The Volokh Conspiracy Archive

Sometimes it seems like nothing ever changes with the national injunction. Federal district courts still give them, with all of the predictable consequences related to forumshopping, percolation, end runs around class actions, and rushed decisionmaking with slender factual records. But there are changes. Some federal courts of appeals have been growing noticeably more skeptical about national injunctions (e.g., the Eleventh). There has been a shift from injunctions to the so-called remedy of "vacatur." And there is a new push from Senator McConnell to end the national injunction--which should be welcomed by Democrats and Republicans alike, because everyone has felt and will feel the pain. (The counter-argument in the NY Times article just linked to, given by Professor Vladeck, that we should have some national injunctions instead of none, doesn't work, because no one has come up with an effective limiting principle and it inevitably turns into ideological station identification: "good" national injunctions for me, "bad" national injunctions for thee.)

And now we have another new development--quite literally, because the Harvard Law Review's new Developments in the Law has just dropped. Chapter 4 is called District Court Reform: Nationwide Injunctions, and it's very impressive. Here are a couple paragraphs from the introduction:

A robust scholarly literature has grappled with these questions. Some scholars, jurists, and attorneys criticize the practice of district courts issuing nationwide injunctions as an inappropriate abuse of power.¹⁴ Others defend nationwide injunctions as a powerful way to check federal agency overreach and ensure robust relief for plaintiffs.

This Chapter explores these arguments, considering court reform at the district-court level. It also builds on a list of injunctions solicited from the Department of Justice (DOJ) to provide the first empirical evidence documenting a trend that has not been, until now, fully quantified: nationwide injunctions have indeed grown much more common, dramatically spiking during the Trump Administration before decreasing during the Biden Administration. Section A of this Chapter quantitatively surveys this rise. Given this trend, section B identifies the troubling policy consequences of more frequent nationwide injunctions. Section C surveys proposals for reform, taking into consideration the ways in which judges have recently responded to this trend with apparent self-restraint and self-awareness.

One note--although national injunctions have fallen dramatically during the Biden administration, as the Developments chapter notes this is to a substantial degree an artifact of litigants and district courts switching from national injunctions to "universal vacatur." The bi-partisan destruction that the national injunction and its "evil twin" bring--thwarting most major domestic presidential initiatives since 2014--continues apace.

Here is the appendix with the dataset. And I have it on good authority that the authors of this terrific contribution to the debate are Laura Aguilar and Layla Rao--well done!

Recently I was honored to be chosen as the faculty advisor to Harvard's student chapter of the Federalist Society, the successor to the late Charles Fried. This past weekend I gave some remarks at their annual alumni banquet, both to remember Prof. Fried and to set out some challenges before us. In case any of you have an interest in reading them, I thought I'd post the remarks here.

I'm very honored and deeply grateful to be here as the second faculty advisor to the Harvard Law student chapter of the Federalist Society.

It's unusual, to say the least, in a chapter now four decades old, that I would be only the second such advisor. And so I don't think we can let this occasion pass without remembering the first such advisor, Charles Fried, and without raising a glass in his memory.

Charles Fried led a life and career that should offer grounds for admiration to all of us. Solicitor General of the United States, Associate Justice of the Supreme Judicial Court of Massachusetts, the Beneficial Professor of Law, a teacher and mentor to many, a father and a grandfather—as they say, we should all be so lucky.

My father Alan Sachs, HLS Class of 1970, was Prof. Fried's student and remembers him and his class fondly. Another of Prof. Fried's students, a dissertation advisee, recently told me how her first substantive meeting with him involved the two of them starting to discuss what she had written and then arguing with raised voices and at full tilt for an hour—at the end of which he broke into a broad smile and asked when they should meet to discuss the next chapter.

Those of my colleagues who've had more time to share with him on this faculty universally praise his wit, his collegiality, and his generosity of spirit. And if, when my turn comes, my successor as the third faculty advisor to our FedSoc chapter can have as much respect for me as all those I've met here have for Prof. Fried, I'd be a lucky man indeed.

And Prof. Fried was, as well as an extraordinary man, extraordinarily lucky.

Karel Fried was born in Prague in 1935—and for Jews, "born in Prague in 1935" is not usually the prologue to a long or happy life. His family was able to flee in 1939 just ahead of the Nazis, arriving in New York in 1941. As he told us at the faculty lunch table a few months ago, his father initially intended that the family settle in South America; it was only the happenstance of the young Charles's contracting a childhood illness, restricting their immigration for several months, that kept them in the United States instead of Bogotá. That was our good fortune as well as his; but it wasn't just good fortune that made the United States a place where the Fried family could go, and where they could be among the few who were safe in a very dangerous world.

