Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
The discussion at today's AI Liability conference reminds me of one of my favorite stanzas from a poem (Kipling's Hymn of the Breaking Strain):
The careful text-books measure
(Let all who build beware!)
The load, the shock, the pressure
Material can bear.
So, when the buckled girder
Lets down the grinding span,
The blame of loss, or murder,
Is laid upon the man.
Not on the Stuff — the Man!
The rest of the poem, to be sure, isn't about tort liability.
I'm participating in this in-person event today at the Georgetown Law Center in D.C., and Lawfare is posting the articles here (the link also includes some other pieces on related topics). The articles all look very interesting; mine in particular is on AI and the First Amendment—readers of the blog might find it familiar, since it's based on past articles (including one cowritten with Mark Lemley and Peter Henderson), but it might still be a helpful shortish digest of those longer articles.
The Court's decision to overturn Chevron should be seen as more of a "course correction" than a revolution. (Updated with Video.)
Yesterday Justice Brett Kavanaugh spoke at Catholic University's Columbus School of Law as part of a program sponsored by the Center for the Constitution and the Catholic Intellectual Tradition. His remarks came in the form of an interview with Professor Joel Alicea.
As Bloomberg's Lydia Wheeler reports, the Justice had some interesting things to say about how to understand the Court's decision dispatching with Chevron deference in Loper Bright Enterprises. In particular, the Justice characterized the decision as "a course correction consistent with the separation of powers to make sure that the executive branch is acting within the authorization granted to it by Congress."
From the Bloomberg report:
"To be clear, don't over read Loper Bright," Kavanaugh said, while speaking at Catholic University of America Columbus School of Law in Washington on Thursday. "Oftentimes Congress will grant a broad authorization to an executive agency so it's really important, as a neutral umpire, to respect the line that Congress has drawn when it's granted broad authorization not to unduly hinder the executive branch when performing its congressional authorized functions, but at the same time not allowing the executive branch, as it could with Chevron in its toolkit, to go beyond the congressional authorization ."
This is consistent with my initial analysis of the decision.
In his remarks, Justice Kavanaugh seemed to confirm that the Court's majority was concerned about the increasing tendency of federal agencies to try and pour new wine out of old bottles and stretch pre-existing statutory authorizations into new areas. During the Bush Administration, Kavanaugh said "he saw firsthand how hard it is for presidents to get big legislation through Congress and the pressure there is on the agencies to 'push the envelope,' when it comes to regulating, which Chevron facilitated." In this regard, Loper Bright Enterprises can be seen as of a piece with the Court's major questions doctrine decisions that likewise seek to prevent agencies from exceeding the bounds of their delegated authority. (One might even say they combine to make something of a "delegation doctrine.")
Law.com also reported on Justice Kavanaugh's remarks.
UPDATE: Video of Justice Kavanaugh's remarks has now been posted. The discussion of Loper Bright occurs approximately 12 minutes in.
A sample list of reforms to reduce failures of justice.
This is the final post in a five-part series where we're guest blogging about our new book Confronting Failures of Justice: Getting Away With Murder and Rape, available here. In the previous posts we considered the frequency of failures of justice (instances of unpunished or inadequately punished crime), their costs, and the problem of balancing competing societal interests in criminal justice policy. Identifying problems is important, and our book identifies numerous problematic areas of the justice system where serious criminals either completely escape conviction or escape what society would see as a just punishment.
However, we also offer reform ideas for what a better balance of societal interests might look like in each area of the justice system. While we describe or suggest dozens of possible reforms to reduce failures of justice, consider an excerpt from the book listing ten reforms (not by order of importance) we think policymakers should particularly consider.
[1.] Abolish the Statutes of Limitation for Serious Felonies, and for Other Felonies Restart the Limitation Clock after Any New Felony (chapter 2). As discussed in chapter 2, while statutes of limitation might have had more justification when introduced centuries ago, the reasons for their continued use are lacking, especially when they regularly produce failures of justice for serious offenses.
