The Volokh Conspiracy

Orin Kerr has published a thought-provoking response to my post several days ago critiquing the New York State $450 million civil fraud verdict against Donald Trump.  Orin pointed out that New York State Attorney General Letitia James has brought other civil fraud actions against businesses, as well as the action that she brought against Donald Trump, which is helpful to know.  But, in my view, the action civil fraud action brought against former President Donald Trump was a case of selective prosecution of a victimless crime brought because of Trump's political views, and because he is the de facto nominee of the Republican Party in the 2024 presidential election.  Selective prosecution raises both due process and equal protection clause issues of the kind that led the Framers to ban Bills of Attainder and Ex Post Facto laws, which clauses are also relevant here.

Orin takes issue with my claim that New York Banks do not rely on borrowers' claims as to the amount of wealth that they own, but they do their own independent assessment of a borrowers' wealth so Trump's alleged fraud was a victimless crime.  No harm no foul. Orin gives as a hypothetical the example of a person who drives home, legally drunk, arrives safely at his house, and then is arrested, and deprived of his driving license because he endangered the public. Orin argues this is perfectly appropriate behavior by the police because the drunk driver endangered the general public in violation of the law.  By analogy, Orin argues that Trump endangered the New York real estate market by borrowing money while offering inflated valuations of his real estate assets, even though lenders were discounting his valuations and making their own independent valuations before issuing him loans all of which he repaid.

First, there is a fundamental difference between Orin's hypothetical and what Donald Trump actually did in this civil fraud case with no victim.  Donald Trump signed contracts to borrow money from particular lenders who then did their own due diligence about the value of his real estate assets.  There was privity of contract between Trump and the wealthy banks he borrowed from.  Trump paid back all the money he borrowed, and there was no victim in the New York State civil fraud case who claimed he had been defrauded.  But, when a person drives home legally drunk and makes it safely to his house and living room, there is no consent to his action by the other drivers and pedestrians on the road who the drunk driver endangered.  There is no privity of contract to undertake the risk in Orin's hypothetical, whereas there was privity of contract between Trump and those who loaned him money.  Witnesses testified that they would gladly lend Trump money in the future, and no one appeared who accused Trump of fraud except for the politically ambitious New York State Attorney General who was probably seeking to win over Democratic primary voters who pathologically hate Trump in a future gubernatorial or senatorial primary.

Second, while Orin is right that driving home drunk is a crime even if you safely arrive home, there is no prosecutor in the world who would seek to deprive such a person of their driver's license, as Orin would, or enter their property.  In Edwards v. Police, 2 New Zealand Law Review 194 (1994), Edwards was driving his motor cycle home and was followed by a police officer who believed Edwards was inebriated.  Edwards reached his house, turned off and parked his motorcycle in his driveway, and then the police officer who had been following Edwards arrested him on his own property and brought him to the police station against his will, and a breath exam indicated the presence of alcohol.

On appeal, the conviction of Edwards was reversed with the court saying "Edwards was subjected to unlawful restraint and detention amounting to assault and false imprisonment.  *** [I]t is important in a case such as this that the Court vindicate and give tangible recognition to the substantial breach of rights which has occurred.  The only way in which that can be done is by excluding the evidence which resulted in a direct and material way from the breach."  Steven Got Calabresi et al., The U.S Constitution and Comparative Constitutional Law: Texts, Cases, and Materials at 1325 (Foundation Press 2016). We strongly suspect that most American juries or judicial fact-finders or district attorneys would have the same reaction to Edwards v. Police, which the New Zealand appellate court arrived at.  Technically, Edwards broke the law by riding his motor cycle home while inebriated, but the police officer who arrested Edwards once he had safely reached his own property was found to have committed "assault and false imprisonment."

