11/14/1922: Pennsylvania Coal Co. v. Mahon argued.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Supreme Court Adopts Ethics Code
The provisions seem sensible, though there are legitimate concerns about enforcement.
On Monday, the Supreme Court for the first time adopted an ethics code for its justices. The relatively short (14 pages) "Code of Conduct" was likely enacted in response to various controversies over the last year. I think the rules outlined in the Code seem reasonable, though there is some legitimate concern about the lack of enforcement provisions.
In an introductory statement, the justices write that "[f]or the most part these rules and principles are not new." Even so, there is value to having these rules clearly stated, so that observers can know what rules the justices consider themselves bound by.
Most of the rules strike me as intuitive and eminently defensible. Among the highlights are guidelines for recusal - the first in the Court's over two hundred year history. While justices have at times recused themselves for various reasons, until now the Court had not systematically outlined the rules that apply in such cases.
And the rules announced Monday make good sense. For example, they require recusal when there is a significant financial conflict of interest, and when a close relative of the justice is lead counsel in the case or an equity partner in the firm litigating it (and thus stands to profit financially).
It is also notable that the Code requires justices to "comply with the restrictions on acceptance of gifts and the prohibition on solicitation of gifts set forth in the Judicial Conference Regulations on Gifts now in effect." Those regulations generally forbid receipt of large-scale gifts like the expensive free vacations Justice Clarence Thomas apparently got from conservative billionaire Harlan Crow. There are a few (to my mind sensible) exceptions, such as "travel expenses, including the cost of transportation, lodging, and meals… to attend a bar-related function, an educational activity, or an activity devoted to the improvement of the law, the legal system, or the administration of justice."
Critics of the new code have focused on the lack of enforcement mechanisms. If a justice violates the rules, there is no provision for any kind of penalty.
This is a reasonable concern. It is, however, partly mitigated by the fact that the justices care about their reputations, and a justice who violates these rules is likely to take reputational damage. He or she can no longer claim that the relevant standards are unclear. It is also the case that it's hard to create a binding enforcement mechanism for the Court without intruding on judicial independence. These considerations may block enforcement mechanisms as rigorous as critics might want.
Even so, it should be possible to have at least some enforcement mechanisms. For example, the justices might be able to agree on a system of fines for violations, adjudicated by judicial branch officials they themselves could designate. I think Congress could also mandate at least some types of fines or other similar sanctions, as it has already done with the federal bribery statute (which applies to Supreme Court justices).
In my view, Justice Alito was wrong to claim that "No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court." Congress does have considerable, though far from unlimited, authority to set ethical rules for Supreme Court justices.
As I have previously noted, many of the ethics accusations against the justices are overblown, and many of the critics are at least in part motivated by their dislike of the conservative justices' rulings. It is also important to emphasize there is no evidence that any justice decided any case differently because of any gifts or other largesse they received. If Justice Thomas were really doing the bidding of Harlan Crow, he probably would not have voted to overrule Roe v. Wade, as Crow is pro-choice.
But that doesn't prove ethics concerns are completely without merit. It is reasonable to impose constraints on justices taking large gifts from private individuals and organizations, other than close relatives. Few oppose having such restrictions for lower court judges and for other influential government officials.
And some of the largesse Justice Thomas got from Harlan Crow, strikes me as going beyond what can reasonably be justified. The same goes for some of the free travel and other perks received by other justices, including some of the liberals. An occasional free dinner is no big deal. Free vacations worth tens of thousands of dollars are a different matter.
For those keeping track, I am not one of those people who raise ethics issues because they hate the Court's recent major rulings, and want to curb its power. Much the contrary. I believe most (though not all) the prominent Supreme Court decisions of the last two years are largely right, and am strongly opposed to court-packing and other similar schemes to weaken the Court's authority.
It's hard to say exactly where the line on gifts and other such matters should be drawn. Ditto for recusal standards. But the Code announced Monday at least seems like a reasonable approach. It's definitely a step in the right direction.
