The Volokh Conspiracy

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The Volokh Conspiracy

Science Fiction

Review of Dune: Part 2

It's a powerful film that lives up to the promise of Part 1. But there are a few flaws.

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Dune, Part 2. Promotional poster. (Warner Bros.)

 

NOTE: This review contains some plot spoilers.

I recently saw Dune: Part 2. It's an impressive and powerful film that lived up to the promise of Part 1, which I also reviewed favorably. The acting, storytelling, and visual images, are all topnotch. Like Part 1, this movie also does a generally good job of conveying the complex plot of Frank Herbert's 1965 novel, on which it is based. That's no mean feat, given the difficulty of the task.  But I do have reservations about parts of its treatment of the political themes of the book.

The plot revolves around a struggle for power between two noble houses—the Atreides and Harkonnens—centered on the desert planet of Arrakis, which is the only known source of the Spice, the most valuable substance in the universe, because it is necessary for interstellar  navigation and also greatly extends human lifespan. The Harkonnens ruled Arrakis for decades until Emperor Shaddam IV—ruler of the known Universe—ordered them to transfer it to the Atreides. Until that time, they brutally oppressed the native Fremen people.

Paul Atreides, is the son and heir of the Atreides leader Duke Leto. He is revealed to have vast psychic powers. Near the end of Part 1, a surprise attack by the Harkonnens and the Emperor kills Duke Leto and wipes out almost all of the Atreides forces. Paul and his mother, Jessica, flee to the Fremen. With the aid of legends that suggest he may be the long-awaited Fremen religious messiah (the "Mahdi"), Paul gradually becomes the leader of the Fremen in their struggle to overthrow the Harkonnens and the Emperor.

Frank Herbert famously said he "wrote the Dune series because I had this idea that charismatic leaders ought to come with a warning label on their forehead: 'May be dangerous to your health.'" This movie conveys that message brilliantly, though far less subtly than the book.

Some less careful readers of the novel come away with the impression that Paul is the hero and we should root for his triumph. The message of the movie is much more unambiguous. What initially seems like a war of liberation against oppressive occupiers gradually becomes a war to replace one awful authoritarian regime with another that seems likely to be just as bad or worse.

In the book, Paul and Jessica are more ambivalent about their gradual takeover of the Fremen; they often come off as sympathetic characters who only seek power because they have no other good option. The movie versions have fewer qualms, especially in the case of Jessica. The movie is also unequivocal in driving home the point that the prophecies that legitimate Paul's assumption of power were actually planted by the manipulative Bene Gesserit order (though the book is pretty clear on this, as well).

Some left-wing critics of the book series have argued that it is a "white savior" story, where a white outsider (Paul) liberates an indigenous people (the Fremen). That interpretation is  grossly unfair to the book. The movie makes it even more difficult to advance this critique with a straight face.

Part 2 does give us a window into the evil of the Harkonnens and the Emperor, with the former coming off as cruel and vaguely fascist, and the latter an amoral political manipulator mainly interested in preserving his own power. Paul is right to oppose them. But the alternative he represents seems little better.

In most respects, Part 2 vividly brings to life key themes of the book, especially its warnings about the dangers of concentrated power and charismatic leadership. But there are two important deviations.

First, like Part 1, this movie tends to paper over the negative aspects of Fremen culture, as depicted in the book. The Fremen society we see in the book is rigidly hierarchical and deeply sexist. For example, when Paul kills the Fremen warrior Jamis in single combat, he inherits Jamis' "property" - including his wife Harah, and his children. Paul had the option of choosing to accept Harah as "wife" or as "servant" (he decides on the latter).

This incident and others like it are almost entirely omitted in the movie. Instead, the Fremen are portrayed as much more egalitarian, including giving women the same rights as men. Paul's Fremen paramour Chani even talks about about how the Fremen are all "equal." This would come as news to the Fremen in the book!

In my review of Part 1, I noted that director Denis Villeneuve "buries the negative aspects of Fremen society, and thus at times seem to buy into a crude 'natives good, white colonialists evil' narrative." This flaw is even more clear in Part 2. With the important exception of the manipulative legends implanted by the Bene Gesserit, Fremen culture is depicted as largely good, its problems caused almost entirely by evil outsiders.

I would have preferred that the movie stick closer to the book on this point. Like most real-world "indigenous" cultures, the Fremen society in the book has many injustices, and falls well short of liberal egalitarian ideals. This doesn't excuse the oppressive policies of occupying powers like the Harkonnens. But it does add a valuable layer of complexity and moral ambiguity to the story.

The second big divergence between the book and the movie is closely related to the first: the depiction of Chani. In the book, once Chani becomes Paul's lover, she also becomes completely devoted to his cause, and rarely seriously questions his actions. By contrast, movie Chani is skeptical of Paul's claims to leadership (she knows the prophecy is fake), worries that they will override Fremen self-determination, and gradually seems to turn against him.  She becomes a kind of Fremen conscience of the story.

In the book, when Paul decides he must make a political marriage with Princess Irulan (the Emperor's daughter), Chani quickly accepts his decision to relegate her to the status of concubine (though we learn she will remain Paul's sole sexual partner; the arranged marriage is purely political). In the famous last lines of the book, Jessica reassures Chani that Irulan will "never know a moment of tenderness from the man to whom she's bound. While we, Chani, we who carry the name concubine – history will call us wives" (here, Jessica refers to her own former status as Duke Leto's concubine). In stark contrast, movie Chani clearly views Paul's choice as a betrayal of both her and the Fremen more generally.