[2.] Adopt a Fair Import Test in Place of a Strict Construction Test, after Adopting a Modern Criminal Code Format (chapter 2). As with statutes of limitation, the rule of strict construction might have made sense back when it was first adopted, but the advent of modern criminal codes with their careful drafting and defined terms have left it with little continuing justification.
[3.] Adopt a Desert-based Distributive Principle, as per the Model Penal Code (chapter 3). Half a century ago, when the Model Penal Code was first drafted by the American Law Institute, the state of criminal law theory left it unsettled as to whether criminal law ought to be primarily aimed at doing justice—giving offenders the punishment they deserve, proportionate to the seriousness of the offense and the blameworthiness of the offender—or in the business of avoiding future crime through general deterrence or incapacitation of the dangerous, even if doing so meant violating principles of deserved punishment. But as the 2007 amendment of the Model Code illustrates, it has now become clear that abandoning desert as the guiding principle for criminal liability and punishment creates its own enormous costs to effective crime control.
9/27/1787: First Anti-Federalist letter by "Cato" is published.
What's on your mind?
The N.J. intermediate appellate court held such publication wasn't protected by the First Amendment law; the state high court just agreed to reconsider that. The question presented is,
Is Daniel's Law, N.J.S.A. 56:8-166.1 and N.J.S.A. 2C:20-31.1, which prohibits disclosing the home addresses of certain public officials, including judges, prosecutors, and law enforcement personnel, unconstitutional as applied to plaintiff?
Here's an excerpt of the lower court opinion, Kratovil v. City of New Brunswick:
Plaintiff is a journalist who writes for and edits New Brunswick Today, an online publication…. Defendant Caputo is a retired police officer who then became Director of the City's Police Department. Caputo was also a Commissioner of the City's Parking Authority. He served in both those positions through 2023 and retired from those positions in early 2024.
In 2023, plaintiff noted that Caputo was not attending City Council meetings, nor was he regularly attending Parking Authority meetings in person. On March 14, 2023, plaintiff sent Caputo an email asking if Caputo still lived in the City. The Deputy Director of Police responded on Caputo's behalf, stating, in relevant part: "The public release of a law enforcement officer's place of residence is protected under Daniel's Law."
Plaintiff came to believe that Caputo was living in Cape May. To confirm that belief, plaintiff filed a request under the Open Public Records Act (the OPRA) with the Cape May County Board of Elections (the Cape May Board), requesting Caputo's voter profile. Initially, the Cape May Board provided a redacted version of Caputo's voting profile to plaintiff in March 2023. After follow-up communications from plaintiff, in April 2023, the Cape May Board produced a voter profile with fewer redactions. That voter profile included Caputo's home address.
At meetings of the City's Parking Authority and the City Council conducted on March 22, 2023 and April 5, 2023, respectively, plaintiff asked if Caputo still lived in the City. Neither Caputo nor anyone else from the City definitively responded to plaintiff's question.
On May 3, 2023, plaintiff attended another City Council meeting…. During the public comment portion of the meeting, plaintiff discussed Caputo's change of residence, that Caputo's residence in Cape May was approximately a two-hour drive from the City, and that Caputo was serving on the City's Parking Authority even though he was a non-resident. During that discussion, plaintiff stated the street name in Cape May where Caputo was registered to vote. He also provided City Council members with copies of Caputo's voter profile, which included Caputo's complete home address.
New York City requires a showing of "good moral character" to be issued a rifle and shotgun permit. In Srour v. New York City (2023), the Southern District of New York enjoined the enforcement of the "good moral character" requirement and a separate "good cause" requirement. I posted on the decision here.
After filing its appeal, the City adopted definitions of those previously-undefined terms, Srour reapplied, and the City granted the permit. On September 9, the Second Circuit held that he was granted the relief he sought, rendering the case moot and removing jurisdiction to hear the merits.
