The Volokh Conspiracy

After Justice Scalia's passing, the best writers on the Court are Chief Justice Roberts and Justice Kagan. Roberts is at his best in a non-ideological case where he has no need to keep votes or reach some contrived outcome. (Roberts's discussion of Wonder Bread today in the 9-0 Bisonnette case was delightful). Kagan is at her best when she goes full-on snark mode in dissent. She spares no one. After the two-way tie between Roberts and Kagan, I think Justice Barrett has climbed to third place. I always find her writing to be delightful, insightful, and clean. Plus she has the virtue of writing the quickest. I haven't run the numbers, but it seems that her opinions consistently come out shortly after oral argument, which means she circulates quickly and there are few revisions to be made.

Justice Barrett's opinion today in Sheetz v. El Dorado County was golden. I especially appreciated this tight summary of the Court's takings clause jurisprudence:

The Takings Clause's right to just compensation coexists with the States' police power to engage in land-use planning. (Though at times the two seem more like in-laws than soulmates.) While States have substantial authority to regulate land use, see Village of Euclid v. Amber Realty Co., 272 U. S. 365 (1926), the right to compensation is triggered if they "physically appropriat[e]" property or otherwise interfere with the owner's right to exclude others from it, Cedar Point Nursery v. Hassid, 594 U. S. 139, 149–152 (2021).That sort of intrusion on property rights is a per se taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982). Different rules apply to State laws that merely restrict how land is used. A use restriction that is "reasonably necessary to the effectuation of a substantial government purpose" is not a taking unless it saps too much of the property's value or frustrates the owner's investment-backed expectations. Penn Central Transp. Co. v. New York City, 438 U. S. 104, 123, 127 (1978); see also Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1016 (1992) ("[T]he Fifth Amendment is violated when land-use regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land" (internal quotation marks omitted)).

I do wonder what Justice Barrett thinks about her soulmate and her inlaws. And, as is often the case, with the soulmate comes the inlaws. Like love and marriage, you can't have one without the other. Though Justice Scalia's nearest hippies would beg to differ.

Justice Barrett also uses another hypothetical that likely comes from real-world experience--sort of like the babysitter-theme park hypo:

The government is entitled to put the landowner to the choice of accepting the bargain or abandoning the proposed development. See R. Epstein, Bargaining With the State 188 (1993). The bargain takes on a different character when the government withholds or conditions a building permit for reasons unrelated to its land-use interests. Imagine that a local planning commission denies the owner of a vacant lot a building permit unless she allows the commission to host its annual holiday party in her backyard (in propertyspeak, granting it a limited-access easement). The landowner is "likely to accede to the government's demand, no matter how unreasonable," so long as she values the building permit more. Koontz, 570 U. S., at 605. So too if the commission gives the landowner the option of bankrolling the party at a local pub instead of hosting it on her land. See id., at 612–615. Because such conditions lack a sufficient connection to a legitimate land-use interest, they amount to "an out-and-out plan of extortion." Nollan, 483 U. S., at 837 (internal quotation marks omitted). Our decisions in Nollan and Dolan address this potentialabuse of the permitting process. There, we set out a two-part test modeled on the unconstitutional conditions doctrine.

The Court's decision was unanimous: the Nollan/Dolan test applies if the condition is imposed by legislation. The Court found that "Nothing in constitutional text, history, or precedent supports exempting legislatures from ordinary takings rules." The rest of the majority opinion is a breezy summary of how the Takings Clause has operated for centuries. Students learning about the Takings Clause can skim this analysis for a quick overview.

There are three separate writings. Justice Sotomayor, joined by Justice Jackson, stressed that the Court did not resolve "whether the permit condition would be a compensable taking if imposed outside the permitting context." In other words, the Court left open whether the Nollan/Dolan test should apply to fees imposed on a "class of properties" in the same fashion that it applies to a "particular development." Justice Gorsuch, in a separate concurrence, stated there is no difference, and both types of regulations should be compensable.

