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The Volokh Conspiracy

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

The Volokh Conspiracy

Free Speech

"Essentially, [the City] Defendants Request That the Court Resolve This Case Entirely in Secret"

No dice, says the District Court.


In Brown v. City of Glendale (D. Ariz.), plaintiff is suing "for malicious prosecution (both under 42 U.S.C. § 1983 and under state law) following his acquittal in a state-court prosecution for sexual assault. Brown contends the charges arose because a member of the Glendale [Arizona] Police Department filed false police reports, lied in a search warrant affidavit and while testifying before a state grand jury, and concealed exculpatory evidence. The first trial against Brown, in 2015, resulted in an acquittal on some counts, a dismissal of some counts, and a mistrial on some counts, and the 2017 retrial resulted in an acquittal on all remaining counts."

The case remains pending, and the charges against the City have of course not been either proved or disproved, but Friday Judge Dominic W. Lanza dealt with the City defendants' sealing motion:

Pending before the Court is Defendants' motion for leave to file their summary judgment motion and exhibits thereto under seal. For the reasons stated below, the motion is denied without prejudice.

The public has a general right to inspect judicial records and documents, such that a party seeking to seal a judicial record must overcome "a strong presumption in favor of access." To do so, the party must "articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure…." The Court must then "conscientiously balance the competing interests of the public and the party who seeks to keep certain judicial records secret." "After considering these interests, if the court decides to seal certain judicial records, it must base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture." Id.

The "stringent" compelling reasons standard applies to all filed motions and their attachments where the motion is "more than tangentially related to the merits of a case." A motion for summary judgment is clearly such a motion, and the "compelling reasons" standard applies to the motion and its exhibits.

Defendants state that the motion "contains confidential medical records of testifying witnesses and privileged and confidential transcripts of grand jury testimony from Officer Gonzalez." The motion to seal is three sentences long and seeks to seal 632 pages—the entirety of the summary judgment motion and all 18 exhibits. ["Defendants City of Glendale and Lawrence Gonzalez ('Defendants') move this Court for an order directing the Clerk to file under seal their Motion for Summary Judgment. The Motion contains confidential medical records of testifying witnesses and privileged and confidential transcripts of grand jury testimony from Officer Gonzalez. Therefore, pursuant to LRCiv 5.6, Defendants move this Court for an order directing the Clerk to file under seal Defendants' Motion for Summary Judgment." -EV] Essentially, Defendants request that the Court resolve this case entirely in secret.

Defendants have not attempted to "articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure…." Moreover, the Court notes that at least some of the exhibits the parties seek leave to file under seal seem so innocuous that the Court wonders what interest Defendants have in maintaining secrecy.

Thus, the motion is denied without prejudice. To the extent that the parties wish to try again, they must include—for each document they wish to file under seal—a specific description of the document and compelling reasons for sealing that document, supported by specific facts. The more specific and compelling the reasons and facts provided are, the more likely it is that the Court will find that compelling reasons justify sealing the documents. To the extent that only portions of certain documents might satisfy the Kamakana standard, such that Defendants wish to propose redactions, Defendants shall lodge under seal unredacted versions in which the text which Defendants wish to redact is highlighted to facilitate the Court's review.

Weapon Name Puzzle


Which weapon was named after a fruit?

Which two weapons' names come from Czech?

Which weapon was named after a Norse woman's name?

Which two weapons share the same name, though they are about as different as weapons can be? [UPDATE: Some of the commenters were discussing various weapons systems that fit this, and I appreciate their points; but I'd like to limit this question to personal weapons, of the sort that one person would carry.]

None of these, except for one of the two weapons from the last question, is a brand name.

Uber and Postmates argue that California's new "Gig" law violates the 9th and 14th Amendments, the Contracts Clause, and California's Baby Ninth Amendment

The tech companies have thrown the entire economic liberty kitchen sink at AB 5


A new California law makes it harder for "Gig" companies to classify certain workers as independent contractors. Uber and Postmates have now challenged the constitutionality of Assembly Bill 5. Attorneys from Gibson Dunn have thrown the entire economic liberty kitchen sink at the law. From the complaint:

AB 5 violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, the Ninth Amendment to the United States Constitution, and the Contracts Clause of Article I of the United States Constitution, as well as the Equal Protection Clause, Inalienable Rights Clause, Due Process Clause, Baby Ninth Amendment, and Contracts Clause of the California Constitution.

1. Plaintiffs bring this lawsuit to protect their constitutional rights and defend their fundamental liberty to pursue their chosen work as independent service providers and technology companies in the on-demand economy.

2. AB 5 is an irrational and unconstitutional statute designed to target and stifle workers and companies in the on-demand economy.

The first count is premised on the Equal Protection Clause. The parties argue that the law is infected by an "irrational animus."

