The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Technocolonialism – but in Reverse

Episode 470 of the Cyberlaw Podcast

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The Cyberlaw Podcast is back from August hiatus, and the theme of our first episode is how other countries are using the global success of U.S. technology to impose their priorities on the U.S. Our best evidence is the EU's Digital Services Act, which took effect last month.

Michael Ellis spells out a few of the Act's sweeping changes in how U.S. tech companies must operate – nominally in Europe but as a practical matter in the U.S. as well. The largest social media platforms will be heavily regulated, with restrictions on their content curation algorithms and a requirement that they promote government content when governments declare a crisis. Other social media will also be subject to heavy content regulation, such as a transparency mandate for decisions to demote or ban content and a requirement that they respond promptly to takedown requests from "trusted flaggers" of Bad Speech. Searching for a silver lining, I point out that many of the transparency and due process requirements are things that Texas and Florida have advocated over the objections of Silicon Valley companies. Compliance with the EU Act will undercut the Big Tech claims likely to be made in the Supreme Court this Term,  particularly that such transparency isn't possible.

Cristin Flynn Goodwin and I note that China's on-again off-again regulatory enthusiasm is off again. Chinese officials are doing their best to ease Western firms' concerns about China's new data security law requirements. Even more remarkable, China's AI regulatory framework was watered down in August, moving away from the EU model and toward a U.S./U.K. ethical/voluntary approach. For now.

Cristin also brings us up to speed on the SEC's rule on breach notification. The short version: The rule will make sense to anyone who's ever stopped putting out a kitchen fire to call their insurer to let them know a claim may be coming.

Nick Weaver brings us up to date on cryptocurrency and the law. Short version: Cryptocurrency had one victory, which it probably deserved, in the Grayscale case, and a series of devastating losses over Tornado Cash, as a court rejected Tornado Cash's claim that its coders and lawyers had found a hole in Treasury's Office of Foreign Assets Control ("OFAC") regime, and the Justice Department indicted the prime movers in Tornado Cash for conspiracy to launder North Korea's stolen loot. Here's Nick's view in print.

Just to show that the EU isn't the only jurisdiction that can use the global reach of U.S. tech to undermine U.S. tech policy, China managed to kill Intel's acquisition of Tower Semiconductor by slowrolling its competition authority's review of the deal. I see an eerie parallel between the Chinese aspirations of federal antitrust enforcers and those of the Christian missionaries we sent to China in the 1920s.

Michael and I discuss the belated leak of the national security negotiations between CFIUS and TikTok. After touching on substance (there were no real surprises in the draft), we turn to the more interesting questions of who leaked it and whether the effort to curb TikTok is dead.

Nick and I explore the remarkable impact of the war in Ukraine on drone technology. It may change the course of war in Ukraine (or, indeed, a war over Taiwan), Nick thinks, but it also means that Joe Biden may be the last President to walk in sunshine while in office. (And if you've got space in D.C. and want to hear Nick's provocative thoughts on the topic, he will be in town next week, and eager to give his academic talk: "Dr. Strangedrone, or How I Learned to Stop Worrying and Love the Slaughterbots".)

Cristin, Michael and I dig into another August policy initiative, the outbound investment review executive order. Given its long delays and halting rollout, I suggest that the Treasury's Advance Notice of Proposed Rulemaking (ANPRM) on the topic should really be seen as an Ambivalent Notice of Proposed Rulemaking.

Finally, I suggest that autonomous vehicles may finally have turned the corner to success and rollout, now that they're being used as moving hookup pads  and (perhaps not coincidentally) being approved to offer 24/7 robotaxi service in San Francisco. Nick's not ready to agree, but we do find common ground in criticizing a study claiming bias in the way autonomous vehicles identify pedestrians.

Download 470th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@gmail.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

Second Amendment

Free "2023 Supplement" for "Firearms Law and the Second Amendment"

Covering the many developments in 2022-23.

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If you would like to know what's been going on with right to arms litigation in the past two years, you're in luck. Published a few weeks ago is the 2023 Supplement to Firearms Law and the Second Amendment: Regulation, Rights, and Policy, coauthored by me and Nicholas Johnson (Fordham), George Mocsary (Wyoming, Director of the Firearms Research Center), Gregory Wallace (Campbell), and Donald Kilmer (Lincoln). In 330 pages, the supplement brings you up to date on the legal developments on the right to arms in 2022 and 2023.

The third edition of that textbook was published in late 2021. At 1,400 pages and $275, it's a bargain when calculated on cost per word. But the supplement is absolutely free, even if you didn't buy the main textbook.

Of course, the supplement examines in depth the U.S. Supreme Court's monumental Bruen decision from June 2022. That case affirmed the right to bear arms in public for lawful self-defense. More broadly, Bruen instructed lower courts to decide Second Amendment cases the way that Court had decided District of Columbia v. Heller in 2008: based on the original meaning of the Second Amendment, rather than on judges' personal evaluations of the costs and benefits of gun control. The 2023 Supplement catalogues the profusion of cases challenging many different laws on the ground that they are contrary to the Second Amendment's original meaning.