I am not sure how to assess this change. Book Chani struck me as somewhat implausibly tolerant of Paul's behavior, even given the sexist mores of the society she was raised in. The movie version probably leans too far in the opposite direction. For related criticisms of the movie's depiction of Chani and other female characters, see this analysis (though I don't fully agree with it).

I have some smaller quibbles with the movie, as well. But, overall, Dune: Part 2 is an impressive film version of one of the most famous of all science fiction novels. If you liked Part 1, you will probably like this film even more. Villeneuve has indicated he intends to do a movie version of the next book in the series, Dune Messiah. I can't wait.

But I do, nonetheless, have some qualms about the film's depiction of some of the political themes of the novel. We'll have to see if these problems persist in Part 3.

Free Speech

Theater Producers Have First Amendment Right to Choose White Actor Instead of Black

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From Moore v. Hadestown Broadway Ltd. Liab. Co., decided Thursday by Judge Loretta Preska (S.D.N.Y.):

Plaintiff Kim Moore is a black woman who works as an actress. Defendant is a company that produces and stages "Hadestown," a musical that runs on Broadway …. On or about January 30, 2020, Defendant hired Plaintiff to perform as an actress in its production of the Musical. Plaintiff played the role of "Worker #1" as part of the Musical's "Workers Chorus," as well as other parts in the Musical. In the Musical, the Workers Chorus consists of several actors who perform their roles as "Workers" within the Workers Chorus.

As of November 2021, the Workers Chorus consisted exclusively of black cast members, including Plaintiff. As a result, on November 23, 2021, David Neumann, a choreographer and supervisor for Defendant, emailed the entire cast of the Musical to apologize for the fact that the Musical was conveying a "white savior story" due to the exclusively black Workers Chorus.

In his email, Mr. Neumann stated that he, director Rachel Chavkin, and Liam Robinson, another Hadestown executive, were "commit[ted] to open dialogue regarding ongoing casting decisions and the ramifications of what that looks like in our particular story." Specifically, Neumann noted that "certain arrangements of actors on stage (a white Orpheus, a white Hades, and a Worker Chorus of all Black performers)" may have told "an unintended and harmful 'white savior' story." Neumann wrote that, although he, Chavkin, and Robinson did not "view Orpheus as a white savior" in the Musical and "[t]he 'text' of Hadestown may not speak about race," the particular arrangement of the Hadestown cast on stage had nonetheless expressed a "white savior story" because the actors are the Musical's "storytellers" who "become[ ] the story" on stage each performance through their selves, voices, and bodies….

On or about November 24, 2021—the day after Mr. Neumann emailed the entire cast of the Musical to apologize for the Musical's "white savior story"—Timothy Reid, a supervisor and dance caption for the Musical, informed Plaintiff that Defendant was seeking to replace her in the cast with a white woman.

If the facts were as alleged, the court concluded, that was race discrimination, but it was protected by the First Amendment; seems quite correct to me:

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Campus Free Speech

Texas Tech Investigates Professor for Social Media Posts

The AFA objects

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The Academic Freedom Alliance sent a letter to Texas Tech University protesting its suspension and investigation of Education Professor Jairo Funez-Flores. Like many others, Funez-Flores has shared his thoughts on the events in Israel and Gaza on social media. As with many academics, his views on Israel are controversial. In his case, expressing his private political opinions on social media resulted in his being suspended, investigated, and threatened with termination by his state university employer.

The professor's social media posts were first collected by Texas Scorecard, a conservative journalism site focused state politics. The site asserted that the social media posts were "antisemitic" and "do not correspond with the high standards of ethical conduct the university demands of its employees." The system chancellor and university president subsequently announced by Funez-Flores had been suspended with pay while an investigation is conducted. They denounced his posts as "hateful, antisemitic, and unacceptable."

The university's actions have been publicly reported here and here.

From the letter:

There can be no question that the social media posts of Professor Funez-Flores
are constitutionally protected expressions of private political opinions and cannot
themselves form the basis of university discipline. For the university to explicitly
leverage complaints about such social media posts into grounds for a fishing
expedition into the professor's professional conduct on campus is not only
inconsistent with the university's policies and constitutional commitments but
has a direct chilling effect on all members of the faculty who might wish to
engage in their own constitutionally protected expressive activities on
controversial topics. The publicly announced suspension and investigation is itself
a form of punishment, and the stated cause of this punishment is that the faculty
member engaged in protected political expression that some found "hateful,
antisemitic, and unacceptable."

Read the whole thing here.

Immigration

Overview of the Successes and Limitations of Private Migrant Sponsorship Programs

Reason immigration writer Fiona Harrigan surveys the growth of private migrant sponsorship programs. They have had impressive successes, but still suffer from unfortunte limitations.

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Reason immigration writer Fiona Harrigan has a valuable new article surveying the growth of private migrant sponsorship over the last two years:

The two African refugees arrived in Oneonta, New York—a quaint, upstate college town of just over 12,000 people—in summer 2023. By then a group of volunteers had been preparing for them for "six, seven, eight years."