Third, Orin puts great weight on the fact that in New York State you need a license from the State to conduct business and such licenses, once obtained, require ethical conduct.  In Germany, Japan, South Africa, and Israel, in contrast, there is a right to pursue whatever occupation you want to, subject to the government's power by just laws, enacted for the general good of the whole people, to adopt regulations.  Most American States regulate over 100 different occupations most of which pose no harm to the general good of the whole people.  Among the occupations regulated are being: a butcher, a florist, the owner of a tanning salon, a barber, a plumber, or an optician.  These laws would all be unconstitutional in Germany, Japan, South Africa, or Israel.  The Constitutions of those four countries all explicitly protect freedom of occupation.  Such laws exist in the United States, however, only because Justice Stephen Field's dissent in The Slaughter-House Cases, 83 U.S. 36 (1873) garnered only four votes and not five.  The Supreme Court doubled-down on its support for the unlimited regulation of occupational freedom in Williamson v. Lee Optical Co., 348 U.S. 483 (1955) where it applied the rational basis text to claims of occupational liberty. In my view, these Supreme Court decisions are profoundly wrong and ought to be over-ruled.  To be sure, there are occupations where licensing should be required as for: medical doctors, or airplane pilots, or engineers, or lawyers.  State regulation of your freedom to run a business in New York State should be allowed when just laws are enacted for the general good of the whole people.  Corfield v. Coryell, (6 Fed. Cas. 546, no. 3, 230 C.C. E. D.Pa. 1823 (opinion of Justice Bushrod Washington).  Otherwise, there should be a presumption of liberty; not a presumption of serfdom.

Fourth, the view that some take, not necessarily Orin, that we are all born subjects to be regulated conflicts profoundly with the view of both the Framers of the Declaration of Independence and of the Fourteenth Amendment, which Speaker of the House of Representatives, Schuyler Colfax, thought applied the rights under the Declaration of Independence to the States.  "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."  Donald Trump has a constitutional right to do business in New York State, free of regulation, except by just laws enacted for the general good of the whole people.

I stand by my position that New York State has violated Donald Trump's First Amendment freedom of expression rights; his rights under the due process, equal protection, excessive fines, and Bill of Attainder Clauses; and that he has been stripped of the liberty of occupation that is necessary to protect his "Life, Liberty, and the pursuit of Happiness.  Because New York State's civil fraud verdict interferes with Former President Donald Trump's right to run for President, the U.S. Supreme Court should hear this case as fast as possible.

I have a new draft up on SSRN, called The First Amendment Right to Affirmative Action. I'd appreciate constructive comments from anyone who's interested!

Here's the abstract:

In the wake of Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, affirmative-action proponents should pursue a First Amendment approach. Private universities, which are speaking associations that express themselves through the collective speech of faculty and students, may be able to assert an expressive-association right, based on Boy Scouts of America v. Dale, to choose their faculty and students. This theory has been recently strengthened by 303 Creative LLC v. Elenis.

I discuss various complexities and counterarguments: (1) Race is not different than sex or sexual orientation for purposes of the doctrine. (2) The market context may not matter, especially after 303 Creative. (3) The conditional-federal-funding context does give the government more power than a simple regulatory context: the government will still be able to induce race-neutrality by the threat of withdrawing federal funds. But the unconstitutional conditions doctrine precludes draconian penalties like withdrawing all funds from the entire institution based only on affirmative action in some units. (4) This theory doesn't apply to public institutions.

I also explore the potential flexibilities of this theory, based on recent litigation. The scope of the Boy Scouts exception might vary based on (1) what counts as substantial interference with expressive organizations, (2) what counts as a compelling governmental interest, and (3) most importantly, what it takes for activity to be expressive. Because the test for expressiveness relies largely on social expectations about what particular actions "mean," there is some chance that behavior beyond the university context—like affirmative action in charitable donations—might be brought within the Boy Scouts exception.

Here's the introduction:

June is always a big month for Supreme Court watchers, but the last two days of June 2023 were more interesting than usual for constitutional and civil-rights law. In one case, the Court made race-conscious affirmative action—which had long been only grudgingly accepted—even more difficult. But the decision in another case paves the way for an argument that private universities actually have a strong First Amendment-based right to engage in affirmative action.