The City had based Srour's denial on his prior arrests (without convictions) and "derogatory" driving record. On the same day that Srour moved for summary judgment, the City adopted a definition of "good moral character" as "having the essential character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others." It also repealed the "good cause" requirement.
Following the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen (2022), the district court found the character requirement facially unconstitutional, as the City had "not identified any historical analogue for investing officials with the broad discretion to restrict someone's Second Amendment right based on determining the person to lack good moral character." Srour then reapplied for a permit. Meanwhile, the City appealed.
How should society balance competing interests in criminal justice policy?
This is the fourth in a five-part series where we're guest blogging about our new book Confronting Failures of Justice: Getting Away With Murder and Rape, available here. In the previous posts we examined the frequency of failures of justice and their costs. Good public policy (including legal rules) needs to balance competing societal interests, and this is particularly true in the realm of criminal justice where lives are on the line. But as we argue in our book, many aspects of the legal system reflect an archaic or miscalculated balance of interests that needlessly frustrates justice.
For example, do statutes of limitation for rape make sense in a world with DNA evidence and untested rape kits? Should a serial killer really escape justice because a court suppressed all the evidence after concluding a traffic stop went on too long? Should courts even be the ones making such a rule?
One reason why many criminal justice rules are poorly balanced from the perspective of doing justice is that there was no attempt to make a nuanced calculation of societal costs and benefits—merely an effort by judges to create or apply a rigid rule. Indeed, a theme that emerges from studying the causes of failures of justice in the legal system is that judge-made criminal justice policy is rarely well-made criminal justice policy. Here are some excerpts from the book considering the question of balancing societal interests and who should do that balancing.
There are almost always some legitimate interests that can be identified in support of justice-frustrating rules or practices. Thus, rational policymaking cannot simply demand exclusive focus on doing justice but rather must balance competing societal interests. That said, the analyses in previous chapters suggest that the balance of societal interests in current rules and practices is commonly skewed and much in need of rational and thoughtful rebalancing. Even the interpretation of constitutional rules represents a balancing of interests—by judges—that is sometimes explicit and sometimes implicit. A proper balancing of interests is likely to produce more compromise policies than the partisans of a particular issue might like. On the issue of privacy, for example, a proper balancing of interests reflecting society's preferences would likely satisfy neither extreme privacy advocates nor extreme justice proponents.
9/26/1986: Chief Justice Warren Burger resigns.
A new study shows it is widespread on several issues, in ways that bolster restrictionism.
Widespread political ignorance is a serious problem that both major-party presidential candidates are trying to exploit. A recent survey by the Kaiser Family Foundation finds extensive ignorance on the key issue of immigration. The study finds large numbers of people believe misinformation about immigration, while rejecting true statements about it.
For example, 51% believe it is "definitely true" or "probably true" that "Immigrants are causing an increase in violent crime in the U.S" (48% say this is definitely or probably false). In reality, immigrants, including undocumented immigrants, have much lower violent crime rates than native-born citizens. Similarly, 44% believe it is "definitely true" or "probably true" that "Immigrants are taking jobs and causing an increase in unemployment for people born in the U.S" (56% think this is definitely or probably false). Most economists conclude that immigration does not increase unemployment among natives, and deportation of undocumented immigrants actually destroys more jobs for native-born workers than it creates than it creates (see also here).
The KFF study also finds that 59% believe it is false or probably false that "Undocumented immigrants pay billions of dollars in U.S. taxes every year" (40% think it is true or probably true). The truth is undocumented immigrants pay almost $100 billion in taxes per year, most of that going to the federal government.
The KFF survey does find respondents overwhelmingly get one point right: 84% believe it is "true" or "probably true" that "[i]mmigrants help fill labor shortages in certain industries like agriculture, construction, and health care." These are indeed all industries where immigrants are major contributors. A recent study finds that deportation of undocumented migrants reduces housing construction and thereby increases housing costs. Immigrants are also disproportionately represented in health care, filling many critical needs. The same is true in agriculture.