101. AB 5 violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution because it draws classifications between network companies and non-network companies without a rational basis for distinguishing between the two groups.

102. Likewise, the statute draws irrational distinctions between independent service providers and non-independent service providers that perform substantially the same work, disfavoring independent service providers relative to similarly situated nonindependent service providers. Laws unconstitutionally singling out a certain class of citizens for disfavored legal status or general hardships are rare. AB 5 is such an exceptional and invalid form of legislation.

103. No sophisticated economic analysis is required to see the pretextual nature of California's proffered explanations for AB 5's differential treatment. There is no rational distinction between network companies and many of the non-network companies granted exemptions under AB 5. The California legislators' focus on subjecting network companies to AB 5, and their willingness to grant a laundry list of non-network company exemptions in order to spare those types of companies the costs and burdens of complying with AB 5, demonstrates irrational animus against network companies in violation of their equal protection rights. This type of singling out, in connection with a rationale so weak that it undercuts the principle of non-contradiction, fails to meet even the relatively easy standard of rational basis review.

Uber and Postmates will have to distinguish this case from Williamson v. Lee Optical. Is the distinction between "network companies" and "non-network companies" who perform the same function any less rational than the distinction between optometrists and ophthalmologists who perform the same function?

But wait--Uber and Postmates argue that strict scrutiny applies! Why? Because the law would "burden, the fundamental rights of network companies and workers to pursue their chosen profession and determine when and how they earn a living." I'm not sure there is a single vote on the Supreme Court for this position. I don't think even Justice Gorsuch would review economic regulations with strict scrutiny.

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"Meanest Pun of the Year,"

according to Prof. Mark Liberman (Language Log):


Quoted by Prof. Liberman from NPR's Wait Wait … Don't Tell Me!, Dec. 21:

Peter Sagal: Mayor- Mayor Pete has been getting some heat.
I don't know if you saw this.
He attended a big fundraiser in Napa
at a winery with a, quote, "wine cave."
And everybody was so mad that he did this.
But why would you be mad about a wine cave?
It celebrates the two things Democrats are known for, whining and caving.

Very funny, I think, regardless of what party one belongs to (indeed, the "caving" part sounds more like a Democrat-on-Democrat criticism, if it has any real substantive content at all).

Free Speech

Retired Law Professor Sues Lawyer-Commenters on Law Blog

A company had a trademark canceled in a Trademark Trial & Appeal Board proceeding, based on what the Board described as the company's "delaying tactics, including the willful disregard of Board orders." The TTABlog posted about it, and some commenters criticized the company's lawyer, Ohio State Prof. Charles L. (Lee) Thomason—so he is suing them for libel.


[1.] In the Dec. 2018 SFM, LLC v. Corcamore, LLC decision, the Trademark Trial & Appeal Board had some harsh things to say about Corcamore's litigation tactics, including:

It is obvious from a review of the record that Respondent has been engaging for years in delaying tactics, including the willful disregard of Board orders, taxing Board resources and frustrating Petitioner's prosecution of this case. In view thereof, Petitioner's motion for sanctions in the form of judgment against Respondent also is granted pursuant to the Board's inherent authority to sanction.

Corcamore's lawyer in the case was Charles L. Thomason (listed in the docket as being in Columbus, Ohio), who was a clinical professor at Ohio State University Moritz College of Law until his recent retirement. The TTAB's decision is now on appeal to the Federal Circuit.

[2.] A few days later, the TTABlog, written by trademark lawyer John L. Welch, posted an item summarizing the case (though not mentioning Prof. Thomason's name), and adding (as an exhibit to the Prof. Thomason's Complaint notes), "TTABlog comment: What about a sanction against counsel?" This led to three comments, which I quote from another exhibit to the Complaint:

[3.] Last week, Prof. Thomason sued the three commenters for libel; but it seems to me that his legal theory is not sound.

[A.] The Dreitler comment began with what seems to be a correct statement of two facts—that Corcamore's lawyer was an Ohio State law professor, and that the client was sanctioned. It seems to err in saying that the "case [was] dismissed"; rather, it was the client's opposition to the cancellation proceeding that was effectively dismissed, and the other side prevailed. But that mischaracterization of the procedural situation wouldn't be damaging to Prof. Thomason's reputation; the implication of "case [was] dismissed" is that the client lost, and that is correct. (Note also that Prof. Thomason has apparently retired, and the last class I could find him teaching was in Spring 2018, so it's possible that the Dreitler comment was slightly imprecise in its tense; but any error as to that wouldn't be damaging to Prof. Thomason's reputation, either, and Thomason's Complaint more generally speaks of Thomason as a law professor, in the present tense.)

The Dreitler comment then turned to an inference that the lawyer is responsible for the result and the litigation tactics, followed by an opinion about what should happen, and what the lawyer allegedly deserves: "the Board certainly ought to sanction" the lawyer. But such opinions, however derogatory they may be, aren't actionable libel.

