of any judge holding any interpretative theory.

      1. You do know that precedent and stare decisis is itself a theory of interpretation.

        1. Not really. It’s a legal principle or rule.

          A theory of legal interpretation is a theory of how to puzzle out what the law means, so that you can then apply your theory to the facts en route to deciding the case. Stare decisis is the legal principle that you do not attempt to puzzle out what the law means (according to any theory of interpretation) if it’s already been done by someone else. Even if you think their effort was woeful.

          Thomas clearly doesn’t believe in this principle (horizontally) and so you can certainly say that his legal theory of how to decide cases incorporates a rejection of any obligation to follow horizontal precedent, but that’s not the same thing as his theory of interpretation.

          There is more to deciding cases than intepreting the law. Hence your theory of the former will be wider than your theory of the latter.

      2. {originalism} in his post is substitutable by any theory of interpretation that the judge may adhere to

        Which just makes it petty.

        If your thesis is generalizable, but you prefer to unnecessarily present it couched in the assumption that you’re right and everyone else is wrong, you’re not being an advocate for that point of view, you’re just stamping your foot.

    2. “The whole post goes on the assumption that originalism is the only and obvious way to interpret the Constitution”

      Well, as a first approximation it’s true, so what’s the problem here? It’s the only way of interpreting the Constitution because the other approaches aren’t “interpretation”, they’re substitution.

      By which I mean, they go looking for meaning in the wrong places, which usually purports to be some version of public opinion, “evolving societal values” or whatever, but which really boils down to whatever the person engaging in it thinks would be good policy. Then they substitute that externally derived meaning for whatever could be found in the Constitution.

      Seriously, when living constitutionalists depart from strict textualism, is it EVER to agree that the Constitution has “evolved” to mean something they don’t like, and think would be bad policy? Not so far as I’ve ever noticed. It always “evolves” towards their own preferences.

      1. I agree about “living constitutionalism” but I don’t think that all possible theories of interpretation, other then originalism, are inherently dishonest.

        For example “currentism” – ie textualism where you look at current meaning rather than original meaning, is just as honest as originalism, if not quite so sensible. Though it does have certain practical advantages – current meaning being more accessible than original meaning.

        Ditto, trying to divine the legislators’ or Constitution makers’ “intent” is not inherently dishonest. You could actually attempt it honestly. And it has the advantage of being – if achievable – a fairly sensible goal. The difficulty is practical. Discerning intent where it is not written down is way harder than discerning the meaning of words that are written down. So hard in fact that it is impossible to police dishonesty, or even your own unconscious bias. Intent is more or less imposible to distinguish from “the answer I’m looking for” and so it gives the judge effectively unlimited discretion. Consequently while “intent” and “living constitutionalism” are theoretically different, practically they amount to the same thing.

        1. Weren’t the original authors simply codifying the “currentism” of the times?

  7. The paper incorrectly assumes that every judge is female.

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Legal Duty to Report Your Coworkers' Off-the-Job Crimes?

A New Jersey appellate court said a co-worker relationship (if long-lasting and close enough) "would be adequate to fairly warrant the imposition of a duty to act." The New Jersey Supreme Court declined to opine on this, and instead concludes that such a duty wouldn't be triggered on the facts of this case.


Last August, I wrote about the New Jersey Appellate Division decision:

Say a coworker is chatting with you at work, and the coworker says something that suggests that he's having sex with a teenager who's just below the age of consent. The relationship has nothing at all to do with your company. It's not on company property. It's not on company time. It's not enabled by the coworker's job. Nor is there a state statute obligating you to report suspected sex crimes you hear about.

What do you do? Maybe you might call the police, to tip them off to the possible crime. Or maybe you're not sure there is a crime (the coworker hasn't outright confessed to the crime). Or maybe you're wary of the police, and don't want to get them involved. Or maybe you're not wild about the state's statutory rape law—you're not going to violate it yourself, but you don't want to turn someone in for it. Or maybe (rightly or wrongly) you just don't want to be seen as the kind of guy who turns his acquaintances in to the police.

Well, in New Jersey, you'd better call the police—or else you could get sued by the victim. Indeed, the victim could also sue your employer for your failure, so your employer had better have a policy requiring employees to call the police in such situations, and had better develop a track record of enforcing the policy. That's what a New Jersey decision from a couple of weeks, G.A.-H. v. K.G.G., threatens.

The New Jersey Supreme Court agreed to consider the case, and I just learned that late last month it reversed the Appellate Division decision. It didn't decide the general legal question of whether such a coworker duty exists, holding instead that, on the facts of this particular case, no such duty would be triggered in any event. But at least the Appellate Division decision is no longer precedent. An excerpt:

In this case, we consider whether defendant A.M. (Arthur) was obligated to report that his co-worker K.G.G. (Kenneth) was engaged in a sexual relationship with a [15-year-old]; whether their employer, GEM Ambulance, LLC (GEM), is vicariously liable for Arthur's failure to report; and whether GEM negligently retained, trained, or supervised Arthur or Kenneth.

Plaintiff [sued not just Kenneth but also Arthur and GEM], alleg[ing] that Arthur should have reported Kenneth to supervisors at GEM and that GEM was both vicariously liable for Arthur's failure to report Kenneth's conduct and negligent in retaining, training, and supervising Arthur and Kenneth…. The Appellate Division … [held that the case could go forward] because, in its view, "the common law does not necessarily preclude the imposition of" a duty to report that a co-worker is engaged in a sexual relationship with a minor and the record here was not sufficiently developed to determine whether Arthur knew of Kenneth's illicit sexual relationship with plaintiff.

We reverse … [because] no reasonable trier of fact could find that Arthur knew or had special reason to know that Kenneth was engaged in a sexual relationship with a minor. Accordingly, Arthur had no duty to report Kenneth…. [W]e need not decide whether a co-worker or employer with knowledge or a special reason to know that a co-worker or employee is engaged in a sexual relationship with a minor has a legal duty to report that co-worker or employee….

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Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The NJ appellate court apparently seems to think 1984 is a “how-to guide”, and the NJ Supreme Court lacks the courage to do what’s right.

  2. If the coworker has a duty to report, surely the offender has a duty to report. After all, who has “special knowledge” of the offense greater than the offender himself?

    Then, of course, the employer should have required the offender to disclose any offenses he might have been engaged in, in order to ensure that no ongoing offenses involving the company in liability were occurring. This offense didn’t involve the company directly, but they should have been aware of the offense, and of course, should have then counseled offender to go self-report to the police. They don’t seem to have done so, so they are liable not vicariously, but for their own failure to act.

    But… the victim was ALSO aware of the offense, and did not reveal it to offender’s employer, thus limiting the liability to nominal damages, at best.

    1. Every company needs to incorporate the entire legal code into their personnel handbook,and re-issue it every time said legal code changes.

      Heaven help them is they have offices in multiple states — merely talking on the phone interstately puts them at risk. International? Good God, don’t even ask! I bet if an employee even takes an interstate vacation makes them liable, and can you imagine what horrors await any international vacationer?

      Don’t let employees talk on the phone or use Facebook to communicate with out-of-state relatives.

  3. Might there be an exception for clergy-colleagues?

  4. Wondering if the First Amendment protects remaining silent?

    1. The government can compel you to buy broccoli. I bet they can compel you to ask its price, and it’s just a short walk off a long pier to compel other speech.

      1. Seems to me freedom of speech would include not speaking.

        1. nor shall be compelled in any criminal case to be a witness against himself

          Isn’t there some legal principle that if something is written in one place but not another, the difference must be presumed intentional? I wonder how long it will take for some Supreme Court to decide the First Amendment doesn’t prevent the government compelling speech when not as a witness against oneself.

          1. ” I wonder how long it will take for some Supreme Court to decide the First Amendment doesn’t prevent the government compelling speech when not as a witness against oneself.”

            The answer is, of course, that this happened quite some time ago. You can be compelled to identify yourself to a law enforcement officer. Neither the First nor the Fifth protects your right to decline to do so.

        2. Because we’re not as different from our Puritan forebears as we’d like to believe, any potential crime with the whiff of the s-e-x word on it (and is of a type thought to be mostly male perpetrated) is automatically exalted to a category beyond even murder or genocide. Any constitutional protections or safeties such as presumption of innocence must be overridden because there is nothing that matters more than appearing to the public to stamp it out by any means necessary regardless of cost or whether theres any smarter way to solve the problem.

  5. EV’s headline for this post:

    “Legal Duty to Report Your Coworkers’ Off-the-Job Crimes?
    A New Jersey appellate court said “yes””

    Opening paragraph from the appellate court decision:

    “In this appeal, we examine whether tort liability may be imposed when one remains silent and fails to warn a victim or alert authorities despite knowledge or a reason to suspect that a co-worker has engaged in the sexual abuse of a minor. In our view, the common law does not necessarily preclude the imposition of such a duty. Ultimately, that issue must await further development of the facts surrounding the relationship between the abuser and his co-worker, as well as the facts regarding the co-worker’s awareness of the abuse that was unduly limited by the trial judge’s failure to permit plaintiff discovery of evidence in the prosecutor’s possession.”

    Am I reading the wrong judicial opinions that these blog posts are supposed to be referring to? Where exactly in that appellate decision did the court say “yes” to the question of whether a co-worker has a legal duty to report his colleague’s off-the-job crimes.

    I feel like I’m being trolled….

    1. If the answer is no, there’s no other court proceedings. The appellate court ruled that the answer might be “yes”… in some circumstances, into which which the trial court did not permit any inquiry.

      It’s more accurate to say the appellate court ruled “maybe” rather than “yes”, but they overruled the trial court’s “no”.

      1. I think the Appellate Division did conclude there was such a duty (at least for sufficiently longstanding and close coworker relationships), but I’ve revised the subtitle to include a quote from the Appellate Division opinion. The full quote is,

        In J.S., the abuser and the defendant were married.
        We readily reject Arthur and GEM’s contention that the buck must
        stop there. There are no doubt other types of relationships, including those who have worked together for a sufficiently
        reasonable amount of time and intensity, that would be adequate
        to fairly warrant the imposition of a duty to act.

  6. […] Click here to view original story: Legal Duty to Report Your Coworkers’ Off-the-Job Crimes? […]

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The Article II Executive Power and the Rule of Law (Part I)

Anglo-American constitutional thought has long included a limited view of executive power—historically associated with thinkers who called themselves Whigs—according to which executive officials act in an environment of legal rules that empower and constraint them, and those rules do not come from the executive power itself.


The editors have graciously invited me to write a series of guest posts about executive power.  The more elaborate version of what I have to say is in a working draft that's been posted to SSRN, titled Executive Power.

Officials who administer the government and carry out the law do so in an environment of legal rules that empower and constrain them.  My central claim is that the Article II executive power consists exclusively of the capacity to perform the roles constituted by those rules, none of which comes from the executive power itself.

Executive power brings with it no authority to use government resources or to invade otherwise-protected private interests.  It brings with it no inviolable discretion in the administration of the government in its foreign or domestic or military operations.  All the rules that empower executive officials and give them discretion have sources other than the executive power itself.  The only inherent executive power is the capacity to play the role constituted by those other rules.  The President's role as Commander in Chief of the armed forces concerns the military hierarchy, not the substance of the law that applies to the armed forces.

This first post sets out that limited conception of the executive power.  It then begins the argument that the Article II executive power refers to that conception by identifying that understanding—the Whig executive—as a leading candidate for the meaning of "executive power" at the time of the framing.  The next post will pick up the argument concerning the Constitution's text and structure.  The third will discuss the available records of the Federal Convention, arguing that the Whig conception was known to the delegates and that their drafting choices indicate that they meant to employ it.

The fourth post will turn to the government function for which the argument to a more substantive executive power is often thought strongest: foreign relations.  The executive power of Article II, I will argue, gives the capacity to conduct foreign affairs but not any policy autonomy regarding them.  Any such autonomy arises as a residuum of the enumerated powers of Congress and the statutes that have been adopted pursuant to them.  Executive discretion as a residuum of legislation and legislative power can be found elsewhere, but executive power confers no discretion that legislation may not override.  The last post will discuss two important claims of executive power—executive privilege and the unitary executive—and then conclude by discussing two leading appearances of the Whig conception in American constitutional history.

Executive officials administer the government and carry out the law.  They act in an environment of legal rules that empower and constrain them.  Empowerment comes in the form of authorization to use the distinctive legal advantages of the government to pursue the goals specified by the law.  Some of those advantages are material, like National Park Service vehicles and Air Force fighter jets.  Some are juridical, like the ability of the United States to make contracts and to transfer funds to private people, for example in paying Social Security benefits.  One important kind of juridical advantage are privileges to engage in conduct that invade private interests.  When DEA agents break down a door to execute a search warrant, and when Air Force pilots fire on enemy positions, they rely on privileges like that.

