The Volokh Conspiracy

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

The Volokh Conspiracy

Affordable Housing

New Study on How to Address Public Ignorance About Housing Policy

New data shows that "housing supply skeptics" can be persuaded by evidence showing that allowing more construction reduces prices. But not clear this is a good road map for addressing the problem of public ignorance in the real world.

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Wooden block homes with a ban sign
Andrii Yalanskyi/Dreamstime.com

Exclusionary zoning regulations that severely restrict housing construction are a major cause of the housing shortages besetting large parts of the United States. The standard explanation for why these rules persist is self-interested voting and lobbying by NIMBY ("not in my backyard") homeowners who want to keep housing prices high in order to protect the value of their own property. But evidence increasingly indicates that much of the political support for exclusionary zoning actually comes from people - both renters and homeowners - who simply don't understand basic economics and therefore do not realize that increasing housing construction is likely to reduce housing costs. Such people are suspicious of developers and tend to believe that additional construction will just benefit only the developers themselves or other wealthy people.

In a just-posted article, legal scholar Chris Elmendorf and political scientists Clayton Nall and Stan Oklobdzija (ENO) provide valuable evidence on the extent to which this kind of public ignorance can be overcome by presenting "housing supply skeptics" with countervailing evidence. ENO are also the authors of two important previous studies on public opinion about housing issues, which I considered here and here. Below is the abstract for their latest article:

Recent research finds that most people want lower housing prices but, contrary to expert consensus, do not believe that more supply would lower prices. This study tests the effects of four informational interventions on Americans' beliefs about housing markets and associated policy preferences and political actions (writing to state lawmakers). Several of the interventions significantly and positively affected economic understanding and support for land-use liberalization, with standardized effect sizes of 0.15 − 0.3. The most impactful treatment—an educational video from an advocacy group—had effects 2-3 times larger than typical economics-information or political-messaging treatments. Learning about housing markets increased support for development among homeowners as much as renters, contrary to the "homevoter hypothesis." The treatments did not significantly affect the probability of writing to lawmakers, but an off-plan analysis suggests that the advocacy video increased the number of messages asking for more market-rate housing.

The new ENO study has several important findings. Most obviously, they show that new information can have a big impact in changing supply skeptics' minds about housing deregulation. When shown a short educational video explaining how liberalization can reduce housing prices, many become much more supportive of cutting back on zoning restrictions. As ENO explain, this makes housing policy different from issues on which voters have more deeply rooted attitudes, and therefore tend to ignore or dismiss opposing evidence.

It is also notable that homeowners were just as likely to change their minds in response to the video as renters (possibly even slightly more so). This further undermines the argument that opposition to zoning reform is primarily rooted in the narrow self-interest of NIMBYs. If the self-interest story were valid, realizing that liberalization would lead to lower housing prices should actually lead homeowners to oppose it even more. Yet ENO find the opposite effect.

So far, ENO's results seem very optimistic. We can spread the gospel of YIMBYism simply by showing people simple videos! But I would add some cautionary notes.

First, as a practical matter, most voters are unlikely to take the time to watch even a short video about a policy issue they have relatively interest in. Most people are "rationally ignorant" about politics and public policy, and devote only very limited time to learning about the issues. Second, even if they do watch a video, in the real world they probably won't pay as careful attention as in an experimental setting.

Finally, while ENO have performed a valuable service by showing that most opposition to zoning deregulation is driven by ignorance rather than narrow self-interest, we should not discount self-interested NIMBYism entirely. Such people clearly do exist, and often have disproportionate influence over local politics. They're often the people most likely to show up at zoning board meetings, for example.

On balance, I think YIMBYism can make better progress by resorting to appealing rhetoric, than by expecting large numbers of people to watch videos or study other educational materials. Past studies, including some of ENO's previous work, suggests that people are more sympathetic to YIMBYism if it is described as giving property owners the freedom use their land as they wish, than if we refer to developers and business interests. It also helps to emphasize that reform can lower prices and enable people to live closer to offices, stores, and other locations they want easy access to. Of course studies also show that the NIMBY side also has effective rhetorical ploys, usually focused on the role of business interests, and claims that only the wealthy will benefit from liberalization.

Ultimately, YIMBYs should pursue a strategy of combining political action with constitutional litigation.  Josh Braver and I have made the case that most exclusionary zoning violates the Takings Clause on both originalist and living constitution grounds. Past successful constitutional reform movements have usually pursued a two-track strategy, rather than relying on one method alone.

In sum, the new ENO paper is an excellent contribution to the literature, and should give some hope to YIMBYs. But changing minds in the real world is likely to be much harder than in a laboratory setting.

Politics

Short Circuit: A Roundup of Recent Federal Court Decisions

Eleven-person juries, noncustodial plaintiffs, and abdicated responsibilities.