There is a possible flaw in the KFF crime question. I think the intent of the question and the way most readers probably interpret it is to ask whether immigration increases the crime rate. But, read literally, it could potentially be interpreted as asking whether immigrants commit any violent crimes at all. If a million immigrants come in and even one commits a violent crime, that could be considered an "increase" in violent crime in the sense that it increases the total number of violent crimes committed on US soil, even if the crime rate goes down substantially. I suspect most respondents are not interpreting the question that way. If they were, we would not see a massive partisan split in responses, with the vast majority of Republicans saying immigrants do increase violent crime, while most Democrats take the opposite position. Almost everyone presumably recognizes that some immigrants (like some members of virtually any large group) do commit violent crimes, even if the rate is low. But it's possible that the result here is skewed by a minority of respondents interpreting the question very literally, and thereby giving different answers than they would if they realized it was about crime rates.
Previous studies also find widespread ignorance on immigration policy issues, including the number of immigrants (voters tend to greatly overestimate it), their crime rate (ditto), and more.
Overall, public ignorance about immigration likely increases restrictionist sentiment. If many people realized that immigrants have low crime rates, pay more into the public fisc than they take out, and do not increase unemployment, public opinion would likely shift in a more pro-immigration direction. These false perceptions aren't the only possible justifications for immigration restrictions. But they are important considerations for many voters.
Obviously, there are other issues where ignorance skews public opinion in a more left-wing direction. Left-wing voters are far from immune to ignorance and bias. But that in no way mitigates the harm caused by ignorance on the right (and vice versa). Ultimately, political ignorance is a widespread problem on both sides of the political spectrum. It leads to both parties offering worse policies than they likely would otherwise.
There is no easy solution to the problem of political ignorance. But I assess a range of possible options in a recent article on "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance, and in my book Democracy and Political Ignorance: Why Smaller Government is Smarter.
(1) the particular plaintiffs, who wore masks for health reasons, were excluded from the ordinance's operation, and (2) the risk that officials would misapply the ordinance to them wasn't sufficient to give them preenforcement standing.
Today's decision by Judge Joan Azrack (E.D.N.Y.) in G.B. v. Nassau County dealt with a challenge to Nassau County's Mask Transparency Act, which generally makes it a misdemeanor to wear "any mask or facial covering whereby the face or voice is disguised with the intent to conceal the identity of the wearer" in "any sidewalk, walkway, alley, street, road, highway or other public right-of-way or public property or private property without the consent of the owner or tenant." The Act also expressly excludes, among other things, "facial coverings worn to protect the health or safety of the wearer."
Plaintiffs challenged the Act, arguing that they were disabled and needed to wear a mask for medical reasons:
Plaintiffs … have disabilities. S.S. has common variable immunodeficiency, kidney disease, respiratory impairments, and post-viral syndrome. G.B. has cerebral palsy, asthma, and uses a wheelchair for mobility. Plaintiffs' disabilities increase their risk of serious side effects and death from airborne illnesses. "Since the COVID-19 pandemic," Plaintiffs have worn masks when they leave their homes "to protect [themselves] from illness."
And that, the court concluded, meant they lacked standing to challenge the law:
Plaintiffs fail to sufficiently demonstrate that their "intended future conduct is 'arguably proscribed by the statute' they wish to challenge." … Plaintiffs wear masks to protect themselves from illness. That is expressly excluded from the MTA's reach by its health and safety exception. Plaintiffs also do not wear masks in the manner proscribed by the MTA, namely, "with the intent to conceal the identity of the wearer." Plaintiffs "lack standing to challenge the [MTA] because, simply put, it does not apply to them."