Constraints come in two forms.  Some apply specifically to officials.  They include both affirmative and negative duties.  Fundamental to officials' roles are affirmative obligations to perform the tasks for which their offices were created.  The Social Security Administration is legally required to pay benefits as set out in the applicable statutes.  Other constraints that apply specifically to those who carry out the law are negative.  Many Treasury employees are forbidden to engage in transactions in federal debt that are perfectly lawful for private people.

The other form of constraint is the residue of privilege to invade private interests.  A DEA agent who breaks down a door without a warrant may well commit a tort by doing so, as a private person would.

All this is thoroughly familiar, but sometimes important insights are hiding in plain sight.  The rules that empower and constrain come from the relevant body of law, like the Social Security Act.  They are far too detailed, and rest on far too many policy choices, to come from anywhere else.  When Congress creates federal programs, it decides what resources to devote to them.  That includes the resource of invading private interests.  Whether EPA inspectors can inspect regulated premises without the owner's consent is up to Congress.  Constraints concerning bribes are found in the law of bribery.

The armed forces fit into this legal structure, as they too use the resources of the government to carry out the operations of the government.  Fighter jets and the ability to contract to buy them, and combatant privilege, and the permission to use bases owned or leased by the United States, are all assets, material and juridical, of the government.  Members of the forces use those assets to perform their functions and are subject to affirmative and negative constraints.  They must obey lawful orders and may not commit war crimes even if ordered to do so.  Appropriations for F-22s are found in appropriations statutes; the permissions given by combatant privilege come from the law of armed conflict.

Executive officials use the assets of the government to achieve the goals set by the law, subject to affirmative and negative constraints arising from the applicable legal rules.  All those rules have a source, mainly in statutes.  What the roles created by those rules have in common is the capacity to occupy them.  That capacity must itself arise from some legal rule or body of legal rules.

That more elaborate account of the legal world in which implementing officials operate feeds into two interpretive claims about the meaning of "executive power" in Article II.  The first claim I think is uncontroversial: the capacity to fill the positions creating by the applicable law is part of the executive power.  Indeed, that is its core.  Whatever else the executive power does, it enables those who hold it to administer the government—that is, to carry out the law.

The next and more controversial claim is that the executive power consists of nothing else.  The first step in seeing that that conceptualization best matches the text and structure of the Constitution concerns its intellectual background.  The limited understanding of executive power was familiar at the time of the framing.  It was especially common among thinkers on both sides of the Atlantic who were highly suspicious of royal power and called themselves Whigs.

That is the thinking that, for example, underlay Thomas Jefferson's 1783 proposal for a revised Constitution of Virginia.  Jefferson would have given the Governor "those powers only, which are necessary to execute the laws (and administer the government) and which are not in their nature either legislative or judiciary."

The next post will explain why the limited, Whig, conception of executive power best fits the Constitution's text and structure.

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  1. Looks good. The imperial presidency is a real problem, but somehow even the Trump presidency does not awaken Democrats to the root of the problem.

  2. This sounds good and I’m sure there’ll be some disagreements along the way, but I’m wondering why the focus is solely on the Executive branch.

    Prof. Harrison could also write, “My central claim is that the Article I legislative power consists exclusively of the capacity to perform the roles constituted by those rules, none of which comes from the legislative power itself.”

    Or start with, “We the People. . . . “

    1. What do you think happens if you start with, “We the People . . . ?” Are you suggesting that the sovereign is somehow constrained?

      1. Who do you consider to be the sovereign?

        1. Same sovereign the founders considered to be the sovereign—We the People, as noted above, and declared unmistakably by the founders. To avoid unfounded speculation, please note that the founders’ view of sovereignty is a matter of historical record—it is stated in the Declaration of Independence, leads the Constitution, and is further elaborated especially in the writings of founder James Wilson—acknowledged by historians to be among the most influential figures at the Federal convention.

          In short, the founders’ view was that no national government, and especially not a limited government, was possible without an all-powerful sovereign, which ruled at pleasure and without constraint. To create such a government—the power to create a government being the defining characteristic of sovereignty—the sovereign required unlimited power.

          Nor is the power to create government the end of the matter. While the government rules according to sovereign decrees (the Constitution is a sovereign decree), the sovereign continues to reign. The unlimited power of the sovereign—being always greater than the limited power of government—serves to constrain the government to follow the sovereign’s will.

          That is the founders’ view of sovereignty in a nutshell. There is nothing at all in the historical record to contradict it. I mention that because I am mindful that there are libertarians around, who think otherwise.

          1. There is nothing at all in the historical record to contradict it.

            This seems a bit too hasty. Natural Rights Theory (whatever you think of its actual merits), was in vogue at the time and certainly influenced many of the minds involved.

            Perhaps you have the primary sources showing that every member of the group you mentioned considered the sovereign to have no impediments to rule and considered every action by the sovereign legitimate. I’ll wait.

            1. Perhaps you have the primary sources showing that every member of the group you mentioned considered the sovereign to have no impediments to rule and considered every action by the sovereign legitimate.

              The question of sovereign legitimacy is its own question. The test of sovereignty is power—specifically the power to create a government at pleasure, and to make it rule. The test of sovereign legitimacy is different. It has to do with the willingness of the sovereign’s subjects to make the sovereign’s objectives their own, and act in support of them.

              There is room, as you may notice, for the sovereign both to stay sovereign, and to rule legitimately, without unanimity among the sovereign’s subjects. There is even room for a sovereign to rule in perfect sovereignty, without any legitimacy at all—as a tyrant, against the will of its subjects.

              Of course, not everyone agreed that American popular sovereignty was legitimate. Tories, for instance. And to the extent that some anti-Federalists preferred a rival notion of aristocratic sovereignty for the South, they too became critics, detracting from the legitimacy of popular sovereignty. But those critics lacked power sufficient to mount a successful challenge, and thus did not put American popular sovereignty in question—at least until the time of the civil war.

              At the Federal Convention in Philadelphia, it was popular sovereignty which carried the day, and which constituted a government. That government has ruled under popular sovereignty ever since, withstanding even the civil war.

              Experience teaches that American popular sovereignty will not last forever. It may even lose legitimacy while it continues, at least for a time. No doubt, a legitimate sovereign continues on firmer ground than one suffering a challenge to legitimacy. Nothing about the future is guaranteed. Perhaps some especially powerful manifestation of natural rights theory could appear, and displace popular sovereignty—or indeed, displace sovereignty of any kind—as this nation’s governing principle. I can’t imagine how that would work. Can you?

              Finally, there is a question whether this kind of theorizing ought to be considered a balancing of opinions, or instead, an investigation into facts. For instance, can you think of any notable nation-state during the last 5 centuries or so, governed on any principle except that of a government subordinate to a sovereign which rules at pleasure? If not, that might be taken as evidence to suggest what we debate is a matter of fact, not a matter of opinion.

              1. Stripped to its bolts then, your claim is that they believed that what or whomever establishes a government is ipso facto sovereign, in the tradition of what the pirate said to Alexander, and that soverigns respect or lack thereof for rights and what-not only bears on its legitimacy.

                Setting aside for the moment the question of whether or not this is an accurate characterization of the views of the hundreds of people who have been described as ‘founders’, this merely elides the questions mentioned in the earlier comments from one of whether the sovereign has the authority to do something to whether the sovereign has the authority to legitimately do something.

                If we take as granted the idea, which has existed at least since medieval times, that an illegal order is no order at all, then the is a distinction with little practical difference and hardly worth quibbling over.

                Getting back to your historical examples, if we are to take the Declaration at face value, then the attempt to breach unalienable rights is enough to abrogate a sovereign’s legitimacy, a proposition that was signed off on by many, though hardly all of the founders.

                In practice its hard to find any historical cases of pure unbridled despotism. Even the most high-handed of autocrats were always constrained in some fashion and sooner or later had to bow to reality in conceding the limitations of their power, e.g. Alexander.

                You may still argue that while some factor or another may have caused them to chose not to wield absolute power they still theoretically had the ability to do what so ever they wanted, but this is purely academic, powers that are only theoretical but can never actually be used are in practice no powers at all.

                You last paragraphs go a little further afield from the previous discussion, and are no longer bearing on directly on the opinions of one particular past group. Without expanding the scope too much the question to start with before further investigation is why any governing principle is needed at all, and don’t answer legitimacy we’ve already established that it can be done without.

                1. Getting back to your historical examples, if we are to take the Declaration at face value, then the attempt to breach unalienable rights is enough to abrogate a sovereign’s legitimacy, a proposition that was signed off on by many, though hardly all of the founders.

                  Your focus on unalienable rights is anything but a reading of the Declaration at face value—although among natural rights advocates it is a common and popular misreading. The claim of rights is preamble. The operative part of the Declaration follows thereafter:

                  That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

                  What constraint, by natural rights or otherwise, do you find in that quotation? That, and not any claim of natural rights, is the declaration of independence in the Declaration of Independence. Note that it is also a concise summary of the principle of sovereignty as I have described it—complete with an assertion of unconstrained power, and freedom to act at pleasure.

                  If you doubt that at all, read on through the Declaration’s lengthy itemization of particular abuses. Ask yourself, how many of these discuss natural rights violated? How many discuss offenses against the asserted sovereignty of colonial people? Count them up. Overwhelmingly, you will see that the focus is on offenses against sovereignty.

                  You write also:

                  . . . this merely elides the questions mentioned in the earlier comments from one of whether the sovereign has the authority to do something to whether the sovereign has the authority to legitimately do something.

                  That remark suggests sovereignty operating within abiding constraint, which is a contradiction in terms. Sovereignty needs no “authority,” legitimate or otherwise. Sovereignty needs only power. Whatever party has the ability to constrain a sovereign become thereby at least a joint party to sovereignty, and possibly a replacement for the previous sovereign.

                  As for the rest of your remarks, sure. As I think I already suggested, long-term, legitimate sovereigns probably do better than despots. A sovereign who enjoys support as a legitimate ruler gains power from that support, and one who lacks such support loses power. Power is the fuel of sovereignty, and no-power is sovereignty out of gas. Enjoyment of sovereignty may be longer or shorter accordingly. Do you see anything in that which intersects with natural rights?

  3. Another home run for the Volokh team! This one a grand slam, if only for the timing.

  4. What about the power to bind the US by taking positions in court?

    Could congress genuinely bar the executive from defending (say the president or other argues the case themselves to avoid any concern about limiting the hiring of officials in court)? For instance could congress bar the president from appearing in court to contest an injunction based on the emoluments clause? Moreover, doesn’t appearing in court necessarily entail certain powers to bind the government to it’s litigating position (unless you want to say the government can’t be estopped).

    I know I’m nitpicking.

  5. “Anglo-American constitutional thought has long included a limited view of executive power—historically associated with thinkers who called themselves Whigs”

    The problem with the Whig view of power is that they see no such constraint in the power of the legislature. Take for example the last Bill of Attainder passed by parliament in England resulting in the execution of John Fenwick. The Whigs pushed the bill because their wasn’t legal sufficiency in the evidence to convict him of treason, and even worse he falsely accused several Whig lords of being his coconspiritors.

    Unbridled legislative power is every bit as dangerous to the liberties of the people as is unbridled excecutive power.

    1. Yes and no. Legislative power is almost always exercised by a largish group of people. Executive power is usually concentrated in a single person. In practice, that means the natural divisiveness and motivation for personal gain make it harder for a legislature to threaten liberties than for an executive to do so. It will be just as disastrous if/when the legislature does come together to exercise abusive power but it should occur less frequently.

      In other words, gridlock is a feature, not a bug.

  6. This guy has taken a break from trying to build a legacy for Judge Bork to try to make the case for modern support of Whig thinking?

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Prof. John Harrison (U. Va.), Guest-Blogging About Executive Power


John Harrison at the University of Virginia School of Law has long been one of the preeminent conservative law professors in the country, and one of the leading constitutional scholars and legal historians; so when I saw his new aricle draft, Executive Power, I asked him to guest-blog about it, and he graciously agreed. I very much look forward to his posts.

Affordable Care Act

The Private Plaintiffs Are Still Standing in Texas v. U.S.

If the Private Plaintiffs in NFIB v. Sebelius were injured by the mandate, then the Private Plaintiffs in Texas v. U.S. are injured by the mandate


Many thanks to Eugene and the gang for letting me write for the Conspiracy. I have been a longtime reader, and it is an honor to join the roll. Now, down to business.

In two previous posts, Randy Barnett and I explained that NFIB v. Sebelius already resolved two of the most important questions in Texas. First, Chief Justice Roberts's NFIB decision already held that the individual mandate, standing by itself, creates an injury-in-fact. Second, Chief Justice Roberts's NFIB decision already held that the individual mandate, standing by itself, is unconstitutional. 