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

New cert petition! One might think that, in determining whether a statute restricts speech or restricts nonspeech conduct (a question that tends to matter a great deal in First Amendment cases), courts should ask whether the statute … restricts speech? Or whether it restricts nonspeech conduct? Fourth Circuit: Wildcard! Let's instead use a "non-exhaustive list of factors" combined with a brand-new level of "loosened," "quite different," and "more relaxed" constitutional scrutiny. Read the cert petition to learn why the Fourth Circuit's approach is decidedly not cricket and entrenches a circuit split on a question of nationwide importance.

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Free Speech

On the Missions of Academic Institutions

As long as academic institutions place social justice goals ahead of truth seeking and knowledge creation, they will lose the respect of the public and will not live up to their potential.

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For my last post in this series related to my new book Habits of a Peacemaker: 10 Habits to Change Our Potentially Toxic Conversations into Healthy Dialogues, I turn to the role of institutions of higher education. I spend much of Chapter 2 in Habits talking both about how humanity generates knowledge and how we should each responsibly seek after it. I offer practical tips for doing the latter so that we can have more productive discourse. In theory, at least, modern universities should be places that can help with that enterprise. Sadly, too often, they are not playing that role. Many Americans do not trust these institutions or the people in them. And at least part of the problem, in my view, is a lack of understanding by faculty and administrators of the heavy cost that comes from moving universities away from seeking for and disseminating truth.

In a recent event at the Bech-Loughlin First Amendment Center, Jonathan Rauch, Jonathan Haidt, and I engaged in a discussion with our audience about whether the missions of universities should be to pursue truth or to seek social justice. We also questioned whether that framing created a false dichotomy. As you might expect, the audience had mixed reactions. Different groups adopted each of the available views. Haidt, Rauch, and I then discussed the topic more in depth.

I return to it now to make a simple point. Universities must recognize the price that comes with deviating from a truth-seeking mission towards a social justice mission. That price is respect and credibility. And they will pay it whether they like it or not.

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Rahimi On Remand

"We read the Court's analysis in Rahimi to have modified Bruen in at least one relevant respect."

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On September 12, the Fifth Circuit decided United States. v. Rahimi on remand from the Supreme Court. All-too-often, people think a Supreme Court decision is the end of the matter. But in reality, the lower court has to actually enter a judgment to carry the Supreme Court's ruling into effect.

Here is how the per curiam panel opinion describes Rahimi:

The Supreme Court, clarifying its Bruen test, reversed our judgment and held that § 922(g)(8) is facially constitutional. United States v. Rahimi, 602 U.S. ----, 144 S. Ct. 1889 (2024).

I agree. The Supreme Court did not faithfully apply Bruen. It changed the test! For all of the outrage about the Fifth Circuit's reversal rate, a lower court cannot be faulted for faithfully following precedent. Ditto for when the government changes its position on appeal, thus radically altering the dispute, which happened in the mifepristone cases.

The panel identified at least one important regard in which the Court "modified" the Bruen test:

We read the Court's analysis in Rahimi to have modified Bruen in at least one relevant respect. In Bruen, the Court instructed that surety laws provided no historical analogue for banning a person from having a gun, because surety laws only required "certain individuals to post bond before carrying weapons in public." 597 U.S. at 55. "These laws were not bans on public carry." Id.; see also id. at 59 (same). So any "reliance on [surety laws] [was] misplaced." Id. at 55. In Rahimi, the Court announced that surety laws "confirm" that covered individuals "may be disarmed." 602 U.S. at ----, 144 S. Ct. at 1901.

The panel is exactly right. In Bruen, Justice Thomas rejected the relevance of the surety laws. But in Rahimi, Chief Justice Roberts glommed together the surety laws (ex ante restriction) with felon disenfranchisement laws (ex post restriction) to support the disqualification for those subject to domestic violence restraining orders, but who were not convicted.

Judge Ho wrote a concurrence that makes this point explicit.

First, he explains that it is not the role of the lower courts to anticipate where the Supreme Court is likely headed:

The Supreme Court can adjust or amend its own precedents at its discretion. Inferior courts have no such luxury. The Supreme Court has repeatedly instructed us to follow its precedents, whether we agree with them or not—and whether we expect the Court itself to follow them or not. See, e.g., Rodriguez de Quijas v. Shearson/Am. Exp., 490 U.S. 477, 484 (1989); Agostini v. Felton, 521 U.S. 203, 237 (1997); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); United States v. Hatter, 532 U.S. 557, 567 (2001).

Second, as we all know, only the Supreme Court can modify its own precedents. Indeed, the Fifth Circuit halted the Mississippi abortion law that was upheld in Dobbs:

So we'd be defying the Court's express command if we decided cases based on anticipated changes to its precedents. It's up to the Court to modify or overrule its own precedents, as it alone deems appropriate—and to reverse us when it does. See, e.g., Jackson Women's Health Org. v. Dobbs, 597 U.S. 215 (2022), rev'g 945 F.3d 265 (5th Cir. 2019).

Third, Judge Ho explains that the Fifth Circuit in Rahimi faithfully followed Bruen.