Nor could they prevail on the theory that the law would be "misapplied or ignored by law enforcement:
The property has remained empty for almost twenty years, after the Supreme Court's controversial ruling upholding its condemnation to promote "economic development."
Last year, I wrote about how there might finally be some development on the site of the property condemned as a result of the Supreme Court's 2005 ruling in Kelo v. City of New London, the controversial 5-4 decision in which the justices ruled that the condemnation of homes for private "economic development" is permissible under the Takings Clause of the Fifth Amendment, which only allows takings for a "public use." In January 2023, Renaissance City Development Association (the private nonprofit development firm formerly known as the New London Development Corporation, which took ownership of the property after it was seized by eminent domain) sold the condemned land to a developer, which was planning to build new housing on it. Up to that point, the only regular users of the condemned land since the last homeowners were forced out were a colony of feral cats. The supposedly carefully planned development project that justified the condemnations fell through, as also did a number of later proposed uses for the land.
The New London Day, recently reported that the development project is going ahead, but the city has given the developer a hefty $6.5 million tax break to facilitate it:
The City Council late Monday [Sept. 16] approved nearly $6.5 million in tax breaks over 20 years to a developer planning to construct 500 new apartments on two sections of the Fort Trumbull peninsula that have sat vacant for more than two decades.
The fixed tax agreement with RJ Development + Advisors, LLC, approved by a 5-2 vote, would offset about half the $13 million in estimated pre-construction costs needed to meet flood plain requirements and address remaining remediation and other sub-surface issues at the two sites.
In exchange, the city would receive approximately $18 million in tax revenue over the 20-year period of the agreement on parcels that Mayor Michael Passero noted have sat fallow and not producing taxes for a generation.
The vote was preceded by testy exchanges between council members and emotional rhetoric that referenced the peninsula's dark past as a national symbol for eminent domain.
A large swath of the Fort Trumbull area was left undeveloped after a controversial demolition and development push by the former New London Development Corp. That led to the landmark 2005 U.S. Supreme Court eminent domain decision, Kelo v. New London.
Passero, who called that decision a debacle that left the land an "open sore," said the housing project would serve as a salve to "help heal the wound."
Councilors Jefferey Hart and John Satti, who both voted against the tax agreements, echoed concerns raised by several citizens earlier in the meeting, including the prospect of giving a sweetheart deal to a developer who stood to make millions from a project being subsidized on the backs of taxpayers.
"It's important to show resistance to people offering you a bad deal," Hart said. "There's a lot of assumptions that no other developer is willing to take on this project (without a tax break)."
But Felix Reyes, the city's director of planning and economic development said no other viable investor has stepped forward since the property became marketable. Reyes acknowledged the trauma suffered by former residents of the peninsula and the "cruel things done" there as part of the city's effort to attract private development.
"There's no line out the door of developers willing to tackle this project," Reyes said, adding any such firm would face the same pre-construction costs as RJ Development, including a requirement to build the complexes on raised platforms.
Like most property scholars and land-use economists, I am skeptical of the value of targeted tax breaks and subsidies like this one. The better approach to promoting development is to have a good business climate across the board - and respect property rights. Also, projections of the benefits of such taxes and subsidies are often exaggerated. I am skeptical that the City will really get the promised $18 million in tax revenue.
Of course, the projected benefits of "economic development" takings like the one upheld in Kelo are also routinely exaggerated. There are few better examples than the Kelo condemnations themselves. Even if this new development project is a complete success, that would not be a vindication of the original Kelo takings. As I explained in my previous post on this topic:
Since 2005, several efforts to redevelop the condemned land have fallen through. Hopefully, this one will succeed. But even if it does, I don't think it will somehow vindicate the Kelo condemnations. The new development initiative is obviously different from the badly misconceived plan that led to the use of eminent domain over twenty years ago. Moreover, by the time any construction is completed, the land will have lain unused (except by feral cats!) for nearly twenty years. From the standpoint of promoting development, that's an enormous waste.