In this post, and two others, I will analyze oral arguments, which were held on July 9 before a three-judge panel: Judges Jennifer Walker Elrod, Kurt D. Engelhardt, and Carolyn Dineen King. You can listen here:

This first post will focus on standing.

Randy and I have explained that the basis for standing in NFIB was the pocketbook injury imposed by the individual mandate on two private plaintiffs. That is, they had to purchase insurance they did not want. The penalty, which did not even go into effect until 2014, could not have played a role in the NFIB standing inquiry. This position was clarified during oral arguments. Justice Kagan asked now-Judge Greg Katsas, the lawyer for NFIB, whether people who were subject to the mandate, but not the penalty would have standing. 

Justice Kagan: Mr. Katsas, do you think a person who is subject to the mandate but not subject to the penalty would have standing?

Under the ACA's original design, some people would be subject to the mandate, but were exempted from the penalty. Katsas replied that they would be injured:

Mr. Katsas: Yes, I think that person would, because that person is injured by compliance with the mandate. 

Justice Kagan: What would that look like? What would the argument be as to what the injury was? 

Mr. Katsas: The injury—when that person is subject to the mandate, that person is required to purchase health insurance. That is a forced acquisition of an unwanted good. It's a classic pocketbook injury.

During oral argument in the 5th Circuit, Judge Elrod posed a similar question to the question posed by Justice Kagan seven years earlier. I have transcribed the following exchange between Judge Elrod and Robert Henneke, the lawyer for the private plaintiffs. (I cleaned up some cross-talk, made my best guess at inaudible words, and added clarifying comments in brackets.) The colloquy begins at 1:25:14.

Henneke: The ACA contemplates that the individual mandate carries the force of a command, because [certain] categories of persons are subject to it, without the penalty. 

Judge Elrod: Those people have standing, even if they were buying insurance, if they were in one of those exempted categories. Like back at the time of the original argument, I believe Justice Kagan asked a question about that. Whether or not people who don't have to pay the penalty automatically were exempt, would they have standing?

Judge Elrod is exactly right. The Tax Cuts and Jobs Act of 2017 made the penalty $0 for everyone who was subject to the mandate. But, the Affordable Care Act of 2010 set the penalty for $0 for some people who were still subject to the mandate. And they too would have been injured. 

Rob Henneke explored this point further:

Henneke: There is a similar command there. It's a great point you bring up your honor. I want to go back to the history of NFIB. And address the appellant's argument that my clients' harm is self-inflicted. This was resolved in the case history of NFIB. Your honor will recall in NFIB the shared responsibility payment … was not effective until 2014. NFIB was [decided in] 2012. The sole basis for the NFIB individual plaintiffs as set forth in their declarations was the individual mandate. Not the penalty. And in denying the government's Motion to Dismiss on standing, the NFIB trial court, as did Judge O'Connor, correctly held that the individuals had an injury. This argument was carried through the 11th circuit and all the way to the supreme court where it was addressed during the 1st day of oral argument, in questions from both the Chief Justice and Justice Kagan. 

Henneke then read from the colloquy between Justice Kagan and Greg Katsas from 2012. To be sure, NFIB did not address the basis for standing. Judge Elrod flagged this point:

Elrod: What do you say to those who might say, well, they argued that, but the Court didn't actually make a standing [holding], maybe it could be considered driveby standing? Some people use that colloquial term. While there might be questions on a topic, may we ask in our court, questions today, but it doesn't mean we've answered question a certain way.

Henneke replied:

Henneke: We can say with certainty that the Supreme Court in NFIB did proceed forward to resolve the merits of the case. It is implicit it was resolving this question of the individual plaintiff standing in the affirmative by reaching the merits, after addressing this during oral argument. And I think the trial court again correctly did so here. So I see if you look at the case history of NFIB, that this is ground that is well covered, that individual plaintiffs standing has been addressed and resolved. 

I agree. The only way for Chief Justice Roberts to have reached the merits, was if the private plaintiffs had standing. And the only basis for standing in 2012 was the mandate, not the penalty which would be assessed in 2014.

The Department of Justice agreed on this point. August E. Flentje argued for the federal government. He explained at 1:10:48:

Flentje: We think the individual plaintiffs have standing here based on the combined impact of the mandate, which requires them to buy insurance and the insurance reforms which ensure that the insurance they must buy is unsatisfactory. That is an injury that is sufficient for district court jurisdiction for this court's jurisdiction and to evaluate the merits. 

Call it "driveby standing," or whatever you like, but this simple aspect of NFIB is enough to resolve the injury-in-fact question in Texas.

I do need to address an allegation concerning the two private Plaintiffs in Texas, John Nantz and Neill Hurley. Recently, an article in Healthcare Dive suggested that the case may be moot. Why? During a press call, a reporter from Healthcare Dive asked Robert Henneke if Nantz and Hurley were still enrolled in ACA plans. According to the reporter, Henneke replied, "I'm going to respect the privacy of my clients by not discussing in any more detail their current health situation or current access to care or insurance." From this statement, the article suggested that the case may be moot.

This charge is extremely serious. If in fact Nantz and Hurley are no longer subject to the mandate, that Rob Henneke brazenly lied to the Fifth Circuit. He could not credibly claim that they were injured if they were now insured. Any suggestion of mootness would be  based entirely on speculation, and on the allegation that an officer of the court lied to the Fifth Circuit. If there is any evidence, the intervenors should bring it forward. Henneke's refusal to answer the question doesn't cut it. 

Indeed, lawyers have no duty to answer any questions from the press–even on a press call designed to help their clients' case. Lawyers do have a duty to protect the confidences of their client–especially in this sort of high-stakes litigation. I pose a question for the practicing attorneys reading this post: if a reporter called you after an oral argument, and asked for facts about your clients beyond those stated in the record, what would you do? I expect the answer would be the same for most competent lawyers: "No comment, please refer to the pleadings." 

A lawyer's refusal to answer questions about his client, and nothing more, does not provide even the faintest basis for a suggestion of mootness. Attorneys have a duty to apprise the court of changes in their clients status–especially when that change affects the court's jurisdiction.

If history is any guide, these two individuals will be hounded by the press, at every juncture, to determine whether in fact they remain subject to the mandate. I wrote about this sort of press scrutiny in Unraveled. During the run-up to King v. Burwell, reporters camped outside the home of the plaintiffs. Mike Carvin, who represented the Plaintiffs, told me, that the "press was harassing these poor people." Henneke no doubt wants to protect his clients from such harassment. 

In King v. Burwell, Solicitor General Verrilli chose not push the issue. Here is the excerpt from Unraveled (p. 380):

After Carvin explained that each of the four plaintiffs has standing, Justice Ginsburg finished her questioning: "I don't want to detain you on this any more but I will ask the government what their position is on standing." Later Justice Alito joked, "Should we have a trial here on this issue and find what the facts are?" Appellate courts are not supposed to find new facts, but rather must stick with the record developed in the lower courts. . . .

Solicitor General Verrilli did not ask the Court to dismiss the case due to a lack of standing. Because Carvin represented that at least one Virginian had standing, Verrilli would "infer that at least one of the [Plaintiffs] has standing." With respect to standing, a senior DOJ official told me the government's position was very carefully thought through, it wasn't just winging it up there. Unless we have proof that that one person didn't make the requisite income to trigger the obligation to purchase insurance, then we did not have the basis for objecting to standing. More specifically, the Solicitor General's Office deemed Mike Carvin a person of integrity who understood the rules. If he wasn't making a representation that anything has changed from the plaintiffs' affidavits, then we have to assume that at least one person has standing. With standing out of the way, the advocates could move on to the merits.

Unless and until Henneke makes a representation that something changed from the affidavits, there is no basis to suggest otherwise.

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  1. I’m confused. If NFIB implicitly resolved the standing question when the mandate is $0 because the plaintiffs weren’t yet subject to a penalty doesn’t that mean that there is already binding Supreme Court precedent establishing that a $0 mandate isn’t unconstitutional?

    I mean, as absurd as it might be, doesn’t that mean that Robert’s saving construction applied even to $0 taxes? If you say no it presumed the real issue was the forthcoming non-zero tax then doesn’t your claim standing was already established fall apart?

    1. In order to understand it, you have to buy the idea that Supreme Court decisions about the ACA are absolute, context-free mandates and more fundamentally, “the ACA” is a single thing with respect to Supreme Court precedent.

      So let’s go. Sebellius held that “the mandate” is one of two things, a tax or a penalty, and if it’s a penalty, it’s unconstitutional. But since it’s a tax, it’s saved.

      Then Congress kept “the mandate” except it elimnated the tax. So “the mandate” no longer has a tax. But Senelius held that “the mandate” is either a tax or a penalty, right? And we must follow Sebelius faithfully. So if it’s no longer a tax, that means it must be …think hard now…wait for it…a penalty! That’s right boys and girls. It’s a penalty.

      And if “the mandate” is a penalty, then? What? Does that mean weighs the same as a duck? No, you’re confusing it with another court case. But partial credit to you, because it reflects a remarkably similar logic. If it’s a penalty, it’s unconstitutional.


      Bring out your largest scales, and see justice done.

      It’s a fair cop.

      1. Yes, I understand that basic argument however Blackman’s argument here says standing was ALREADY decided because in NFIB v. Sebbelius the plantiffs hadn’t yet been subject to a penalty yet since it hasn’t gone into effect so we should understand the court in Sebilius to have already ruled on standing for parties subject to JUST the mandate with no penalty.

        But if the decision in Sebilius didn’t presume a non-zero tax rate (as it cant have for Blackman’s standing argument here) then…IT DIDNT PRESUME A NON-ZERO PENALTY.

        So the only way Blackman’s standing argument is persuasive is if we presume SCOTUS has already ruled that the ACA mandate is constitutional EVEN if we don’t presume the the penalty is non-zero so the challenge should be dismissed as contrary to supreme Court opinion on this literal issue. They literally ruled that even if the penalty is zero it’s constitutional as a tax. If you think the court presumed a non-zero penalty then surely you can’t say they assumed a zero penalty when deciding standing.

    2. Short answer: yes.

      The mandate as applied to those exempt from the tax is Constitutional. Congress has expanded that group to everyone, but that doesn’t make the non-mandate mandate unconstitutional.

      The whole plaintiff argument here is legal sophistry at its worst.

      1. I think you are wrong, the mandate still applies to anyone with or without a penalty, but I will concede the opinion was such a mess no one can be absolutely sure.

        Both of these are from the decisions syllabus:
        ” 2. Chief Justice Roberts concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30.”

        So a mandate is unconstitutional, but paragraph 4 muddles it again:
        4. Chief Justice Roberts delivered the opinion of the Court with respect to Part III–C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause. Pp. 33–44.

        (a) The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach, “[d]isregarding the designation of the exaltation…

        (b) Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax….

        But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance…”

        So the mandate is unconstitutional or at least has no force of law, legislative dicta if you will. And the shared responsibility payment is construed as a tax, and 5000A isn’t to be read as a penalty for unlawful conduct.

        All of which is quite confusing, if as it says in paragraph 2 of the syllabus the mandate is unconstitutional then I think there is no private party standing. But if as you say there is still a mandate then it’s clearly unconstitutional, and there is indeed standing as Blackman asserts.

  2. Per the 2012 majority opinion in NFIB v. Sebelius: “The penalty for not complying with the Affordable Care Act’s individual mandate first becomes enforceable in 2014. The present challenge to the mandate thus seeks to restrain the penalty’s future collection.” That sounds very different from Josh’s statement that, “the only basis for standing in 2012 was the mandate, not the penalty which would be assessed in 2014.”

    1. And if you presume it went the other way and said the plantiffs were challenging the current application of the mandate absent any penalty you establish standing only at the cost of positing NFIB v. Sebilius literally decided this very question: the constitutionality of a mandate in the absence of a non-zero penalty.

    2. The decision is a mess there too:

      “But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. ”

      Congress’ assertion that it wasn’t a tax is controlling for purposes of applying the anti-injunction act, but not controlling for any other purpose.

      But I agree they had standing in 2012 because they were violating a law, which could have consequences, even without a penalty.

  3. […] my first post, I considered the arguments presented concerning standing. In this post, I will focus on the […]

  4. […] my first post, I considered the arguments presented concerning standing. In this post, I will focus on the […]

  5. […] my first post, I considered the arguments presented concerning standing. In this post, I will focus on the […]

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No Duty to Exclude the Creepy

Interesting tort analysis stemming from a supermarket ice cream aisle murder.


Connor MacCalister Mug Shot

[Maine State Police mugshot of Connor MacCalister, copied from the article.]