Now libel law recognizes that "a statement in the form of an opinion" may be actionable "if it implies the allegation of undisclosed defamatory fact as the basis for the opinion." (That's from the Restatement (Second) of Torts § 566, which the Kentucky Supreme Court has expressly adopted.) But "where the commentator states the facts on which the opinion is based, or where both parties to the communication know or assume the exclusive facts on which the comment is clearly based," there can be no liability. And that seems to be what happened here: The initial TTABlog post summarized the court opinion (in a way that Thomason's Complaint doesn't claim is defamatory); the comment accurately stated a further fact (that Thomason was a law professor) and then expressed an opinion based on those facts.

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Today in Supreme Court History

Today in Supreme Court History: December 30, 2005


12/30/2005: Congress enacted the Detainee Treatment Act, which gave rise to Hamdan v. Rumsfeld.

The Roberts Court (2006)

Today in Supreme Court History

Today in Supreme Court History: December 28, 1856


12/28/1856: President Woodrow Wilson's birthday. His administration would initiate the prosecutions under the Sedition Act that gave rise to Schenck v. U.S., Debs v. U.S., and Abrams v. U.S.


Short Circuit: A Roundup of Recent Federal Court Decisions

A dirty cell, no no-smoking policy, and a classic case of Orwellian doublethink.


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

On January 22, the Supreme Court will consider whether states may exclude religious schools from generally available scholarship programs, or whether such exclusions violate the U.S. Constitution. Espinoza v. Montana Dept of Revenue is an IJ case. Click here for more from The New York Times.

  • Pomona, N.Y. (pop. 3,200) residents and leaders with preference for "zero population growth" enact four zoning changes that will impede development of new college where students will train to be rabbinical judges and live with their families, bringing perhaps 4,500 Orthodox/Hasidic Jews into the village. Second Circuit (after 47 pages of facts): Two of the zoning changes were susceptible to an inference of religious animus and violate the First and Fourteenth Amendments, notwithstanding that residents would have vigorously opposed any project bringing that many new residents.
  • Inmate at Lubbock, Tex. prison alleges he was forced to stay naked for several days in a cell in which every surface was covered with human excrement. He could neither eat nor drink for fear of contamination, and rather than fixing the problem, prison officials merely laughed at him. Fifth Circuit: Qualified immunity. The law clearly established that prisoners couldn't be kept in cells teeming with human waste for months on end, but it hadn't yet covered a stay of only six days. It's clearly established going forward, though.
  • Prisoner en route to dental appointment overpowers Cameron County, Tex. officer, seizes handgun, and forces his way into a home. He shoots and kills an occupant, steals a car, and is killed after a high-speed chase. Can two other occupants of the home and the victim's estate sue the gov't? Fifth Circuit: Though at least six other circuits recognize the state-created danger theory of liability, we still don't. But even if we did, these plaintiffs would still be out of luck because they didn't allege the gov't knew that plaintiffs themselves were in danger (as opposed to people generally in the vicinity).
  • En route to a mental health facility and high on methamphetamines, man jumps out of his fiancée's car at a traffic light while holding a three-inch knife, wanders to a residential neighborhood. Elizabethtown, Ky. police order him to drop the knife. Instead, he takes a step toward them with his knife raised "in a stabbing position" and tells the officers they'll need to kill him. They do. Excessive force? Sixth Circuit (over a dissent): No.
  • The system Michigan officials have set up for prisoners to report rape "is a classic case of Orwellian doublethink," says the Sixth Circuit, and three inmates who allege they were sexually assaulted as juveniles while housed in adult facilities (a policy since abandoned) can proceed with their suit.
  • Feds charge defendant with illegal reentry and, during the sentencing phase, make several comments about undocumented immigrants' taking American jobs. Sixth Circuit: The gov't's arguments were "blatantly inappropriate" and "unbecoming of the quality of lawyering expected from the United States Attorney's Office." But because the district court did not rely on those arguments, the defendant's sentence stands.
  • During drug conspiracy trial, prosecutor asks witnesses to relay out-of-court statements of unnamed informants. Which violates the Sixth Amendment's Confrontation Clause, so the judge orders the prosecutor to stop. And yet the prosecutor does not—ultimately committing over a dozen violations on the first day of trial alone—so the judge grants a mistrial. Defendant: The prosecutor deliberately did it to cause a mistrial; the entire indictment must be dismissed. Sixth Circuit: There's no evidence of that; a new trial does not violate the Fifth Amendment's Double Jeopardy Clause.
  • Farmington Hills, Mich. condo association bans, among other things, dogs, cats, and "immoral" activities. But smoking is allowed, which aggravates an asthmatic resident. Does the policy violate federal housing discrimination law? The Sixth Circuit says no.
  • Those arrested for misdemeanor crimes in Giles County, Tenn. are detained after arrest until they pay bail—an amount set without reference to their ability to pay, without a determination of whether they pose a danger to the community or risk of flight, and without their presence. Several arrestees obtain a preliminary injunction against the county and sheriff for this system. Going forward, the injunction will allow bail if accompanied by evidence of the arrestee's ability to pay, necessity of detention, and alternatives to bail. Sixth Circuit: Indeed. And, contrary to the county and sheriff's arguments, the plaintiffs need not have sued the judges for their actions of setting bail. The county and sheriff play an active role in the challenged detention.
  • After extensive remediation efforts, the site of a former Army munitions plant near Baraboo, Wisc., once the world's largest propellant manufacturing facility, is now suitable for recreational use. Seventh Circuit: No reason state officials can't allow two recreational uses opposed by plaintiffs: training dogs to hunt (on roughly 2% of the park) and off-road motorcycling (six days a year, among other restrictions).
  • Allegation: As five Las Vegas police pin down unresisting concertgoer, a sixth officer chokes him unconscious. Ninth Circuit: Could be excessive force or analogous state law claims: assault, battery, and intentional infliction of emotional distress. To trial this must go. Judge Fletcher (concurring): And it's high time the Supreme Court clarified when exactly appellate courts have jurisdiction over disputed facts; current practice has resulted in "analytic chaos."
  • Huuuge Casino, purveyors of a smartphone casino app, must face a user's suit (claiming that charging users for chips violates Washington state gambling and consumer protections law) in federal court, says the Ninth Circuit (with pictures). Arbitration is not mandatory when companies bury their terms of use "twenty thousand leagues under the sea."
  • In 1911, the feds grant a right-of-way to the owner of a reservoir outside Laramie, Wyo. Over the years, people buy the adjacent land and build homes and cabins. Yikes! Flooding damages many of the properties. Double yikes! The reservoir owner then decides to increase the amount of water in the reservoir. Landowners: It flooded because you exceeded the right-of-way. Owner: The right-of-way covers whatever the reservoir occupies, so we can add water as we please. Tenth Circuit: The landowners are right.
  • And in en banc news, the Ninth Circuit will reconsider its decision reversing the conviction of a woman who slapped a fellow passenger on a flight to Los Angeles. The original panel had held the trial was improperly held in Los Angeles because the slap occurred somewhere over the Great Plains—and not in the Central District of California's airspace.