The region would almost certainly have been better off economically if the original owners had been allowed to keep living there, paying property taxes, and contributing to the local economy. And that doesn't even consider the enormous pain and suffering the original development project inflicted on those who lost their homes (including some who sold them "voluntarily" as a result of harassment and the threat of eminent domain).
I would add that if the City had simply left the property owners alone, they would not have had to give anyone targeted tax breaks to develop the land.
Unless you're one of the feral cats living on the property, it's hard to justify the Kelo takings!
I covered the history of the condemnation process and the harm it inflicted in depth in The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, my book about the Kelo case and its aftermath. In that book, I also explained why the Supreme Court's ruling was wrong from the standpoint of both originalism and living constitutionalism.
An interesting incident, which led to a National Labor Relations Board decision (CORE & Rojas) Sept. 20. First, an excerpt of the facts involving Community Organized Relief Effort, a charity co-founded by noted actor Sean Penn (known in part for his past anger management problems):
On January 29, 2021, the New York Times (NYT) published an article about [a COVID] Vaccination Day event [organized at Dodger Stadium by the L.A. Mayor, and staffed by, among others, some CORE employees]. The article detailed what occurred during the event and included interviews with various individuals, participating organizations, and others that attended and/or worked the event.
After that, two anonymous commenters, who either were CORE employees or at least were so perceived by Penn, posted:
[1.] I work at the Dodger Stadium site and this article is inaccurate. The line about no honking cars is true. However, I had patient after patient yelling and complaining about the four hour wait and lack of restrooms. Sure, no one honked their horn, but a driver threatened to run over one of our staff members unless he let them on site. What the article does not mention is that we have staff working 18-hour days, 6 days a week, without the backup coverage to be able to take time off. This is an OSHA violation and it exists because the mayor ordered that we transition from a test site to a vaccination site in less than a week. If we had more time to transition, we wouldn't have staff working these hours without the opportunity to take breaks - they are schedulers and are essential to the function of the site. Without them, we wouldn't be vaccinating. The mayor more or less ordered an OSHA violation. There is a shipping container on site that is a designated space for overworked staff to go cry in. If you're not let into this shipping container, it's because staff are crying inside. Garcetti created these conditions and looks like a hero for it. Additionally, Garcetti got to skip the line for vaccine doses. Our staff wait in a queue to receive drawn vaccines. Garcetti went to the front of the line every time and the patients in his line received expedited service. Additionally, the line about his phone number is a violation of our policies - no one gets special treatment.
[2.] I am working on the ground at Dodger. We do NOT get krispy kreme for breakfast. In fact, we usually DON'T get breakfast, just coffee. And the lunch is NOT subway. It's the same old lettuce wraps every clay. It's free lunch for staff/volunteers so I'm not complaining but still…not subway. Also, it's NOT wifi issues with the [iPads]. It's server issues/bugs with the Carbon. Health server that we are using to log people in. Other websites will load and the iPads work perfectly fine, but the Carbon Health app/site is still in beta and is EXTREMELY buggy and slow. Someone told me once they checked in 3 patients in 55 minutes because of how slow the Carbon website was. Lastly, the day the line was over 4 hours long was because the mayor decided to let over 1,000 police officers cut the line and get vaccinated without an appointment, throwing the entire system off. On a typical day the line will not be that long.
The administrative law judge concluded that this may have constituted "complaining about their terms and conditions of employment," which is protected by labor law against employer retaliation.
After the comments, Penn either wrote or had CORE's CEO write this email:
New guidance makes explicit what should have been clear already: Standard 208 obligates law schools to embrace First Amendment principles.
Last February, the American Bar Association adopted a new accreditation standard on academic freedom and freedom of expression: Standard 208. Under this standard, all law schools are required to protect academic freedom and freedom of expression as a condition for their accreditation. This was a "step forward" for free speech and open inquiry at American law schools.