Monday Open Thread
What's on your mind?
What Does the Legalese Abbreviation FAXC Mean, Apparently Exclusively in California?
Though it appears in over two hundred cases, I just learned about it today.
Federal District Court (E.D. Tex.) Adding New Rules About AI Use by Lawyers and by Self-Represented Litigants
From General Order 23-11, effective Dec. 1, 2023, the new Local Rule CV-11(g):
Litigants remain responsible for the accuracy and quality of legal documents produced with the assistance of technology (e.g., ChatGPT, Google Bard, Bing AI Chat, or generative artificial intelligence services). Litigants are cautioned that certain technologies may produce factually or legally inaccurate content. If a litigant chooses to employ technology, the litigant continues to be bound by the requirements of Fed. R. Civ. P. 11 and must review and verify any computer-generated content to ensure that it complies with all such standards. See also Local Rule AT-3(m).
COMMENT: Recent advancements in technology have provided pro se litigants access to tools that may be employed in preparing legal documents or pleadings. However, often the product of those tools may be factually or legally inaccurate. Local Rule CV-11 is amended to add new subsection (g) to alert pro se litigants to this risk. The rule also alerts litigants that they remain bound by the certification requirements of Fed. R. Civ. P. 11 when employing such tools to verify all content meets those standards. A similar rule, Local Rule AT-3(m), is added to the standards of practice to be observed by attorneys….
And the new Local Rule AT-3(m):
Thai Public Broadcasting Service Removes Interview with Taiwan Foreign Minister, Allegedly at China's Behest
Taiwan News (Keoni Everington) reports:
Foreign Minister Joseph Wu (吳釗燮) on Sunday (Nov. 12) mocked China's government for lecturing Thailand over freedom of the press following his interview on a Thai television station.
Wu was interviewed by Thai Public Broadcasting Service (PBS) anchor Phongsathat Sukhaphong on Nov. 1 in Taipei, according to the Ministry of Foreign Affairs (MOFA). An interview segment was broadcast on Thai evening news under the headline "Taiwan's foreign minister assesses the development trends with China's military unification with Taiwan," on Nov. 3, and the complete interview was uploaded to the station's YouTube channel, as can be seen on this archived page.
During the interview, Wu said China is using various means such as military pressure, economic coercion, and international isolation in an attempt to force Taiwan to surrender utilizing the Sun Tzu lesson of "subduing the enemy without fighting." In the face of China's provocations, Wu said Taiwan has always played a responsible role, avoided becoming a party that provokes conflicts, and is willing to engage in cross-strait dialogue on the premise of equality….
Court Strikes Down Ban on Town Employees Displaying "Thin Blue Line" Flag While on Town Property
A Springfield Township (Pennsylvania) resolution provides:
[T]he Board of Commissioners of Springfield Township does, as a matter of respect and sensitivity to all the citizens of the Township, hereby prohibit the publicly visible display or use of any image which depicts the Thin Blue Line American Flag symbol by any Township employee, agent, or consultant and in an effort to be clear and as reasonably limited as possible, specifically prohibits the following:
- The publicly visible depiction of the symbol on the clothing or skin of any Township employee, agent or consultant while on duty, during the workday of the individual or while representing the Township in any way (specifically including the off duty time of any such individual if still wearing the Township uniform).
- The publicly visible depiction of the Thin Blue Line American [F]lag symbol on any personal property of a [T]ownship employee, agent, or consultant, which is brought into the [T]ownship building (except prior to or subsequent to reporting for duty or any official assignment for the Township), and which, in the reasonable opinion of the Township Manager, is placed in a location likely to be seen by a member of the public while visiting the [T]ownship building.
- The display, by installation or affixation of a publicly visible depiction of the symbol, on [T]ownship owned property (including [T]ownship vehicles), by any person.
