[This is a guest post by Prof. Richard Re (Virginia); because of a technical glitch, I had to originally post it under my byline.]
Perhaps the most surprising feature of the last Supreme Court term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a "fake" or "made up" case brought by someone who asserted standing merely because "she worries." As a doctrinal matter, these criticisms are unfounded.
But what makes this episode interesting is that the criticisms came from the legal left, which has long been associated with expansive principles of standing. Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal justices become jurisdictionally hawkish.
In the past, justices who found themselves out of power have often tried to tighten justiciability principles. So, now that the Court has shifted decidedly rightward, it makes some sense for there to be an ideological reversal on federal court jurisdiction.
Across the globe, many significant environmental challenges exist, but man-made climate change may be the most widespread and potentially dangerous. For decades, many scholars, policymakers, and activists have discussed ways to address air pollution, greenhouse gas emissions, and climate change. However, scholars in the classical-liberal tradition have understudied and underemphasized the issues surrounding climate change. Of course, many classical-liberal scholars have worked on this topic, but a conspicuous gap in the literature remains for such an enormous social issue . . .
The edited volume Climate Liberalism: Perspectives on Liberty, Property and Pollution helps to fill this gap. A variety of contributors discuss pollution- and climate-related issues from a classical-liberal perspective using multidisciplinary approaches, including philosophy, law, economics, and political science. The volume is a useful resource for understanding practical approaches for addressing climate change while also focusing on "preserving individual liberty and maintaining a free and dynamic economic marketplace"
And from later in the review:
Global problems like climate change do not have easy answers. Those answers are made more difficult when complicated with other considerations, including the classical-liberal values of limited government and decentralized authority. However, Climate Liberalism provides insightful and practical perspectives on how to understand and potentially tackle such a pressing social and ecological problem.
Robert L. Bradley, Jr. of the Institute for Energy Research offers less favorable commentary on the book at Law & Liberty (which previously ran a favorable review). Bradley notes that climate science is uncertain, that warming can produce costs as well as benefits, and that government intervention to address climate change may be costly, clumsy, and a threat of its own. These are all points noted in the book, but Bradley breezes by that. Indeed, he never really engages with any of the actual arguments made by various chapters. Time permitting, I will respond in more detail.
Labor Day is the right time to remember that we can make workers vastly better off by empowering more of them to vote with their feet, both within countries and through international migration.
On Labor Day last year and in 2021, I wrote posts explaining how breaking down barriers to labor mobility can help many millions of workers around the world. Virtually everything in last year's post is just as relevant today. So I am reprinting it with some updates and modifications:
Today is Labor Day. As usual, there is much discussion of what can be done to help workers. But few focus on the one type of reform that is likely to help more poor and disadvantaged workers than virtually anything else: increasing labor mobility. In the United States and around the world, far too many workers are trapped in places where it is difficult or impossible for them to ever escape poverty. They could better their lot if allowed to "vote with their feet" by moving to locations where there are better job opportunities. That would also be an enormous boon to the rest of society.
Internationally, the biggest barriers condemning millions to lives of poverty and oppression are immigration restrictions. Economists estimate that eliminating legal barriers to migration throughout the world would roughly double world GDP - in other words, making the world twice as productive as it is now. A person who has the misfortune of being born in Cuba or Venezuela, Zimbabwe or Afghanistan, is likely condemned to lifelong poverty, no matter how talented or hardworking he or she may be. If he is allowed to move to a freer society with better economic institutions, he can almost immediately double or triple his income and productivity. And that doesn't consider the possibility of improving his job skills, which is also likely to be more feasible in his new home than in his country of origin.
As with lowering immigration restrictions, breaking down domestic barriers to labor mobility would create enormous benefits for society as a whole, as well as the migrants themselves. Economists estimate that cutting back on exclusionary zoning would greatly increase economic growth. Like international migrants, domestic ones can be more productive and innovative if given the opportunity to move to places where they can make better use of their talents.