The principles of the Federalist Society, whose Harvard chapter Prof. Fried long advised, are very familiar to you, and I have no need to repeat them. But I worry, thinking of Prof. Fried's life and example, that we often think of them in reverse order.

We spend a lot of time talking about the third principle, how the province and duty of the judiciary is to say what the law is, and not what it should be. Most of our time in class, and a good deal of your time out of class, is spent reading, and discussing, and underlining, and highlighting, and annotating, and summarizing, the work of courts and judges, and seeing how often they fall short of that ideal. And this is worth doing, both for its own sake and as part of your training to be lawyers.

When we can raise our eyes a little bit from the details of the casebooks, we're able to spend a reasonable amount of time—though somewhat less than before—on the second principle, that the separation of governmental powers is central to our Constitution. We debate it, we design student symposia around it, we center on it our abstract debates of constitutional interpretation and legal theory. And this, too, is worth doing, both as scholars and as citizens.

But the most important principle, on which we spend perhaps the least amount of our very limited time, is the one that's listed first—that the state exists to preserve freedom. And it is this that our Constitution and its separation of powers, and our judges and courts and lawyers who work under them, are designed to serve.

In 1861, in the early days of a Civil War in which no one yet knew that the Union would survive, Abraham Lincoln jotted down some fragmentary thoughts on how the Constitution, even the Union itself, didn't exist for their own sake, but rather to preserve the freedoms named in the Declaration of Independence—the Proverbial "golden apple in the silver frame."

Thinking of the remarkable prosperity and energy of the Republic he now led, he wrote,

All this is not the result of accident. It has a philosophical cause. Without the Constitution and the Union, we could not have attained the result; but even these are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something is the principle of "Liberty to all"—the principle that clears the path for all—gives hope to all—and, by consequence, enterprize, and industry to all.

The expression of that principle in our Declaration of Independence was most happy, and fortunate. Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government and consequent prosperity. No oppressed people will fight and endure, as our fathers did, without the promise of something better than a mere change of masters.

The assertion of that principle, at that time, was the word, "fitly spoken" which has proved an "apple of gold" to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made not to conceal or destroy the apple; but to adorn and preserve it. The picture was made for the apple—not the apple for the picture.

So let us act, that neither picture or apple shall ever be blurred, or bruised or broken.

That we may so act, we must study, and understand the points of danger.

The fragment breaks off there. And while our days, thankfully, are not so dark as Lincoln's were, we, too, must study and understand the points of danger, even as we study and understand secured transactions or the Chenery doctrine or whether the executive has a removal power.

To have a government that's strong enough to preserve freedom from those who would destroy it from without—those from whom Prof. Fried's family fled—and yet principled enough to resist the shortcuts and compromises and self-serving impulses that can undermine freedom from within, is something historically rare and practically difficult.

We don't have a world in which men are angels, as Federalist 51 tells us; nor do we have a ready supply of angels who are to govern men. All we've got is "a government which is to be administered by men over men," in which "the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself."

Sometimes it may seem like we're faced with a choice between leaders who would scorn the powers of government, the better to praise its limits; and those who would scorn the limits on government, the better to praise its powers.

Our work in the law is only one small corner of the work that has to be done to create a society whose strength can adequately protect its freedoms, and whose freedoms—as Lincoln described—can properly inspire and justify that strength.

That's why FedSoc is a society for law and public policy studies—considering not only the work set out for lawyers and judges, but that set out for legislators, officials, soldiers, scholars, and ordinary citizens. It is not for us to complete that work, but neither are we free to refuse it.

Only a few months before he died, Professor Fried gave his last Harvard faculty workshop, on a book project entitled Metanoia—a term with which I'm willing to admit I was unfamiliar beforehand (and maybe some of my colleagues were too), but which Oxford defines as "The act or process of changing one's mind."

The book discussed a series of people who had changed their minds on very important issues, even late in life. But in particular, metanoia is defined as an act of "penitence" or "repentance." Not just a rending of garments, with ashes and sackcloth and such, but a returning, a renewing—the kind of repentance that the author of Lamentations hoped would "renew our lives as in days of old."

I'm sure I disagreed with Prof. Fried on a variety of things, both before and after his various changes of mind. But I am convinced that his willingness to reconsider, to seek after the truth even late in life with the same energy and in the same spirit of inquiry as at the beginning, is a quality to which we should all aspire—and a quality that a nation that many see as in need of renewal needs too, just as much in its two-hundred-and-fiftieth year as in its first.

It's often said of child-rearing—and with girls at nine and eleven, I can authoritatively agree—that the days are long but the years are short.

Your time in law school may seem like a very long three years, but it also goes by very quickly, more quickly than you might expect. And indeed our lives in the law, as well as out of it, even lives as long and accomplished as Professor Fried's, are shorter than we think too. My hope tonight is that we may all use them as well as he did, and leave something even better for those who come after us.