This violates the First Amendment, Judge Karen Marston (E.D. Pa.) concluded today in Pennsylvania State Lodge, Fraternal Order of Police v. Township of Springfield:
[T]he Resolution is a viewpoint regulation—it prohibits employees, agents, and consultants from displaying only the Thin Blue Line American Flag, not from displaying flags or political speech generally. Instead, the Township argues that the Resolution is a permissible restriction on employee speech even though it targets a specific viewpoint. Given the Supreme Court's consistent assertion that viewpoint discrimination is inherently suspect, the Court questions whether the government can ever permissibly regulate employee speech based on viewpoint. {One exception to this rule is when the government is speaking on its own behalf. But the Township has not argued that [the Resolution] regulates government speech.} …
Professor Aaron Nielson Is The New Texas Solicitor General
I am thrilled to pass along this press release:
Texas Attorney General Ken Paxton today announced his appointment of Aaron Nielson as Solicitor General.
"I am delighted to welcome Aaron as Solicitor General. In this position, he will lead the critical appellate work for some of our most significant, far-reaching cases," said Attorney General Paxton. "His talent and expertise are virtually unmatched, earning him national renown in the legal community. He will be a tremendous asset to our agency and to our state's appellate leadership on the major legal questions of our era."
"It is my great honor to serve the state of Texas as Solicitor General. I look forward to working alongside the team Attorney General Paxton has assembled and to leading and learning from the world-class lawyers in the Solicitor General Division that represent Texas so well in our nation's appellate courts," said Mr. Nielson.
Mr. Nielson is a Professor of Law at Brigham Young University's J. Reuben Clark Law School, specializing in administrative law, civil procedure, antitrust, and the federal courts. One of the nation's foremost experts on the Administrative Procedure Act, he recently served as Chair of the Administration and Management Committee of the Administrative Conference of the United States. He also recently served on the Council of the American Bar Association's Section of Administrative Law and Regulatory Practice and currently co-chairs its antitrust committee. Professor Nielson is a visiting fellow at the Antonin Scalia Law School's C. Boyden Gray Center for the Study of the Administrative State. He is taking a one-year leave of absence from Brigham Young University to serve as Solicitor General.
In 2020, Mr. Nielson was appointed by the U.S. Supreme Court to brief and argue Collins v. Yellen, a separation-of-powers case about the Federal Housing Finance Agency. He also regularly represents clients in the U.S. Court of Appeals for the Fifth Circuit. His publications have appeared in many of the nation's top journals, including the University of Pennsylvania Law Review, Duke Law Journal, and University of Chicago Law Review.
Before joining the BYU faculty, Mr. Nielson was a partner at Kirkland & Ellis LLP, where for many years he has been of counsel in the appellate and antitrust groups. He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit in Houston, Texas.
Mr. Nielson received his J.D., magna cum laude, from Harvard Law School. He also received an LL.M from the University of Cambridge. He received his undergraduate degree, summa cum laude, from the University of Pennsylvania, majoring in economics and political science.
Aaron will have several prominent arguments before the Court this term. I, and everyone else in the Texas conservative legal movement, welcome Aaron!
Six Federal Cases of Self-Represented Litigants Citing Fake Cases in Briefs, Likely Because They Used AI Programs
These are likely just the tip of the fakeberg.
Unsurprisingly, lawyers aren't the only ones to use AI programs (such as ChatGPT) to write portions of briefs, and thus end up filing briefs that contain AI-generated fake cases or fake quotations (cf. this federal case, and the state cases discussed here, here, and here). From an Oct. 23 opinion by Chief Judge William P. Johnson (D.N.M.) in Morgan v. Community Against Violence:
Rule 11(b) of the Federal Rules of Civil Procedure states that, for every pleading, filing, or motion submitted to the Court, an attorney or unrepresented party certifies that it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation," that all claims or "legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law," and that factual contentions have evidentiary support….
Plaintiff cited to several fake or nonexistent opinions. This appears to be only the second time a federal court has dealt with a pleading involving "non-existent judicial opinions with fake quotes and citations." Quite obviously, many harms flow from such deception—including wasting the opposing party's time and money, the Court's time and resources, and reputational harms to the legal system (to name a few).