Many proposals to help workers have a zero-sum quality. They involve attempts to forcibly redistribute wealth from employers, investors, consumers, or some combination of all three. Given that virtually all workers are also consumers, and many also have investments (e.g. - through their retirement accounts), zero-sum policies that help them in one capacity often harm them in another. Breaking down barriers to labor mobility, by contrast, is a positive-sum game that creates massive benefits for both workers and society as a whole; it similarly benefits both migrants and natives.
Some on the left point out that, if investors are allowed to move capital freely, workers should be equally free to move, as well. It is indeed true that, thanks to government policies restricting labor mobility, investment capital is generally more mobile than labor. It is also true that the restrictions on labor mobility are deeply unjust. In many cases, they trap people in poverty simply because of arbitrary circumstances of birth, much as racial segregation and feudalism once did. The inequality between labor and capital, and the parallels with segregation and feudalism should lead progressives to put a higher priority on increasing labor mobility.
At the same time, it is worth recognizing that investors and employers, as a class, are likely to benefit from increased labor mobility, too. Increased productivity and innovation create new investment opportunities. The biggest enemies of both workers and capitalists are not each other, but the combination of nativists and NIMBYs who erect barriers to freedom of movement, thereby needlessly impoverishing labor and capital alike. Despite conventional wisdom to the contrary, even current homeowners often have much to gain from curbing exclusionary zoning policies that block the construction of housing needed by workers seeking to move to the region.
Obviously, there are those who argue against increasing labor mobility, either on the grounds that existing communities have an inherent right to exclude newcomers, or because allowing them to come would have various negative side-effects. I address these types of arguments here, and in much greater detail in Chapters 5 and 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom. As I explain in those earlier publications, nearly all such objections are wrong, overblown, or can be ameliorated by "keyhole solutions" that are less draconian than exclusion. In addition, the vast new wealth created by breaking down barriers to mobility can itself be used to help address any potential negative effects. In the book, I also push back against claims that mobility should be restricted for the benefit of those "left behind" in migrants' communities of origin.
I saw this new article by Prof. Richard Re, a leading scholar of federal courts law and my former UCLA colleague, and asked him if he would guest-blog about it; I'm delighted to say that he kindly agreed. Here's the abstract:
Perhaps the most surprising feature of the last Supreme Court term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a "fake" or "made up" case brought by someone who asserted standing merely because "she worries."
As a doctrinal matter, these criticisms are unfounded. But what makes this episode interesting is that the criticisms came from the legal left, which has long been associated with expansive principles of standing.
Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal justices become jurisdictionally hawkish. In the past, justices who found themselves out of power have often tried to tighten justiciability principles. So, now that the Court has shifted decidedly rightward, it makes some sense for there to be an ideological reversal on federal court jurisdiction.
Muhammad al-Ghamdi, a 54-year-old retired Saudi teacher, was sentenced "following 5 tweets criticizing corruption and human rights violations," his brother Saeed bin Nasser al-Ghamdi tweeted last week.
According to Human Rights Watch, Muhammad al-Ghamdi was arrested last year and given little access to a lawyer before his conviction in July "under article 30 of Saudi Arabia's counterterrorism law for 'describing the King or the Crown Prince in a way that undermines religion or justice,' article 34 for 'supporting a terrorist ideology,' article 43 for 'communication with a terrorist entity,' and article 44 for publishing false news 'with the intention of executing a terrorist crime.'" …
This post is a list of my upcoming speaking engagements for the Fall 2023 semester. Unless otherwise noted, all events are free and open to the public—and in person. The listed times are those in the time zone where the event is being held.
I may add additional events and information to this post, over time.
In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business! You can get an overview of the issues I write and speak about at my website.
Sept. 7, 4-5:40 PM, University of Virginia School of Law (virtual event): Live Taboo Trades podcast on "My Body, My Choice" issues. With Prof. Kim Krawiec (Univ. of Virginia). I believe participation is limited to U of Virginia law school students, possibly only those participating in the relevant class.
Sept. 18, 5-6:30 PM, George Mason University, Fairfax, VA. Horizon Hall 2017: "Immigration and Political Ignorance." Sponsored by the Schar School Jurisprudence Learning Community and the International Relations Policy Task Force.