From Budreau v. Shaw's Supermarkets, Inc.handed down Thursday by Maine U.S. District Court Judge D. Brock Hornby (emphasis added):

A violent grocery store murder in 2015 generated this civil lawsuit. Without provocation, one customer murdered another customer in the store's ice cream aisle on a summer afternoon. Later that year, the murderer was sentenced to life in prison. In 2017, the personal representative of the victim's estate (her husband) brought this wrongful death lawsuit against the grocery store for negligence, arguing that the store should have foreseen the danger and taken preventive action….

[Connor] MacCalister[, the murderer,] visited Shaw's virtually daily, sometimes more than once a day. She wore baggy men's clothing, either black or camouflage, with a chain on one side, and men's military boots. Her head was shaved; her jaw was clenched; she had bulging eyes, an angry-looking face, and offensive Nazi tattoos [a swastika and an SS symbol] on the underside of her arms just above her wrists. She spoke little and sometimes not at all, even when spoken to directly. She often had a backpack and did not always use a shopping cart or basket. When she bought anything, she usually purchased a small number of items. There were unverified rumors that she sometimes shoplifted…. Some Shaw's employees reported comments made about MacCalister after the murder—that, for example, she engaged in "shoplifting and that she was kind of creepy." …

It is tempting to say that there is a material factual issue on foreseeability, and simply leave this tragic case to a jury to straighten out. But Maine law is clear—Shaw's is liable only if it reasonably should have anticipated that MacCalister was a danger to another customer on August 19, 2015. MacCalister's appearance and behavior in Shaw's scared some customers and sometimes made a customer service representative feel awkward or uncomfortable, and her clothing and shopping behavior made her a suspect for shoplifting. Viewing this record in the light most favorable to the plaintiff, I conclude that what Shaw's knew, should have known, or should reasonably have anticipated did not suggest that on August 19, 2015, MacCalister was a danger to other customers.

And there is a potential policy issue here. Because the record does not establish reasonable anticipation of danger, I need not resolve it, but the lurking issue is what should be the duty of public retailers whose customers have bizarre or offensive clothing, appearance, demeanor or behavior but do not actually engage in or threaten violence on the retailers' premises? To avoid risk, should the retailers exclude them from their stores? …

Wendy Boudreau's August 2015 murder in the Saco Shaw's ice cream aisle was a shocking, tragic event. Could or should police and health care personnel, with the information available to them, have appreciated MacCalister's danger to others and taken steps to thwart it? I don't know. But the summary judgment record does not support the conclusion that either generally or on the day in question Shaw's' personnel knew or reasonably should have anticipated that MacCalister posed a danger to other customers ….

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  1. Where have I seen that look before? Oh yea:
    All over the media these days

    1. Grr. We need a preview function. 2nd Attempt

  2. Huh. This was apparently a woman transitioning to a man. A “duty to exclude the creepy” would have certainly have a negative effect on such people.

    1. According to current prog standards, where does this leave this wo/man? Trans are now personized, while nazis are to be de personized. S/he is apparently a trans nazi, and would s/he have a right to a wedding cake?

      1. I don’t know. I suppose this person truly identifies as a man, and perhaps identifies as a member of the master race. But trans people and Nazis are people. The law shouldn’t require people to exclude other people from their property because they act funny, and it shouldn’t require them to bake wedding cakes for others.

  3. The decision should have also mentioned the potential discrimination charges the store could have faced. For example, if they had banned her without any threatening behavior, it’s possible that the store could be held liable for sex, or disability discrimination. For example, she could claim sex discrimination because part of the reason (in the quoted description, at least) is that she wore baggy men’s clothes and had a shaved head…not typical women’s clothing (since employees wouldn’t know if she was transgender, those reasons could also be transgender discrimination). Also, since she exibited weird behavior, banning her could also be discrimination on account of perceived mental health issues (some states include perceived status and not just actual status as discrimination), AS LONG AS she didn’t pose a threat or do some other behavior that is valid grounds for banning (eg. loitering outside without buying stuff, littering, ruining products, public urination).

    1. I should have been clearer that this comment is about the store’s decision making…ie. they would be reluctant to act for these reasons. “charges” should have been “charges or lawsuit”.

  4. My first thought reading this was in terms of racial discrimination. If Ms. MacCalister were instead Black then any attempt to exclude her would be immediately framed as racial discrimination and accusations her actions are “creepy” would be framed as the store employee being racist.

    In the store’s defense there are a lot of harmless people who act in a way some consider creepy. A store which excludes people who dress strangely or aren’t openly sociable is also asking for trouble. Unfortunately, I don’t think anybody has come up with a way to predict which “creepy” people will suddenly become violent and which are truly harmless.

    1. What defines “creepy” is the question-if someone isn’t acting creepy? Where I live though, her nazi tattoos would most certainly get her banned from most places

  5. According to the opinion, the store had raised the policy issue but only at oral argument, so he decided the case strictly on foreseeability grounds – there was no evidence of violence towards other customers, and hence no duty. judge Hornby did address the issue in the footnotes. He briefly noted that finding a duty of care would raise significant policy issues regarding treatment of people with differences including “gender identity.” He said that if the case were appealed and the First Circuit chose to address the policy issue, he would recommend certifying the question to the Maine Supreme Court, as it is the sort of issue that is a quintessential policy matter which a Federal court doesn’t really have tools to decide in the first instance.

  6. Yummy. Any chance of a conjugal visit? ~:O

  7. I love greedy people who decide to try to cash in on what’s supposedly a personal tragedy by suing an innocent party because they have deep pockets.

    1. It’s the American Way.

  8. The store isn’t responsible for this, but society is. We should have told the ACLU to f*** off back in the 1970s when they brought cases that made it impossible to institutionalize people who were just creepy and weird, but hadn’t yet done anything violent. Now we have to wait until the crazy schizophrenics actually DO act it out, and this is the result.

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Welcome to Our New Coblogger, Josh Blackman


I'm delighted to report that Prof. Josh Blackman of the South Texas College of Law will be joining our blog. Josh teaches, writes, and litigates about constitutional law; he has been extensively involved in debates about Obamacare, the Emoluments Clause, 3D-printed guns, DAPA, the proposed ABA speech code for lawyers (Rule 8.4(g)), and much more. He has written many law review articles and four books, two of them with our own Randy Barnett: Constitutional Law: Cases in Context (3d ed.) and An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. He has also guest-blogged often with us here, as well as writing his own blog,, so many of you may know him from that. We very much look forward to having him with us!

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  1. How does one log a cob, and why?

    Welcome. I look forward to reading him.

    1. There’s an emporium somewhere along the Family Truckster route out west, near giant balls of twine and Babe the Blue Ox, made of corn cobs. Perhaps they know of what the post speaks.

  2. Excellent.

    My condolences to the reverend.

    1. AK (Arse Kisser) may need to update his blood pressure meds again!

    2. Nothing particularly noteworthy here.



      Law professor.

      On the wrong side of history.

      A casualty of the culture war.

      A movement conservative and Republican, not a libertarian.

      Not merely a natural fit but likely inevitable.

  3. Welcome, welcome!

  4. I can’t seem to comment on his first post, but it doesn’t make sense. If a person is subject to the mandate, then of course there is an injury. But if a person believes that they are not subject to the mandate because it is outside the scope of Congress’s power, and they will not be subject to a penalty if they decline to purchase insurance, then there is no justiciable case or controversy, the party can obtain the relief he wishes himself.

    A better argument is that people injured by the other provisions, such as guaranteed issue, have standing.

  5. Welcome!

    Comments on your first post, regarding standing in the current ACA constitutional challenge case, seem to be turned off.

    So I’ll post a comment here.

    On the merits, I think the fundamental problem with the challenge is that it assumes binary logic. If there are only two possibilities, A and B, then negating A necessarily proves B.

    But real logic is often non-binary, and this often the case in law. And it is the case here.

    In the Sebelius case, an act of Congress required people to pay something. So the court had to decide how to characterize the payment. Is it a tax or is it a penalty?

    In the current case, there is no requirement to pay. So neither category in the Sebellius case applies. If you don’t have to pay, you are subject to neither a tax nor a penalty. The law has to classified instead as belonging to a third category, something distinct from the other two. The original question, which only concerned obligations to pay, is simply no longer relevant.

    I can certainly understand zealous plaintiffs failing to see this and thereby arguing that since the ACA no longer contains a tax, it must instead pay a penalty. What I have difficulty with is the sight of federal judges buying this argument.

    Binary logic is a sign of combativeness, of the mentality of people who use victory in debate rather than exploratory discussion as their way to understand the world. It is very understandable in lawyers.

    But judges are supposed to be different. This is the sort of obvious logical flaw that judges, who are supposed to be neutral arbiters rather than combatants for causes, are supposed to be able to see through.

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Politics, Bar Brawls, and the Law of the Past

What makes history constitutionally relevant?


Rick Hills has an interesting critique of my paper with Will Baude on "Originalism and the Law of the Past." (The paper is forthcoming in Law and History Review, and you can find Will's earlier post here.). The dispute centers on the following paragraph of ours:

Present law typically gives force to past doctrine, not to that doctrine's role in past society. How to identify legal doctrine is actively debated among philosophers; one standard view urges particular attention to the rules recognized by "the officials or the experts of the system." A modern lawyer, directed to investigate how the law stood in the past, might thus focus on operative legal texts and on "internal" accounts of legal doctrine (treatises, court cases, and so on), rather than on "external" accounts of law's wider reception and operation—unless, of course, the doctrines themselves direct attention to these widespread understandings.

Hills writes:

I share Baude and Sachs' desire for legal repose. Like them, I'd like to find a trove of old documents that, like some ancient deed in the county register's office, could settle our current fights over basic issues with bare semantics and obscure legal conventions. But I doubt that the U.S. Constitution provides much in the way of such calm. Going back to the 18th century for apolitical, legalistic settlements of big issues is like going to a saloon in 19th century Deadwood to curl up with a nice cup of tea for a quiet read. The 1780s and 1790s were a constitutional barroom brawl. The Federalist and Anti-Federalists managed to create a document together only by ducking the biggest issues with abstractions and ambiguities, strategically deferring fights that could have doomed the whole project of Union.

You can read Hills's critique, and my response, over at Prawfsblawg.

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  1. I didn’t read the follow-up, but from what is presented here, it doesn’t sound like you’re arguing about legal doctrine, it sounds like you’re arguing about just exactly how much agreement there was with legal doctrine. Then, as now, different people have different doctrine… some of them WITH political power, and some of them without.

  2. To some extent any governing charter is going to represent the body politick as it exists in any place and time. It may be laudable it try to stay as firm to the original intent laid down by the founders, but practically speaking, the modern system is going to define it as society defines it.

  3. The barroom brawl analogy is good, but may not mean what he intends. The constitutional fights of today aren’t the points that were elided over in the past, they’re things that were clear to the founders that many people disagree with today (while also keeping in mind that the founders were themselves a diverse lot who knew they didn’t live up to their own ideals).

    Firearms are a great example. At the founding, everyone was expected to have them, and they were only prohibited in narrow circumstances, such as the weapons locker in the Capitol building, which provides a convenient place to check in your arms so you didn’t have to carry them during session, while also providing a man-at-arms to protect those inside. A modern analog might be some states that require guns be checked before entering courthouses. But the fight then comes in when you first identify that some restrictions were accepted at the time, and interpret that to mean any restriction is acceptable, such as NYC, DC, Chicago, and California’s de facto gun bans. In CA, for example, it is unlawful to possess a firearm in a usable state, and in case of an attack you must unlock your gun safe, then unlock your ammo safe, then load the weapon, all of which render the right functionally extinguished.

    Funnily enough, the first amendment analog would have been more supported at the founding, if you had to register and a fee to be able to criticize the government only in locations the government had chosen so as to limit your effect.

    1. I think you’ve nailed it: Just because they were arguing over various topics, doesn’t mean we’re arguing over the same topics. Many aspects of the Constitution that are today treated as wildly controversial and vague to the point of meaninglessness, were at the time they were adopted not the least bit controversial or ambiguous.

      1. This is true even if you look at only modern-day political arguments. The two sides of both gun-rights regulation and abortion, for example, are arguing about entirely different things and pretty much never address the other side’s arguments, and so the whole thing is just partisan identification and squabbling over triviality. Of course, neither side appreciates it when somebody shows up and points this out.

  4. That is abstruse commentary. Or is it recondite?

    I find it striking that when I (a non-lawyer) read accounts of the past written by lawyers, it becomes an uphill struggle, reading and re-reading, phrase by phrase, constantly asking, “What the hell is that supposed to mean?” Whereas, other accounts of the past, written by historians—who are no less technically proficient than lawyers, and equally the servants of complex rules of practice and professional constraint—are at least sometimes lucidly written.