I'm glad to be able to pass along this item from Prof. Candeub (who has written extensively on this general subject):

The Texas social media law (H.B. 20) requires the major social media platforms to refrain from discrimination on the basis of viewpoint, thereby allowing those of all political, religious, and social views to participate in what the Supreme Court has called our "modern public square." The platforms challenged the law on First Amendment grounds in NetChoice v. Paxton, and the Court heard argument last February.

One of the arguments in favor of the law is that Texas can impose non-discrimination mandates on social media firms pursuant to its power to regulate public accommodation and common carriers. Grounded in actions of assumpsit dating back to the early-17th century common law, public accommodation law traditionally required businesses making generalized offerings of goods or services to the public to accept all customers—though at common law, such businesses could refuse or terminate a service offered to all in a general undertaking if they offered a legally valid reason, as Adam J. MacLeod explains. Property owners do not have absolute rights under the First Amendment to exclude speakers or speech they dislike or wish to suppress. Modern public accommodation, first codified in the mid-19th century, rejects certain types of discrimination as valid.

Similarly, under common carrier law, a legal category that predates public accommodations, firms that engage in the business of transmitting messages as part of an undertaking to provide carriage to everyone, such as letter and package carriers, telephones and telegraphs, must carry the speech of all regardless of viewpoint or the content of the message, as I explain.

4/10/1967: Loving v. Virginia argued.

Allegheny County Judge Chelsa Wagner's decision last week in Doe v. Hardy (Pa. Ct. Com. Pl.), didn't explain its rationale, but here is the argument that the court rejected, which also includes the background factual allegations:

Plaintiff John Doe and Defendant Brian Hardy are both members of the Phi Kappa Tau ("PKT") Fraternity and alumni of the Westminster College chapter. Doe and Hardy maintained their involvement with PKT and the Westminster chapter following their respective graduations. They held various positions with the national fraternity and held advisory board positions with the Westminster chapter.

In 2021, Doe raised concerns regarding a loan received for fraternity house renovations and possible self-dealing and policy violations, which involved Hardy. In retaliation, Hardy took steps to harm Doe's reputation and professional relationships by defaming and disparaging him.

Hardy falsely accused Doe of sexually assaulting a student, being a predator, preying upon vulnerable undergraduate students, victimizing Westminster College students, offering alcohol to underage students, plying underage students with alcohol, regularly visiting the Westminster fraternity house and partying with fraternity brothers, intentionally failing to report fraternity brothers selling drugs and the alleged sexual assault of a student, and having been banned from PKT's headquarters from working in any capacity with undergraduate students.

Lots of amicus briefs have been filed for and against former President Trump's claims of immunity from prosecution for his actions on January 6 in Trump v. United States. Among the more interesting briefs filed on behalf of respondents is an amicus brief for Stephen McAllister and Scott Paul (with Erik Jaffe and James Heilpern on brief as counsel) argues that existing precedents on presidential immunity lack a textual basis and that, if the Supreme Court's majority is to be as textualist as it purports to be, it should not extend or build upon this non-textual precedent.

Here is the brief's summary:

Amici agree with Respondent and the panel below regarding the question presented that Presidents, like all other citizens, are not immune from the consequences of violating federal criminal law. Amici take no position here on any potential legal questions antecedent or subsequent to the question presented. And they take no position on whether the facts and the law will ultimately result in conviction, acquittal, or dismissal on other grounds.

Amici write separately to emphasize how Petitioner's claims of immunity lack any basis in the Constitution's text. Indeed, Petitioner's claims flout this Court's repeated and recently enhanced emphasis on looking to the original meaning of such text, as interpreted by history and tradition, rather than relying on penumbras, emanations, reading between the lines, historical practices not incorporated into the text, or, ultimately, the policy preferences and balancing of judges imposed upon such Rorschach-like non-textual approaches.

It has been the decades-long project of conservative jurisprudence to get away from such subjective and malleable approaches to constitutional and statutory interpretation, and this case is not the place to backslide on such jurisprudential principles. Alleged violations of federal criminal law are not discretionary choices left to the President by the Constitution or statute. Even Presidents must be legally accountable for violations of the laws they are sworn to faithfully execute.

The Constitution itself provides no textual basis for Presidential immunity from federal criminal laws. When Petitioner cites actual constitutional provisions, he either invokes the strained implications— penumbras and emanations, perhaps—of clauses that say nothing about immunity, or gets things exactly backwards. When it comes to text, reading is fundamental.

The mere vesting of executive authority says nothing about immunity when such authority is abused or exercised in violation of laws enacted pursuant to Congress' legislative authority. Nothing in the text suggests it is left to the discretion of the President to violate federal or constitutional commands and limitations. And nothing in the text precludes the executive branch from deciding whether to lawfully prosecute previous Presidential violations of the law in the federal courts.