Mark Wolff, communication chair of The Otsego Refugee Resettlement Coalition (ORRC), says his group had to put its hopes of helping refugees on hold during the Trump administration, which cut the refugee cap to its lowest level ever. Even after Joe Biden's inauguration, with promises of a more humane immigration policy on the horizon, things didn't look good for their plan…

The ORRC had already begun to raise money and identify community partners. It had done its homework and it had momentum. So when the Biden administration announced the Welcome Corps—an initiative that would let private citizens take the lead on sponsoring and supporting refugees, rather than the longstanding government-led approach—the coalition knew it had found its way to welcome newcomers. "We were one of the first [private sponsor groups] in the United States to get approval," Wolff says…..

The Welcome Corps is one of several private sponsorship schemes to be rolled out in the last three years. From the Sponsor Circle Program for Afghans to Uniting for Ukraine to a program specifically for Cubans, Haitians, Nicaraguans, and Venezuelans (CHNV), Americans who are moved by scenes of suffering around the world can put those feelings into action.

Wolff's sentiment speaks to the promise of these young private sponsorship schemes: getting more Americans directly involved in the welcoming process, getting newcomers to the point of self-sufficiency more quickly, and improving outcomes for immigrant and native communities alike. At a time when Americans are increasingly concerned about migration into the country, these community-driven approaches could be key to rebuilding trust in both immigrants and immigration.

As Harrigan recounts in detail, the new private sponsorship programs - beginning with Uniting for Ukraine (in which I am a sponsor myself) - have enabled hundreds of thousands migrants fleeing oppression and war enter the United States much faster than the traditional government-driven refugee system, and at little cost to the public fisc. By giving migrants an alternative legal way to enter the US, they have also reduced congestion and disorder at the southern border. Overall, these programs are the Biden Administration's biggest and most successful immigration policy innovation.

But, as Fiona also notes, the programs have important limitations.  All were established through the exercise of executive discretion, which means the next president could potentially terminate them at any time. That's a highly likely scenario if the next president turns out to be Donald Trump. Ideally, Congress would enact legislation preventing the executive from taking such action.

In addition, participants in most of these programs are only granted temporary residency and work permits (two years in the case of CNVH and Uniting for Ukraine, though participants in latter can now apply for two-year extensions, as can Afghan parolees). For reasons Fiona describes, it would be better if these rights were permanent.

Congress should pass adjustment acts to enable the Afghans, Ukrainians, and CHNV parolees stay permanently. See my discussion of the relevant issues here and here. Congress has previously enacted such legislation for other parolees fleeing war and oppression, including Hungarians, Cubans, and Vietnamese fleeing communism, much as CHNV refugees are currently doing.

The only private sponsorship program that does grant permanent residency rights is Welcome Corps. But participants are required to meet the absurdly narrow legal definition of "refugee" to be eligible. Congress could potentially fix this problem by expanding the definition.

Sadly, given the current political environment, it's unlikely Congress will successfully address any of these issues in the near future. The long-run fate of the new private sponsorship programs may well depend on the outcome of the 2024 election.

Cancel Culture

Guernica Cancels an Inconvenient Essay (UPDATED)

An "uncompromising" journal cancels an essay for failing to say the right things.

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Guernica, a non-profit journal publishing work at the intersection of art and politics, published a powerful essay by a literary interpreter working in Israel and her experience in the wake of October 7 and the resulting war between Israel and Hamas. The essay, "From the Edges of a Broken World," by Joanna Chen, provides a first-hand account of how life has changed for the author. It is deeply personal, and perhaps challenging in that it does not hew to a "side" in the current conflict--and perhaps that was the problem. Not hewing to the proper side's perspective, the essay was too challenging for some portion of Guernica's readership.

Although Guernica proclaims that it is "a home for singular voices, incisive ideas, and critical questions," this essay apparently crossed the line. The article has been removed from the journal's website. In its place reads the message: "Guernica regrets having published this piece, and has retracted it. A more fulsome explanation will follow."

[Update: It appears the article was de-published after multiple members of Guernica's all-volunteer staff resigned over the decision to publish the essay. For explanations of why some editorial and other staff felt they had to resign, see here, here, here, and here.]

Fortunately, there is an archived version of the piece available here. Give it a read and then ponder how this piece could be so objectionable that it needed to be de-published--not merely criticized or challenged, but actually removed.

A current fundraising appeal on the Guernica website declares: "At Guernica, we've spent the last 15 years producing uncompromising journalism." After de-publishing the essay, that appeal may need to be taken down too.

Standing

Does the Law of Standing "Need a Rewrite" After TransUnion?

Another federal appellate judge expresses discontent with current standing doctrine.

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Add the Honorable Paul Matey to the list of federal appellate judges to have raised concerns about the content and direction of the Supreme Court's standing jurisprudence. In a recent concurrence, in Barclift v. Keystone Credit Services, Judge Matey raised concerns about how current doctrine directs courts to identify what qualifies as an "injury-in-fact" for the purposes of Article III and, in the process (and quoting Justice Elena Kagan), suggested that the whole law of standing "needs a rewrite."

At issue in Barclift was whether a consumer whose personal information was shared by a creditor with a third party, in violation of the Fair Debt Collection Practices Act, suffers an injury that is sufficiently "concrete" to satisfy the requirements of Article III. Judge Arianna Freeman, joined by Judge Julio Fuentes, concluded that such an "injury," standing alone, is insufficient, even though it violates federal law. Judge Matey dissented, arguing that (at least under the Supreme Court's decision in TransUnion v. Ramirez), Barclift's injury was sufficient.