Campus Free Speech

"The University of York Apologises for Saying 'Negro' in Lecture on Civil Rights Hero's Book Called the Philadelphia Negro"

So reports the Daily Mail (U.K.).


From the Daily Mail article (Julie Henry):

Lecturers were forced to apologise after students attending a class on race complained about quotations from renowned black writers which included the word 'negro'.

Undergraduates at the University of York said they had been left 'distressed' after an academic read out passages which included the word from works by [W.E.B.] Du Bois, an African-American sociologist and civil rights activist, and Frantz Fanon, a French psychiatrist and anti-colonialist – both black academics….

[English Department head Helen] Smith wrote a letter of apology saying that while the term was part of a quotation and was not used 'offensively', she recognised that reading it out had caused 'considerable distress'.

'I am extremely sorry that this happened, and I have written to all staff in the department to make it clear that they should not pronounce racial slurs as part of their teaching and that if those words appear in texts or on PowerPoint slides, they should be prefaced with an appropriate content warning,' she wrote.

A follow-up e-mail to lecturers "asked them to refrain from saying the word, written throughout the email as 'n*gro'."



Requiring Psychotherapists to Report Patients' Child Porn Use May Violate Constitutional Right to Privacy

So concludes the California Supreme Court (by a 4-3 vote), applying the California Constitution; it remands for further fact-finding on the law's practical costs and benefits.


Since 1972, the California Constitution has expressly protected privacy, providing that,

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

The California Supreme Court has implemented this provision using the Hill v. NCAA test:

[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy…. A defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests. The plaintiff, in turn, may rebut a defendant's assertion of countervailing interests by showing there are feasible and effective alternatives to defendant's conduct which have a lesser impact on privacy interests.

How does this affect limits on psychotherapist-patient confidentiality, and in particular rules requiring psychotherapists to alert law enforcement when a patient has admitted to viewing child pornography? In today's 4-3 decision in Mathews v. Becerra, the court held that such reporting requirements may be unconstitutional, though depending on the facts, which need to be developed in further court proceedings. The majority (Justice Goodwin Liu, joined by Justices Mariano-Florentino Cuellar, Leondra Kruger, and Joshua Groban) relied heavily on the view that California is part of only a small minority of states that require such reporting, so that it "appears that '[nationwide] law and social custom' have not required child welfare reporting or authorized other disclosure of a patient's admission during voluntary psychotherapy treatment that the patient has possessed or viewed child pornography." And it went on to explain what facts would bear on any ultimate decision about whether the statute passes muster:

No one disputes that the principal purpose of the reporting requirement—preventing the sexual exploitation and abuse of children—is a weighty one. The main issue on which the parties disagree is whether the reporting requirement actually serves its intended purpose.