Standard 208 obligates law schools to "protect the rights of faculty, students, and staff to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations, or protests," among other things. The clear implication of the standard's language (and accompanying interpretations) was that law schools should be expected to provide speech protections consistent with the First Amendment. In other words, private law schools and public law schools would be expected to meet the same standard (with appropriate accommodation for those schools with religious or other credal commitments). Alas, some private universities resisted this interpretation.
A new guidance memo from the ABA further explicates the reasons for adopting the new standard and makes explicit that Standard 208 incorporates First Amendment principles.
On the Standard's purpose:
Standard 208 was created to strengthen academic freedom and freedom of expression protections, as Standard 405(b) required a law school only to have "an established and announced policy with respect to academic freedom" and did not specifically require that a law school adhere to its policy on academic freedom. The Council believes that the development of the law and effective legal education require free and robust inquiry, exposition, and exchange of ideas and states this conviction in Interpretation 208-6 where it also explains that "becoming an effective advocate or counselor requires learning how to conduct candid and civil discourse in respectful disagreement with others while advancing reasoned and evidence based arguments."
Part 208(c) of the standard notes that the law schools may adopt some restrictions on expression. As the guidance memo makes clear, the ABA understands this language to track the contours of existing First Amendment doctrine.
The Council recognizes that the Standards it has prescribed for academic freedom and freedom of expression may involve discretion and interpretation of unresolved areas of the law. Subsection (c) seeks to address certain of these areas and to confirm the law school's substantial discretion to regulate or restrict academic freedom or expression within them. As provided in Interpretation 208-5, Subsection (c) will be interpreted consistent with the First Amendment of the U.S. Constitution. In areas where First Amendment law is unclear or debatable, the Council will likely find any policy arguably consistent with First Amendment doctrine to be compliant, unless and until the law school's policy (or one substantially similar to it) has been found inconsistent with the First Amendment in a judicial proceeding following the exhaustion of any available appeals. To the extent that this occurs, the law school will be expected to change its policy to be consistent with the First Amendment. This approach gives schools the maximum flexibility to adopt and adhere to policies that they find appropriate, whether articulated in a general or more detailed manner, so long as they comply with applicable constitutional law.
As I have noted before, there are prudential reasons why private law schools should embrace First Amendment standards on speech and expression. The new guidance makes clear that they have an obligation to do so as well.
An important case on the particularity of digital-evidence warrants.
Back in March, I had a long post here, Yes, Warrants Allow A Search Through the Whole Phone, criticizing a Michigan Court of Appeals ruling in People v. Carson. My post began:
As regular readers know, one of the big issues in computer search and seizure law that I often write about is how to limit computer warrant searches. If everything needs to be searched to find the evidence, and information outside the scope of the evidence sought can be used in plain view, doesn't a search of a computer with a warrant result in a general search — the kind that the Fourth Amendment was enacted to prevent. My own answer to this puzzle is that the Fourth Amendment requires use restrictions for digital searches. The whole computer can be searched, but evidence outside the scope of the warrant cannot be used.
In the last year or two, however, a few state courts have tried to limit computer searches through novel interpretations of the particularity requirement. I think this is wrong, and I thought I would explain why.
I'm pleased to report that the state sought review of the ruling from the Michigan Supreme Court, and that today the Michigan Supreme Court agreed to hear the case:
On order of the Court, the application for leave to appeal the February 15, 2024 judgment of the Court of Appeals is considered, and it is GRANTED. The parties shall address whether the Court of Appeals erred by: (1) holding that the warrant to search the defendant's cell phone violated the Fourth Amendment's particularity requirement, see People v Hughes, 506 Mich 512, 538 (2020); (2) failing to sever any valid portions of the search warrant from any invalid portions, see People v Keller, 479 Mich 467, 479 (2007); (3) holding that the good-faith exception to the exclusionary rule did not apply, see People v Goldston, 470 Mich 523, 531 (2004), discussing United States v Leon, 468 US 897, 923 (1984); and (4) finding that trial counsel deprived the defendant of his right to the effective assistance of counsel by failing to move to suppress the evidence obtained from his cell phone on these grounds, see Strickland v Washington, 466 US 668, 687-688 (1984).