Judge Matey's opinion concurring in part, dissenting in part, and concurring in the judgment begins:

"Standing" is a term found in every first-year law school outline, but absent from the text of the Constitution, Foundingera discussions, English and Roman history, and the reported decisions of our federal courts throughout most of the twentieth century. Ever shifting, the judicially created standard of modern standing confuses courts, commentators, and plaintiffs like Paulette Barclift who are told their claim is insufficiently "concrete" to decide. Barclift says Keystone Credit Services shared private information about her physical and financial health with "an untold number of individuals" at a mailing facility close to her home. App. 62. Can she file a lawsuit for her alleged harms? Congress said yes, inserting a private right of action in the Fair Debt Collection Practices Act (FDCPA). And the Supreme Court has explained that the "disclosure of private information" has been "traditionally recognized as providing a basis for lawsuits in American courts." TransUnion LLC v. Ramirez, 594 U.S. 413, 425 (2021). I conclude that Barclift's "intangible harms" are sufficiently "concrete" for standing because they bear "a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts." Id.

But Barclift loses because the majority treats TransUnion's footnote six as talismanic, turning dictum into precedent and, along the way, adopting the jot-for-jot reading of caselaw that the majority's opinion purports to reject. Respectfully, I cannot pour that much meaning into a note, particularly where the result only adds to the incoherence of modern standing. So I dissent in part and in the judgment because, while standing "needs a rewrite," as the requirement stands, Paulette Barclift is due her day in court. Id. at 461 (Kagan, J., dissenting).

While applying TransUnion, Judge Matey does not spare it from criticism. He writes:

That decision [TransUnion] marked the first time the Supreme Court required a private individual to make some threshold showing of concrete harm, even though he was seeking to vindicate a private right. See 594 U.S. at 453–54 (Thomas, J., dissenting) ("Never before has this Court declared that legal injury is inherently insufficient to support standing.") . . . . And the yardstick chosen to measure concreteness—the close-relationship test—swapped the text and history of Article III for unspecified and undetermined markers in American "history and tradition." TransUnion, 594 U.S. at 424 (majority opinion). A plaintiff's allegations need not "exact[ly] duplicate" the elements of a common law cause of action, only resemble the "harm[s] associated with" those causes of action. Id. at 432–33.

This illustrates a judicial test "displac[ing] . . . controlling, nonjudicial, primary texts." OI Eur. Grp. B.V. v. Bolivarian Republic of Venez., 73 F.4th 157, 175 n.22 (3d Cir. 2023) (citation omitted). . . . Leaving us to work with only a "metaphor for the law" instead of the law itself. Mitchel de S.-O.-l'E. Lasser, "Lit. Theory" Put to the Test: A Comparative Literary Analysis of American Judicial Tests and French Judicial Discourse, 111 Harv. L. Rev. 689, 768 (1998)).

But work with the shadow we must, for "unless we wish anarchy to prevail within the federal judicial system," precedent must be followed "by the lower federal courts no matter how misguided the judges of those courts may think it to be." Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam). So I move to the best reading of TransUnion.

Judge Matey is far from the only federal appellate judge to express concerns about standing in recent years. TransUnion, in particular does not appear to be too popular among many judges.

Most prominently, Judge Kevin Newsom of the U.S. Court of Appeals for the Eleventh Circuit has called out the problems with existing standing jurisprudence and its application. In several recent concurring opinions Judge Newsom has expressed the concern that current standing doctrine is incoherent, difficult to apply, and insufficiently grounded in constitutional text.  (He addressed this issue, among other things, in  his Sumner Canary lecture at CWRU.)

Judge Newsom has not only criticized existing doctrine. He has also suggested an alternative: Ditching the requirement of "injury-in-fact" while simultaneously (re)invigorating Article II limitations on private party standing to enforce federal law.  It is an interesting and provocative proposal that is receiving attention. For those interested, I analyze and evaluate Judge Newsom's proposal for "standing without injury" in a forthcoming Wake Forest Law Review article.

One thing that is particularly interesting about the judicial critiques of modern standing doctrine is that so many of them come from conservative judges. Modern standing law, particularly as grounded in Justice Scalia's Lujan opinion, has been generally viewed as a conservative jurisprudential project. Yet, as illustrated by Justice Thomas's dissent in TransUnion, conservative justices and judges are no less likely than their liberal colleagues to raise questions about the way current doctrine is applied if not also the extent to which that doctrine has a proper textual home in Article III. Whether or not concerns about existing standing law produces a realignment, as suggested by Richard Re, it is quite likely that we will see significant developments in standing law in the next few Supreme Court terms.

Immigration

Mass Deportations of Immigrants Destroy More Native-Born American Jobs than they Create

Leading immigration economist Michael Clemens explains why.

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One of the standard rationales for deporting undocumented migrants is that it creates more job opportunities for natives. If employers can't hire migrants, they will, presumably, hire more native-born citizens. In a recent article for the Peterson Institute of International Economics, my George Mason University colleague Michael Clemens - one of the world's leading immigration economists - explains why this intuitive assumption is false. In reality, mass deportations destroy more jobs than they create:

The presumptive presidential nominee of one of the two major political parties in the United States has embraced an election platform of mass deportation for immigrants who are in the country illegally. He has called for military troops to seize millions of people each year in "workplace raids and other sweeps in public places" and sending those caught into "giant detention camps." The "largest domestic deportation in American history" is proposed to begin on January 20, 2025.

As this candidate's top adviser on immigration has stated: "Mass deportation will be a labor-market disruption celebrated by American workers, who will now be offered higher wages with better benefits to fill these jobs."