Sept. 21, 12:30-2, Duke Law School, Durham, NC, Rm. 3037: "Unpacking Judicial Reform in Israel." Sponsored by the Duke Law School Federalist Society. Additional information here.
Sept. 27, 1:10-2:50 PM, New York University School of Law, Greenberg Lounge, Vanderbilt Hall: Title TBA, Supreme Court (P)Review Forum. With Melissa Arbus Sherry (Latham and Watkins), Abbie Vansickle (NY Times), and Prof. Melissa Murray (NYU). Description and RSVP information available here.
Oct. 4, 12-1:15 PM, Georgetown University Law Center, Washington, DC, McDonough Rm. 164: "Reforming Supreme Court Ethics." With Prof. Caroline Frederickson (Georgetown). Sponsored by the Georgetown Federalist Society.
Oct. 5, 12:30-1:30 PM, Vanderbilt Law School, Nashville, TN, Moore Room: "The Meaning of 'Property' Under the Takings Clause," (with Prof. Christopher Serkin, Vanderbilt). Sponsored by the Vanderbilt Federalist Society.
Oct. 17, 12-1:00 PM, Scalia Law School, Rm. 120, George Mason University, Arlington, VA: "Has the Supreme Court Gone Rogue? Debating Supreme Court Politicization," Debate with Prof. Eric Segall (Georgia State University). Sponsored by the George Mason University American Constitution Society, and the George Mason University Federalist Society.
Oct. 24, 12-1:15 PM (tentative time), William and Mary Law School, Williamsburg, VA: "Racial Preferences After Harvard v. SFFA." Sponsored by the William and Mary Federalist Society.
Oct. 25, time TBA, Pacific Legal Foundation symposium on "Rethinking Penn Central," Williamsburg, VA: "The Constitutional Case Against Exclusionary Zoning" (with Prof. Joshua Braver, University of Wisconsin). Tentative title.
Oct. 30, University of Minnesota Law School, Walter F. Mondale Hall 25, time TBA: Title TBA. Conference on "Section 3, Insurrection, and the 2024 Election: Does the Fourteenth Amendment Bar Donald Trump from the Presidency?" List of participants and other information available here.
Nov. 17, time TBA, University of Houston Law Center, Houston Texas: "Foot Voting and Hispanic Migration." Frenkel Lecture. Tentative title.
In the fourth part of this coverage of the sexual misconduct allegations against ex-George Mason University law professor and former FTC Commissioner Joshua Wright (part 1 with Prof. Christa Laser is here, part 2 with Prof. Brandy Wagstaff here, and part 3 with Aliza Shatzman here), I have a conversation with Dilan Esper, an experienced litigator in areas that include defamation law and the First Amendment. Dilan walks listeners through Josh's highly unusual defamation legal complaint against two of the women who accused Josh of misconduct, Elyse Dorsey and Angela Landry.
Dilan and I focus on some of the most controversial parts of this legal document, and Dilan explains how Josh likely fails to meet the standard to get past a defendant motion to dismiss. Dilan also shows why things will probably get even worse for Josh if he does make it past such a motion, quite possibly resulting in more damaging materials and testimony appearing during the discovery process.
Come find out why Dilan says that despite reading thousands of complaints in his career, Josh's complaint is unmatched in the extent to which it opens a window into a man's dark soul.
Note: According to a statement printed in the media by Lindsay McKasson, counsel to Joshua Wright at Binall Law Group "all allegations of sexual misconduct are false," "These false allegations are being made public after unsuccessfully demanding millions of dollars behind closed doors," and "We look forward to total vindication in court." According to a tweet by Prof. Christa Laser, "I don't appreciate that his attorney falsely suggests we are all lying (1/2 was in writing!) & want $ (this is a lie–I only want him gone)."
The case was filed by 20 red states seeking to dismantle the CNVH program extending the successful Uniting for Ukraine policy to migrants fleeing Cuba, Nicaragua, Venezuela, and Haiti.