    I take that contrast between the two professions as evidence of a difference in intent, which leads to different methods. Historians—at least the best of them, who are the ones I reference here—explore the past with an eye to finding out what is in the historical record, and crafting narratives consistent with what they find. Historians train, and practice, and submit themselves to the discipline of reading historical documents, all with an objective to discover and frame those narratives faithfully in the context of understandings shared by people in the historical periods being studied—and not in any other context.

    Historians avoid especially any context having to do with the present, or indeed, having to do with any time subsequent to the era under their historical consideration. Those other considerations are excluded from historical narrative, because people living in the era under study could have no inkling of them, as they were yet to come. Historians have learned that it is not possible to admit present-minded notions into historical analysis without thereby getting the history wrong.

    The last bit, about present-minded analysis, is important to historians, but seems precluded whenever lawyers delve into the past. Unavoidably, lawyers have something else in mind—they are, after all, not historians. Even in discussions of the legal philosophy of originalism, which seems so obviously dependent on getting the past right, the past never comes first, nor even appears in any role but one subordinated to present-minded objectives. Legal originalism is, after all, a doctrine attempting to discover some way to leverage the past in legal analysis, while avoiding the entanglements of academic history. Present-minded analysis is the very method of originalism. As practiced now, originalism is an anti-historical doctrine.

    I suppose if an adventurous historian were to attempt to elucidate the past by incorporating generous dollops of modern legal doctrine as explanatory of historical events, the result would be about as satisfactory as originalism itself has proved to be. And then, if that historian attempted to explain at length, and philosophically, why it was best do history that way, it would make for reading no less hard to follow than the discussions on originalism featured here.

    And that mixture of agendas results, I suggest, in much of the obscurity and difficulty that a reader like me—which is to say a reader who prefers to avoid mistaken history—experiences when reading treatises on originalism.

    1. Should it be surprising that a non-lawyer with little legal training finds legal commentary abstruse?

      Why is this any more odd for this to be the case with the law then say specialized medicine, analytic biochemistry, or transfinite mathematics?

      To what differences in intent do you refer? Legal scholars—and I distinguish here from attorneys acting in their duty to give the best possible representation to clients—have comparable methods to the ones you describe.

      Legal Scholars—at least the best of them, who are the ones I reference here—explore the law with an eye to finding out what is in the legal record, and crafting descriptions consistent with what they find. Legal scholars train, and practice, and submit themselves to the discipline of reading legal documents, all with an objective to discover and frame those descriptions faithfully in the context of understandings shared by people in involved in their creation of the record studied—and not in some other non-legal context.

      Now lawyers are not generally historians, but the reverse is true as well, historians are not generally lawyers. Individual legal scholars may create tendentious descriptions of legal documents, but individual historians may create tendentious historical narratives as well.

      Which brings up the question that if historians are not in general qualified to interpret contemporary legal documents why we should assume they are better qualified to interpret historical legal documents, which BTW is something lawyers are required to do on a daily basis.

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Libel Litigation in … Disneyland Social Clubs

Banal law, but fun facts.


Yesterday's California Court of Appeal Sarno v. Bailes decision strikes me as a pretty routine libel, invasion of privacy, and anti-SLAPP case—except for the background:

Disneyland enthusiasts created unincorporated associations to socialize with each other in the park.  The social clubs were named for a Disney character or theme, and in the park, members wear clothing, etc., identifying their club.  The social clubs maintain Web pages on social media platforms.  Two of the social clubs are "The Main St. Fire 55 Social Club" (MSF) and the "White Rabbits Social Club" (WR).

Also relevant, "the social club 'The Mermaids,'" and a 12-year-old daughter of a Mermaids member who is charmingly referred to as Little Doe (Bambi's sister, maybe?). Unfortunately, things turn far less happiest-place-on-Earth from there; the opinion offers all the grim details.

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  1. From a guest perspective I don’t get the legendary appeal of Disneyland. Its overcrowded and overpriced. Its much more fascinating from a psychological perspective, as especially in the park you’re surrounded by the world’s most successful and detailed advertisement.

    1. Its overcrowded and overpriced

      If it was over crowded then its not overpriced. If anything – its not priced high enough.

      1. From a sensible person looking for somewhere to go perspective not a Disney financial optimization perspective.

      2. Yogi Berra: “Nobody goes there any more. It’s too crowded.”

        1. I said I don’t get it. I didn’t say they were unprofitable. Part of what makes them fascinating from a psychological standpoint is how much of a grip they have on a large chunk of the population going to see Avenger Rehash IVXIIIL, while purposely driving so many of their franchises into the ground with genderwoke politics and creatively bankrupt remakes.

    2. “From a guest perspective I don’t get the legendary appeal of Disneyland.”

      The primary appeal is A) if you currently or recently provided care for a 4-year-old child, or B) if you can recall being a 4-year-old child.

      Disneyland is designed to entertain a 4-year-old child.

      1. Exactly.
        Walt made it a place that adults could just enjoy being a kid again especially with their own kids!

        Hell, I even went to DisneyWorld again with both my daughter and grandson just a couple of years ago.

        1. If you aren’t currently a child, or childish, Disneyland isn’t designed for you. And even then, I went as a small child. All the signs that say “you must be this tall to go on this fun ride” pointed to a point above my head.

          I went again later. The most fun I had was trying to get the cast member playing Snow White to break character whenever there were no kids about the courtyard.

  2. [From the court’s opinion]
    “…How is accessing, obtaining, distributing, and posting Leslee’s medical records an issue of public interest? Defendants offer no explanation as to how Leslee’s medical records would reveal
    whether she engaged in fraud or stole fundraiser money. Or was their goal more sinister—did they merely want to humiliate her because they felt she was complicit in John’s conduct. . . .”

    Eugene, Is this common in an appellate court opinion? I’ve read, by this point, hundreds of opinions, and I do not recall courts often asking a question and then answering it. I think it is an effective and clear method of writing, so I like its usage here. But is it common?
    (And a separate grammar nitpick: I think at the end of the above quote, it should be a question mark and not a period at the very end. Tiny error in the appellate opinion, methinks.)

    1. Santamonica, the bit you quoted didn’t ask a question and then answer it, it asked a question and then failed to answer it, a pattern that I think is pretty common. Or am I misreading you somehow?

      1. Voize,
        I thought the court answered the first question it asked. But maybe not. I was in law school decades ago, and that (naturally) is where I read most decisions. But I have read a good number of decisions while in practice. And I do not recall it being common for an appellate court to write out a question and then give the answer…

        1. …[I was only allow to enter a few hundred characters, apparently; so my last post continues here …weird…]…

          I think I made it clear that I like this sort of writing. It is a way of framing an issue clearly, and of course it’s done all the time in trial courts, in closing arguments for example.
          But if everyone is telling me, “Nope, it is actually really commonplace in appellate decisions, then I’ll happily admit that I was wrong.” 🙂

  3. So were federal HIPPA charges filed?

    1. As the spouse of a Kaiser employee I expect that someone is no longer employed by Kaiser. All inquires into medical records are tracked and recorded.

      Do you mean federal criminal charges? I’m not sure if there is a criminal sanction for a HIPPA violation like this. I would assume its included in the invasion of privacy state cause of action.

      1. Criminal violation; Tier 3: Obtaining PHI for personal gain or with malicious intent – Up to 10 years in jail

    2. Maybe not although it wouldn’t surprise me if the DOJ is notified about the violation now especially as it is admitted in court filings.

  4. Eugene:

    Routine? I’m not sure I’d read that opinion as routine. The facts may be routine. However, that court was pissed. PISSED. I’ve had my problems with the conduct vs speech line in SLAPP cases but the defendant’s attorney clearly did not do the work and understand the law to mount a effective SLAPP defense if one existed. They didn’t publish it only to save the attorney from embarrassment.

  5. I can understand why the court could get so upset at the idea of using a SLAPP motion on invasion of privacy lawsuit without even an attempt to argue why the material involved should be regarded as public.

    It’s not clear to me some of the material is really so libelous. I’m not sure that most people would regard pretending to be a fireman while at Disneyland as any worse than pretending to be a mermaid or, for that matter, a white rabbit.

    That said, some of the material if false is definitely libelous. In this society, accusing someone of being a pedophile is about the most malum in se thing there is these days.

  6. It’s probably wise for adults to avoid corresponding with children. If correspondence is necessary, then one should Cc the parents.

  7. Those White Rabbits are an absolute bunch of thugs. Extortion, physical intimidation, coordinated destruction of people’s lives.

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Second Amendment Doesn't Protect Gun Possession in Capitol Parking Lot

So the D.C. Circuit held today.


From U.S. v. Class, written by Judge Thomas Griffith and joined by Judges Davis Sentelle and Sri Srinivasan:

The Supreme Court has been careful to note that "longstanding prohibitions" like "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" remain "presumptively lawful." Heller I, 554 U.S. at 626, 627 n.26…. [T]he same security interests which permit regulation of firearms "in" government buildings permit regulation of firearms on the property surrounding those buildings as well…

First, though it is open to the public, the Maryland Avenue parking lot may be used during working hours only by Capitol employees with a permit. This makes the area a potential stalking ground for anyone wishing to attack congressional staff and disrupt the operations of Congress. The operation of the national legislature depends not only on the ability of members of Congress and their staff to conduct business inside the Capitol, but also on their ability to freely and safely travel to and from work. The same special security concerns that apply to the employees while in the Capitol apply when they walk to and from their cars on Capitol property.

Second, the lot is close to the Capitol and legislative office buildings. Class possessed a firearm less than 1,000 feet away from the entrance to the Capitol, and a block away from the Rayburn House Office Building. Although there is surely some outer bound on the distance Congress could extend the area of protection around the Capitol without raising Second Amendment concerns, Congress has not exceeded it here.

Finally, as the owner of the Maryland Avenue lot, the government—like private property owners—has the power to regulate conduct on its property. See [Adderley] v. Florida, 385 U.S. 39, 47 (1966) (observing in the free-speech context that the government, "no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated"); cf. Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015) (observing that when the U.S. Postal Service acts "as a proprietor rather than as a sovereign, [it] has broad discretion to govern its business operations according to the rules it deems appropriate").

Thanks to Charles Nichols for the pointer.


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  1. Well, the ‘sensitive places’ nonsense was just the price of getting a majority to vote Yes, wasn’t it? I’ve yet to see a serious argument in favor of it *as applied* to places like schools, offices, and other places with prison-level security. (And even then, it should only be allowed if accompanied by a rebuttable presumption of liability for those entering; even actual prisons still have serious weapons smuggled in from time to time, and so a simple magnetometer scan at the entrance is certainly not enough to preclude the possibility that someone might need to defend themselves while on the “gun-free” premises.)

  2. Arrrrgh! My kingdom for an edit function!

    The above makes a lot more sense once you realize it was *supposed* to say, “… and other places withOUT prison-level security”!

    1. Well, if you were really offering us your kingdom, we might be able to invest in an edit function ….

      1. Your Webmaster doesn’t know how to make an edit function does he?

        1. If he were offered a kingdom, he’d learn.

          1. Geeks don’t want kingdoms, unless they’re in video games…

        2. Of course you assume its a “he”

          1. Or maybe I know he’s a “he” (though, if I didn’t, the assumption would be pretty likely to be accurate).

      2. LOL! If only you knew how small my kingdom was…

  3. Does this banning of weapons include bodyguards for congresspersons? Btw what is the penalty for a person that has a permit that goes into in one of these forbidden areas? What is the penalty for a person with an illegal gun that goes into one of these forbidden areas if they are caught?

  4. One year ago the court of appeals said, “”[I]gnorance of the law” generally does not excuse a person from criminal liability, absent the “unusual circumstance[ ]” in which the person “had no reason to believe that the act for which he was convicted was a crime, or even that it was wrongful.” Conley v. United States, 79 A.3d 270, 281 (D.C. 2013)”

    In Conley, this court reviewed, for plain error, a facial challenge of D.C. Code § 22-2511, which made it a “a felony offense for a person to be present in a motor vehicle if the person knows that the vehicle contains a firearm, even if the person has no connection to or control over the weapon and is not involved in any wrongdoing whatsoever.”

    Here, in Class, the government conceded that plain error review was not appropriate and so what did this panel do? It claims to have applied de novo review (where the burden of proof is much greater on the government) and upheld a law which should have been struck down even under plain error review.

    Kind of like all of those courts which said they were upholding a law based on Intermediate Scrutiny when, in fact, they were applying less than rational basis review.

    I’ve never been in the Capitol building. Does it still have the sword hooks which were provided for members of the public to hang their swords back in the day when members of the public routinely carried swords and anyone could walk in off the street into the Capitol building (and Whitehouse) while openly bearing arms?