The foregoing should provide Plaintiff with enough constructive and cautionary guidance to allow her to proceed pro se in this case. But, her pro se status will not be tolerated by the Court as an excuse for failing to adhere to this Court's rules; nor will the Court look kindly upon any filings that unnecessarily and mischievously clutter the docket.
"Strangers on the Internet" Podcast Episode 47: The Hardships of Single Life
How to make it as a single person in a society often seemingly built for couples
The 47th episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange deals with the obstacles that single people face in daily life.
Why is being single so frustrating sometimes? Michelle and I explore both the emotional and practical side of single life. In addition to dealing with feelings of loneliness, single people--and frequently especially single women--face tasks that are difficult or even impossible to accomplish on one's own.
Michelle talks about the lawn mower she physically couldn't start while single without her (male) neighbor's help, while I discuss the challenges of building furniture that requires two people. We analyze how to overcome some of these obstacles and how community members can best support each other with life's small and large complexities regardless of relationship status.
Standing Doctrine and the Supreme Court
Today the Harvard Law Review has published its issue on the Supreme Court's October 2022 Term, and Will Baude and I have a case comment on Biden v. Nebraska and more generally on standing doctrine in the term. The piece is called Proper Parties, Proper Relief.
HLR case comments are about the case, but they're also about the big ideas behind the case, and one exemplar of that is Michael McConnell's famous case comment from 1997: Institutions and Interpretation: A Critique of City of Boerne v. Flores.
So in thinking about what the piece covers, consider three concentric circles. The narrowest is Biden v. Nebraska: was there standing for the states to sue to stop the Biden Administration's (first) student-loan relief plan? A second circle is broader: what are the circumstances in which a state is able, or should be able, to sue the national government? A third circle is broader still, and it's the first principles of standing doctrine: What is the core of standing? What is it good for? What exactly is the point?
Proper Parties, Proper Relief tackles all these questions, and along the way it also discusses other major cases from the October 2022 Term, including United States v. Texas and Haaland v. Brackeen. Together these cases suggest important shifts in standing doctrine, especially state standing.
Part I, called "Basic Principles," offers an account of standing doctrine that emphasizes two main ideas--proper parties and proper relief—and it connects both of these to the judicial role.
Part II, called "The Massachusetts v. EPA Era and the Shifting Judicial Role," analyzes briefly and critically the meteoric rise of state standing (which is due to multiple factors, not just Massachusetts v. EPA).
Part III, called "End of an Era? Two Cheers for the Supreme Court's Course Correction," works through in detail the Supreme Court's standing cases from the October 2022 Term, especially showing how they have narrowed—perhaps even gutted—the expansive readings of Massachusetts v. EPA that have become commonplace in the lower federal courts.
Finally, Part IV, called "The Enduring Choice Between Two Approaches to Standing," distinguishes between an external concept of standing, in which it is simply a hurdle for a judge to get over before getting on with the real work; and internal concept of standing, in which it is part of the role morality of being a judge.
The piece concludes with this paragraph:
Yet as courts have come to govern so much of our political life, and as so many of us have come to expect them to do so, standing doctrine and its corresponding view of judicial power will always be under pressure. Unconstrained by such niceties, there is so much more a judge could do! This Term suggests that the Court is trying to nudge the judiciary toward the classical view of the judicial role, or at least toward the circa 2005 view of the judicial role, and if so that is a good development. But it will not be the end of the temptation. Constant pressure requires constant vigilance.
Censorship Envy
One reason I broadly oppose governmental restrictions on the expression of ideas—even obviously bad, dangerous, and offensive ideas—is the phenomenon I call "censorship envy": The common reaction that, "If my neighbor gets to ban speech he reviles, why shouldn't I get to do the same?"