On June 29, 2023, the Supreme Court decided Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, cutting back on the legality of race-conscious affirmative action in universities, and all but overruling Grutter v. Bollinger. This was both a statutory and a constitutional opinion: all universities that accept federal funds are governed by Title VI of the Civil Rights Act of 1964; public universities are also governed by the Equal Protection Clause. But the two have been interpreted to impose identical standards, so the distinction didn't make much practical difference.

The very next day, the Court decided 303 Creative LLC v. Elenis. Lorie Smith, a website designer, decided to enter the wedding-website business; she didn't want to create websites promoting gay weddings or otherwise contradicting her beliefs; but that would open her up to prosecution under the Colorado Anti-Discrimination Act. The Supreme Court held that the statute couldn't be applied to force her to create websites she disagreed with. A website is just words and images—"pure speech." If the state made Smith create a website for a gay marriage—just because she was willing to create one for a straight marriage—that would be compelled speech, which would violate her First Amendment rights.

These two lines of doctrine don't usually talk to each other, but they should—especially now.

Suppose you're a private-university president who wants to have affirmative action for faculty hiring or student admissions (or both). You've tried to fit your program within the confines of Grutter. You've steered clear of impermissible interests like racial balancing or remedying societal discrimination, avoided illegal methods like quotas or inappropriately numerical targets, and stuck to approved interests like the value of diversity. Now, on June 29, your general counsel has said such efforts should be curtailed or abandoned. After sleeping on it—you sleep late the next morning, so you don't wake up until after the Supreme Court has released its opinions—is there anything you can do on June 30?

Yes, there is.

Lorie Smith's websites were pure speech. But so is virtually all your university's activity. Everything significant that universities do—lectures, homework, exam-taking, paper writing—boils down to talking and writing. That includes the all-important transcript and diploma, which are just the university speaking to certify what the student has accomplished. If this isn't pure speech, what is?

You think back to an older case: Boy Scouts of America v. Dale, where the Supreme Court upheld the Boy Scouts' exclusion of a gay assistant scoutmaster even though this violated an antidiscrimination statute. The Boy Scouts engaged in expression, part of which included a position against homosexuality. Given this position, forcing the organization to accept a gay person in a leadership position "would, at the very least, force [it] to send a message, both to the youth members and the world, that [it] accepts homosexual conduct as a legitimate form of behavior."

Boy Scouts built on a previous case—the unanimously decided Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, which upheld the right of parade organizers to exclude an LGBT Irish-American organization from the parade even though this violated an antidiscrimination statute. The state courts interpreted this as an exclusion of LGBT people, but the Court recognized that this was an attempt to alter the parade organizers' message. Organizations have the right to choose their message, and sometimes the speaker's identity is the message. This is why you can limit yourself to actors of color for Hamilton or cisgender female contestants for a beauty pageant.

The First Amendment includes a right of "expressive association": people have the right to group together to express their views. But freedom of speech implies a right against compelled speech: the right to speak includes the right to choose what to say, i.e., the right not to say certain things. In the expressive-association context: the right to speak in groups includes the right to choose whom to speak with, i.e., the right to choose whom not to associate with in speaking. We can call this principle—the marriage of the expressive-association right with the right against compelled speech—the principle of "expressive discrimination."

What does this mean for your university's affirmative-action programs? Your university is a speaking organization, whose "message" may include teachings about diversity. The university speaks through its administration, but also through its entire scholarly community, which includes faculty and students (perhaps also some staff). Using an antidiscrimination law like Title VI or 42 U.S.C. § 1981 to force the university to speak through people not of its choosing—which could mean a faculty and student body that don't match the university's notions of diversity—could impede the university's ability to speak. The university's expressive-association right can include the ability to take race into account to create a university community with the desired amount or type of diversity.

Previously, one could have argued that the Boy Scouts expressive-discrimination principle was limited to noncommercial, volunteer organizations like parades and the Boy Scouts, and wouldn't protect the discrimination in contracting required for affirmative action for faculty and students. But this is where 303 Creative helps: the Court reaffirmed the right against compelled speech in an economic, for-profit context. Lorie Smith "offers her speech for pay and does so through . . . a company in which she is the sole member-owner. But none of that makes a difference."