But the best economic research on past deportations suggests the opposite. The immigrants being targeted for removal are the lifeblood of several parts of the US economy. Their deportation will instead prompt US business owners to cut back or start fewer new businesses, in some cases shifting their investments to less labor-intensive technologies and industries, while scaling back production to reflect the loss of consumers for their goods.

Prior episodes of mass deportations and exclusions have occurred at several moments in US history. Research has shown that, far from generating economic benefits, their net effect was to reduce employment and earnings for US workers—in the short run and long run.

The rest of the article outlines the extensive empirical evidence on this point.

The key theoretical point is that, while deporting immigrants often does create jobs for natives who directly compete with them, it destroys more elsewhere in the economy. For example, immigrant workers produce goods that are used by other enterprises, thereby creating jobs there. Immigrants start new businesses at higher rates than natives. That, in turn, creates new jobs for both natives and immigrants. And, of course, immigrant workers produce goods and services that greatly improve the options available to native-born consumers (thereby indirectly making them wealthier). Clemens notes a number of other relevant indirect effects. Overall, immigration creates enormous economic benefits for natives, and restricting it greatly reduces their welfare and economic liberty (though migrants who get barred or deported suffer suffer even more).

One helpful way to think about the issue is to ask whether the twentieth-century expansion of job market opportunities for women and blacks helped white male workers, on net, or harmed them. Some white men likely were net losers. If you were a marginal white Major League Baseball player displaced by Jackie Robinson or other black baseball stars after MLB was integrated, it's possible that you would never find another job you liked as much as that one. But the vast majority of white men were almost certainly net beneficiaries by virtue of the fact that opening up opportunities for women and blacks greatly increased the overall wealth and productivity of society.

If, today, we barred women from the labor force, or restricted them to the kinds of jobs open to them a century ago, some male workers would benefit. For example, freed of competition from female academics, I might get a pay increase or become a professor at a higher-ranked school.

But, overall, men would be much poorer, by virtue of living in a far less productive and innovative society. And many men would lose jobs or suffer decreases in wages because their own productivity depends in part on goods and services produced by women. While I might have a more prestigious job, I would likely be poorer, overall, because I could no longer benefit from many of the goods, services, and innovations produced by female workers.

Similar consequences would occur if we were to reinstitute racial segregation, thereby severely restricting the job opportunities of black workers. While some whites would come out ahead, most would be net losers, as our economy becomes much less productive.

The key point to remember is that the economy - including the labor market - is not a zero-sum game. Men and women, blacks and whites - and immigrants and natives - can all prosper together, if only the government would let them.

Michael Clemens' most famous article gives some sense of the enormous benefits of dropping immigration restrictions, which could well result in a doubling of world GDP. While migrants and their families would benefit disproportionately, there would also be an enormous benefit to native-born citizens.

Standing

Does Anonymity Defeat Associational Standing?

The Second Circuit divides over whether an association must identify an injured member by name for the purposes of Article III. (Updated)

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The U.S. Court of Appeals for the Second Circuit unanimously dismissed a lawsuit by the organization Do No Harm against the Pfizer Corporation, alleging the latter operates a discriminatory fellowship program. While all three judges on the panel agreed the suit should be dismissed for a lack of standing, they disagreed about why. In particular, they disagreed about whether an association that seeks to establish Article III standing  based upon the alleged injury to an individual member must identify that member by name when seeking a preliminary injunction.

Judge Robinson wrote the majority opinion in Do No Harm v. Pfizer, and was joined by Judge Jacobs. Her opinion begins:

Defendant-Appellee Pfizer Inc. ("Pfizer") sponsors a Breakthrough Fellowship Program (the "Fellowship") that seeks "to advance students and early career colleagues of Black/African American, Latino/Hispanic, and Native American descent." J. App'x 45. Do No Harm, a nationwide membership organization, filed suit against Pfizer on behalf of its members, alleging that Pfizer unlawfully excludes white and Asian-American applicants from the Fellowship in violation of federal and state laws.

When Do No Harm moved for a preliminary injunction, the district court dismissed the suit for lack of subject matter jurisdiction. Do No Harm v. Pfizer Inc., 646 F. Supp. 3d 490, 517–18 (S.D.N.Y. 2022). In particular, the district court concluded that Do No Harm lacked Article III standing because, among other reasons, it failed to identify a single injured member by name. Id. at 504–05.

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Free Speech

No Pseudonymity in Mental-Health-Related Lawsuit

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From Koe v. Univ. Hospitals Health Systems, Inc., decided yesterday by the Sixth Circuit (Chief Judge Jeffrey Sutton, Judge Alan Norris, and Judge Eugene Siler):

Koe was a medical resident at Case Western Reserve University/University Hospitals Cleveland Medical Center from June 2019 until he was discharged in April 2021, ostensibly because he lost his privileges to practice at the Cleveland Veterans Affairs Medical Center. Koe claimed, however, that he was terminated because he resisted having to participate in unspecified mental health counseling through the hospital's employee assistance program (EAP)…. Koe claimed … that the hospital's use of the EAP in this fashion was abusive, and he filed a complaint with the National Labor Relations Board and the Equal Employment Opportunity Commission over this practice. Koe also complained to his supervisors that one of his colleagues subjected him to a hostile work environment by quizzing him about his family's medical history….

