Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
I comment on listeners' experiences related to dating apps
I made another appearance on CBC Radio's Alberta at Noon with Judy Alduous last week to discuss Canadian listeners' stories about using dating apps. The recording is here and I comment throughout the hour-long show.
VC readers interested in the current state of the dating landscape may also want to check out this piece that appeared in the NY Times over the weekend entitled "Why Aren't More People Getting Married? Ask Women What Dating Is Like."
11/12/1975: Justice William O. Douglas resigns.
I've heard some suggest that it's proper for universities to expel students for publicly defending the Hamas murders. (This has included both public universities and private universities that had pledged to protect student free speech.) Others have suggested that faculty members who defended the murders be fired. And there have been calls for nonacademic employers to refuse to hire students who have defended the murders. (Such refusals to hire based on a student's speech are legal in most states, though illegal in some.)
If you take this view, let me ask this hypothetical. Say that a student or a professor writes something like this:
With Iran getting a nuclear bomb soon, Israel has to make clear: If Iran (with a population almost 10 times that of Israel) bombs an Israeli city, Israel will bomb an Iranian city, aiming to kill 10 times the number of people killed by the Iranian bomb.
And none of this pretense about limiting the bombing to military targets. Japan surrendered because it was facing the loss of cities, not of military capacity. This is what Mutually Assured Destruction needs to be: tit for tat, civilian deaths for civilian deaths. In war, civilians pay for the sins of their governments, and the prospect of civilian deaths is often the main deterrent to aggression, or the main impetus to surrender; that's just the way it is.
What would your view be?
11/11/1975: Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. argued.
Jury experiments, assault weapons, and machine guns.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Tomorrow is Veterans Day, and at IJ we want to thank those veterans who have joined with us to defend the Constitution in court after defending it in uniform, including current and former IJ clients Dr. Todd Bergland, Ryan Crownholm, Don Garrett, Vance Justice, Elmer Kilian, Stephen Lara, Zach Mallory, Jon McGlothian, Brian Moore, Jr., José Oliva, Tony Proctor, Octavius Raymond, Jim Saleet, Blaine Smith, Bob Smith, Marvin Smith, Joey Vanoni, Samuel Washington, and Edward Williams, and IJ Senior Attorney Michael Bindas. Thank you for your service!
From a statement today:
Columbia University is suspending Students for Justice in Palestine (SJP) and Jewish Voice for Peace (JVP) as official student groups through the end of the fall term. This decision was made after the two groups repeatedly violated University policies related to holding campus events, culminating in an unauthorized event Thursday afternoon that proceeded despite warnings and included threatening rhetoric and intimidation.
Suspension means the two groups will not be eligible to hold events on campus or receive University funding. Lifting the suspension will be contingent on the two groups demonstrating a commitment to compliance with University policies and engaging in consultations at a group leadership level with University officials.
Like all student groups, SJP and JVP are required to abide by University policies and procedures. This ensures both the safety of our community and that core University activities can be conducted without disruption. During this especially charged time on our campus, we are strongly committed to giving space to student groups to participate in debate, advocacy, and protest. This relies on community members abiding by the rules and cooperating with University administrators who have a duty to ensure the safety of everyone in our community.
Whether the suspension was proper or not, given Columbia's voluntary embrace of free speech principles, of course turns on whether the "rhetoric" was indeed "threatening" and constituted "intimidation," and on the nature of the "unauthorized event." (It also turns on whether the rhetoric was endorsed by rally organizers or just came from some attendees.) I'm sorry that the statement didn't offer the details, but I e-mailed the Columbia news office and will let you know what I get in response. If any of you can point me to more factual details, I'd love to see them.
Here's a story from Columbia Spectator (Chris Mendell) on what might be the relevant rally, but it's not clear whether these are precisely the items that led to the suspension:
Noel Cox, The Influence of the Common Law on the Decline of the Ecclesiastical Courts of the Church of England, 3 Rutgers J. L. & Religion 1 (2001-2002): "If there is one lesson to be learnt from the experience of the Church courts since the Reformation, it is that their strength depended not just upon retaining the confidence of the bishops, clergy and laity, but that without a strong cadre of professional judges and counsel 'learned in the ecclesiastical law', they fall under the increasing influence of the common law. Without these personnel, and an understanding that secular judicial procedures are not necessarily appropriate to decide religious questions, the ecclesiastical courts were condemned to satisfy few when contentious issues are decided."