Defendants argue that mandatory reporting advances the state's interest in protecting children by facilitating enforcement of the child pornography laws. As defendants note, the purpose of these laws is to protect children by drying up the market for images of their sexual abuse. And according to the Attorney General, mandatory reporting also helps to "ensur[e] that those with direct access to children do not threaten them with harm" and aids efforts to "rescu[e] children from sexual abuse."

Plaintiffs, by contrast, contend that there is only a "slim possibilit[y]" that the reporting requirement can assist law enforcement in identifying and rescuing children depicted in child pornography. They assert that patients who have downloaded or viewed child pornography online are "highly unlikely" to have any information about the identities, locations, or other relevant characteristics of the depicted children. Plaintiffs also allege that because child pornography is so freely and easily accessible on the Internet, patients who admit to viewing child pornography online span a wide range of psychological profiles and disorders, and do not present a serious danger of hands-on abuse. Mandatory reporting of patients who do not pose a serious danger of hands-on abuse, plaintiffs allege, would not serve any interest in preventing those patients from causing direct harm to children.

Moreover, plaintiffs' complaint alleges that the reporting requirement "deter[s] existing or potential patients who have serious sexual disorders … from obtaining needed psychotherapy, despite the lack of any evidence that they have engaged in 'hands-on' or 'contact' sexual abuse of children." The complaint specifically alleges that "mandated reporting of child pornography viewing will unnecessarily deter persons with sexual disorders from psychotherapy treatment," which suggests the contribution of those persons to the market for child pornography will continue unabated.

With no facts developed at this stage of the litigation, we are unable to evaluate these competing claims as to whether the reporting requirement serves its intended purpose. Our precedent includes varied assertions on whether mandatory reporting deters psychotherapy patients from seeking treatment. (Compare Tarasoff, supra, 17 Cal.3d at p. 440, fn. 12 [dismissing as "entirely speculative" the concern that reporting of dangerous patients will discourage them from seeking counseling] with Stritzinger, supra, 34 Cal.3d at p. 514 ["it is impossible to conceive of any meaningful therapy" if the patient knows "at the outset that [the therapist] will violate his confidence and will inform law enforcement of their discussions"] and Lifschutz, supra, 2 Cal.3d at p. 431 ["'"It would be too much to expect [patients] to [reveal intimate thoughts and behaviors during treatment] if they knew that all they say … may be revealed to the whole world from a witness stand."'"].) The dissent relies on cases that cite decades-old studies and involve reporting requirements not at issue here. (Dis. opn., post, at pp. 24–25, citing Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 632 [discussing 2000 article on deterrence effects of reporting potentially violent patients], People v. Wharton (1991) 53 Cal.3d 522, 558 [discussing deterrence effects of reporting patients whom psychotherapists believe to be dangerous], Tarasoff, supra, 17 Cal.3d at p. 440, fn. 12 [discussing 1974 article that found "little if any empirical data" on deterrence effects of reporting potentially violent patients], and Lifschutz, at pp. 426–427 [discussing deterrence effects in context of "compel[ling] disclosure of only those matters which the patient himself has chosen to reveal by tendering them in litigation"].) No court has yet explored the ramifications of the reporting requirement challenged in this case.

At its core, plaintiffs' argument is that the reporting requirement does not further, and may in fact undermine, its intended purpose of protecting children from sexual abuse and exploitation. If substantiated, this mismatch between means and ends would render the reporting requirement unconstitutional under any standard. We thus have no need, in advance of factual development on this critical issue, to decide whether the reporting requirement must satisfy the compelling interest test or a general balancing test.

On remand, the parties may develop evidence on a variety of relevant issues, including but not limited to the number of reports that psychotherapists have made regarding the possession or viewing of child pornography since the 2014 amendment; whether the reports have facilitated criminal prosecutions, reduced the market for child pornography, aided the identification or rescue of exploited children, or otherwise prevented harm to children; and whether there are less intrusive means to accomplish the statute's objectives. The parties may also introduce evidence on the extent to which the reporting requirement deters psychotherapy patients from seeking treatment for sexual disorders, inhibits candid communication by such patients during treatment, or otherwise compromises the practical accessibility or efficacy of treatment.