Justice Kavanaugh, joined by Justice Kagan, does what he alway does: reaches out to address issues that are not present in the case. Specifically, as Justice Kavanaugh often does, he explains that which has been done before can continue to be done:

Importantly, therefore, today's decision does not address or prohibit the common government practice of imposing permit conditions, such as impact fees, on new developments through reasonable formulas or schedules that assess the impact of classes of development rather than the impact of specific parcels of property. Moreover, as is apparent from the fact that today's decision expressly leaves the question open, no prior decision of this Court has addressed or prohibited that longstanding government practice. Both Nollan and Dolan considered permit conditions tailored to specific parcels of property. See Dolan v. City of Tigard, 512 U. S. 374, 379–381, 393 (1994); Nollan v. California Coastal Comm'n, 483 U. S. 825, 828– 829 (1987). Those decisions had no occasion to address permit conditions, such as impact fees, that are imposed on permit applicants based on reasonable formulas or schedules that assess the impact of classes of development.

I am often struck by how often Justice Kavanaugh repeats himself. He will often ask the same question, nearly verbatim, during oral argument. And they're not really questions. They are statements which indicate how he will vote, and he simply asks the lawyers if they agree with him. Or, if a lawyer says something unexpected, Kavanaugh tries to make sure they are still on the same page.

Likewise, Justice Kavanaugh's opinions are remarkably repetitive. In a one paragraph concurrence, he manages to repeat the two key phrases verbatim: "permit conditions, such as impact fees" and "reasonable formulas or schedules that assess the impact of classes of development." Without saying so, Kavanuagh signaled that these "common government practices" are fine. I imagine these sorts of land use issue would come before the Chevy Chase Town Council or the Montgomery Country Zoning and Code Compliance Division.

Going forward, every single lower-court judge will now cite Kavanaugh in any case about "impact fees" and determine whether the formal or schedule are "reasonable." Justice Kavanaugh, without saying so, has reached out to decide a huge issue that was not present here. He truly cannot resist doing this.

On April 8, Judge Gary B. Bashor of the Superior Court of Washington for Cowlitz County issued a summary judgment order finding Washington's ban on magazines holding over ten rounds violative of Washington's Declaration of Rights ("The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired") and the federal Second Amendment, and enjoined enforcement thereof.  The 55-page ruling in State of Washington v. Gator's Custom Guns is one of the most thorough analyses issued by a court to date of why such a ban infringes on the right to keep and bear arms.

As Gator's counsel Austin F. Hatcher informed me, Judge Bashor's order was emailed to counsel at 3:04 p.m.  At 4:15 p.m., the Assistant Attorney General emailed a motion to stay the injunction to counsel and said it was simultaneously being filed with the Washington Supreme Court.  The 32-page motion was obviously prepared in advance in anticipation of an adverse ruling.

Without giving Gator's an opportunity to respond, Commissioner of the Court Michael E. Johnston emailed an order to counsel at 5:04 p.m. staying the injunction.  That was only 49 minutes after receiving the motion to stay.

Either the Commissioner is a world-record speed reader or (more likely) didn't bother to read the opinion or the motion, for he issued the stay in lightning speed. Maybe he needed just enough time to read which side the state was on.

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From last week's Mississippi Supreme Court decision in State v. Aldrich (opinion by Justice David Ishee):

This case is a dispute over roughly one acre of Mississippi coastal land. In short, John Aldrich and the State disagree over whether the subject property is Aldrich's or State-owned tideland…. [T]he primary source of conflict is the map the secretary of state published in 1994 that demarcated the boundaries between private property and Public Trust Tidelands.

Via the map, the secretary designated the subject property as State-owned tideland. Aldrich disagreed with the designation however, leading him to challenge the relevant boundary in Harrison County Chancery Court in 1998. The State then filed a counterclaim, alleging it held fee simple title to the property.

Following more than two decades of inactivity and extended bursts of litigation to be detailed below, the chancellor eventually found in Aldrich's favor in 2022, vesting title in him and adjusting the tideland boundary. Throughout the proceedings, the chancellor made five consequential findings, all of which the State labels as error on appeal. Four of them present issues that can be routinely resolved. The outlier, however, poses a unique issue.

Specifically, the chancellor found that a 1784 Spanish land grant, which is the root of Aldrich's deraignment of title, negated the State's claim to fee simple title. This finding carries considerable weight, as it calls into question which lands passed from the federal government to Mississippi upon statehood. This case therefore requires careful historical analysis that balances the interests of private landowners with those of the State. Upon review, however, we find no error and affirm the chancery court's decision….

The 1783 Treaty of Paris, the 1795 Treaty of San Lorenzo, the 1800 Treaty of St. Ildefonso, and the 1803 Treaty of Paris also come up, as does "[t]he deposition of oyster shells and dredge spoils."