That point is being made about the dominance of the common law vis-a-vis the canon, but something similar might be said about the dominance of the common law vis-a-vis equity. That is explored in Equity: Notes on the American Reception.
From the Chicago Maroon (Nikhil Jaiswal, Finn Hartnett, Solana Adedokun & Michael McClure):
At 6:15 p.m. University of Chicago Police Department (UCPD) officers began to arrest demonstrators engaged in a sit-in inside Rosenwald Hall. In addition to student demonstrators, two faculty members were also arrested. The arrested individuals were processed inside adjacent Walker Museum as protesters surrounded all exits. They were charged with "criminal trespass to real property," a Class B misdemeanor under Illinois state law.
Protesters from UChicago United for Palestine (UCUP) have been engaged in a sit-in in the building since 11:30 a.m…..
At 6:05 p.m., a protester warned that those inside Rosenwald were given five minutes to leave the building before they would be issued a citation….
Seems quite right to me (though I think the university should have removed the protesters more quickly), and would have been so even at a public university governed by the First Amendment.
11/10/1975: Buckley v. Valeo argued.
What's on your mind?
I was out of town, or else I'd have much enjoyed being there as well; but I'm very glad it took place, thanks to the newly formed UCLA chapter of Heterodox Academy. I am told there were no disruptions.
Some UCLA student groups condemned the event, saying they were "disappointed by UCLA's decision to allow [the] event," offering some substantive criticisms of Singal's position, and saying "Public debate is important, but we cannot debate people's humanity. Transgender students should be able to attend class without having to hear their very existence debated in an adjacent classroom."
I don't think anything Singal said suggested he cast any doubt on transgender people's "humanity," or suggested that they should not or do not "exist[]." But whatever one might think about that, UCLA had no option but to "allow" the event: As a public institution that has opened up a limited public forum for events put on by various groups (whether student groups or, as with the Heterodox Academy chapter, faculty groups), UCLA is forbidden by the First Amendment from excluding speakers based on their viewpoints and (to quote the condemnation, "dangerous ideas"), whether on youth gender medicine or on other topics.
As Keith Whittington noted, some judges are refusing to hire students who they see as endorsing murder of civilians (or threatening to withdraw offers to such students):
Judges are looking at student actions in the wake of October 7th and drawing a line in the sand for those who would want to clerk for them. Judge Matthew Solomson said,
To me, it's a simple proposition that just like no judge would hire anyone who endorsed the KKK or the Nazis, anyone who endorses or approves or otherwise gives comfort to—in writing—Hamas, should not be hired.
Sarah Isgur reports on the Advisory Opinions podcast that Judge Lee Rudofsky has written to his own future clerks asking them to confirm that they have not condoned the October 7th massacre or engaged in acts of antisemitism or Islamophobia. He, quite appropriately, added that he had no problem with his future clerks holding or expressing a wide range of views about the Israeli-Palestinian situation and the current war, so long as they stopped short celebrating or advocating the targeting of civilians for abduction, torture, or death.
Some commenters on that thread suggested that this was an unconstitutional viewpoint-based test for government employment. I appreciate that argument, which I think is apt for many government jobs. But given the Court's caselaw, I don't think the First Amendment precludes such viewpoint-based criteria in a judge's employment decisions for law clerks.
The key precedents on this, I think, come from the line of cases dealing with political-affiliation-based hiring and dismissal of government employees. In these cases—Elrod v. Burns (1976), Branti v. Finkel (1980), and Rutan v. Republican Party of Illinois (1990)—the Court held that, generally speaking, such employees can't be hired or fired because of their party membership. But the Court recognized that there were exceptions for certain kinds of employees, including ones who work so closely with a high-level official in implementing the official's views that ideological compatibility is a legitimate employment criterion:
Supporting Hamas butchery of Israeli civilians is beyond the pale
The extraordinary outpouring of support on American university campuses for the events of October 7th has, unsurprisingly, led to some backlash from alumni, donors, and future employers. Big donors to elite institutions are realizing that something has gone terribly wrong on college campuses and have reconsidered their support. Big law firms have questioned whether students involved in such political activities would be acceptable employees.