The Impeachment and Impeachment Judgment Clauses likewise provide no immunity to Presidents and do not establish a condition precedent for prosecution. Indeed, the Impeachment Judgment Clause supports exactly the opposite conclusion, serving as a negation of any imagined double jeopardy constraints based on conviction by the Senate. In doing so it confirms that ordinary legal accountability against Presidents is the default legal regime that is not to be displaced regardless of the outcome of impeachment and trial.

Structural concerns and other provisions of the Constitution likewise do not support presidential immunity from federal criminal law. The mere delegation of power does not imply absolute discretion in its exercise, and other so-called structural arguments amount to little more than policy arguments regarding which courts are not the proper arbiters. And, where the Constitution intended immunity for elected officials, it said so explicitly and with built-in limitations, such as in the Speech and Debate Clause, providing specific, but certainly not absolute, immunity to Senators and Representatives. The absence of a comparable provision for Presidents and other executive officers should be more than sufficient to dispose of Petitioner's claimed immunity.

Unable to point to any immunity provision in the Constitution itself, Petitioner relies on older precedent based upon the very methodologies now viewed as illegitimate. While others will discuss the finer points of this Court's past precedent and why it does not apply to this case, Amici here merely note that such precedent lacks any coherent textual basis and, at a minimum, should not be extended further.

Finally, this Court should resist any policy urges to invent immunities for the President and instead hold that the agent of the People charged with faithfully executing the laws is also subject to those self-same laws and will not be given a free pass out of fear for the consequences of applying the Constitution as written. If there is a problem with perceived risk to future Presidents, it is Congress, via legislation, that is best suited to strike that balance and provide any limited immunity it might deem appropriate. While there are legitimate differences of opinion regarding the proper balance between rule of law versus executive timidity, it is decidedly not the role of this Court to strike that balance.

Insofar as the Court insists on drawing lines, however, it should take a narrow view of what presidential conduct is "discretionary" and hold that even otherwise "official" conduct that violates federal criminal law is ultra vires and hence neither discretionary nor immunized from the criminal consequences of such violation. Indeed, the constitutional command that a President "take Care that the Laws be faithfully executed" provides as good a basis as any for holding, at a minimum, that intentional or reckless violations of federal criminal laws are not part of the "faithful[]" execution of the laws and not entitled to immunity. The alternative proposed by Petitioner would lead to absurd results or subjective and policy-driven judicial determinations of what conduct goes too far beyond the "outer bounds" of official action.

From Friday's decision by Judge Denise Cote (S.D.N.Y.) in Farrakhan v. Anti-Defamation League:

The challenged statements referring to Farrakhan as antisemitic are non-actionable statements of opinion. The communications in which they were published contain "a recitation of the facts on which [they are] based"—namely, direct quotes from Farrakhan. Thus, the statements calling Farrakhan antisemitic cannot be "reasonably understood as implying the assertion of undisclosed facts justifying the opinion.".

The challenged ADL blog post title ("Farrakhan Predicts Another Holocaust") appears at first blush to be a statement "capable of being proven true or false," but "the full context of the communication in which the statement appears [and] the broader social context and surrounding circumstances are such as to signal" to readers that what is being read "is likely to be opinion, not fact." The full title of the post, and its lede, indicate that its subject is the Savior's Day speech. The post contains direct quotes from that speech {such as "[t]he Synagogue of Satan has destroyed the country"}, including one that could be fairly interpreted as a reference to the Holocaust. [The relevant quote is this: {A Jewish man said to me, 'You know, we say never again. Never again will we be in the oven. Never again.' I said, 'Hold it.' You can say that to men, but you can't say that to God. Because the Bible says, behold the day cometh that shall burn—as a what?—as an oven.}] The full context of the communication indicates that its title is an interpretation of the facts disclosed within the article. The same is true for the statement in the SWC article that Farrakhan "invoked the New Testament's 'Synagogue of Satan' to demonize Judaism." …

4/9/1923: Adkins v. Children's Hospital decided.

If you're interested in the intersection of corporate law, trademark, accounting for profits, and federal equity jurisdiction, you'll be interested in a new amicus brief that my colleague Paul Miller and I just filed in support of a cert petition in Dewberry Group, Inc. v. Dewberry Engineers Inc. A huge thank you to Donald Burke, John B. Goerlich, and William Weber, all of Willkie Farr & Gallagher, for outstanding work on the brief.