That's exactly what happened here. We faithfully applied the Court's decision in N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022). See United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023). No member of our court disagreed with our interpretation or application of Bruen. As one of our distinguished colleagues put it, our job is not to relitigate Bruen, but to "operat[e] in good faith" and "faithfully implement Bruen." United States v. Daniels, 77 F.4th 337, 357–58 (5th Cir. 2023) (Higginson, J., concurring).

But fourth, the SCOTUS majority modified Bruen:

The Court has now modified Bruen—as our decision today explains. See United States v. Rahimi, 602 U.S. _ (2024), rev'g 61 F.4th 443; ante, at 2 n.1.

Judge Ho also highlights a point I raised on the blog: why must a criminal defendant, seeking to dismiss an indictment, bring a facial challenge to the statute? This framework, I observed, seems inconsistent with the standard in United States v. Lopez:

I write separately to note a second alteration to Court precedent. In the past, the Court has held unconstitutional laws that punish people who don't belong in federal prison—even if the defendant himself does. See, e.g., United States v. Lopez, 514 U.S. 549 (1995); see also United States v. Kersee, 86 F.4th 1095, 1101–02 & n.2 (5th Cir. 2023) (Ho, J., concurring). That principle readily applies here—victims of domestic violence don't belong in prison. . . .

Well, consider what the Court did in Lopez. Like Rahimi, Lopez is a dangerous person. Lopez was paid to bring a gun to school "so that he . . . could deliver it after school to 'Jason,' who planned to use it in a 'gang war.'" United States v. Lopez, 2 F.3d 1342, 1345 (5th Cir. 1993). But the Court nevertheless decided Lopez's Commerce Clause challenge—and held the Gun-Free School Zones Act unconstitutional—because it sweeps in those who don't belong in a federal prison. See 514 U.S. at 562 ("§ 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.").

The same logic applies here.

And it is no answer to say that the Second Amendment requires a different standard than the Commerce Clause or the First Amendment.

As noted, Lopez involved a claim under the Commerce Clause, not the Second Amendment. But the Court has repeatedly instructed that "[t]he constitutional right to bear arms in public for self-defense is not 'a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.'" Bruen, 597 U.S. at 70 (quoting McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion)). So our court dutifully decided Rahimi's claim.

Judge Ho concludes that the Court may have foreclosed Rahimi from raising this claim, but others may raise it in a future proceeding:

The Supreme Court has now decided Rahimi. The decision does not mention Lopez, and it does not allow Rahimi to litigate the sincere concerns expressed by various amici curiae, judges, scholars, and practitioners. It does acknowledge the "potential faults" with § 922(g)(8). 602 U.S. at _ n.2. But it concludes that any defects must be addressed in a future proceeding.

Rahimi is an unsatisfying decision that quietly modified a two-year old precedent. And everyone who joined that decision knows it. Justices Barrett and Kavanaugh were never fully happy with Bruen in the first place. Had it not been for the chaos caused by the Dobbs leak, I think the Thomas majority might have fractured. And Justice Gorsuch cannot hide behind the facial analysis. Only Justice Thomas was willing to stand up for the Second Amendment, even when it allowed a dangerous person like Mr. Rahimi to have a firearm.

Qualified Immunity

Sixth Circuit Denies Qualified Immunity for State University Officials Who Allegedly Violated Professor's First Amendment Rights

Officials allegedly retaliated against a professor who expressed politically controversial statements about the best treatments for gender dysphoria among youth.

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In Josephson v. Ganzel, a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit affirmed a district court's denial of sovereign immunity and qualified immunity to public university officials who allegedly took adverse employment actions against a professor who expressed skepticism about certain treatments for youth diagnosed with gender dysphoria.

Judge Mathis wrote for the panel, joined by Senior Judge Gilman and Judge Griffith. His opinion begins:

The First Amendment protects popular and unpopular speech alike. Allan Josephson worked as a professor of psychiatry at a public university's medical school. After developing an interest in the medical treatment of childhood gender dysphoria, he began publicly discussing his views on that topic. In October 2017, he expressed his thoughts on treating childhood gender dysphoria during a panel discussion sponsored by a conservative think tank. His commentary was unpopular with his coworkers and supervisors. Josephson believes that his superiors retaliated against him for the views he expressed during the panel discussion, ultimately culminating in the nonrenewal of his contract with the university after more than fifteen years of employment. So he sued the individuals that he says violated the First Amendment by retaliating against him.

The defendants argue that they are entitled to Eleventh Amendment immunity and qualified immunity. The district court disagreed, and so do we. For the reasons explained below, we affirm.

Dr. Josephson was a psychiatrist and a member of the faculty at the University of Louisville School of Medicine in the Department of Pediatrics. He participated in a panel sponsored by the Heritage Foundation on gender dysphoria in children. During this panel, he expressed his opinion that "gender dysphoria is a socio-cultural, psychological phenomenon that cannot be fully addressed with drugs and surgery. Thus, doctors and others should explore what causes this confusion and help the child learn how to meet this developmental challenge."