Judges are reassessing as well. Judge James Ho became the face of a threatened conservative judicial boycott of hiring Yale law students as clerks after some high-profile assaults on conservative student speech. Yale Law School took steps to try to improve the situation.
Judges are looking at student actions in the wake of October 7th and drawing a line in the sand for those who would want to clerk for them. Judge Matthew Solomson said,
To me, it's a simple proposition that just like no judge would hire anyone who endorsed the KKK or the Nazis, anyone who endorses or approves or otherwise gives comfort to — in writing — Hamas, should not be hired.
Sarah Isgur reports on the Advisory Opinions podcast that Judge Lee Rudofsky has written to his own future clerks asking them to confirm that they have not condoned the October 7th massacre or engaged in acts of antisemitism or Islamophobia. He, quite appropriately, added that he had no problem with his future clerks holding or expressing a wide range of views about the Israeli-Palestinian situation and the current war, so long as they stopped short celebrating or advocating the targeting of civilians for abduction, torture, or death.
I would expect that other judges are contemplating similar steps in light of what we have seen over the past month.
11/9/1942: Wickard v. Filburn decided.
Will Garland v. Range be the way to go?
On Tuesday, the Supreme Court heard oral argument in United States v. Rahimi. Things did not go well for Mr. Rahimi. I can see him losing 7-2, 8-1, or maybe even 9-0, over some very stern concurrences. That the Supreme Court will (almost certainly) reverse the Fifth Circuit does not mean that the Fifth Circuit failed to faithfully apply Bruen. To the contrary, the Supreme Court seems to already have doubts about a precedent that, like Dobbs, is in its fifth trimester. Don't blame the inferior courts for taking the Supreme Court at its word.
The most likely path forward is for the Court to give (in Justice Kagan's words) "useful guidance" for the lower courts on how to apply Bruen. And by "useful guidance," Justice Kagan means watering down the Bruen test so lower court judges can pretend Justice Breyer's Heller dissent is controlling. What is that guidance? Solicitor General Prelogar explains "The way constitutional interpretation usually proceeds is to use history and regulation to identify principles, the enduring principles that define the scope of the Second Amendment right." Here, the Solicitor General purports to lecture the--what we are told is--the most originalist Supreme Court ever on originalism. Yes, after decades of discussion about original meaning, and we're stuck with "identifying principles" from history.
Still, we should not abandon all hope. On two occasions, Justice Barrett shined a light on another case looming on the docket.
Early in the argument, Justice Barrett acknowledged that domestic violence is a fairly easy case with regard to a "tradition of dangerousness." Rahimi's conduct "might be in a heartland," Barrett asked, "but then you can imagine more marginal cases." That is, a case where it is no so clear that the defendant is dangerous.
Later, Justice Barrett pressed the SG about what would happen in a case where the defendant is not dangerous. Prelogar responded, "You don't need to resolve that issue here. This is a is a case just about someone who is not responsible in the form of being dangerous." Barrett asked, "But you're trying to save, like, the range issue. So you're not applying dangerousness to the crimes?"
If you skimmed the transcript, you might have missed the reference. Indeed, "range" was lowercase and not italicized. Here, Barrett was referring to Garland v. Range. Range presents the question of whether a person convicted of making false statements to obtain food stamps is subject to the disqualification under Section 922(g)(1). On June 6, 2023, the en banc Third Circuit held that under Bruen, Range could not be disarmed.
Four months later, the Solicitor General filed a cert petition in Range. (By contrast, the Solicitor General filed a cert petition fifteen days after the panel decided Rahimi--Prelogar has made it a habit to skip en banc review in the Fifth Circuit.) But the SG did not ask the Court to grant certiorari in Range right away. Rather, the SG urged the Court to hold Range pending Rahimi. You can imagine why. Rahimi presents the worst facts possible for a Second Amendment case. Meanwhile, a person who engaged in welfare fraud is a far more sympathetic defendant. In Range, the respondents (represented by Cooper & Kirk) told the Court to grant the government's petition, even though they won in the lower court! (You don't see that happening often.) The government's reply brief, filed six days before Rahimi was argued, once again urged the Court to hold Range pending Rahimi.