The dissent (Chief Justice Tani Cantil-Sakauye, joined by Justices Ming Chin and Carol Corrigan) disagreed on various grounds, but in particular had this to say about the likely efficacy of the law:

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Highly Recommended: Trader Joe's Nantucket Style Cranberry Pie


I bought it just to try, and I thought it was delicious. It's more a tart than a pie; the cranberries are sweet, sour, and flavorful, and the crust is moist, nutty, and buttery. If you have a TJ's around you, check it out (and at $5.99 for 16.5 oz, it's not a risky experiment).

Due Process

Arizona Court Reverses Expulsion of ASU Student for Threesome with Allegedly Too-Drunk Classmate

"Other statements by Complainant ... along with undisputed other evidence, entirely disprove her bare assertions that she was incapacitated."


An excerpt from Tuesday's Arizona Court of Appeals opinion, written by Judge Diane M. Johnsen and joined by Judges Kenton D. Jones and James B. Morse Jr:

[T]he issue of incapacitation is not whether, in hindsight, the person made a smart decision. Instead, it is whether the person had the cognitive ability at the time to make the decision for herself or himself. Put differently, a "rational judgment" in this context is not one that an observer would deem a "good judgment" but instead is one made by a person who is able to comprehend the nature and consequences of the matter….

In sum, the undisputed evidence of what happened in the bedroom is that Complainant was not too intoxicated to actively participate in at least 20 minutes of strenuous sex. The same evidence also disproves her contention that she was too intoxicated to decline to participate in the sex at the outset.

Nor does the evidence support Rund's conclusion that Complainant lacked the capacity to say no. At the hearing, Complainant testified she was not able to say the words, "I don't want to have sex." To the contrary, the evidence is undisputed that at some point during the sexual encounter, she did tell Respondent and Participant to stop—and they did. Complainant also noticed that Participant was taking pictures with his cellphone and told him to stop doing so. Further, Complainant testified she was "more drunk going out of the room than [she] was going in." The only reasonable conclusion to be drawn from that admission is that if she was able to say she wanted to stop after some 20-25 minutes of sex, even though she was "more drunk" at the end than when the sex began, she had the capacity to say no in the beginning….

At oral argument, ASU argued evidence that Complainant may have made rational, informed judgments at the end of the encounter does not undermine the conclusion that, at a minimum, she was incapacitated at the outset. But the record belies any contention Complainant was incapacitated when the sex began. First, Complainant herself told police she was "coherent" at the time she entered the bedroom. In addition, as noted, after the fact she was quite capable of reporting specific details about the beginning of the encounter ….

[ASU Senior Vice President for Educational Outreach and Student Services, James] Rund found it compelling that, by Complainant's account, she had rejected an earlier attempt by Respondent to have sex with her that evening. As Rund put it, "I do not find it plausible that the Complainant would tell the Respondent she did not want to sleep with him and then subsequently and with no explanation agree to participate in intercourse with not just Respondent, but also with [Participant]. The only variable in circumstances was Complainant's consumption of seven shots of [v]odka."

Nothing in the evidence, however, shows that the vodka rendered Complainant incapable of deciding to change her mind. As Complainant acknowledged, when she and respondent first spent time together a couple of days before the gathering, she initially declared to him that they would not have sex, but then—free of any influence of alcohol—she willingly engaged in oral sex with him. [Footnote: … If she exercised her independent judgment to change her mind and engage in sexual conduct on the earlier occasion, it can hardly be said to be "[im]plausible" that she could not exercise her independent judgment to change her mind on the later occasion.]

Finally, Rund characterized the three-way encounter in the bedroom on the night in question as "outrageous behavior," and from that concluded Complainant would have participated only if she was incapacitated. But [Kendra] Hunter, the witness ASU called to testify about its investigation, testified that a reasonable person exercising free will could decide to participate in a "threesome."

In sum, a handful of statements by Complainant are the only evidence in the record supporting the conclusion that she was so drunk that she was incapacitated on the night in question. But other statements by Complainant—statements she made to police and under oath at the hearing—along with undisputed other evidence, entirely disprove her bare assertions that she was incapacitated.

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Today in Supreme Court History

Today in Supreme Court History: December 26, 1907


12/26/1907: Lonzo Bailey entered into written labor contract with the Riverside Corporation. This contract gave rise to Bailey v. Alabama (1911).

The White Court (1911)



Progress on Exclusionary Zoning, Regression on Rent Control

Many jurisdictions are alleviating housing shortgages by cutting back on zoning. Unfortunately, there is also a trend towards expanding rent control, which is likely to have the opposite effect.


The impact of exclusionary zoning.

Housing shortages caused by harmful government policy are a serious problem in many parts of the United States. The good news on this front is that many jurisdictions are making progress towards easing zoning restrictions that are the principal culprit behind many such shortages. After years of seeming stagnation, zoning reform is hot. The bad news, however, is that rent control is also gaining momentum. Even as zoning reform helps alleviate housing shortages, rent control is likely to make them worse.