[1.] To offer one example, say a public university bans speech that expresses support for Hamas attack on civilians, and a court upholds that (perhaps on the theory that this supposedly creates a "hostile educational environment" for Jewish or Israeli students).
It seems to me quite likely, and psychologically understandable, that this will create an impetus for greater moves to ban other speech, such as support for Israeli retaliatory strikes against Hamas or other future attackers. Such a misplaced desire for equality of repression is a powerful mental force, and it's one way in which narrow speech restrictions can end up leading to broader ones.
Indeed, I already often hear it as a defense for restrictions on pro-Hamas speech: In practice, some universities already do various things to try to punish speech that's supposedly racist or sexist or anti-gay or anti-trans or what have you. Isn't it only fair that they likewise punish speech that defends the killing of Jews? Yet if that argument for comparable speech suppression is accepted, why would we think it will stop there?
But beyond this, even if the envy doesn't lead to broader speech restrictions, that itself is dangerous to society. Say that, even if the ban on pro-Hamas speech is allowed, a move to similarly ban pro-Israeli-retaliation speech fails. The pro-Israeli-retaliation speech will then likely rankle many Americans even more, creating more offense and more division.
Right now, when people are deeply offended by various kinds of speech, the legal system can powerfully tell them: "Yes, you must endure this speech that you find so offensive, but others must endure offensive speech, too. Many people hate speech you like as much as you hate the speech they like, but the Constitution says we all have to live with being offended: We must fight the speech we hate through argument, not through suppression."
Yet what would we say when some offensive viewpoints are banned but other offensive viewpoints are allowed? "We who have the support of the majority get to suppress symbols we hate, but you in the minority don't"? "Our hatred of certain speech is reasonable but your hatred of other speech is unreasonable"?
Yes, it's true, you can argue for various distinctions, such as between speech defending the purposeful killing of civilians and speech defending the merely knowing killing of civilians incidental to attack military targets. (I actually agree with such a distinction on the merits, though not as a basis for banning some speech.) But are Americans on the other side of these debates from you likely to be persuaded by these arguments? Are those arguments likely to lead to more domestic peace and stability, or less?
[2.] This is also one of the reasons (though not the only one) why I oppose European-style "hate speech" laws. One recurring argument from Muslims who want Mohammed cartoons legally suppressed is that European laws prohibit other kinds of speech offensive to other groups—for instance, Holocaust denial, which is often restricted chiefly because it's seen as implicitly or explicitly anti-Semitic—and that Muslims should get the same treatment.
Hiring a Research Fellow in Free Speech Law for 1 or 2 Years, at the Hoover Institution (Stanford)
This was just announced Friday:
Opportunity for Post-JD Scholars
The Hoover Institution at Stanford University is seeking an outstanding early-career legal scholar who is interested in doing research on free speech law, in preparation for seeking an academic position at a law school or elsewhere.
If you are selected, you would work on your own research with the guidance and supervision of Senior Fellow Eugene Volokh, who is coming to Hoover after 30 years as a Professor of Law at UCLA School of Law. You would be appointed a Research Fellow with the Center for Revitalizing American Institutions (RAI), for one year from July 2024 through June 2025; the term may be renewed, if both you and Hoover agree, for one extra year. You would be expected to be physically present at the Institution, and working at it full-time, with no competing major professional commitments.
There is no teaching obligation, so you would have maximum time to research and write. You would, however, be expected to help organize and participate in occasional conferences, workshops, and lectures, and to work on occasional projects with Volokh or other Senior Fellows. These tasks would all be related to free speech law, and are expected to help promote your own research and future career.
Eligibility criteria:
Today in Supreme Court History: November 13, 1856
11/13/1856: Justice Louis Brandeis's birthday.
CBC Radio Commentary on Online Dating
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."
Today in Supreme Court History: November 12, 1975
11/12/1975: Justice William O. Douglas resigns.
Speech Defending Attacks on Civilians: A Thought Experiment
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?
Today in Supreme Court History: November 11, 1975
11/11/1975: Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. argued.