Back to Justice Barrett. She asked the SG "But you're trying to save, like, the [Garland v. Range] issue. So you're not applying dangerousness to the crimes?" Prelogar responded, "That's correct." Prelogar added, "We think that there are additional arguments that can be made to defend felon disarmament and that those depend on the unique history and tradition with respect to criminal conduct." And looking ahead, the SG said, "we would hope to have the opportunity to present those arguments and perhaps persuade you in a future." Barrett interrupted Prelogar. "In that case perhaps." That is, Range. After some cross-talk, Prelogar said, "yes."
Range will be distributed at the November 17 conference. If the Court grants certiorari, the case can be argued in the March/April window. Range and Rahimi would become companion cases. Even if Rahimi loses by a lopsided margin, Range could pull out a victory by the same margin from Bruen. Indeed, the Court may be able to split those cases in a way so as not to water-down Bruen. The Court could even vacate-and-remand Rahimi in light of Range. If the Fifth Circuit is given clear guidance on what the state of the law is, it can follow that guidance.
From today's Complaint in Biden v. Byrne (C.D. Cal.):
Plaintiff brings this action for defamation against Byrne because he has made, published, and repeated false and defamatory statements about Plaintiff, knowing full well that the statements are false, for the purpose of subjecting Plaintiff to harassment, intimidation, and harm. On or about June 27, 2023, Byrne published false statements that Plaintiff "was reaching out to the Iranian government in the fall of 2021" and offering to have Plaintiff's father, President Joe Biden, "unfreeze" $8 billion in Iranian funds "in return for $800 million being funneled into a numbered account for us." Byrne further stated falsely that Plaintiff urged the Iranian government that, "if you do this deal with us, it will lubricate other negotiations which have recently started between us." According to Byrne, "[b]y that, the Iranians believed that Hunter meant the [Joint Comprehensive Plan of Action] talks, which had restarted in Geneva a month or two previously." These statements are completely false, and Byrne knew them to be false at the time he made them.
From the Palm Beach County Clerk of the Circuit Court and Comptroller; this was announced last week, but I just got an e-mail promoting it:
Clerk Abruzzo Announces Record-Setting $135 Million Investment in Israel Bonds
WEST PALM BEACH, FL (October 31, 2023) – Palm Beach County will make the single largest one-time investment in Israel Bonds, following a $135 million purchase announced Tuesday by Joseph Abruzzo, Clerk of the Circuit Court and Comptroller for Palm Beach County.
Clerk Abruzzo serves as Palm Beach County's Chief Financial Officer and manages Palm Beach County's investment portfolio, which reached a high of $4.06 billion last fiscal year.
Making the additional investment in Israel Bonds is a good investment for Palm Beach County taxpayers, Clerk Abruzzo said. Palm Beach County has a total of $200 million invested in Israel Bonds and will earn $21 million in interest off the most recent purchases.
"What does this mean for Palm Beach County taxpayers? It means an incredible return, with a very strong and safe investment," Clerk Abruzzo said. "To make that investment with our greatest ally, in one of the safest investments we can make – as Palm Beach County's treasurer and CFO, it's a win."
Watch the video from Clerk Abruzzo's announcement on the ClerkPBC YouTube channel or on the Clerk's Facebook page.
On October 10, Clerk Abruzzo announced a $25 million investment in Israel bonds in an immediate show of support for Israel following their declaration of war against Hamas militants. Palm Beach County was the first county in the United States to increase its investment in Israel bonds following Hamas' attack on Israel in early October.
Jessiah Hulle (Gentry Locke) provides the data (mostly federal, but also noting one state judge's order and a Canadian court's order), and summarizes the different approaches. A brief excerpt:
Federal courts nationwide are weighing in on how artificial intelligence can be used in court filings, and they're exploring different approaches to address issues such as disclosure, accuracy, and ethical duties.
A comprehensive review of 196 federal court websites reveals that judges continue to release AI orders at a steady pace…. These new orders also reveal a notable trend: Most courts personalize AI mandates rather than adopt guidelines verbatim from colleagues.
Celebrate your independence with a subscription to Reason magazine, your most trusted source of honest, insightful news and analysis.