There's a whiff of Auld Lang Syne about episode 500 of the Cyberlaw Podcast, since after this the podcast will be going on hiatus for some time and maybe forever. (Okay, there will be an interview with Dmitri Alperovich about his forthcoming book, but the news commentary is done for now.) Perhaps it's appropriate, then, for our two lead stories to revive a theme from the 90s – who's better, Microsoft or Linux? Sadly for both, the current debate is over who's worse, at least for cybersecurity.

Microsoft's sins against cybersecurity are laid bare in a report of the Cyber Security Review Board, Paul Rosenzweig reports. The Board digs into the compromise of a Microsoft signing key that gave China access to U.S. government email. The language of the report is sober, and all the more devastating because of its restraint. Microsoft seems to have entirely lost the security focus it so famously pivoted to twenty years ago. Getting it back will require that it renew the focus on security -- at a time when the company feels compelled to put all its effort into building AI into its offerings. The only people who come out of the report looking good are the State Department security team, whose mad cyber skillz deserve to be celebrated – not least because they've been questioned by the rest of government for decades.

With Microsoft down, you might think open source would be up. Think again, Nick Weaver tells us. The strategic vulnerability of open source, as well as its appeal, is that anybody can contribute code to a project they like. And in the case of the XZ backdoor, anybody did just that. A well-organized, well-financed, and knowledgeable group of hackers cajoled and bullied their way into a contributing role on an open source project that enabled various compression algorithms. Once in, they contributed a backdoored feature that used public key encryption to ensure access for the authors of the feature. It was weeks from  being in every Linux distro when a Microsoft employee discovered the implant. But the people who almost pulled this off were well-practiced and well-resourced. They've likely done this before, and will likely do it again, making them and others like them open source's long-term strategic vulnerability.

It wouldn't be the Cyberlaw Podcast without at least one Baker rant about political correctness. The much-touted bipartisan privacy bill threatening to sweep to enactment in this Congress turns out to be a disaster for anyone who opposes identity politics. To get liberals on board with a modest amount of privacy preemption, I charge, the bill would effectively overturn the Supreme Court's Harvard admissions decision and impose race, gender, and other quotas on a host of other activities that have avoided them so far. Adam Hickey and I debate the language of the bill. Why, you might ask, would the Republicans who control the House go along with this bill? I offer two reasons: first, business lobbyists want both preemption and a way to avoid lawsuits over discrimination, even if it means relying on quotas; second, maybe former Wyoming Senator Alan Simpson (R) was right, and the Republican Party really is the Stupid Party.

Nick and I turn to a difficult AI story, about how Israel is using algorithms to identify and kill even low-level Hamas operatives in their homes. Far more than killer robots, this use of AI in war is likely to sweep the world. Nick is critical of Israel's approach; I am less so. But there's no doubt that the story forces a sober assessment of just how personal and how ugly war will soon be.

Paul takes the next story, in which Microsoft serves up leftover "AI gonna steal yer election" tales that are not much different than all the others we've heard since 2016. The bottom line: China is using AI to advance its interests in American social media and to probe U.S. weaknesses, but so far the effort doesn't seem to be having much effect.

Nick answers the question, "Will AI companies run out of training data?"He thinks they already have. He invokes the Hapsburgs to explain what's going wrong. We also touch on the likelihood that demand for training data will lead to copyright liability, or that hallucinations will lead to defamation liability. Color me skeptical about both legal risks.

Paul comments on two U.S. quasi-agreements, with the UK and the EU, on AI cooperation.

Adam breaks down the FCC's burst of initiatives, which are a belated celebration of the long-awaited arrival of a Democratic majority on the Commission -- for the first time since President Biden's inauguration. The commission is now ready to move out on net neutrality, on regulating cars as oddly shaped phones with benefits, and on SS7 security.

Adam covers the security researcher who responded to a North Korean hacking attack by taking down that country's internet, Adam acknowledges that maybe my advocacy of hacking back wasn't quite as crazy as he thought when he was in government.

In Cyberlaw Podcast alumni news, I note that Paul Rosenzweig has been appointed an advocate at the Data Protection Review Court, where he'll be expected to channel Max Schrems.

And Paul closes with a tribute to what has made the last 500 episodes so much fun for me, our guests, and our audience. Thanks to you all for the gift of your time and your tolerance!

Direct Download is here.

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