The basic issue is whether "equity" is a talisman that allows a court, in awarding an accounting for profits, to override separate corporate personality. We answer no. And the answer matters not only for the resolution of a circuit split, and not only for the interpretation of the Lanham Act, but also more generally for how federal courts interpret the many federal statutes authoring "equitable relief" or relief according to "principles of equity." As we say near the end of the brief,

The decision below is not a debatable but incorrect application of this Court's established framework for determining the scope of equitable remedial provisions. Rather, the court of appeals simply bypassed that framework altogether.

You can find the can find the cert petition here and our amicus brief here.

The U.S. Food & Drug Administration is considering whether to ban menthol-flavored cigarettes. The agency first proposed a ban in 2022, but it has yet to finalize the proposal, prompting some activist groups to sue. (Query whether these groups have standing.)

The FDA and those groups calling for a ban on menthol cigarettes claim that this will benefit public health, but it's not clear the relevant medical research supports this claim, as it is not clear that such a ban will do much to reduce smoking rates or smoking initiation. This is particularly true as some relevant research assumes that users of menthol cigarettes would be able to switch to menthol (or other) flavored e-cigarettes. This is a problem as the FDA has refused to approve any non-tobacco-flavored e-cigarettes to date.

Over at Slate, Jacob Grier looks at the politics of a potential menthol ban, but also discusses the legal peril of the FDA relying upon such research to support a ban on menthol cigarettes.

The FDA's proposed menthol rule relies heavily on a study published in 2021 projecting that a federal ban would avert about 650,000 premature deaths by the year 2060, demonstrating a substantial benefit to public health. However, the modeling in that study assumes that many smokers of menthol cigarettes would switch to e-cigarettes rather than to regular, unflavored cigarettes, and that this switch is most likely to occur if e-cigarettes are available in menthol flavors. The catch? So far, the FDA hasn't authorized a single e-cigarette for sale in menthol or any other nontobacco flavor. . . .

Cliff Douglas, an adjunct professor at the University of Michigan and the president of the Foundation for a Smoke-Free World, is one of the co-authors of the 2021 study mentioned above. "Our modeling on which the FDA depends found that the menthol cigarette ban will be significantly less effective if the agency hasn't provided for a legal, authorized market for alternative products to which smokers of menthol cigarettes can turn," says Douglas. Authorized e-cigarettes are currently a "minuscule percentage of the marketplace," limited to just a handful of products, he notes. Since Biden's 2022 appointment of Brian King as director of the FDA's Center for Tobacco Products, the agency hasn't authorized any e-cigarettes at all.

That doesn't merely make a federal menthol ban less effective; it also opens it up to legal challenge. "If the FDA relies on science, including what we generated, they can't cherry-pick it and just give it partial credence and ignore the rest," says Douglas. "That creates a target for legal challenge for being arbitrary and capricious." This is a reasonable concern given the FDA's recent track record in other tobacco cases: The agency's regulation of premium cigars was struck down last year for being arbitrary and capricious, and e-cigarette makers have prevailed on challenges to its regulatory processes in the U.S. Court of Appeals for the 5th Circuit, producing a circuit split that may reach the Supreme Court.

I've noted before that the FDA has a vaping problem, but it seems the agency's difficulties may extend to combustible tobacco products as well.

You can watch on YouTube (see here for past episodes), or subscribe on any podcast platform. This series put together by the Hoover Institution at Stanford University, where I'll be starting as the Thomas M. Siebel Senior Fellow in May.

From Magistrate Judge Elizabeth Pascal's decision last month in Strike 3 Holdings, LLC v. Doe (D.N.J.), one of the hundreds of cases filed over defendant consumers' allegedly sharing pornographic films via BitTorrent. The court allows plaintiff to subpoena records from the Internet service provider associated with the IP addresses used in the downloads; that's pretty normal.

But then the court turns to a question that also arises in nearly all these cases: Should it allow defendants to litigate pseudonymous (once plaintiff figures out their identities), at least provisionally? Many courts have said yes, in order to prevent reputational harm that may stem from being accused of downloading porn—even though risk of reputational harm generally isn't a basis of pseudonymity (and is a present for defendants in a vast range of cases, such as lawsuits alleging malpractice, fraud, and more). But Judge Pascal disagreed, as many other courts have done:

First, Federal Rule of Civil Procedure 10(a) states that "[t]he title of the complaint must name all the parties[,]" and the Third Circuit has recognized that a party may proceed anonymously only "in exceptional cases." The risk that a party "may suffer embarrassment or economic harm is not enough." Instead, a party "must show both (1) a fear of severe harm, and (2) that the fear of severe harm is reasonable." At this early stage of the litigation, Plaintiff has not obtained Defendant's identity, and it is purely speculative whether Defendant would have a reasonable fear of any severe harm from being named.