After word of his participation spread within the medical school, he was demoted and, later, his contract with the school was not renewed. Dr. Josephson then sued alleging a violation of his First Amendment rights.

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Immigration

Lessons of the Haitian Migrant Cat Scare

Despite scaremongering to the contrary, Haitian immigrants don't eat cats, and have much lower crime rates than native-born Americans. There are some broader lessons to be learned from this epsode.

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Cat on a leash
Felix Mizioznikov / Dreamstime.com

Over the last few days, there has been an uproar over claims by nativists and immigration restrictionists that Haitian immigrants in Springfield, Ohio have been eating cats and other pets. Former President Donald Trump repeated those assertions in the recent presidential debate. As it turns out, the Ohio feline community can rest easy. Both local authorities in Springfield and Ohio's Republican governor say there is no evidence indicating that Haitian migrants in the area have eaten any cats or other pets. At the very least, if such things were happening routinely, we should have substantial evidence of it; and we don't.

More generally, as Cato Institute immigration policy expert Alex Nowrasteh documents, Haitian immigrants (both legal and illegal) actually have much lower crime rates than native-born Americans. And his data doesn't fully control for differences in age and sex; if it did, Haitian immigrants are likely to look even better, as recent immigrants tend to be younger and have a higher percentage of men than the general population (and young men have higher crime rates than other demographic groups). Other evidence shows they have a high rate of assimilation and income growth, which - despite mythology to the contrary  - is actually true of recent immigrants, more generally.

There are some broader lessons to be learned from this sorry episode. First, it's important to look at aggregate data, rather than just focusing on a few individual incidents, that may be unrepresentative, even if they happened. As of 2022, there were over 730,000 Haitian immigrants in the United States, and the numbers have risen further since then, as a result of refugee flows generated by growing violence and economic crises in Haiti. With such a large group, it's almost inevitable there are going to be a few who commit terrible crimes. There may even be one or two who ate a cat at some point! But you can say the same thing about virtually any other large group, including native-born Americans, one of whom apparently really did recently kill and eat a cat. Before concluding that any group poses an unusually great risk, you have to look at aggregate data. By that standard, Haitian immigrants are actually less dangerous than native-born citizens.

Even if a group does have an unusually high crime rate, it will usually be wrong to discriminate against them based on racial or ethnic characteristics they have no control over. But at least in such cases we can plausibly argue there is a problem that might require a policy response. There is no such issue in the case of Haitians.

The cat-eating hysteria is  even worse than the usual scenario of nativists holding an entire immigrant group responsible for the unrepresentative actions of a few members. Here, it appears the accusation was just totally false. But it is still an example of the more general problem of focusing on dramatic stories rather than more systematic data.

Second, it is a mistake to judge migrants by the state of their countries of origin, assuming that if the latter is awful, that means the migrants will create similar awfulness in their new homes. Haiti is one of the poorest and most violent societies in the Western Hemisphere. But that's not because Haitians are, by nature, somehow inherently violent and lazy. Rather, it's because Haiti has terrible political institutions. Given the chance to live and work in a society with better institutions, Haitian migrants do well, as most have in the US.

Indeed, the history of the US is in large part a history of immigrants arriving from societies with terrible political institutions, and doing well here. If you think that immigration replicates the conditions of the migrants' countries of origin, then the United States should long since have descended into stagnation and tyranny. After all, the vast majority of modern Americans are descendants of migrants from poor and oppressive societies. Yet, far from causing degradation, they have contributed to making American the wealthiest, freest, and most powerful nation in the world.

For a more detailed look at arguments that immigration causes institutional degradation, I recommend Alex Nowrasteh and Benjamin Powell's book, Wretched Refuse: The Political Economy of Immigration and Institutions. I  consider some of these issues myself in Chapter 6 of my own book, Free to Move: Foot Voting, Migration, and Political Freedom.

 

 

Free Speech

The First Amendment and the Social Media Dilemma

Social media poses problems far more serious than misinformation campaigns, but solutions consistent with the First Amendment are not clear.

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We have heard much lately from folks like Jonathan Haidt and Jean Twenge regarding the harms of smartphones and social media. These include a rise in anxiety, suicidality, and depression among young people, especially girls. They also include addiction for most adults and an increased polarization of society generally. But many of the solutions offered for these problems are questionable under existing First Amendment doctrines. We need continued scholarly effort into finding solutions, and that requires fully understanding the problem. What follows is an excerpt from Chapter 2 of my book Habits of a Peacemaker, "Seek Real Learning," and it provides just a brief introduction into part of what all of us are up against in the smartphone and social media era:

When we encounter something that brings us stimulation, our brains release dopamine. The effect of dopamine is usually pleasure, euphoria, the thrill of anticipation, and the desire to want to pursue the stimulant. When we eat a sugary treat, or have sex, or drink alcohol, or take drugs, or do anything else that stimulates us, our brains create dopamine. As Stanford addiction researcher Doctor Anna Lembke explains, "The more dopamine a [particular stimulant] releases in the brain's reward pathway … , and the faster it releases dopamine, the more addictive the drug." And once our brains release dopamine, they immediately begin to rebalance themselves by reducing the amount of dopamine they are creating. This is why we often feel additional cravings for something after enjoying it. As soon as the effect of the dopamine wears off, we find ourselves in a dopamine deficit, which causes us to want to seek out another hit of dopamine.