The legal landscape on June 30 is thus more promising than it was on June 29. You can assert an expressive-association right to choose your faculty and students, because those are the speakers in your pure-speech organization. And this right can trump mere statutory antidiscrimination policies.

And just in time! The day before yesterday, you could simply rely on your affirmative-action programs' legality. You've never before needed a constitutional theory that would let you ignore the statutes, but now you do. The expressive-association theory can give you what you need, and more: if this works, not only can you go back to running your previous programs, but now you can run any affirmative-action program you like, even one that would have been illegal under Grutter. If you like, you can use quotas and pursue outright racial balancing or try to remedy societal discrimination, rather than be limited to the single rationale of the educational benefits of diversity. If the government can't force the Boy Scouts to have a gay assistant scoutmaster or force Lorie Smith to design a pro-gay-marriage website, what right does it have to tell your university what speakers to choose?

If only Harvard's lawyers had argued this First Amendment theory. This should be the next frontier in private-university affirmative-action litigation—or the basis of a private university's defense next time it gets sued.

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[This post is co-authored with Professor Seth Barrett Tillman.] 

This is the second part of our response to Professor John Mikhail's Balkinization post. Part I can be found here.

Joseph Story, Redux

In his Monday, February 19, 2024 Balkanization post, Mikhail wrote:

Justice Story proposed this idea in his influential Commentaries on the Constitution of the United States, although he did so in a somewhat equivocal manner, first referring to the President and Vice President as officers of the United States (§789) before suggesting the opposite conclusion (§791).

Our Tuesday, February 20, 2024 responsive post pointed out that Section 789 says nothing at all about the President. In a follow-up post yesterday, on Wednesday, February 21, 2024, Mikhail posted a correction, indicating that he meant to refer to Section 788:

In my post on Monday, I wrote "789" instead of "788" when referring to the section of Joseph Story's Commentaries on the Constitution of the United States (1833) in which Story refers to the President and Vice President as officers of the United States. In Section 788, Story wrote: "From this clause it appears, that the remedy by impeachment is strictly confined to civil officers of the United States, including the president and vice-president." This mistake has now been corrected. (emphasis added)

We appreciate the correction, but Mikhail's characterization of Story is still not right. Sections 788 and 791 are not in tension. Story did not contradict himself, or "suggest[] the opposite conclusion." 

Let's walk through the analysis.

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The Mischief Rule, an article on statutory interpretation that I published several years ago, begins this way:

A Tennessee statute imposed duties on railroad engineers. If a railroad engineer found an animal or obstruction on the tracks, the statute required "the alarm whistle to be sounded, and brakes put down, and every possible means employed to stop the train and prevent an accident." But what counted as an "animal" on the tracks? Cows and horses, yes. But what else? Did all the trains in Tennessee have to stop for squirrels?

The stop-the-train case poses difficult questions for some interpretive theories, especially textualism. The text does not identify a stopping point in what counts as an animal. Nor is there a dictionary definition that will include cows but exclude squirrels. Is a textualist interpreter duty bound to say that trains really do have to stop for squirrels?

Note that there is no dictionary definition for animal that will mean "sizable animal," or "animal of the sort you would need to stop a train for." If you are willing to look at context, including the mischief, but only if you can first find some ambiguity, then you will be absolutely flummoxed by the stop-the-train statute. The solution, or so I argue in The Mischief Rule, is that interpreters should consider the mischief as an aspect of context not only after concluding that a statute is ambiguous, but also when deciding whether it is ambiguous in the first place.

I thought of these points when I ran across this passage in an essay by jazz critic Ted Gioia. He notes that Sony recently invested "in Michael Jackson's song catalog at a valuation of $1.2 billion." He then added: "no label would invest even a fraction of that amount in launching new artists."

Now anyone reading that sentence knows exactly what Gioia means. He is not failing to get across his message. Nor is he an inept user of the English language. He isn't making a mistake.

What does Gioia mean by "a fraction"? No music label, he says, "would invest even a fraction of that amount in launching new artists." But that, of course, is exactly what a music label would do: it would invest not $1.2 billion in a new artist, but rather a fraction of that.