At this time last year, I wrote about the growing momentum for cutting back on exclusionary in various parts of the country. That trend has continued in 2019. In July, the Oregon state legislature passed a law banning single-family home zoning requirements throughout most of the state, thereby enabling construction of multifamily housing in many areas where there are severe shortages. The city of Seattle has also made some progress here.

The Democratic takeover of the Virginia state legislature in November has led to consideration of a major zoning reform law in my home state. If it passes, it would legalize construction of duplex housing in any part of the state currently zoned for single-family homes, thereby expanding housing availability in the the increasingly expensive northern Virginia region. Other jurisdictions are also considering similar reforms.

A major reform bill stalled for a second time in the California state legislature earlier this year. But the very fact it had a real chance of success bodes well for the future, in a state that has some of the nation's most severe housing shortages.

These and other recent zoning reforms have mostly been passed in jurisdictions dominated by liberal Democrats. The political left has begun to take notice of and act on the broad agreement among policy experts that zoning is a major obstacle to affordable housing, and also excludes millions of people from job opportunities.  Zoning thereby harm both the excluded  workers themselves and the broader economy, which loses the additional productivity they would have provided.

If zoning restrictions make it difficult or impossible to build new housing in response to rising demand, basic economics 101 indicates that prices will go up, and many will be priced out of the relevant market. By contrast, the experience of cities like Houston shows that developers are more than capable of keeping up with rapid growth if they are allowed to build.

Part of the reason why recent zoning reform efforts have been led by liberals is that liberal jurisdictions tend to have  the most onerous zoning regulations in the first place. Still, credit should be given where credit is due. Many on the left are making a real effort to clean up this awful mess.

Republicans, by contrast, have often been on the wrong side of the issue lately, despite the near-universal criticism of zoning by free market economists and housing specialists. For example, the Oregon GOP opposed the recent zoning reform in that state. Some on the right oppose it based on fear that it might "urbanize" suburbs and allow more poor people to move there. On the other hand, Trump administration Housing and Urban Development Secretary Ben Carson - whom I'm no fan of on many other issues - deserves credit for his strong advocacy of cutting back zoning.

While the struggle is  far from over, there can be little doubt that we are making progress on the zoning front. That is excellent news.

Unfortunately, the good news on zoning is coupled with bad news on rent control. The same Democratic-controlled Oregon state legislature that recently passed a strong zoning reform bill also enacted a sweeping rent control law earlier this year. California and New York has also enacted  major new expansions of rent control this year. After a long period during which rent control seemed largely moribund, it has once again become a major cause of much of the political left. Bernie Sanders, the favorite presidential candidate of the growing "democratic socialist" wing of the left, has even called for the enactment of a national rent control law.

The expert consensus against rent control is at least as broad as that in favor of zoning reform. Economists across the political spectrum overwhelmingly oppose it. Expert critics of rent control range from the very liberal Paul Krugman on the left to Thomas Sowell on the right. The issue is often used in introductory economics classes as an example of a question on which nearly all economists can agree.

That consensus arises from the simple point that, if landlords cannot raise rent in response to growing demand, they are likely to put fewer rental properties on the market. For similar reasons, rent control is likely to reduce new construction in high-demand areas, and also lead to worse maintenance of existing properties. Real-world evidence backs up these theoretical predictions. Stanford economist Rebecca Diamond summed up the results of recent studies on the subject in an article published by the liberal Brookings Institution last year:

Rent control appears to help affordability in the short run for current tenants, but in the long-run decreases affordability, fuels gentrification, and creates negative externalities on the surrounding neighborhood. These results highlight that forcing landlords to provide insurance to tenants against rent increases can ultimately be counterproductive.

While current tenants get a windfall (at least in the short run), rent control reduces the availability of housing for everyone else, and also reduces economic growth by excluding people from areas where they could find new job opportunities and become more productive. Its effects are actually similar to those of exclusionary zoning. Thus, regression on the rent control front could well offset some of the progress being made on the zoning front, especially in cases - like Oregon - where the same jurisdiction pursues both agendas, despite the contradiction between them.

In addition to having opposite effects on housing shortages, zoning reform and rent control are also based on opposing assumptions about the way housing markets work. The former relies on the assumption that increasing demand will lead to increasing supply, so long as the government allows new construction to occur. In short, market incentives work. Increases in demand lead to increases in price, which in turn incentivizes new production, thereby alleviating shortages and - eventually -reducing prices.

By contrast, rent control implicitly assumes that landlords and developers will not cut back on the quantity and quality of housing, even if prices are artificially lowered by government intervention. For this to work, either market participants must be irrationally indifferent to prices and profits, or there must be some sort of unusual market failure that makes supply insensitive to demand. Neither scenario is plausible. The many liberal Democrats who oppose exclusionary zoning while simultaneously favoring rent control are implicitly making self-contradictory economic assumptions. In one area, they accept basic Economics 101; in the other, they utterly reject it.