  5. Finally, as the owner of the Maryland Avenue lot, the government—like private property owners—has the power to regulate conduct on its property. See [Adderley] v. Florida, 385 U.S. 39, 47 (1966) (observing in the free-speech context that the government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated”); cf. Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015) (observing that when the U.S. Postal Service acts “as a proprietor rather than as a sovereign, [it] has broad discretion to govern its business operations according to the rules it deems appropriate”).”

    By that standard, the government is subject to no restrictions on its own property.

    The same argument used for the parking lot could be applied to a mile radius around it. These liberal judges need to be tried for treason and hanged.

    1. These liberal judges need to be tried for treason and hanged.

      Ah yes. The state of “conservatism” in the United States.

    2. “These liberal judges need to be tried for treason and hanged.”

      Be careful. The proprietor doesn’t like that type of language and is prepared to invoke the Volokh Conspiracy Board of Censors to . . . ah, just kidding.

      So long as you promote right-wing positions or bash the liberal-libertarian mainstream, your comments — however bigoted or violent — are welcome at the Volokh Conspiracy. To be censored, one must mock right-wingers, or criticize conservatives, or use mean words against Republicans.

      (Artie Ray Lee Wayne Jim-Bob Kirkland says ‘hey,’ everyone.)

      1. Your posts suck.

      2. ” To be censored, one must mock right-wingers, or criticize conservatives, or use mean words against Republicans.”

        If this were remotely true you would have been censored a long time ago.

        1. Is this Volokh Conspiracy’s comment susyem, or is it’s?

          VC was stand alone, and at one time used the Disqus commentting system.
          Then VC went under the umbrella of Washington Post and everyone complained how the WaPo comment system was different from Disqus.
          Then VC moved to under’s comment system, where we are today.

 is pretty much unmoderated as I can tell. It’s pretty much free-for-all commenting. That’s the only explanation for Rev Arthur L. Kirkland being here. At one time there were standards enforced by the commentary system. But I am not really sure whose standards Arthur Kirkland ran afoul of, but he likes to blame VC exclusively.

          1. General observations on comments/commenters how they may be removed.
            Blogs like VC and others may or may not have administrators or moderators who enforce the blogs’ standards on comments.
            If the blog is hosted (as VC is now hosted by, the host may impose their standards too.
            The commenting system used by the host or blog may be designed to filter durty wirds, certain links identified as spam or copyright-violation, etc., in addition to moderation by the blog or by the blog’s host.
            Commenters may have the power to flag comments as spam or abuse (see the box in the upper right hand corner of a comment here) especially with small blogs with limited moderation.

  6. The federal law that bans possession of firearms on the capitol grounds must be the result of an oversight by Second Amendment proponents in Congress. Surely these individuals wouldn’t have voted to support any restriction on our fundamental liberty to defend ourselves just because the location in question is in their backyard.

    I urge my fellow lovers of liberty to contact their Members of Congress and demand that the Second Amendment be protected from liberals trying to seize our guns. Sure, a mentally ill person may cause a disturbance on the capitol grounds at some point, but that’s an issue to be taken-up in mental health legislation, not a reason to attack our constitutional liberties. Any encroachment on the Second Amendment is a slippery slope to an all-out ban on firearms, which is just want Democratic tyrants want.

    This requires a call to arms!

    1. Surely these individuals wouldn’t have voted to support any restriction on our fundamental liberty to defend ourselves just because the location in question is in their backyard.

      Having a real hard time figuring out if this is satire or not.

    2. Personally, I’m more surprised that Capitol Hill employees need parking. Surely all of them use D.C.’s ‘comfortable and convenient’ mass transit system instead.

  7. The basic problem with this sort of law, is that banning possession of a gun in a place effectively bans possession of a gun while traveling to and from that place. And possession of a gun while traveling is part of the basic right guaranteed by the 2nd amendment.

    The government, if it really is going to ban gun possession in a ‘sensitive’ place, ought to be providing secure firearms storage in order to not burden the right.

    “Second, the lot is close to the Capitol and legislative office buildings. Class possessed a firearm less than 1,000 feet away from the entrance to the Capitol, and a block away from the Rayburn House Office Building. Although there is surely some outer bound on the distance Congress could extend the area of protection around the Capitol without raising Second Amendment concerns, Congress has not exceeded it here.”

    The “area of protection” the court proposes as reasonable clearly encompasses a number of public streets people might travel on their way to and from non-“sensitive” locations. This makes it wildly over-inclusive.

    1. 1000 feet from a government building in DC excludes much of the city. That’s more than a block in most cases, sometimes as many as four blocks.

      A quick estimate from maps of Federal and city buildings in DC says that 2000 would be enough to ban gun possession in almost all of DC. If you included things like parks and minor memorials, you’d get the entire city with less than that.

      This ruling is certainly excessive.

      1. The problem is, the legal community has been so hostile to the 2nd amendment, for so long, that barring a determined effort to nominate pro-gun judges, you’re mostly going to get anti-gunners, often quite committed.

        Even the ones who aren’t committed anti-gunners tend to view the 2nd amendment as a kind of 2nd or 3rd class right, an anachronism best minimized.

      2. Brett, Toranth,

        Consider my proposal for a properly-sized DC, which I may have modestly offered here before.

        Looking at the map posted here:

        I would shrink the borders of the District to the red outline shown there. Basically, it would encompass Congress, the White House, the Supreme Court, and a couple other government buildings and/or tourist attractions. There would hardly be any residents outside of the president’s family, so the DC government could basically go away and Congress could resume running the District directly.

        The rest of the District would get retroceded to Maryland.

        1. I don’t know why you preface it as a modest proposal. It’s not half bad – if nothing else, it solves the awkward ‘no representation’ issue.

          1. It’s a “modest proposal” because there’s probably not enough money available to persuade Maryland to take it back.

            1. But then, who’s to say we have to *ask* Maryland? Federal supremacy, fait accompli, pretty neat, huh?

            2. Why would Maryland want DC when there’s Baltimore?

          2. Definitely, the representation problem is one of the motivations.

    2. >“The basic problem with this sort of law, is that banning possession of a gun in a place effectively bans possession of a gun while traveling to and from that place. And possession of a gun while traveling is part of the basic right guaranteed by the 2nd amendment.”

      What law or legal decision informs your theory? It hasn’t been successfully proven in court, and existing law works against you here.

      1. Are you under the impression that I’m a legal “formalist”, who believes the Constitution means, and only means, whatever the courts have ruled?

        Possession of a gun while traveling is a basic component of the right to keep and BEAR arms, whether or not the courts feel like acknowledging it.

        But, to make you happy… Justice Taney in Dred Scott v Sandford:

        “It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

        1. In short, yes, carrying arms while traveling was an understood component of the right to keep and bear arms, recognized as such by the judiciary until they fell in love with gun control.

        2. The Heller court looked to state RKBA to inform the original understanding of the scope of RKBA. Texas for example protected the right to be armed on a journey when general carrying of arms in public was discouraged or limited.

      2. I think it was more of a common sense conclusion than a legal one. Take a city like New York, DC, San Francisco or Boston, where most inhabitants walk or take public transportation. If you don’t allow carry (or a safe place to check them) at Post Offices, on subways, in restaurants or stores that post “No Gun” signs or whatever else, you’ve effectively banned carry. At least in places where people drive, you can leave the gun in the car, but in the case at issue, that isn’t even allowed.

        1. “At least in places where people drive, you can leave the gun in the car, but in the case at issue, that isn’t even allowed.”

          Not, if as in this case, you’ll break the law by leaving your gun in your car while parked.

          1. Isn’t that what I said?

            1. Yes. Bit rushed there.

              1. 🙂

  8. This strikes me as a very difficult case. What’s basically street parking, near the capital (but not next to it, nearly a fifth of a mile away), which doesn’t have any of the prohibitions marked, for what is otherwise perfectly lawful, and would be if the car was moved a block in the other direction (for example, 3rd street SW).

    At a minimum, the street parking should be clearly marked for the prohibitions here.

  9. >“Finally, as the owner of the Maryland Avenue lot, the government—like private property owners—has the power to regulate conduct on its property. See . . . Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015) (observing that when the U.S. Postal Service acts “as a proprietor rather than as a sovereign, [it] has broad discretion to govern its business operations according to the rules it deems appropriate”).”

    This is misguided. A private owner can’t arrest someone for violating their rules. (In many jurisdictions, they need to ask the offender to leave the premises before calling for law enforcement to arrest the offender for trespassing or unlawful possession of a firearm.) Because the government can do this, it is using it’s authority as a sovereign entity—not a proprietor—to regulate conduct on its property.

    1. Yep. In my state, “No gun” signs don’t carry the force of law, so I walk right by them with my nicely holstered Glock 48.

      1. so I walk right by them with my nicely holstered Glock 48.

        So you are against the rights of property owners then? Pro-gun fanatics seem to only care about one right and say screw all other rights.

        1. The Second Amendment merely acknowledges a natural right, and says it cannot be curtailed. Not really rocket science.

          Trespass: “entering the owner’s land or property without permission” presents other questions.

          1. Arguments from libertarians commonly take the form: “The Constitution acknowledges a natural right, therefore whatever I say the natural right amounts to, that is what the Constitution guarantees.” That’s nonsense, of course.

            Whether your allusion to natural rights is operative or not, the enumerated right—and only the enumerated right—is the one the government is required by the People to enforce on your behalf. That is the deal with the devil the anti-Federalists made, against Madison’s advice. Now everyone gets to live with the deal.

            1. WTH are you talking about?

              1. Fuggedaboutit, he just loves the sound of his own voice and thinks he’s brilliant and insightful, making sense iseems to be optional.

                1. DonP, here is some sense for you. If you think you have a natural right, then let nature enforce it. If you want a right government will enforce, go for the right which the sovereign (which tells the government what to do) enumerated.

        2. If an owner of a bakery has to bake a cake for a man who likes to bugger another dude in the tuchis, then an owner of a store should have to allow guns inside.

          1. Sadly I agree, and it necessary follows from the same principle. Which is just another demonstration that they’re both wrong.

            1. Yup, I’m not going to die on my principles while the left runs roughshod over them.

              In any case, I’d never not leave a private place when asked. I don’t consider the mere act of carrying against their “wishes” to be a violation of their private property rights.

    2. But suppose the law authorizes the arrest of someone carrying a gun who refuses to leave when asked. That seems to put the private property owner on the same footing as the government.

      The only difference might be the, in some cases, there will be police on hand at the government property, but if the gun owner can leave voluntarily and avoid arrest it’s not much of a distinction.

      1. The difference is that carrying the gun on Capitol property is not merely trespassing. He’s being charged with a weapons offense.

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Advice to Lawyers from a Judge


From Judge Thomas B. Smith's decision last week in Doscher v. Apologetics Afield, Inc. (M.D. Fla.):

The Court has quoted from only three of the many childish emails [Doscher] and Livingston have exchanged. Obviously this needs to stop. Both sides need to learn that frequently the best response to immature behavior is to ignore it. Don't react, don't sink to the other side's level, don't try to fight fire with fire. There are disagreements in every case, that is what litigation is about. Most adversaries work out their disagreements while remaining calm and professional. Doscher and Livingston are admonished to discontinue this dumb conduct, work on their demeanor, and behave more maturely than they have to date. The Court hopes this rebuke will be sufficient to address the situation and on this basis, [Doscher's] motion for sanctions is DENIED.

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  1. How’d you like to be paying $600 an hour for people to send emails like that?

  2. Good advice for lawyers, and for Conspiracy commenters.

  3. It is worth noting that one of the parties, Doscher, is a pro se plaintiff in this case and, based on one of the emails in which the defendant’s lawyer tells Doscher “You play at being an attorney”, is not even an lawyer. That, of course, doesn’t excuse the other party, who is a lawyer.

    (The good news is that at least one of them isn’t being paid $600 an hour to be an ass.)

  4. Unfortunately, the decision will do little, if anything, to change their behavior. First, there are still many attorneys out there who believe that they must do everything not clearly illegal to zealously advocate for their client. Second, there are more than a few attorneys out there with out-sized egos, and will simple ignore everything the judge said because they have no shame and they truly believe they are smarter than everyone else including the judge. Finally, attorneys, who are not public service attorneys, do not react to this type of incentive, unless it hits them in the pocketbook. I know of an attorney who has been admonished at least once, and sanctioned $500, which is roughly an hour of billing for him, not even a slap on the wrist. He hasn’t even shown the slightest interest in changing his behavior. The fact of the matter is that most judges condone, or at least ignore, this type of behavior, viewing it as merely zealous advocacy. There are only a small number of judges who are willing to call out this type of behavior. In their view, they get admonished only once in a blue moon, and without any consequences. Thus, there is little to no downside to their behavior. And client’s don’t care about the behavior because it shows that their attorney is “fighting” for them.