So what exactly does Gioia mean by "a fraction"? He does not simply mean a part of a whole. If Sony invested $1 billion in a new artist--a fraction to be sure, 5/6 of $1.2 billion to be exact--that would run counter to Gioia's point. So he means by "a fraction" not just a part, but a small part.

But he also does not mean "any part." If Sony invested $10,000 in a new artist, would that disprove Gioia's point? Not at all. But $10,000 is quite literally a fraction of $1.2 billion.

So what does Gioia mean? He means by "a fraction" (1) a part of the whole (2) that is small and (3) yet non-trivial. It's a small part of the whole that's actually something, not so small that we could say--and every reader would understand--"that's not even a fraction of what I wanted!" In other words, "a fraction" is being used as a concept that is bounded on both ends, a part that is neither a hair's breadth smaller than the whole, but also not just a hair's breadth. A fraction, a real fraction.

Yet even though (most) readers of Gioia's sentence will understand immediately what he means, the sense in which he is using the word is not identified in dictionaries. At least not in the three I checked just now, including the Oxford English Dictionary. Dictionaries sometimes get the first and second aspects of Gioia's usage, but not the third.

So, to draw the moral for legal interpreters: the semantic domain of a word is not coextensive with dictionary senses, and a word can be used in context in a way that makes sense to every reader and yet does not match any identifiable dictionary sense. Any good reader knows a slug is not an animal in the Tennessee statute, and any good reader knows that $10,000 is not even a fraction of $1.2 billion. Legal interpreters need to be more than good readers, but not less.

In the last year or two, the U.S. Department of Justice has been arguing in federal courts of appeals that Terms of Service can narrow or eliminate Fourth Amendment rights in online accounts.  If the government can win on this issue, it will largely defeat any claims to Fourth Amendment protection online.  But as I argue in my just-published article, Terms of Service and Fourth Amendment Rights, 172 U. Pa. L. Rev. 287 (2024), these arguments are mistaken.  Here's the abstract:

Almost everything you do on the Internet is governed by Terms of Service. The language in Terms of Service typically gives Internet providers broad rights to address potential account misuse. But do these Terms alter Fourth Amendment rights, either diminishing or even eliminating constitutional rights in Internet accounts? In the last five years, many courts have ruled that they do. These courts treat Terms of Service like a rights contract: by agreeing to use an Internet account subject to broad Terms of Service, you give up your Fourth Amendment rights.

This Article argues that the courts are wrong. Terms of Service have little or no effect on Fourth Amendment rights. Fourth Amendment rights are rights against the government, not private parties. Terms of Service can define relationships between private parties, but private contracts cannot define Fourth Amendment rights. This is true across the range of Fourth Amendment doctrines, including the "reasonable expectation of privacy" test, consent, abandonment, third-party consent, and the private search doctrine. Courts that have linked Terms of Service and Fourth Amendment rights are mistaken, and their reasoning should be rejected.

I'm delighted to pass along this item from Prof. Thomas Merrill (Columbia), whom readers might remember as a guest-blogger from a couple of years ago, and who is the author of The Chevron Doctrine: Its Rise, and Fall, and the Future of the Administrative State (2022):

In Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, the petitioners are asking the Supreme Court to overrule the Chevron doctrine. Oral argument in the cases included multiple references to a decision called Brand X, short for National Cable & Telecommunications Association v. Brand X Internet Services, decided in 2005. The petitioners could not stop reminding the Court about Brand X.

Brand X held that when a court decides a question of statutory interpretation that would be eligible for Chevron deference if decided by an agency, and the agency subsequently disagrees with the judicial interpretation, the courts are obliged to follow the agency interpretation, not the prior judicial interpretation. Justice Scalia, in dissent, described Brand X as a "breathtaking novelty: judicial decisions subject to reversal by executive officers." He added that this was "probably unconstitutional."

The petitioners in the two pending cases were eager to remind the Court about Brand X in part because of the presumed aversion of the Justices to the idea that an administrative agency can "overrule" a decision of an Article III court—including potentially the Supreme Court.