Although it is conceivable that Defendant could suffer reputational harm due to the explicit nature of Defendant's copyrighted works, "[i]t is the rare civil lawsuit in which a defendant is not accused of behavior of which others may disapprove." Strike 3 Holdings, LLC v. Doe (E.D. Pa. 2022); see also Strike 3 Holdings, LLC v. Doe (D.N.J. 2022) ("[I]t certainly cannot be the case that anonymity is warranted for every defendant sued by Plaintiff simply because Plaintiff's copyrighted works are adult films, legal in all respects other than how the defendants in these cases obtained and/or shared them via the BitTorrent protocol.")….

This is a reminder of how vague and subjective the rules about pseudonymous litigation can be: I can't see much material difference between the porn infringement cases where pseudonymity has been granted and those where it has been denied, other than what judge is considering the matter.

From Judge Robert Payne's opinion Friday in Sroufe v. [Scripps] Media Inc. (E.D. Va.) (the allegedly defamatory story is here):

William D. Sroufe, the holder of a doctoral degree in education and formerly the Superintendent of the Colonial Heights Public Schools ("CHPS") filed this action alleging a claim of defamation against "Scripps t/a WTVR and/or CBS6." … [He alleges that], on February 17, 2023, WTVR aired a news story about Sroufe's exit as the Superintendent of CHPS[, which] … was materially false because it reported that Sroufe was "ousted" when, in fact, he was not and because: (1) it falsely implied that Sroufe had covered up complaints about improper conduct on the part of the softball coach at Colonial Heights High School which allowed the coach to escape criminal prosecution; and (2) the story falsely suggested that Sroufe was fired for covering up those complaints.

It is also alleged that WTVR, through its reporter, Melissa Hipolit, knew that the allegedly false statements were false and knew in fact that Sroufe had not been "ousted" but had voluntarily resigned from his position. Moreover, … Hipolit [allegedly] knew that: (1) the sole source of the false narrative which Hipolit had so enthusiastically propagated, in fact, had told Hipolit a material falsehood about the story; and (2) the School Board's attorney actually had not only denied any cover up, but also had provided Hipolit with evidence that negated the claims asserted by Hipolit's impeached source.

The judge allowed the case to go forward, reasoning, among other things, that the "ouster" assertion was one of fact, not opinion, and was potentially defamatory:

Quite clearly, the plain meaning of the word "oust" is negative and connotes an event that is other than voluntary. And, when "oust" is linked with a reported termination of employment, well-established Virginia law permits a reasonable jury to find that the statement reasonably would be understood to be a report that the termination of Sroufe's employment was involuntary, forcible, and against his will [and, in this story, based on alleged misconduct -EV]. Indeed, considering the context of its use in this case, it might be difficult for a jury to reach any other conclusion….

And the judge concluded that Sroufe adequately alleged "actual malice," which is to say knowing or reckless falsehood on defendant's part:

A federal district court in Texas has concluded that the Department of Transportation (DOT) exceeded its statutory authority when it adopted a rule establishing a greenhouse gas (GHG) performance measure for federally funded highways. Under the rule, states were required to measure highway-related greenhouse gas emission, set targets for GHG emission reductions, and track progress toward such targets. The state of Texas objected to the rule and filed suit.

This rule has a long history. The DOT first adopted a GHG performance measure for highways in 2016, at the end of the Obama Administration. The Trump Administration rescinded this rule in 2018, concluding the DOT lacked authority to adopt a GHG-based performance measure under the relevant statute and was bad policy. After President Biden took office, the DOT reversed course again, proposing a revised GHG highway performance measure in 2022 and finalizing the rule in 2023.

Once the rule was promulgated, Texas promptly filed suit, arguing that the rule exceeded the scope of DOT's statutory authority, is arbitrary and capricious, and violates the federal government's spending power. Last month, Judge Wesley Hendrix sided with Texas, solely on statutory interpretation grounds.

Judge Hendrix summarizes his opinion in Texas v. USDOT as follows:

A federal administrative agency cannot act without congressional authorization. Here, the Federal Highway Administration created a rule requiring the states to measure, report, and set declining targets for the amount of carbon dioxide emitted by vehicles using the interstate and national-highway systems. For authority, the agency relied on 23 U.S.C. § 150(c)(3), which permits it to create measures to assess pavement conditions, bridge conditions, and "the performance of the Interstate System . . . [and] the National Highway System." Texas sued, alleging that the agency lacked authority to enact the rule. Given the statutory text's plain language and context, the Court agrees. The relevant definitions and related performance measures make clear that "performance of the Interstate/National Highway Systems" focuses on the infrastructure's effectiveness in facilitating travel, commerce, and national defense—not environmental outputs of vehicles using the systems. Moreover, the DOT's expansive interpretation is undermined by the fact that adopting it would render other statutory provisions superfluous. Additionally, Section 150(c)(3)'s performance measures only exist to carry out Section 119's National Highway Performance Program, which also distinguishes between the highway system's performance and environmental impact. Thus, the Court concludes that the rule was unauthorized.