  5. This judge knows nothing about Twitter Law.

  6. Don’t make me stop this car and come back there! You guys cut that out right now, d’ya hear me?

    I want to see the follow-up opinion when the admonition isn’t heeded. It’s bound to contain a factual finding that despite the court’s previous admonition, one side or the other, or both, continued their “dumb conduct.” I suppose that like obscenity, judges are expected to know what it is when they see it, even if others can’t seem to agree. Broad is the discretion in which the law cloaks the trial judge, fortunately.

  7. Depends on what judge you’re in front of. Often I’ve had a judge assume that if I don’t respond to every little charge, I’m not contesting it.

    Also depends on your client. When I’m about to present a client for deposition, if I know the questioning lawyer is a jerk, I say, “He’s going to rant and rant. I will just calmly object to the question if it’s improper. I won’t get into the gutter with him.” To a lot of clients, this marks you as a weenie.

    1. There’s a case in the last few years where attorneys fees were downgraded precisely because the attorney responded to each allegation, including the ones the judge thought obviously wrong.

      In essence the judge said “this is so obviously wrong you wasted time in replying, so you don’t get paid for it.” The problem, of course, is in identifying what your judge thinks is obviously wrong, for precisely the problem you mention – if you guess wrong, the judge will hold it against you too. Damned by the judge if you do, damned by your client (and your malpractice insurance) if you don’t.

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J.M. Davis Arms and Historical Museum

The world's largest public collection of firearms can be found in a Tulsa suburb


J.M. Davis Arms Museum building.

Located near Tulsa on Route 66, the J.M. Davis Arms and Historical Museum amazes and overwhelms. With 12,000 firearms on display, it offers the largest collection of guns you can see at any museum.

But it's not just a firearms museum. Boasting 50,000 total artifacts, the Davis Museum has plenty to engage the members of your party who aren't interested in guns. For example, there are 1,200(!) beer steins, plus 19th century parlor musical instruments, a large collection of saddlery and riding gear, and lots of displays about outlaws and lawmen.

The museum building is owned by the State of Oklahoma, so there is no admissions charge. A voluntary donation of $5 per individual or $10 per family is encouraged. The museum is in Claremore, Oklahoma, a small town that is now part of the Tulsa metropolitan area. Parking is free and extensive.

The Davis Museum displays the largest collection of beer steins in the western hemisphere. (Rose City Art).

The museum's collection was donated in 1969 by J.M. Davis, a businessman and long-serving mayor of Claremore. Starting in the late 1920s, Davis had displayed his growing firearms collection at his hotel and coffee shop, enticing travelers on Route 66, which ran from Chicago to Los Angeles.

The museum reflects the time period when Davis was doing his collecting. It is incredibly deep for 19th and 20th century American and European firearms up through about 1969. The eighteenth century has some representation, and there are some guns from the seventeenth century, and even a Chinese hand cannon from 1350. But where the museum excels is from 1800 onward. The World War I era is particularly strong.

Over a hundred rows of firearms are on display.

With well over 100 rows of displays, the Davis Museum takes a while to visit if you're going to look carefully at everything.

The majority of firearms exhibits are pegboard hangings, grouped by manufacturer, nationality, or type. So, for example, you can study large collections of Harrington & Richardson handguns, Mauser rifles, or Spanish handguns.

The Davis Museum isn't the only place where you can see a lot of Winchesters or Remingtons, but for American manufacturers that are no longer in business, and haven't been for decades, the Davis Museum may be the best place to view their products.

The signage and text on many of the manufacturer-grouped displays is sparse. It could be enhanced with more information about what a particular manufacturer or series of models contributed to the evolution and use of firearms.

Some of the most interesting displays focus on particular types of forgotten arms. Some of these, such as blunderbusses, were popular during their glory days. Others were obscure; for example, in "folding trigger" handguns, the trigger could be flipped forward and upward, thus reducing the risk of accidental discharge in a time before trigger guards became near-universal.

The quantity of firearms curiousa is larger than I've ever seen in any other museum. There excellent displays of disguised guns, miniature guns, and "suicide specials" (inexpensive, small, and not necessarily well-made handguns commonly carried for self-defense in the late 19th century). There's also a "cemetery gun"—a tripwire-activated swivel gun used to deter grave robbers in England in the early 19th century.

If you want to focus on the mainstream, you can peruse the rifles and shotguns that were sold en masse via the mail-order catalogues of Sears Roebuck or Montgomery Ward. Not to mention flare pistols, toy/cap guns, and boys' .22 rifles (very popular in the first half of the 20th century).

As the signage explains, firearms can be used for good or ill, depending on the user. This is reinforced by displays on guns used by lawmen and outlaws, including three handguns owned by the notorious 1930s bank robber Pretty Boy Floyd.

The staff is friendly and enthusiastic. If you on Route 66, the Davis Museum is worth a stop. And if you have a high interest in firearms and their history, the Davis Museum merits a trip on its own.

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  1. When we were there, my son and I spent a long time going through the exhibits (my wife, not so much). I remember when we entered a smaller room off of one outside wall and realized that it was the tomb of Davis and his wife. I guess you can take it with you (or maybe just not leave).

  2. “The quantity of firearms curiousa is larger than I’ve ever seen in any other museum. ”

    Have you been to the Buffalo Bill Center of the West in Cody, Wy?

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Short Circuit: A Roundup of Recent Federal Court Decisions

Electromagnetic hypersensitivity, habitual drunkards, and garden-variety tyranny.


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

New on the Short Circuit podcast: We make the stirring, strident claim that the Second Circuit was pretty much on the mark in its recent opinion finding a First Amendment problem with President Trump blocking critics on Twitter. Click here for iTunes.

  • In 2018, President Trump issues three executive orders instructing the feds to, among other things, limit the time federal employees can spend working on union business on the taxpayer's dime. A bevy of federal labor unions challenge the orders, arguing, among other things, that the President has no authority to issue executive orders related to federal labor relations and that the orders violate the First Amendment. D.C. Circuit: The claims must be presented to an administrative review board before they can be heard in court.
  • Twelve-year-old at Southborough, Mass. boarding school allegedly suffers from electromagnetic hypersensitivity, meaning that the radio waves generated by common electronics cause him headaches, nausea, and other symptoms. (A school staffer's internal email: "Blahahahahahahahaha!") Does the student have any claims for the school's refusal to turn off the Wi-Fi? First Circuit: He does not. [Fun fact: The scientific consensus is that electromagnetic hypersensitivity doesn't exist. But that hasn't stopped dozens of supposed hypersensitives from moving to West Virginia to live in a federally designated radio-quiet zone.]
  • Friends, Judge Selya of the First Circuit has seen fit to give us this vocab quiz: encincture, rescript, assay, gainsay, repastinate, algid.
  • New York City bans advertising in for-hire vehicles like Ubers because passengers find them deeply, deeply annoying. Yet the city allows similar ads in taxicabs (via Taxi TV, which, depending on one's perspective, is either a "pleasant diversion" or a nightmare squawkbox). Makers of an advertising app see this as an unconstitutional restriction on commercial speech. Nonetheless, the ban will stand, says the Second Circuit.
  • Notorious "pharma bro" hedge fund manager Martin Shkreli is convicted of securities fraud for (among other things) regularly sending false performance reports to investors and using their money to pay his personal debts. Second Circuit: No need to disturb the conviction or $7.3 mil forfeiture order.
  • Allegation: Police barge into Camden, N.J. home, beat man unconscious, drag him down stairs. The man serves half of three-year sentence for drug possession, but his case is among 200 criminal cases vacated or dropped after five Camden, N.J. officers admit to planting drugs, filing false reports, lying under oath. Jury: Two officers used excessive force and committed a false arrest, but the man ultimately failed to prove that Camden's (in)action caused these violations. Third Circuit: He gets another chance to prove that claim (and others), this time with the aid of important evidence the district court wrongly excluded.
  • The Affordable Care Act mandates that employers, apart from some religious ones, pay for contraception for female employees with reproductive capacity. In 2017, the Trump administration expanded the exemption to include a wider array of religious employers as well as nonreligious employers with moral objections to the mandate. Third Circuit: The district court did not err in imposing a nationwide preliminary injunction. Among other infirmities, the feds likely violated the Administrative Procedure Act by failing to provide the public notice and a chance to comment on the new exemptions.
  • Pennsylvania prohibits billboards within 500 feet of a highway interchange: Third Circuit: And while that's legal in some respects, an exception for certain kinds of billboards means the state has to produce evidence justifying the general prohibition. Also, PennDOT needs to issue or deny permits for other highway billboards within a reasonable time limit.
  • Virginia law lets circuit courts declare someone a "habitual drunkard," which makes it a crime for that someone to possess alcohol or be drunk in public. Several homeless alcoholics, each prosecuted multiple times after being so declared, sue. Fourth Circuit (en banc, over a dissent): The case should not have been dismissed. The law doesn't specify what makes someone a "habitual drunkard," so judges can make up their own subjective standards. And if a "habitual drunkard" is just anyone who suffers from alcoholism, that potentially violates the Eighth Amendment since the law has the effect of punishing people for drinking they cannot control.
  • Campaign consultant is criminally prosecuted, convicted of violating Maryland election laws. He obtains a new trial, and a jury acquits. He then seeks to mail a letter criticizing the prosecutor (a political appointee) to Maryland voters. But he's forbidden access to Maryland's list of voters because he is a resident of Virginia. Fourth Circuit: Which might violate the First Amendment.
  • Baltimore man assaults his wife, self-surrenders to police officer that he knows. But the man's arrest warrant goes missing under suspicious circumstances, and he is permitted to leave the station. He corresponds with the officer about self-surrendering the following week and in the meantime murders his wife (outside courthouse where she had just gotten a protective order). Fourth Circuit (2013): No qualified immunity for the officer. Fourth Circuit (2019, over a dissent): Discovery didn't turn up evidence that the officer conspired with the man. Qualified immunity.
  • A bevy of Chinese investors put $500k each into a startup electric car company, which later collapses. The investors sue, among others, the company's former chairman (Terry McAuliffe, who went on to become governor of Virginia), asserting that misstatements he made to the media about the company's achievements defrauded the investors into putting up the cash. Fourth Circuit: "We decline to whitewash the alleged misstatements here." But the investors failed to adequately plead they justifiably relied on the misstatements—not least because the misstatements were in English and many of the investors don't understand English.
  • Fifth Circuit (2015): No qualified immunity for Lafayette, La. officer who set dog on (allegedly) compliant suspect and shot the suspect at point-blank range, killing him. Jury: The officer used unconstitutionally excessive force but is entitled to qualified immunity. Fifth Circuit (2019): No reason to disturb the jury's verdict.
  • This Sixth Circuit decision, on whether a homeowner can sue a lender, turns on the not-insignificant distinction between a loan and a mortgage. (Loan = The money a lender gives a home buyer so they can afford a house. Mortgage = The legal interest the lender acquires in the house that provides assurance, on pain of foreclosure, that the loan will be repaid.)
  • Man camping in the Chequamegon-Nicolet National Forest has a gun, which is illegal on account of his multiple felony convictions. Later, the man readily admits to being a white supremacist and proclaims his desire to return to Germany to retrace his Nazi ancestral heritage. Seventh Circuit: And it's just fine for the judge to have considered those beliefs and imposed a longer sentence than the gov't requested. Even though he's never been convicted of a hate crime, such views demonstrate a threat of future dangerousness.
  • Allegation: Illinois prison required female inmates to stand naked, remove sanitary products, and undergo body and cavity searches—all in groups and in full view of male officers not conducting the searches. Seventh Circuit: This is a visual inspection of a prisoner, not a physical intrusion, so the Fourth Amendment doesn't apply. Dissent: Forcing a prisoner to manipulate her own body (as opposed to the guards doing it themselves) doesn't make a search reasonable.
  • St. Peters, Mo. officials threaten homeowners with up to $180k in fines and 20 years in prison if they do not tear out garden (photos here) and replace it with grass on at least 50% of the yard. (Later, officials say just 5% grass will suffice.) An excessive fine? A violation of the substantive due process right to quiet enjoyment of one's property? The Eighth Circuit dismisses the case on procedural grounds.
  • Allegation: Fort Madison, Iowa police enter home of tire-slashing suspect, order him to drop knife. The suspect instead withdraws to a closet. An officer opens the closet door and shoots, kills the suspect (who had not lunged toward or otherwise threatened the officer). Eighth Circuit: Qualified immunity. "It was not clearly established in August 2014 that an officer was forbidden to discharge his firearm when suddenly confronted in close quarters by a noncompliant suspect armed with a knife."
  • The DOJ has a pot of money for local police departments who undertake various initiatives. Los Angeles officials: We didn't get the $3.125 mil grant we sought because the DOJ favors jurisdictions that assist with the feds' immigration enforcement efforts, which we decline to do. Ninth Circuit (over a dissent): The DOJ has broad discretion to decide how to allocate funds, and the grant program merely incentivizes, rather than coerces, jurisdictions to provide said assistance. And anyway, lots of jurisdictions that do not provide it were given grants, and lots of jurisdictions that do were not.
  • Utah chiropractor is prosecuted for trying to pay $340k in back taxes with checks from closed bank accounts. Usually, courts bring down the hammer when such a defendant—a sovereign citizen—tries to discharge the trial judge "from his emergency war powers jurisdictional duties." Or says that trial must be rescheduled because the defendant is unavailable. Or signs filings with a thumbprint. But not today! The Tenth Circuit holds that the defendant—or, in his view, "the fiction that the court has named as a defendant"—wasn't sufficiently warned before he waived his right to counsel. Conviction vacated.
  • San Juan County, Utah officials draw up three voting districts such that white residents predominate in two districts and Navajo residents (who make up 52% of the population) mostly all live in one district, all but guaranteeing two whites and one Navajo are elected to the three-member commission that governs the county. Tenth Circuit: Which violates the Equal Protection Clause and the Voting Rights Act.
  • And in en banc news, the Fifth Circuit will not reconsider its holding that landlords do not violate the Fair Housing Act when they decline to accept "Section 8 vouchers," which are used disproportionately by minorities, in neighborhoods that are disproportionately white. Seven judges dissent: Plaintiffs plausibly alleged the defendants are perpetuating segregation.