This is an important component to addiction. We experience something, our brains release dopamine, we feel euphoric (high), we crash, then we seek it again. This process becomes even worse if what we are addicted to is easily available. Research has proven this again and again. From drugs, to digital addictions, to alcohol, to pornography—the easier we can access a high dopamine-producing substance, behavior, or content, the more likely we are to become addicted to it.

All of this relates to smartphones and social media and their interference with our ability to engage in real learning and to be peacemakers. Every time we see a notice—of a like, a text, a comment, some interesting piece of news, a million other things—our brains release a shot of dopamine. It feels good. So we look for the next one, and the next one, and the next one. Give anyone a smartphone, and within a short period of time, you will see them regularly grabbing and checking it. They are seeking, often subconsciously, that next hit of dopamine. So much so that many of us cannot go more than a few minutes without at least glancing at our phones to see if something is waiting for us. We see drivers do it at every red light. We see people do it during movies at the theater.…

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Politics

New Essay: Coping With a Court One Disagrees With

"The time is ripe for liberal and progressive professors, especially those who are having trouble coping with the current Supreme Court, to consider adopting our narrative approach to the constitutional canon and anticanon."

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Randy Barnett and I have written a new essay, titled Coping With a Court One Disagrees With. This essay was inspired, in part, by a recent New York Times article that identified a "crisis" in teaching constitutional law. In our view, there is no crisis. But we can relate with professors who are having difficulty teaching decisions they disagree with. We've done it for the entirety of our careers. We suggests that our method of teaching may be useful for liberal and progressive professors who are having trouble coping with the current court.

Here is the abstract:

Is there a "crisis" in teaching constitutional law? In our view, there is not. Still, we can empathize. As libertarian-conservative-ish law professors, for years we taught Supreme Court decisions that we disagreed with. We teach constitutional law as a historical narrative that began at the founding and continues to this day. The narrative approach underscores the contingent nature of what at any given time appears to be fixed and unchangeable. The narrative also remains remarkably stable from year to year even as new cases are added. This approach also makes preparing one's syllabus relatively easy to do each year, regardless of what the Supreme Court may have decided in its most recent term.

The pedagogy we developed was premised on a Supreme Court jurisprudence we largely disagreed with. Indeed, we still disagree with much of this jurisprudence, especially the cases that were decided right before, during, and after Reconstruction. While some of these cases, like Prigg, Dred Scott, and Plessy are now in the anti-canon, others like Slaughter-House, Cruikshank, and the Civil Rights Cases remain good law. This pedagogy worked before 2016 and it will continue to work no matter what happens in the future. We submit that the time is ripe for liberal and progressive professors, especially those who are having trouble coping with the current Supreme Court, to consider adopting our narrative approach to the constitutional canon and anticanon.

Part I of this essay focuses on our approach to teaching the constitutional cannon. Part II traces the evolution of our casebook from the First Edition to the Fourth Edition, and previews the forthcoming Fifth Edition. We demonstrate that the narrative about the development of the constitutional canon has remained remarkably stable. Even after accounting for the recent terms, our syllabus will be about 90% the same as it was in 2019. Part III addresses how we, and other like-minded law professors, managed to teach decisions that we fundamentally disagreed with. For those professors who are pained by the Supreme Court's current doctrines, our narrative approach provides succor. Such professors can, for example, teach what they believe to be "the good old days" of the Warren and Burger courts in contrast to what now exists. Students can then decide for themselves which era they prefer.

We welcome comments. And if any professors are interested, we are happy to provide review copies of our casebook for adoption.

We are also pleased to report that the twelve-hour video library from An Introduction to Constitutional Law will soon be posted on YouTube at no-cost, courtesy of the Foundation for the Constitution.

Second Amendment

Malcolm Gladwell's Invented Facts Make Good Stories

His "Revisionist History" podcast can amount to historical fiction

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Being the son of two lawyers, I encountered cultural differences when I married into an Irish-American family. My new relatives were excellent story-tellers, and to them, the quality of the story was independent of its literal veracity. After a few years, I learned that when my wife is telling a story, even a story which I was a character, I should not interrupt her to correct any detail. The factual accuracy of any given detail was much less important — in fact, unimportant — compared to what the detail could contribute to an interesting yarn. So too with Malcolm Gladwell, host of the Revisionist History podcast. His tales are well-told; just don't confuse his revised narrations with actual history.

A case in point is the first episode of his 2023 gun control series, The Sudden Celebrity of Sir John Knight. To see how he revises facts to improve a story, consider a tale of his that makes me look better than in real life.