I am tempted to say that simultaneous revival of zoning reform and rent control is a prototypical example of the left hand undermining what the right hand is doing. But, in this case, it is really the left hand working at cross-purposes with itself, since it is the political left that has been the biggest driving force behind both developments. Hopefully, they will resolve the inconsistency in the direction of embracing good economics across the board. That means opposing both rent control and exclusionary zoning.

UPDATE: Matthew Yglesias has a valuable article on the emerging politics of zoning at Vox, here, which came out a couple days after this post.



New York legislature enacted a bill to allow all federal judges to officiate at Weddings. Governor Cuomo vetoed the bill because Trump

The current law may violate the Dormant Commerce Clause.


In New York, a wide range of people can perform marriages, including clergy, elected officials, state judges, and federal judges within the Second Circuit--that is, from New York, Connecticut, and Vermont. The New York legislature passed a bill that would allow all federal court of appeals and federal district court judges to perform weddings. However, Governor Andrew Cuomo vetoed the bill, with this message:

"This bill amends the Domestic Relations Law to expand the number of federal court judges who may perform marriage ceremonies in New York. I cannot in good conscience support legislation that would authorize such actions by federal judges who are appointed by this federal administration. President Trump does not embody who we are as New Yorkers. The cornerstones that built our great State are diversity, tolerance, and inclusion. Based on these reasons, I must veto this bill. Based on these reasons, I must veto this bill. [JB: Yes, the same sentence was repeated twice.] The bill is disapproved."

The approved bill would not have applied only to Trump-appointed judges. It would have allowed all federal judges to officiate at weddings. Yet, Governor Cuomo felt compelled to veto the bill, because the judges appointed by President Trump are not consistent with "diversity tolerance, and inclusion."

I have doubts about whether the current law is even constitutional. Co-blogger Ilya Somin opined on a similar law from Virginia, in which secular wedding officiants must be state residents. That is, state and federal judges from Virginia could officiate at weddings. But ministers of any faith can officiate, regardless of where they reside. Ilya suggested that this law may run afoul of the Dormant Commerce Clause:

The law might also be vulnerable to challenge under the Dormant Commerce Clause, which forbids state discrimination against out of state sellers of goods or services. Some wedding officiants charge for their services, and there is something of a competitive market in this industry. By banning nonresident secular officiants, Virginia explicitly protects in-state officiants against out of state competition. Although Dormant Commerce Clause law is in a state of flux, such "facial discrimination" against nonresident competitors is clearly prohibited by Supreme Court precedent.

The New York law is even more irrational than the Virginia law. Generally, dormant commerce clause challenges involve laws that limit certain jobs only to in-state residents. The argument goes that the state has some legitimate interest in keeping certain functions local. But under the current regime, federal judges from New York, as well as Connecticut and Vermont can officiate at weddings; they reside in states within the Second Circuit. New York has no control, whatsoever, over Connecticut and Vermont judges. Moreover, federal judges from nearby New Jersey or Pennsylvania, for example, are prohibited. I doubt anyone would challenge this law. It is easy enough to find an officiant in state.

Two related anecdotes.

First, Justice Kennedy refused to officiate at weddings. Why? He offered these remarks in 2013, shortly after Windsor was decided:

However, speaking earlier this month at the University of California Washington Center, Justice Kennedy said the affianced -- whether gay or straight --would have to find someone else to do the honors.

"I have a rule: I don't do weddings," Justice Kennedy said. The reason has to do more with another doctrine he has championed: federalism.

"I have a theory that federal judges can't take authority from state laws," including those that regulate family relations, he said.

Still, on this matter, the Supreme Court's swing vote emphasized his own judicial modesty. "I can't figure out whether it's a valid theory or not," he said.

Second, Justice Scalia planned to officiate at Bryan Garner's wedding in Rhode Island. But state law generally prohibited out-of-state judges from officiating. As a result, Garner had to arrange for the enactment of a bill in the state legislature to allow Scalia to preside. Garner discusses this story in Chapter 10 of Nino and Me 

We pressed our Rhode Island contact, who told us that we must have a special bill enacted by the Rhode Island Legislature authorizing Justice Scalia to conduct the ceremony. Only one day was left in which this could be accomplished, but our contact assured us that they would get it done. In the end, we learned that there was actually debate on the floor of the legislature about the matter. A Republican (!) legislator had stood up and said, "We don't need an out-of-state judge coming in to Rhode Island to perform a wedding! We have plenty of able judges in this State." Fortunately, his opposition was summarily squelched. Meanwhile, just as the bill was being voted on, I received an e-mail from Justice Scalia: "No reply regarding my authorization under Rhode Island law. Should I start worrying? Nino." We were all relieved when we got news that the legislative resolution had passed—only five days before the ceremony.