It's illegal in Florida to give individualized dietary advice without a license that takes years and costs thousands of dollars to obtain. So when Heather Del Castillo, a military spouse who ran a successful health coaching business in California, relocated to Florida, regulators (tipped off by a local dietitian) ordered her to shut down or face a year in jail—per client. But the First Amendment protects the right to give advice on diet and nutrition, and the U.S. Supreme Court recently ruled that there is no exception for so-called "professional speech." This week, a federal judge nonetheless relied on now-overruled precedent to uphold Florida's law—and ignored evidence that there is no good public safety justification for it. On to the Eleventh Circuit! Click here to read more.

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  1. It’s illegal in Florida to give individualized dietary advice without a license that takes years and costs thousands of dollars to obtain.

    So if we are in Florida, and if my wife says, “Honey, maybe you should skip that third piece of pie,” can I respond, “Sorry, that’s unlicensed illegal advice!”

    1. The licensing requirement only applies to paid advice.

      1. He’s paying for it, believe me!

      2. But that’s not included in the statement made by the Institute for Justice. When I read their statement I’m left with the same impression as Bored Lawyer; no telling anyone anything dietary related.

        Does the Institute for Justice not know the law of Florida? Surely it’s not engaging in a sort of puffery as a way of attracting support for it’s cause. That wouldn’t be very just.

        1. They mentioned there is no exception for “so-called professional speech”, which suggests money. Not sure what the problem is.

          1. The summary strongly implies that any dietary advice requires a license – hence the original comment.

            I think this regulation is bad policy, I think the constitutional argument has some force, and I think IJ generally does good work. But their write ups do tend to be tendentious at best, and are often actively misleading.

  2. “Allegation: Illinois prison required female inmates to stand naked, remove sanitary products, and undergo body and cavity searches—all in groups and in full view of male officers not conducting the searches. Seventh Circuit: This is a visual inspection of a prisoner, not a physical intrusion, so the Fourth Amendment doesn’t apply.”

    Say WHAT?

    1. As is obvious from these roundups, a judge’s job is to explain why what the cops did was legal. Do you have a better reason?

      1. Well, learning that cavity searches aren’t legally “searches” IS a revelation.

        1. The problem lies in the fact that these are prisoners and their Constitutional Rights are restricted as a result of their incarceration. I would also note that it is well documented that people will attempt to smuggle items into prison hence the requirement for searches as a part of the in-processing of prisoners. All orifices are checked on both male and female prisoners as well as the clothing worn and other items brought with them.

  3. Jury: The officer used unconstitutionally excessive force but is entitled to qualified immunity.

    This is a thing? At trial?

    1. Well, this is where it should be, but agents of the state shouldn’t get the two bites at the apple, either it should be up to the judge (bad, but what we have) or up to the jury (so they can say “hey, this was an edge case that we don’t think was obvious at all, but now we’re making it clear it’s on the other side of the line).

      Of course, the right way, if you think qualified immunity should exist at all, is through respondeat superior. State agent clearly violates the law, agent is liable. State agent violates unclear law, State is liable. That puts the Incentive on the State to ensure that the law is clear. What we have now just gives both the state and the agent incentive to ensure they can do anything at any time, regardless of the law.

    2. If the applicability of qualified immunity depends on a disputed fact, how else would it be assessed?

  4. Trump expands the exemptions allowed for religious reasons to match the holdings in hobby lobby and per curium SC rulings, but 1 obama and 2 clinton appointees say you cant do that.

    1. Right, when KKKlinton or Obummer judges hear cases, every Trump action is “arbitrary and capricious.”

    2. Obama is a disgusting savage, much like the “squad” of traitorous women serving in the Democrat party.

  5. The kid’s probably suffering from anxiety attacks, caused in part and exacerbated by his wacko parents. They refused to allow him to be interviewed separately by the medical professionals and reported his symptoms themselves, without his input. He’s getting hit with more power from microwaves from amateur radio operators in his area than from routers in the school. He should be hardest hit at night, when the amateur radios are being used. The power from the goddamn sun is comparable, though I doubt they let him outside much.

    What I’m saying is: “Blahahahahahahahaha!” is the correct response.

    For some reason women have been more prone to claim EHS exists. It comes as no surprise that “Mother” seems far more involved in this charade than “Father”.

  6. “The Affordable Care Act mandates that employers, apart from some religious ones, pay for contraception for female employees with reproductive capacity.”

    I seem to recall that it actually doesn’t. By which I mean no such language can be found in the law, the contraceptive mandate is a regulation promulgated under the authority of the ACA, but not actually required by it.

    1. You recall correctly but forget the legal arguments of ‘but Trump.’

    2. You mean, it’s a regulation authorized by ACA, and implemented in accordance with prescribed procedures, none of which were followed by the Trump administration in changing it.

      Yeah, you really love the rule of law, Brett, except when it interferes with something your god, Trump, wants to do.

      Besides, howdy you define a “moral objection” so it’s not just a universal available excuse for people not to comply with the law? You can’t. Next thing you know Trump will allow a “moral objection” to blacks to let restaurants violate the CRA.

      1. Authorized in the sense that it DID permit them to declare a minimum level of coverage, and they decided to make free contraceptives for women part of that minimum level.

        They could, just as easily, have declared free viagra and boob jobs to be part of the minimum level of coverage, and if they had, THAT would have been “mandated by the ACA” in exactly the same sense:

        Not at all.

        Because if it had been mandated by the ACA, they wouldn’t have had any discretion in the matter.

        1. Well, since neither viagra nor boob jobs can reasonably be considered “preventive care” I don’t think that’s true.

          Further, you are ignoring the fact that there are rules for promulgating or changing regulations, rules the Trump administration routinely violates.

          But you don’t give a crap about that. You just kiss the ring, among other things.

          1. Bernard, nothing the regulators have discretion over whether or not to do is “mandated” by the law they’re regulating in the name of.

            And you’d even be wrong about the viagra.

            It’s also used to prevent or reverse peripheral neuropathy under some circumstances.

            It’s a pretty rare drug that only has one use…

            1. Sildenafil, the actual name of the drug in Viagra, was originally developed as a medicine to treat the symptoms of heart disease and prevent heart attacks. It is still prescribed as a heart disease medicine in some cases where other drugs are not usable.

              1. Is sildenafil prescribed, or Viagra?

        2. “Because if it had been mandated by the ACA, they wouldn’t have had any discretion in the matter.”

          You’re overstating. For one thing, prosecutors have discretion over bringing charges for violation of ANY criminal law.

    3. (Insert cynical statement about the difference between passing a law and passing a general idea and handing it off to functionaries to dictate into existence.)

  7. “Allegation: Fort Madison, Iowa police enter home of tire-slashing suspect, order him to drop knife. The suspect instead withdraws to a closet. An officer opens the closet door and shoots, kills the suspect (who had not lunged toward or otherwise threatened the officer). Eighth Circuit: Qualified immunity. “It was not clearly established in August 2014 that an officer was forbidden to discharge his firearm when suddenly confronted in close quarters by a noncompliant suspect armed with a knife.””


    1. It’s well established that police can create an exigency for the purpose of avoiding a warrant (because now there are existent circumstances).

      This is just an extension of that. Just because the officer knew the person was on the immediate other side of the door and holding a knife doesn’t mean that they weren’t “suddenly” presented with the person when they opened the door. For all they knew there was a set of stairs leading down to the underground lair of the master tire-slasher, where he laid in wait for the insufficiently trigger happy officer.

      The fix, of course, is to get rid of exigency as an excuse for anything.

      1. I think a simpler remedy would be to limit exigency defenses to cases where the facts warrant it.

  8. The podcast discussed the Trump Twitter ruling and made an analogy to a government agent renting a private hall to conduct a public meeting, in that even though it is a private space the government is making use of it as a public space and so therefor cannot restrict the public’s access.

    My issue is that while the courts can restrict the government agent from blocking access from the now public space, they cannot restrict the private owner of the space from blocking access independently. An individual banned by Twitter cannot access the “public space” of Trump’s twitter threads, just as much if not more so, than a user who is blocked by the Trump account.

    So could someone banned from Twitter sue an official to prevent them from using Twitter as a public space at all, since they cannot guarantee unrestricted and equal access by the public?

    1. No.

      Renting a hall is a bad analogy. Renting time on a cable TV channel is a better one. The government can’t tell Comcast “don’t let gingers see this statement about their lack of souls” while Comcast could on their own decide not to do business with all gingers for just that reason.

      The key is who is choosing the restrictions. The government cannot be the source of a restriction under the 1st amendment, but a private actor can – and in fact the private actors choice not to associate is itself protected under the same amendment (ignoring modern jurisprudence about public accommodations, which it isn’t clear Twitter is – see next para).

      But you say, “isn’t Twitter the new town square?” There’s some truth here, but the analogy only works on some levels, the chief of which is that we (the public fisc) aren’t paying to maintain it. The point where it looks like a public accommodation is when you don’t sign in, where you can see everything marked as public. Where it looks like a private club is when you sign in, gaining you access to things that are meant to be private, excluding things you chose not to see (your block list), and preventing you from seeing things others chose not to share with you (their block list).

  9. “they cannot guarantee unrestricted and equal access by the public?”

    Please describe the venue (of any type) that CAN guarantee unrestricted and equal access by the public.

  10. In the ACA case, the 3rd Circuit held that the the exemption rules were both unauthorized by the ACA and not required by the RFRA. In short, it decided the case on the ultimate merits, not based on procedural infirmities like failing to conform to APA notice and comment requirements. I think the description is a bit misleading in this respect.

    1. I would use the lack of APA conformity as a basis for striking it down. An administration can’t simply promulgate a policy that binds the public without following the procedural norms of notice and comment that Congress ordained. I would stop there.

      I am not sure I would be so quick to strike down a properly promulgated policy. Reasonable exceptions and balancing between norms is one of the areas where decisions are essentially political, and Chevron deference may be most appropriate.

      That is, the value of accommodating religion is a legitimate value whether or not the RFRA strictly requires it. Regulations implementing the ACA and many other major statutes contain accommodations of many other values (civil rights, environmental, etc.) without courts closely scrutinizing them for strict-and-no-further compliance with statutes.

  11. The Camden police case is an important one. It reflects a general tendency of appellate courts to look more closely at cases alleging police brutality and more sympathetically at their plaintiffs. In this case, the fact that the police officers had been convicted of framing the plaintiff and they still lost their lawsuit in the district court is an indication of how formidable the barriers to winning a federal civil rights suit can be.

    At the same time, the lawsuit also outlines some difficulties. One example is the fact that when a new police Chief came into office, he issued a report saying things were really bad and badly in need of fixing. That report is now being used as evidence against the municipality. What would have happened if the new police chief had instead been more adept at cover-up? Perhaps summary judgment would have been upheld.

    A fundamental paradox of our system of liability is that people who attempt to talk bout problems honestly are magnets for liability, while cover-up artists are often highly successful. The fact that our system of justice has the effect of rewarding cover-up and punishing transparency and attempts at reform is one of the ways that it can produce unexpected, pathological results.

  12. […] Short Circuit: A Roundup of Recent Federal Court Decisions Electromagnetic hypersensitivity, habitual drunkards, and garden-variety tyranny. […]

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