While Texas sought to buttress its arguments with the Major Questions Doctrine, the court saw no need to do anything more than conduct a traditional statutory analysis, albeit one that relies upon the foundational premise that agencies only have that authority affirmatively delegate to them (a premise I have encouraged; e.g. here and here). As Judge Hendrix explained in a footnote: "because the statutory language itself makes clear that the DOT lacked authorization to promulgate the 2023 Rule, the Court need not resolve whether the issue presented constitutes a 'major question.'"

Texas also argued that insofar as the Department of Transportation sought to impose unrelated conditions on the receipt of highway money, it could raise constitutional concerns (an issue I discussed in this article with Nathaniel Stewart), but again Judge Hendrix saw need to reach that issue.

Judge Hendrix also ordered a nationwide vacatur of the Department of Transportation's rule, as he was required to due under Fifth Circuit precedent. As I have noted before, I think this is an improper reading of the Administrative Procedure Act, but Fifth Circuit precedent is more binding on a federal district court in Texas than is my opinion. Rather than saying anything about how the Department of Transportation should act elsewhere, Judge Hendrix should have simply held that the DOT's regulation is unenforceable against Texas and allow DOT to determine whether it wants to acquiesce elsewhere.

I assume DOT will appeal.

4/8/1952: President Truman signs executive order 10340. The Supreme Court declared this executive order unconstitutional in Youngstown Sheet & Tube Co v. Sawyer (1952).

A new National Bureau of Economic Research study by economists Alina Arefeva, Kay Jowers, Qihui Hu, and Christopher Timmins finds that eviction moratoria enacted during Covid led increased racial discrimination against black potential tenants. Here is the abstract:

We provide evidence of intensified discriminatory behavior by landlords in the rental housing market during the eviction moratoria instituted during the COVID-19 pandemic. Using data collected from an experiment that involved more than 25,000 inquiries of landlords in the 50 largest cities in the United States in the spring and summer of 2020, our analysis shows that the implementation of an eviction moratorium significantly disadvantaged African Americans in the housing search process. A housing search model explains this result, showing that discrimination is worsened when landlords cannot evict tenants for the duration of the eviction moratorium.

The authors are likely to revise the study before final publication. But their results should not be surprising. Eviction moratoria make it difficult or impossible for landlords to evict tenants who default on the rent. That, in turn, leads property owners to be more wary of renting to people who are disproportionately likely to default, such as poor people. If blacks are, on average, poorer than whites or more likely to default for other reasons, landlords will be more reluctant to rent to them at a time when they cannot resort to eviction to deal with default. And studies do in fact suggest black tenants are, on average, poorer than white ones, and more likely to carry rental debt.

The NBER result is also consistent with previous studies showing that eviction moratoria and other policies that make it harder to evict delinquent tenants increase the cost and reduce the availability of housing. They are also likely to screen potential tenants more carefully, keeping out those who seem unusually likely to end up in default. Thus, while eviction moratoria and other similar policies benefit current tenants, they reduce the availability of housing to future ones - including current tenants wishing to move to a different location.

This, doesn't necessarily prove that eviction moratoria are unjustified. If, for example, Covid-era moratoria saved many lives, the resulting reduction in the availability of housing might have been worth it. But there is no good evidence that any such thing happened.

Similarly, eviction moratoria enacted during economic downturns might still be worth it if they save large numbers of people from poverty and homelessness. But, once again, available evidence doesn't support that theory. When the Supreme Court abruptly terminated the federal Covid eviction moratorium in August 2021 (ruling that the CDC lacked the authority to enact it), the eviction "tsunami" predicted by defenders of the policy failed to materialize.

There is much that can be done to increase the availability of housing to low-income and minority tenants. Most importantly, it can reduce or eliminate exclusionary zoning, which has a long history of blocking housing construction in ways that disproportionately harm those very groups.

If government wants to provide low-income tenants with extra support during a recession or a pandemic in order to prevent eviction, it can give them temporary rent subsidies. That can help tenants make ends meet without incentivizing landlords to exit the market, raise rents, or discriminate low-income and minority tenants. But we should avoid policies - like eviction moratoria - that tend to harm many of the very people they seek to help.

The legal and policy questions here are distinct. I have argued that the federal CDC eviction moratorium was beyond the agency's power, and that eviction moratoria also violate the Takings Clause of the Fifth Amendment, and similar provisions of state constitutions. But even those who differ with me on these legal questions should consider whether eviction moratoria really are a good strategy for helping poor tenants.

Policy change is often the result of disparate political coalitions. Not all who support a change necessarily support that change for the same reason. Sometimes, political support for legislative change is the result of a "baptists and bootleggers" coalition--a coalition of those who support the change on normative grounds and those who hope to make a buck.