Judge Drew Tipton of the U.S. District Court for the Southern District of Texas is in the process of considering an important immigration lawsuit that could have tragic effects if the plaintiffs prevail. The trial, which ran between Aug. 24 and 25, involves an ill-conceived lawsuit brought by Texas and nineteen other GOP-controlled state governments attempting to shut down an immigration policy that simultaneously rescues people fleeing violence and oppression and relieves pressure on the southern border. Ironically, statements by the plaintiff states' own leaders show why they deserve to lose.
The legal basis for these private sponsorship programs is the 1952 Immigration and Nationality Act, which…. gives the Department of Homeland Security the power to use "parole" to grant foreign citizens temporary residency rights in the United States "on a case-by-case basis for urgent humanitarian reasons or significant public benefit." Here, we have both "urgent humanitarian reasons" and "significant public benefit."
The humanitarian need is undeniable. Three of the four nations included in the program — Cuba, Nicaragua, and Venezuela — are ruled by oppressive socialist dictators, whose policies have created horrific conditions. Few have put it better than Florida Gov. Ron DeSantis (R), whose state is one of the plaintiffs in the present case.
As he said last year, Venezuela's socialist president Nicolas Maduro is a "murderous tyrant" who "is responsible for countless atrocities and has driven Venezuela into the ground." Venezuelan oppression and socialist economic policies have created the biggest refugee crisis in the history of the Western hemisphere….
In 2021, DeSantis rightly described Cuba's communist regime as responsible for "poverty, starvation, migration, systemic lethal violence, and suppression of speech…."
The CNVH program also creates a significant "public benefit." In December, Texas Gov. Greg Abbott sent a public letter to President Biden urging him to immediately address what he called a "terrible crisis for border communities."
CNVH parole does exactly that. Many of the migrants seeking entry at the border came from the four nations covered by program. Parole enables them to instead enter with advance authorization by ship or plane, and thereby bypass the border entirely, thus alleviating the "crisis" of which Abbot complained. A report by the conservative Manhattan Institute finds that "[t]he CHNV parole program…. has reduced combined illegal immigration by more than 98,000 immigrants per month…."
If the states prevail in this case, it will have dire consequences going far beyond the CNVH program. It would also imperil Uniting for Ukraine, which relies on the same authority, and has granted entry to some 140,000 Ukrainians fleeing Russia's war of aggression.
In addition, it would make it difficult or impossible for presidents to use parole to aid migrants fleeing future wars and repressive regimes. This harms both migrants unable to escape awful conditions, and the U.S. economy… It also undermines the U.S. position in the international war of ideas of against oppressive dictatorships, like those of Cuba, Russia and Venezuela.
Welcoming migrants fleeing their governments is a powerful signal of the superiority of ours. Conservatives understood this point during the Cold War, when they supported the use of this same parole power to grant entry to Hungarian, Cuban, Vietnamese and other refugees from communism.
The article is partly based on an amicus brief I filed in the case on behalf of the Cato Institute, MedGlobal (a humanitarian medical organization), and myself.
On Thursday, a federal district court in Florida concluded that voters lack standing to challenge Donald Trump's eligibility to appear on the Republican primary ballot. The plaintiffs had sought to advance the claim that Trump is ineligible to serve as President under Section 3 of the 14th Amendment due to his conduct on and around January 6. As I noted here, such claims face many obstacles, of which Article III standing is but one.
Here, Plaintiffs lack standing to challenge Defendant's qualifications for seeking the Presidency, as the injuries alleged are not cognizable and not particular to them. Plaintiffs allege that they have standing because Plaintiff Caplan has actively participated in the last twelve Presidential elections, voted for both Republicans and Democrats, is a Florida resident and United States citizen, is an attorney and member of various courts, and has never been sanctioned. DE 1 at 2. Plaintiffs further allege that Plaintiff Butin is a Florida resident and United States citizen and Plaintiff Strianese is a Nevada resident and United States citizen. Id. Plaintiffs allege they will suffer injury if Defendant is allowed to run for President and prevail when he could be disqualified or removed from office. Id. at 2-3. However, an individual citizen does not have standing to challenge whether another individual is qualified to hold public office. See, e.g., Kerchner, 612 F.3d at 207; Berg v. Obama, 586 F.3d 234, 239 (3d Cir. 2009).