The court upheld the district court's ruling that Koe wasn't entitled to proceed pseudonymously:

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Criminalizing Politics is a Threat to Democracy

Both President Biden and former Presidents Obama and Trump are partly to blame

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Since I was a sophomore in Yale College, in 1976, I have studied the process by which democracies die and get turned into dictatorships. One of the key causes of the death of democracy is the criminalization of political disagreements. While politicians love to be able to cast their opponents as being not merely wrongheaded but also crooks, this is a temptation that must be avoided. The jailing of people who one cannot beat in a free and fair election subverts democracy and has led to dictatorship in many democracies.

It has only been 231 years since the French Revolution's Reign of Terror ultimately sent 50,000 people to the guillotine including former King Louis XVI and his wife Marie Antoinette. This situation led inevitably to a Napoleonic dictatorship. Americans must resist at all costs traveling down this very same dangerous path.

In his State of the Union address last night President Biden cast himself as the defender of democracy who would jail former President Donald Trump. I criticized President Trump's behavior on January 6, 2021 in scorching terms, and I argued that his second impeachment should end with a verdict of disqualification from holding office in the future. But, I specifically said then, and I continue to believe now, that no former President of the United States should ever be sent to jail because of the effect that doing so would have on the 35% to 40% of the U.S. population has in revering a particular President who may have committed a crime. President Gerald R. Ford's best and most memorable act in office was his simultaneous pardoning of President Richard M. Nixon and of the Vietnam War era draft evaders to heal the country from the poisonous, political atmosphere of the late 1960's and early 1970's.

Notwithstanding this, the Biden Administration is currently criminally prosecuting Donald Trump for offenses that would lead to Trump's imprisonment where he could easily be murdered by fellow inmates. Trump has thus likened himself, quite reasonably, to Alexei Navalny, the opponent of Russian President Vladimir Putin who was recently murdered in jail where he was held for the crime of running against Putin when he is up for re-election. Even more offensively, Trump is being prosecuted by an unconstitutionally appointed Special Counsel instead of by a Senate-confirmed U.S. Attorney who has been designated to be a federal Special Counsel. The reasons why this is unconstitutional are spelled out in meticulous detail in a law review article by me and Professor Gary Lawson, Why Robert Mueller's Appointment Was Unlawful? 95 Notre Dame University Law Review 87 (2019).  We have made these same arguments as well in numerous amicus briefs about Jack Smith's illegal appointment as Special Counsel, which we have been filing in 2023 and 2024 in the U.S. Supreme Court, in the U.S. Court of Appeals for the D.C. Circuit, and in the Florida District Court before which Trump is being prosecuted by Jack Smith.

If President Biden was really serious about being a friend of democracy, he should also call out New York State Attorney General Letitia James for her highway robbery civil lawsuit for $450 million in civil fraud fines and penalties, which just happens to drain Donald Trump of all of his cash just when the national presidential election is getting started, and he needs money.  This is a vile abuse of the legal system, which poses a direct threat to democracy.

On top of all of this, there is the fact that Donald Trump has not even been charged with inciting a riot under the Insurrection Act, the penalty for which includes disqualification from holding office, and the "crime" of which he is most plausibly guilty. Instead, the Biden Administration waited nearly two years to prosecute Trump for his behavior on January 6, 2001 finally filing dubious indictments and almost guaranteeing that any criminal trials would occur in the middle of the presidential election, as is now happening. Joe Biden and Merrick Garland's "pretense" of "depoliticizing" the Justice Department is nothing more than a fraud on the American people. A serious Attorney General would have appointed a U.S. Attorney Special Counsel to investigate Trump for violating the Insurrection Act at 12:01pm on January 20, 2001, and such a serious Attorney General would have made clear that he sought no jail time but only a disqualification from holding office in the future. Trump should have, at most, been treated the way former President Richard M. Nixon was.

Former President Trump and House Republicans are just as guilty of criminalizing politics as is the Biden Administration. They have hounded Hunter Biden, a sad middled-aged, drug addict, with countless calls for criminal prosecution.  While many of these complaints have some merit, and while I believe Hunter Biden has committed crimes, I think he should be heavily fined and not jailed because of the norm of not criminalizing political disagreements.  Former President Trump has also threatened to weaponize the Justice Department against his political foes if he is elected President in November.

It is quite understandable, given all that the Democrats have put Trump through, for the former President to feel the way he does, but he should turn the other cheek and not seek revenge. Trump needs to restore democracy in the United States, and the bringing of partisan criminal prosecutions will not accomplish that goal. Back in 2016, when Trump called for locking up Hillary Clinton for her home use of a private server for classified information, I wrote in opposition to prosecuting Hillary Clinton. As Trump has lived to discover, prosecutions for the mishandling of classified documents are very much of a two edged sword, one edge of which is now quite wrongly being used against Trump himself.

Former President Barack Obama started this recent descent into the criminalizing of politics when his Justice Department, on totally spurious grounds, began a secret criminal investigation of Trump's 2016 presidential campaign when he was still just a candidate for office.  The Obama FBI's behavior was reprehensible as was the absurd Mueller Special Counsel investigation it led to.

It takes two parties -- Democrats and Republicans -- to start the process of criminalizing politics and it will take both parties to stop it.  The media, the academy, and the judiciary should come together and do this country's democracy a big favor by ending the criminalization of political disagreements, which threatens to become like the French Revolutionary Reign of Terror. Our 235 year old constitutional democracy has never been in greater danger.