In 1686, Sir John Knight, of Bristol, England, was charged with violating the 1328 Statute of Northampton. The statute forbade the English "to go nor ride armed by night nor by day" under listed circumstances. According to the indictment, Knight "did walk about the streets armed with guns, and that he went into church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King's subjects."

Knight was acquitted by the jury. The presiding judge was the Chief Justice of King's Bench. His statements on the legal interpretation of the Statute of Northampton were reported by two reporters. Sir John Knight's Case, 87 Eng. Rep. 75, 3 Modern Rep. 117 (K.B. 1686); Rex v. Sir John Knight, 90 Eng. Rep. 330; Comberbach 38 (K.B. 1686).

How did this 1686 case become known to Americans? First, it was cited in William Hawkins' famous criminal law treatise, A Treatise of the Pleas of the Crown (1716, with 8 editions through 1824), for Hawkins' explanation of when carrying arms is and is not legal. The Hawkins treatise is tied for first as the most-owned imported criminal law book in colonial American law libraries. Herbert A. Johnson, Imported Eighteenth-Century Law Treatises in American Libraries 1700-1799 (1978). (Matthew Hale's The History of the Pleas of the Crown tied Hawkins for first.)

Hawkins' point that carrying arms is generally legal was cited by two American Justice of the Peace Manuals around the time of the Second Amendment. William Waller Hening, The New Virginia Justice 17-18 (1795); James Parker, Conductor Generalis; Or the Office, Duty and Authority of Justices of the Peace 11 (1st ed. 1764).

Besides the Hawkins treatise, another way that Knight's case likely became known was via George Wythe, of William and Mary. He was the first American law professor, and his large library included volume 3 of Modern Reports, and Comberbach, both of which reported the Knight case. Here is what Gladwell says:

David Kopel, once combed through the library of an 18th century law professor named George Wythe, who taught law to a supreme court justice, a couple of presidents, some founding fathers, and he found that John Knight's name was all over law books back then.

The part about Wythe is true. He did teach the law to John Marshall, Thomas Jefferson, and many other Founders. The rest is false.

I have never been on the campus of William and Mary. The closest I ever came was chaperoning a school field trip at Colonial Williamsburg. If I had gone to the William and Mary campus, I could not have "combed through" Wythe's library, because it no longer exists. Wythe gave his library to Thomas Jefferson, who later donated it to the Library of Congress, which the British burned on August 19, 1814, during the War of 1812.

Because neither I nor any man alive have ever seen any of the physical books in Wythe's library, I never said that Wythe's library shows that "John Knight name was all over law books back then." To the contrary, Knight's name isn't even mentioned in the Hawkins treatise; rather, Hawkins just cites "3 Mod. 117, 118" as part of his support for the statement "That no Wearing of Arms is within the Meaning of the Statute [of Northampton] unless it be accompanied by such Circumstances as are apt to terrify the People . . . " 1 Hawkins at ch. 63, page 136.

What I actually did was spend a few minutes on William & Mary Law Library's website, Wythepedia: The George Wythe Encyclopedia, which catalogues all the books of Wythe's library. Finding out that Wythe owned the Hawkins book and the two reporters who covered the John Knight case took me just a few minutes. (Here are the William and Mary Library cites for Wythe's ownership of Hawkins, 3 Modern Reports, and Comberbach.)

Gladwell's invention of the library tale makes for better story-telling. It exaggerates the importance of Gladwell's own story about John Knight, with his name "all over the law books back then." Likewise, the invented story about me having "combed" through Wythe's library is more interesting than the actual facts of my doing a few minutes of Internet research into an online catalog for a library that ceased to exist over two centuries ago.

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Frederick Douglass Praises the "Courage" Of Justice John Marshall Harlan

“In these easy going days [Harlan] should find himself possessed of the courage to resist the temptation to go with the multitude”

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On Tuesday, I spoke at the Louisville Federalist Society Chapter about presidential immunity. After the debate, I was fortunate enough to visit the Library's special collections. The collection includes papers from Justice Louis Brandeis, the namesake of the law school, who is actually buried outside the building. The collection also includes papers from Justice John Marshall Harlan I. I have spent some time with Justice Harlan's papers at the Library of Congress. In 2013, I published a paper with Brian Frye and Michael McCloskey that transcribed Harlan's constitutional law lecture notes. (To this day, I use some of Harlan's lines in class--for example, when I tell my students that the Supremacy Clause is the most important provision in the Constitution; without it, everything else would fall apart.) Over the years, I've corresponded with Peter Scott Campbell, a librarian at Louisville. Campbell was kind enough to show me around the room.