As always, stay tuned.
"The case is REMANDED with instructions to vacate the preliminary injunction and for further proceedings consistent with the majority opinion of the court."
Last month I wrote about Judge David Ezra's worrying behavior in the Buoy Case. I won't even attempt to rehash the unusual hijinks in his court. Rather, for present purposes, it is enough to recount how Judge Ezra was perplexed about why the en banc Fifth Circuit reversed him. He cited "chatter" from "law professors" who doubted whether Judge Willett's opinion was actually a controlling majority opinion.
On Monday, the en banc Fifth Circuit finally issued the mandate in the Buoy Case, with a two-sentence message for Judge Ezra:
IT IS ORDERED and ADJUDGED that the district court's order granting a preliminary injunction is REVERSED, and the case is REMANDED with instructions to vacate the preliminary injunction and for further proceedings consistent with the majority opinion of the court. The stay pending appeal is DISSOLVED.
In other words, RTFM. No, not that RTFM. Rather, Read The Following Majority opinion. I have never seen a mandate like this before. Mandates are usually boring documents that contain nothing of substance. But there is a clear signal here
Short and succinct, the Fifth Circuit says loud and clear that there is a "majority opinion of the court." And it is Judge Willett's opinion. All members of the Fifth Circuit agree on that much. This should not have been difficult. Chief Judge Richman's concurrence refers to Judge Willett's opinion as the "majority opinion." Judge Douglas's dissent refers to Judge Willett's opinion as the "majority opinion." When all of the members of the court label an opinion a "majority opinion," it is a majority opinion. But that message did not get through to Judge Ezra. Now, perhaps, the mandate will make that clear.
Judge Ezra's confusion seems to stem from the relationship between Judge Willett's majority opinion, and the concurrences from Judges Richman and Ho. It is true that Judge Richman did not join Judge Willett in all regards. But Judge Ho thought the federal suit was defeated by the U.S. Constitution. Indeed, Judge Ho also found that the district court lacked jurisdiction. In any case where Judge Willett would rule for Texas, so would Judge Ho. The upshot is that a majority of the en banc court said a PI cannot be granted. That much was clear in July, and it is crystal clear today. Judge Ezra should promptly issue a judgment in favor of Texas, and let Solicitor General Prelogar file her certain-to-be-granted cert petition so it can be granted before the inauguration. Move along.
Again, for all the outrage about rogue judges in Amarillo and Fort Worth, the eyes of Texas should be upon Judge Ezra.
From Holt v. Gray Television, Inc., decided Friday by Chief Judge David Proctor (N.D. Ala.):
This action arises from Plaintiff's arrest on January 7, 2021. Plaintiff was charged with three counts of child pornography—that is, sending, receiving, and possessing child sexual abuse material. Plaintiff alleges that, on that same day, Defendants reported this information on WTOK TV and posted it on their website. On September 15, 2022, Plaintiff's charges were dismissed. Plaintiff alleges that he contacted Defendant Harms, provided proof that the charges had been dismissed, and requested that the story on his arrest be removed or updated. Plaintiff further alleges that Defendant Harms refused to update the story or take down the information that had been posted on the website.
At the time of his arrest, Plaintiff alleges that he was a candidate for Ward 2 City Councilman for the City of Meridian, Mississippi. He also alleges that he was a political activist, and had a podcast called "Reaching Out With Eddie," where he exposed the "illegal acts and wrong doing of government officials, city officials, politicians, and the law enforcement community." …
Plaintiff sued for defamation, but the court rejected the claim; here is part of the reasoning:
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