Immigration

Federal District Court Rules Red States Lack Standing to Challenge Legality of Immigration Parole Program for Migrants from Four Latin American Countries

The ruling allows the CNVH private sponsorship program - covering migrants from Cuba, Nicaragua, Venezuela, and Haiti to continue. But it is likely to be appealed.

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Venezuelans fleeing the socialist regime of Nicolas Maduro. (NA)

 

Today, federal District Court Judge Drew Tipton issued a ruling in Texas v. Department of Homeland Security, rejecting a suit filed by a coalition of red states led by Texas, challenging the legality of the Biden Administration's CNVH parole program (also sometimes called "CHNV"), which allows migrants from four Latin American countries to enter the United States and live and work here for up to two years, if they can find a US-resident sponsor willing to support them.

Judge Tipton (a conservative Trump appointee) ruled that the states lacked standing to bring a lawsuit challenging the program. The plaintiff states argued Texas has standing because parolee migrants entering the state would lead the state government to incur various additional costs, thereby proving the necessary "injury in fact" required by Supreme Court standing precedent. But Judge Tipton concluded the evidence shows that the CNVH program actually reduces the number of migrants from these countries who enter the state. Thus, it doesn't increase the costs borne by the state, and therefore Texas hasn't suffered an "injury" sufficient to get standing:

To prove an injury in fact, Texas must show "an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. at 2136…. In the
context of state challenges to federal immigration policies, states have historically proven injury-in-fact by demonstrating the additional costs paid across state-funded industries because of additional aliens….

Texas's theory for standing "was based on allegations that the CHNV processes were likely to increase the number of CHNV nationals in the State and thus increase the State's costs…."  And as observed by Intervenors [a group of sponsors of CHNV participants], the trial record disproves this theory…. Intervenors argue that the undisputed data presented at trial confirms that the CHNV Parole Program has reduced the total number of individuals from the four countries, and consequently, Texas has actually spent less money as a result of the Program….

Judge Tipton canvasses the relevant Supreme Court and Fifth Circuit court of appeals precedent and finds that the right way to measure costs is to consider the net impact of the program in question, not just the costs that may be created by program beneficiaries taken in isolation. Since the evidence shows the program reduces the total number of CNVH migrants in Texas, it actually saves Texas money, and thus the state lacks standing. Earlier in the litigation, the state plaintiffs stipulated that only Texas's costs were to be considered, not those of the other states.

How does the CNVH parole program actually reduce the number of migrants from these four countries entering Texas? Because it allows program participants to come to the US legally without ever having to cross the southern border, many migrants who might otherwise have tried to enter Texas or other border states illegally instead seek legal entry under CNVH. Many go directly to their final destinations in other states by ship, plane, or other means of transportation. Even those who do enter through border states might not stay there very long.

I covered this point in much more detail in an amicus brief I filed defending the legality of the program, on behalf of the Cato Institute, MedGlobal (a medical non-profit serving migrants and refugees, among others), and myself. Our brief does not address standing. But, for reasons  explained in the brief, the alleviation of pressure on the border also matters for the merits of the case (which Judge Tipton didn't reach). See also my September 2023 article about the case in the Hill.

I am skeptical of narrow definitions of standing and would have preferred the court to uphold the CNVH program on the merits. However, Judge Tipton does make a good argument that this is the right result under current standing precedent. It is also broadly consistent with the Supreme Court's June 2023 8-1 decision in United States v. Texas, holding that many of the same red states that brought this case lack standing to challenge the Biden administration's immigration enforcement guidelines, even though the states argued that the administration's decision not to deport certain migrants increases states' costs (though there are also ways to potentially distinguish the two cases).

As David Bier and I explain in a November USA Today article, CNVH could do even more to alleviate border problems - and help migrants fleeing horrific oppression and violence - if the Biden administration were to expand it to cover more countries, and lift the arbitrary 30,000 per month cap on the number of participants. The cap has created a massive backlog of applicants.

And, while it may not be relevant to standing analysis (because of the indirect nature of such effects), the economic benefits of increased migration generally outweigh any additional costs to state and federal governments, especially given the immigrants also pay taxes.

This decision is likely to be appealed to the Fifth Circuit. Alternatively, the states might try to find some other way to get standing. The latter, however, may prove difficult if Judge Tipton's ruling stands. For the moment, however, the CNVH program can continue.

This case likely isn't over. But it's not a good sign for the states that they lost in district court despite the fact they chose to file in this district specifically because they were likely get Judge Tipton to hear the case. He's a conservative whom many observers expected to be sympathetic to the states' position.

NOTE: As indicated above, I filed  an amicus brief in this case defending the legality of the program, on behalf of the Cato Institute, MedGlobal, and myself. However, the brief does not address the issue of standing. What I write on that question represents solely my own views, and not those of Cato, MedGlobal, or anyone else.

I am, as discussed in the brief, a sponsor in the Uniting for Ukraine program, which is based on the same statutory authority as CNVH, but was not challenged by plaintiff states.

Free Speech

Trump Media Libel Lawsuit Against Washington Post Dismissed, but Might Be Refiled With More Detailed "Actual Malice" Allegations

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From today's opinion in Trump Media & Technology Group Corp. v. WP Co. LLC, decided by Judge Tom Barber (M.D. Fla.):

This lawsuit for defamation by Plaintiff Trump Media & Technology Group Corp. ("TMTG") against Defendant WP Company LLC (the "Post") arises from an article titled "Trust linked to porn-friendly bank could gain a stake in Trump's Truth Social," published by the Post on May 13, 2023, and circulated on Twitter (now known as "X") by Post personnel. The article described events related to a contemplated merger between TMTG and Digital World Acquisition Corp. ("DWAC") as part of taking TMTG's "Truth Social" business public.