One of the coolest pieces I saw was a letter that Frederick Douglass wrote to Justice Harlan shortly after the Civil Rights Cases (1883) was decided. I encourage you to read the entire letter, which Campbell helpfully transcribed. Here is an excerpt:

[Harlan's dissent] seems to me to be absolutely unanswerable and unassailable by any fair argument at any point for there is not a single weak point in it. You had an important and in some respects a difficult and delicate work to do, and you have done it with amazing ability skill and effect. . . . I have nothing bitter to say of your Brothers on the Supreme Bench, though I am amazed and distressed by what they have done. How they could at this day and in view of the past commit themselves and the country to such a surrender of National dignity and duty, I am unable to explain. I have read what they have said, and find no solid ground in it. Superficial and [???], smooth and logical within the narrow circumference beyond which they do not venture, that is all.

To this day, I remain convinced that Justice Harlan was correct in the Civil Rights Cases. Had his view prevailed, the Court would have never needed to contort the Commerce Clause is Katzenbach and Heart of Atlanta Motel. And cases like United States v. Morrison would have come out differently. Moreover, if the Civil Rights Act of 1875 had been upheld, we never would have had Plessy, because a segregation law on a public conveyance would have been preempted by the federal bill. Everyone focuses on Plessy, but truly the root cause of the problem was The Civil Rights Cases, and if you want to go back a decade earlier, The Slaughter-House Cases.

Douglass also included an article he wrote in The American Reformer newspaper about Harlan's dissent. The first paragraph defends Harlan's decision on its own terms:

[Harlan] has felt himself called upon to isolate himself from his brothers on the Supreme Bench, and to place himself before the country as the true expounder of the Constitution as amended, and of the duty of the National Government to protect and defend the rights of citizens against any infringement of their liberty. The opinion which he has given to the country, as to the constitutionality of the Civil Rights Bill, places his name among the ablest jurists who have occupied the Supreme Court. No utterance from that Bench, since the celebrated and splendid opinion given by Judge Curtis against Judge Taney's infamous Dred Scott decision, has equaled this opinion in ability, thoroughness, comprehensiveness and conclusive reasoning. Compared with it the decision of the eight judges was an egg shell to a cannon ball. We are told in Scripture that one shall chase a thousand, but one opinion like this could put to flight ten thousand of such decisions as the thin, gaunt and hungry one which denies the constitutionality of the Civil Rights Bill, and the duty of the Federal Government to protect the rights and liberties of its own citizens. No man, unless blinded by passion, prejudice, or selfishness, can read this opinion without respect and admiration for the man behind it. Where the decision of the Court is narrow, superficial and technical, the opinion of Judge Harlan is broad and generous, and grapples with substance rather than shadow, with things as they are rather than with abstractions…

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Free Speech

Attempt to Entirely Seal Title IX Complaint on Privacy Grounds Rejected

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From Judge Dale Ho's decision today in Doe v. Columbia Univ. (S.D.N.Y.):

[T]hese cases concern allegations of sexual assault and that the events in question occurred from 2012 to 2014 or 2015, around the time that Plaintiff was an undergraduate student at Columbia University…. Plaintiff … filed identical letters seeking to proceed pseudonymously in each case …. In his letter motions seeking pseudonymous status, Plaintiff noted that his "Complaint includes sensitive health information regarding a sexual assault, and medical and psychiatric treatment for these assaults, which could have deleterious consequences if this information became public record." Plaintiff did not request that the Complaints be sealed altogether, but the Clerk of Court, as a precaution given Plaintiff's motions to proceed under a pseudonym, limited electronic docket access to Plaintiffs' Complaints to "court users and case participants."…

I moved to intervene and unseal the Complaint "with any necessary redactions of various people's personally identifying information" (but didn't oppose pseudonymity), and the court agreed; an excerpt:

First, there is no doubt that complaints are judicial documents. "A complaint, which initiates judicial proceedings, is the cornerstone of every case, the very architecture of the lawsuit, and access to the complaint is almost always necessary if the public is to understand a court's decision."

Second, a strong presumption of public access attaches to complaints. "Complaints have historically been accessible by default, even when they contain arguably sensitive information" and "public access to the complaint and other pleadings has a significant positive role … in the functioning of the judicial process." Under common law, because complaints are "highly relevant to the exercise of Article III judicial power," "the presumption of access is at its zenith."

Third, the Court … agrees that there are important countervailing privacy interests identified by Plaintiff, but concludes that these concerns can be accommodated via pseudonymity rather than through complete sealing of the Complaints. Indeed, Plaintiff publicly filed his Complaints and did not affirmatively request sealing of them, but rather sought only pseudonymity to protect his privacy interests. It was only in an abundance of caution that the Court, following a decision in the previous case brought by the Plaintiff, Doe I, ordered sua sponte that the Complaints be sealed. But the Second Circuit and district courts within it have generally addressed the type of serious privacy concerns raised by the Plaintiff by permitting pseudonymity and other limited redactions to protect personal information, while otherwise leaving the relevant judicial documents publicly available in redacted form….

Nevertheless, Plaintiff—despite having affirmatively sought only pseudonymity and not complete sealing of the Complaints—now argues that pseudonymity is insufficient to protect his interests, because (1) "[u]nsealing the complaints detailing my abuse would likely trigger a relapse of [my] symptoms and retraumatize me all over again"; and (2) even with pseudonymity, unsealing the details "of these allegations themselves could lead to the identification of plaintiff."