Undoubtedly, they also thought Brand X was a perfect illustration of the instability in the law that they argue is caused by Chevron. Brand X upheld under Chevron an interpretation of the FCC during the Bush II administration that internet services providers are not subject to common carrier obligations under the federal communications laws. This interpretation, in turn, was later reversed by the Obama FCC, which was then reversed again by the Trump FCC, which itself is now slated to be reversed by the Biden FCC. In short, Brand X led to flip-flopping about the status of internet service providers with every election of a President of a different political party.

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We begin this episode with Paul Rosenzweig describing major progress in teaching AI models to do text-to-speech conversions. Amazon flagged its new model as having "emergent" capabilities in handling what had been serious problems – things like speaking with emotion, or conveying foreign phrases. The key is the size of the training set, but Amazon was able to spot the point at which more data led to unexpected skills. This leads Paul and me to speculate that training AI models to perform certain tasks eventually leads the model to learn "generalization" of its skills. If so, the more we train AI on a variety of tasks – chat, text to speech, text to video, and the like – the better AI will get at learning new tasks, as generalization becomes part of its core skill set. We're lawyers holding forth on the frontiers of technology, so take it with a grain of salt.

Cristin Flynn Goodwin and Paul Stephan join Paul Rosenzweig to provide an update on Volt Typhoon, the Chinese APT that is littering Western networks with the equivalent of logical land mines. Actually, it's not so much an update on Volt Typhoon, which seems to be aggressively pursuing its strategy, as on the hyperventilating Western reaction to Volt Typhoon. There's no doubt that China is playing with fire, and that the United States and other cyber powers should be liberally sowing similar weapons in Chinese networks. Unfortunately, for all the heavy breathing, the public measures adopted by the West do not seem likely to defeat or deter China's strategy.

The group is not impressed by the New York Times' claim that China is pursuing a dangerous electoral influence campaign on U.S. social media platforms. The Russians do it better, Paul Stephan says, and even they don't do it well, I argue.

Paul Rosenzweig reviews the House China Committee report alleging a link between U.S. venture capital firms and Chinese human rights abuses. We agree that Silicon Valley VCs have paid too little attention to how their investments could undermine the system on which their billions rest, a state of affairs not likely to last much longer. Meanwhile, Paul Stephan and Cristin bring us up to date on U.S. efforts to disrupt Chinese and Russian hacking operations.

We will be eagerly waiting for resolution of the European fight over Facebook's subscription fee and the implementation by websites of "Pay or Consent" privacy terms. I predict that Eurocrats' hypocrisy will be tested by the effort to reconcile rulings for elite European media sites, which have already embraced "Pay or Consent," with a nearly foregone ruling against Facebook. Paul Rosenzweig is confident that European hypocrisy is up to the task.

Cristin and I explore the latest White House enthusiasm for software security liability. Paul Stephan explains the flap over a UN cybercrime treaty, which is and should be stalled in Turtle Bay for the next decade or more.

Cristin also covers a detailed new Google TAG report on commercial spyware.

And in quick hits,

• House Republicans tried and failed to find common ground on renewal of FISA Section 702
• I recommend Goody-2, the 'World's 'Most Responsible' AI Chatbot
• Dechert has settled a wealthy businessman's lawsuit claiming that the law firm hacked his computer network
• Imran Khan is using AI to make impressively realistic speeches about his performance in Pakistani elections
• The Kids Online Safety Act secured sixty votes in the U.S. Senate, but whether the House will act on the bill remains to be seen

Download 492nd Episode (mp3)

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I just learned today about Minn. Stats. § 120B.20, enacted in 1993 (paragraph breaks added):

Each school district shall have a procedure for a parent, guardian, or an adult student, 18 years of age or older, to review the content of the instructional materials to be provided to a minor child or to an adult student and, if the parent, guardian, or adult student objects to the content, to make reasonable arrangements with school personnel for alternative instruction.

Alternative instruction may be provided by the parent, guardian, or adult student if the alternative instruction, if any, offered by the school board does not meet the concerns of the parent, guardian, or adult student.

The school board is not required to pay for the costs of alternative instruction provided by a parent, guardian, or adult student.

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