The article noted there had been a delay in obtaining SEC approval for the merger, which supporters of former President Donald Trump and TMTG attributed to political bias. The article offered an alternative explanation: concerns over a loan or loans obtained by TMTG, the identities of the lenders, and whether those loans had been properly disclosed by DWAC in its public filings. The article cited various sources for its story, including "internal documents a company whistleblower has shared with federal investigators and [the Post]" and statements expressly attributed to the whistleblower, former TMTG officer Will Wilkerson.

The article related that in late 2021, with the proposed merger "frozen" and TMTG concerned about paying its bills, DWAC president Patrick Orlando announced he had arranged for $8 million in loans from an entity known as "ES Family Trust." According to the article, the loans were part of a deal in which TMTG would receive the loans, and in exchange, ES Family Trust would acquire an equity interest in the public entity to be formed from the merger of TMTG and DWAC. This loan-for-stock deal was reflected, according to the article, in a convertible promissory note, although the article acknowledged that the only copy of the note the Post had been able to locate was unsigned. The article also reported that some of the funds were wired by another entity, Paxum Bank, which had ties to ES Family Trust and to the adult film industry. Also, according to the article, TMTG paid a finder's fee of $240,000 in connection with the loans to Entoro Securities, a Texas entity of which Orlando was a managing director.

The article stated that neither the loan-for-stock deal nor the finder's fee had been disclosed to shareholders of DWAC or the SEC, and that New York University law professor Michael Ohlrogge opined that these matters could affect the value of the shares and should have been disclosed. The article also noted that the British journal The Guardian had earlier reported that federal prosecutors in New York were investigating whether TMTG violated money laundering statutes in connection with these loans, and that TMTG Chief Executive Officer Devin Nunes filed a lawsuit against Wilkerson and others (including The Guardian) asserting that the Guardian story was "fabricated."

TMTG sued for libel, but the court concluded that it hadn't adequately alleged knowing or reckless falsehood (so-called "actual malice"), though it concluded that the matter was close as to some allegations, and allowed plaintiff to file an amended complaint that could provide such allegations (assuming there was a plausible basis for them).

The court also discussed the Post's "neutral reporting privilege" argument, and partly accepted it but partly rejected it:

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Free Speech

Claim That University of Oregon Equity Blocked Twitter User for Tweeting "All Men Are Created Equal" Can Go Forward

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From Gilley v. Stabin, decided today by the Ninth Circuit, in an opinion by Judges Ryan Nelson and Daniel Collins:

Using the University's @UOEquity Twitter account, tova stabin, then Communication Manager for the University's Division of Equity and Inclusion, tweeted a prompt purporting to show ways to respond to racist comments. {We follow stabin's convention of not capitalizing her name.} Gilley quote tweeted the "racism interrupter" tweet by saying that "all men are created equal." In response, stabin blocked him from the University's @UOEquity account. His blocking lasted for two months. During that time, Gilley attempted to learn what policies governed his blocking. The University denied the existence of any such policy.

Gilley sued stabin … for violating his First Amendment rights…. In response, the University unblocked him ….

The court concluded that the challenge wasn't moot (with Judge William Fletcher dissenting):

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Donald Trump

New Lawfare Article on "What the Supreme Court Got Wrong in the Trump Section 3 Case"

I argue that the justices botched the legal analysis and relied too much on questionable policy considerations.

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Earlier today, Lawfare published my article criticizing the Supreme Court's recent article in the Trump Section 3 disqualification case. Here is an excerpt from the introduction:

The Supreme Court's unanimous recent decision in Trump v. Anderson overturned the Colorado Supreme Court ruling disqualifying Donald Trump from the presidency under Section 3 of the 14th Amendment. It does so on the grounds that Section 3 is not "self-executing." In a per curiam opinion jointly authored by five justices, including Chief Justice John Roberts, the Court ruled that only Congress, acting through legislation, has the power to determine who is disqualified and under what procedures. This outcome was predictable based on the oral argument… But the Court nonetheless got the issue badly wrong….

Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or … an officer of the United States" or a state official and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

By focusing exclusively on the self-execution issue, the Court left for another day all the other arguments at stake in the Trump case, such as whether the Jan. 6, 2021, attack on the Capitol qualifies as an "insurrection," whether Trump "engaged" in it, whether his actions were protected by the First Amendment, whether Trump received adequate due process, and whether the president is an "officer of the United States" covered by Section 3. The justices may hope they can avoid ever having to decide these questions.

In my view, Trump deserved to lose on all these points, and the Colorado Supreme Court correctly rejected his arguments on them. But I think he did have a plausible argument on the issue of whether his involvement in the Jan. 6 attack was extensive enough to qualify as "engaging" in insurrection. At the very least, he had a better argument there than on self-execution. The Court's resolution of the latter issue is based on badly flawed reasoning and relies heavily on dubious policy arguments invoking the overblown danger of a "patchwork" of conflicting state resolutions of Section 3 issues. The Court's venture into policy was also indefensibly one-sided, failing to consider the practical dangers of effectively neutering Section 3 with respect to candidates for federal office and holders of such positions.

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