In Berg, the plaintiff, an attorney representing himself, filed a complaint seeking declaratory and injunctive relief in district court before the 2008 Presidential election, alleging that then-candidate Barack Obama was ineligible to run for President because he was not a "natural born citizen" within the meaning of Article II. Berg, 586 F.3d at 237. The district court observed that "[s]tanding has been a consistent barrier to lower courts hearing generalized, undifferentiated claims by voters and citizens," and noted various cases in which citizens attempted to challenge a Presidential candidate's eligibility for office or other governmental actions but lacked standing. . . . The court concluded that an alleged injury "stemming from a presidential candidate's failure to satisfy the eligibility requirements of the Natural Born Citizen Clause is not concrete or particularized enough to constitute an injury in fact sufficient to satisfy Article III standing." Berg, 574 F. Supp. 2d at 518.
The Third Circuit affirmed the district court's rulings in Berg and reiterated that the plaintiff "suffered no injury particularized to him" and, therefore, lacked standing. Berg, 586 F.3d at 239. Courts throughout the United States have uniformly concluded that citizens do not have standing to bring lawsuits challenging a candidate's eligibility for national office. See, e.g., Drake v. Obama, 664 F.3d 774, 778, 780-84 (9th Cir. 2011) (group of military personnel, state representatives, political candidates, and individual citizens did not have standing to challenge President Obama's eligibility to hold office); Chapman v. Obama, 719 F. App'x 13 (D.C. Cir. 2018) (per curiam) ("The district court correctly concluded that appellant lacked standing to challenge President Barack Obama's qualifications for holding office."); . . .
Further, at least two courts have concluded that citizens attempting to disqualify individuals from participating in elections or from holding office based on the January 6, 2021 events at the United States Capitol lacked standing. See, e.g., Stencil v. Johnson, 605 F. Supp. 3d 1109 (E.D. Wis. 2022). In Stencil, the plaintiffs sought a declaratory judgment that three members of Wisconsin's Congressional delegation were ineligible to serve under the Fourteenth Amendment because their participation in the January 6 attack constituted an insurrection against the United States. Id. at 111213. Among other things, the court determined that the plaintiffs lacked standing and explained that "[e]very citizen and voter could claim to have suffered the same injury as the plaintiffs here, which amounts to nothing more than engaging in political advocacy against candidates for office or issue advocacy against the views the candidates hold. The relief that the plaintiffs seek would no more directly and tangibly benefit them than it would the public at large." Id. at 1117. . . .
Plaintiffs in this case similarly lack standing and, thus, this Court lacks jurisdiction. Accordingly, the Court exercises its discretion under the Declaratory Judgment Act, along with its obligation to examine its own jurisdiction, to dismiss this case.
This case presents a constitutional challenge to Arkansas Act 689 of 2023, the "Social Media Safety Act" …, a new law that aims to protect minors from harms associated with the use of social media platforms. Act 689 … requires social media companies to verify the age of all account holders who reside in Arkansas. Self-reporting one's age (a common industry practice) is not sufficient; Arkansans must submit age-verifying documentation before accessing a social media platform.
Under Act 689, a "social media company," as defined in the Act, must outsource the age-verification process to a third-party vendor. A prospective user of social media must first prove their age by uploading a specified form of identification, such as a driver's license, to the third-party vendor's website. A verified adult may obtain a social media account. Minors, however, will be denied an account and prohibited from accessing social media platforms, unless a parent provides express consent—which will require more proof to confirm the parent's age, identity, and relationship to the minor….
The court held that the law likely violated the First Amendment:
Deciding whether Act 689 is content-based or content-neutral turns on the reasons the State gives for adopting the Act. First, the State argues that the more time a minor spends on social media, the more likely it is that the minor will suffer negative mental-health outcomes, including depression and anxiety. Second, the State points out that adult sexual predators on social media seek out minors and victimize them in various ways. Therefore, to the State, a law limiting access to social media platforms based on the user's age would be content-neutral and require only intermediate scrutiny.