Economist Bruce Yandle coined the phrase. Here is his explanation of the theory:

Durable social regulation evolves when it is demanded by both of two distinctly different groups. "Baptists" point to the moral high ground and give vital and vocal endorsement of laudable public benefits promised by a desired regulation. Baptists flourish when their moral message forms a visible foundation for political action. "Bootleggers" are much less visible but no less vital. Bootleggers, who expect to profit from the very regulatory restrictions desired by Baptists, grease the political machinery with some of their expected proceeds. They are simply in it for the money.

The theory's name draws on colorful tales of states' efforts to regulate alcoholic beverages by banning Sunday sales at legal outlets. Baptists fervently endorsed such action on moral grounds. Bootleggers tolerated the actions gleefully because their effect was to limit competition.

It is worth noting that it is the details of a regulation that usually win the endorsement of bootleggers, not just the broader principle that may matter most to Baptists. Thus, for instance, bootleggers would not support restrictions on the Sunday consumption of alcoholic beverages, although Baptists might. Bootleggers want to limit competition, not intake. Important to the theory is the notion that bootleggers can rely on Baptists to monitor enforcement of the restrictions that benefit bootleggers.

Professor Andrew Morriss suggests that we may have seen this dynamic in action in the Alabama legislature's response to LePage v. The Center for Reproductive Medicine, P.C., the Alabama Supreme Court decision concluding that frozen embryos constitute "children" for purposes of Alabama's Wrongful Death of a Minor Act, thereby making an IVF clinic potentially liable for the "wrongful death" of a frozen embryo.

On March 6, just two-and-a-half weeks after the Alabama court's opinion was released, the Alabama legislature passed and Gov. Kay Ivey signed sweeping legislation immunizing IVF clinics from liability, stating that "no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization." . . . However, as the only member of the Alabama Senate to vote against the bill accurately noted, the statute is "not an IVF protection bill, it's an IVF provider and supplier protection bill" that is "limiting the ability of the mothers that are involved in IVF to have recourse" when their embryos were destroyed by clinics. . . .

In using the decision in LePage to obtain immunity from tort suits, reproductive medicine clinics played the role of the regulatory bootleggers. Asking for absolute immunity from suit for negligence in handling embryos—embryos whose parents are likely to feel strongly about them—isn't something for which many legislators would likely be sympathetic. After all, medical professionals, clinics, and hospitals are liable in tort for medical malpractice. Fertility clinics thus had a problem in explaining why they should get special treatment compared to other medical facilities and professionals. And negligence does occur in these clinics. A 2020 survey article in Fertility & Sterility Reports found 133 cases filed between January 2009 and June 2019 that credibly alleged the negligent destruction of cryopreserved embryos. . . .

Morriss suggests that misleading media reports may have contributed to the outcome. Contrary to some accounts, the Alabama Supreme Court was focused on the meaning of specific terms in a specific statute, not making a broad announcement about the legal status of embryos, let alone criminalizing their destruction or limiting reproductive rights more broadly.

The media's account of the majority opinion in LePage misrepresented it as an attack on IVF, a procedure that has enabled thousands of families (including my own) to grow through the miracle of the creation of life. As amazing as this technology is, it is still a medical procedure that involves the risk of negligence. Negligence can serve as the basis of a claim for damages. The question the media avoided, and that the panic they induced enabled the clinics to avoid, was "Why should IVF be treated differently?" As Levin and Snead noted, "The Alabama legislature could have responded to the state supreme court's decision by using the alleged egregious negligence of the clinic in question as an occasion to establish some rules for the practice of fertility treatment, including the creation, use, and storage of living human embryos." Instead, it granted blanket immunity to clinics. That is a failure of governance.

If the plaintiffs in LePage go to trial against the clinic involved, we will learn how it came to be that someone was able to wander into the embryo nursery, remove embryos from the cold storage unit, and destroy them. It is plausible that this was the result of negligence on the part of the clinic. At a minimum, there was deficient control of access to the nursery, including a lack of reasonably simple protective measures (door and freezer locks). Requiring simple controls on access to frozen embryos is not a crushing burden that will end the availability of IVF. Instead, immunizing IVF facilities from tort liability removes the powerful incentives provided by tort law, incentives that push most medical professionals in America to meet professional standards of care. The tragedy of LePage is that all but one of the institutions involved—the media, the Alabama legislature, and the Governor—fell for the special-interest regulatory Baptists' rhetoric and failed to stand up to the regulatory bootleggers. Only the Alabama Supreme Court focused on the real issue. As a result of the other failures, there will be more tragedies but without the potential that future parents of negligently destroyed embryos will be compensated for their injuries.

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