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Free Speech

Psych Professor's Lawsuit Over Alleged Contract Nonrenewal Based on Speech About Gender Dysphoria Can Go Forward

Prof. Allan Josephson (formerly of the University of Louisville medical school) claims his contract wasn't renewed because "he expressed his thoughts on treating childhood gender dysphoria during a panel discussion sponsored by a conservative think tank [the Heritage Foundation]."

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From Josephson v. Ganzel, decided yesterday by Sixth Circuit Judge Andre Mathis, joined by Judges Ronald Lee Gilman and Richard Allen Griffin:

The First Amendment protects popular and unpopular speech alike. Allan Josephson worked as a professor of psychiatry at a public university's [University of Louisville's] medical school. After developing an interest in the medical treatment of childhood gender dysphoria, he began publicly discussing his views on that topic.

In October 2017, he expressed his thoughts on treating childhood gender dysphoria during a panel discussion sponsored by a conservative think tank [the Heritage Foundation]. His commentary was unpopular with his coworkers and supervisors. Josephson believes that his superiors retaliated against him for the views he expressed during the panel discussion, ultimately culminating in the nonrenewal of his contract with the university after more than fifteen years of employment….

Josephson sued, and the Court of Appeals allowed the case to go forward:

Josephson argues that Defendants violated his First Amendment rights when they retaliated against him based on his remarks at the Heritage Foundation event….

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Free Speech

Prof. Francesca Gino's Libel Claims Against Harvard Business School and Data Colada Dismissed

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From today's decision by Judge Joun (D. Mass.) in Gino v. President & Fellows of Harvard College:

Professor Gino is an internationally renowned behavioral scientist, prolific author, researcher, and teacher who has received many awards and considerable media attention for her academic research regarding people's decision-making. She is currently employed by Harvard, as a tenured professor at the Harvard Business School ("HBS")….

The Data Colada Defendants are a trio of male professors and behavioral scientists who, since 2013, have published a blog called "Data Colada." In July 2021, the Data Colada Defendants approached HBS with concerns about perceived anomalies and alleged fraud in the data of four studies in academic articles authored by Professor Gino….

On June 13, 2023, …  [HBS] Dean Datar informed Professor Gino that she was being placed on unpaid administrative leave for two years, that she would receive no salary or benefits after July 31, 2023, and that he would request the commencement of tenure revocation proceedings ….

Gino sued Harvard for breach of contract, defamation and related torts, and invasion of privacy, and also sued the Data Colada Defendants for defamation and related torts. The court allowed the breach of contract claim to go forward, based on allegations of various procedural irregularities in the way the Harvard investigation was conducted.

But the court rejected Gino's defamation claim. It concluded that Prof. Gino is a public figure, based on the Complaint's stating "that Professor Gino is an 'internationally renowned behavioral scientist, author, and teacher' who 'has authored or co-authored countless journal publications, business articles, and books,' 'has regularly presented her work at conferences and has been invited to speak at some of the most prestigious colleges and universities in the world,' 'has received numerous honors and awards' internationally, and has had her work 'covered in numerous media outlets.'" It then went to analyze the libel claims this way:

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Free Speech

#TheyLied Libel Claim Brought by N.Y. Mayoral Candidate Accused of Sexual Assault Can Go Forward

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The case is Stringer v. Kim, decided Monday by N.Y. trial court judge Richard Latin; Scott Stringer is a former New York Assemblyman, New York City Comptroller, Manhattan Borough President, and prominent candidate for New York Mayor in 2021, and is apparently running for Mayor again.

Under New York's "anti-SLAPP statute," plaintiff had to show a "substantial basis" for his lawsuit in order for the case to go forward, and the court said that he did (though of course without deciding the facts):

Plaintiff has adequately plead a substantial basis for his claim of defamation. Plaintiff alleges that, on April 28, 2021, Defendant held a press conference in which she falsely accused plaintiff of sexually assaulting her 20 years earlier, while she worked for Plaintiff's campaign. Defendant also allegedly stated that Plaintiff groped her and put his hands down her pants without her consent. Plaintiff further alleges that Defendant repeated these accusations to the press and on social media throughout 2021 and that the accusations were repeated by Congresswoman Maloney in August 2022. These statements, if false, are defamatory per se.

Plaintiff has also adequately pled a substantial basis for actual malice. Plaintiff alleges Defendant engaged in a campaign to ruin his political career after he declined to give her a position in his campaign, and she went to work for his opponent. Plaintiff further alleges that, despite the alleged sexual assault having occurred 20 years earlier, Defendant first raised her allegations during Plaintiff's campaign for mayor, when Plaintiff was gaining momentum in his campaign and the allegations would be widely circulated[.] The defamatory statements were then repeated to the press by Congresswoman Maloney on August 20, 2022, shortly after Defendant attended a campaign event with Maloney, who was running against defendant's mentor.

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