On the other hand, the State points to certain speech-related content on social media that it maintains is harmful for children to view. Some of this content is not constitutionally protected speech, while other content, though potentially damaging or distressing, especially to younger minors, is likely protected nonetheless. Examples of this type of speech include depictions and discussions of violence or self-harming, information about dieting, so-called "bullying" speech, or speech targeting a speaker's physical appearance, race or ethnicity, sexual orientation, or gender. If the State's purpose is to restrict access to constitutionally protected speech based on the State's belief that such speech is harmful to minors, then arguably Act 689 would be subject to strict scrutiny.
From Texas Supreme Court Justice John Devine's dissent from denial of petition for writ of mandamus today in In re Hotze:
In our republican form of government, the relationship between citizens and their political representatives is sacred and constitutionally protected. "[T]he people are the sovereign," but they express their will and govern through their duly elected representatives. For that to happen, our elected representatives must be free to communicate and share information with their constituents. The freedom of political dialogue and association is of such "transcendent importance" to "the maintenance of democratic institutions" that the Texas Constitution expressly guarantees the right to speak, to assemble, and to petition our government. These bedrock principles of freedom are the foundation of an enduring democracy.
But at a historic moment for our great state, these rights are imperiled by rules adopted in connection with the impending impeachment trial of Warren Kenneth Paxton, Jr., the third-term Attorney General of the State of Texas. In an unprecedented move, the Senate, sitting as the "Court of Impeachment," has adopted Rule of Impeachment 10, which broadly prohibits political representatives from talking to their constituents about "any matter relating to the merits of the proceedings before the court of impeachment." In a corollary measure, Rule 10 also requires the presiding officer of the impeachment court to issue a "gag order." The presiding officer has complied by issuing an extremely broad suppressive order that threatens representatives with contempt, criminal confinement of up to six months, and monetary penalties. In effect, if not by design, the gag order chills our representatives from engaging in constitutionally protected attributes of our government….
Our Constitution grants an "inviolate" right to "speak … on any subject." At the very core of this protection lies political expression. Speech between constituents and their representatives about the merits of impeachment and removal is undoubtedly political. In many ways, it is archetypically political.
A N.J. judge has thrown out the lawsuit, on the narrow grounds that, even if the newspaper deliberately discouraged people from attending the group's charity gala, the N.J. Law Against Discrimination doesn't apply to charity galas.
In Arc Mercer, Inc. v. MediaNews Group, decided Wednesday by N.J. trial court judge Brian McLaughlin, Arc Mercer—"a non-profit organization serving the needs of the persons with developmental and intellectual disabilities"—sued the newspaper The Trentonian and one of its journalists under the N.J. Law Against Discrimination. To quote the court, the journalist, "alerted to the planned attendance of several prominent elected officials at a charity event held at a venue co-owned by an allegedly controversial figure, wrote a series of opinion articles critical of said elected officials" and likewise criticizing "Arc Mercer for hosting the gala at the venue."
Arc Mercer argued that this violated the LAD, because "Defendants unlawfully discriminated against Plaintiff by targeting Plaintiff on the basis of the disabilities of its consumers in order to incite others, and attempt to incite others, to refuse to do business with Plaintiff":
In 2022, Plaintiff, like multiple other businesses and politicians, chose to host its annual fundraising gala at [the restaurant and catering venue] the Stone Terrace…. [T]he Arc [believes it] is the only organization that has held an event at the Stone Terrace since June 2020 that had a client base of persons with developmental and intellectual disabilities….
On June 11, 2020, Joseph Russo, the head chef and partial owner of the Stone Terrace at the time, published statements on social media that were racially offensive. These statements included slurs towards Black Lives Matter, as well as calling George Floyd protesters "evil."
The Stone Terrace experienced a considerable backlash from the local community including protests and boycotting of the venue. John Henry and Catherine Henry, owners of the Stone Terrace, released a statement referring to Russo as their "former executive chef" and apologized for the offensive statements by Russo, and confirming that Russo's views did not reflect the Stone Terrace's views or policies, and that the Stone Terrace supports the Black Lives Matter Movement.