Although Firearms Law and the Second Amendment and its 2023 Supplement were created for use in advanced law school courses, they are also a treatise meant to be useful to courts, practitioners, and interested laypersons. That is why the textbook has been cited in five U.S. Circuit Court of Appeals opinions (including by then-Judge Kavanaugh), by the Illinois Supreme Court, and five other cases from lower courts. The textbook has been cited in 91 briefs in the Westlaw database, including by Everytown for Gun Safety, and twice this August in United States government briefs in the Circuit Courts of Appeals.

Among the many topics in the 2023 Supplement are firearm bans aimed at young adults; various categories of prohibited persons under federal law (such as marijuana users); new federal ATF regulations against pistol braces and other devices; the incompetently-drafted 2022 congressional Bipartisan Safer Communities Act; litigation of some state governments' "massive resistance" to accepting the right to licensed concealed carry; and international developments in Canada and elsewhere.

Starting with the first edition of Firearms Law in 2012, the textbook has been a cyclopedia of the legal history of the right to arms, including the broader social and technological context. That continues with the 2023 Supplement; the final section of the supplement is a detailed explanation of the evolution of firearms technology: in particular, how the kinds of guns—such as breechloading repeaters—that in the 1500s were only available to people like King Henry VIII became affordable for the 1800s to the average American.

As Dr. Seuss observed, "The more that you read the more things you will know." So if you want to know more things, I invite you to read the 2023 Supplement to Firearms Law and the Second Amendment.

[This post will be cross-posted at the Firearms Research Center Forum, the weblog of the University of Wyoming's new Firearms Research Center. I am a Senior Fellow at the Center. Contributors to the FRC Forum include "pro-gun" writers, such as me, and also gun control advocates such as law professors Dru Stevenson (South Texas) and Megan Walsh (Minnesota).]

Law & Government

Conversation with Akhil Amar about Section Three of the Fourteenth Amendment

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A few weeks ago I linked to a new draft article with Michael Stokes Paulsen, The Sweep and Force of Section Three, forthcoming in the Pennsylvania Law Review. The article argues that Section Three of the Fourteenth Amendment has continuing, self-executing, legal force and a relatively broad substantive sweep, and that among other things it disqualifies Donald Trump from future office because of his participation in the attempted overthrow of the 2020 presidential election. Since then Prof. Paulsen and I have generally been declining media interviews and the like, preferring to let the article speak for itself.

But we recently made an exception for a long conversation with my former professor, and Paulsen's former law-school roommate, Akhil Amar. In two episodes totaling about three hours we talk about many aspects of the argument about Section Three, including various issues of federal jurisdiction, congressional power over the electoral count, our reactions to the recent blog post here by our friend Professor Michael McConnell, and more. The two episodes are linked below.

The Two Experts on Section Three - Special Guests William Baude and Michael Stokes Paulsen

In a special episode, the two distinguished authors of a recent major article, which dives deep into Section 3 of the Fourteenth Amendment and finds that Donald Trump is disqualified from the Presidency, join us for a thoughtful and rigorous examination of the tough questions about their conclusions. These are leading conservative scholars who have gone where their methodologies, and the law, has taken them. Reaction has been swift and impassioned around the country, and in this episode they respond for the first time to some of the critiques, explore the implications of their work, and in doing so, they bring an integrity to our civic conversation. This is an important discussion of important issues, by real experts.

The Two Experts, Part Two - Special Guests William Baude and Michael Stoke Paulsen

We continue our exclusive discussion with the Professors Baude and Paulsen, authors of the bombshell article declaring Trump ineligible for the Presidency. This time we explore some concerns that have been voiced in the media and elsewhere; we look at how this provision might make itself effective in practice. We trace the possible routes such an effort might take; where would it be initiated - and importantly, who would be the final authority? Along the way we enter the Fed Courts classroom and look at - what else - the Constitution's voice on these matters, in the 14th amendment, and elsewhere.

Free Speech

Was There Standing in 303 Creative?

The Court had ample reason to find a "credible threat" of enforcement, consistent with existing case law.

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This series of posts, written by Prof. Richard Re (Virginia), is based on his draft article, "Does the Discourse on 303 Creative Portend a Standing Realignment," which is forthcoming in the Notre Dame Law Review Reflection.

In my first post, I critically discussed some popular objections to 303 Creative v. Elenis and noted that case law established a "credible threat" test for standing. Now, I'd like to explore the issue of standing more extensively. Was the credible threat test satisfied in 303 Creative? Here's an edited excerpt from my paper:

Drawing on the court of appeals decision below … the Court adduced three reasons why the threat facing the designer [plaintiff Lorie Smith] was credible. First, "Colorado has a history of past enforcement against nearly identical conduct." This factor is very powerful. If someone has done something and been enforced against, that would seem to make it credible that a new person would suffer enforcement for similar conduct.

Second, "anyone in the State may file a complaint against Ms. Smith and initiate 'a potentially burdensome administrative hearing' process." So, even if most or nearly all people in Colorado would decline to initiate enforcement against the designer, it would only take one person to initiate proceedings and generate alleged censorship. This too seems like a significant point in favor of standing.

Third, "Colorado [has] decline[d] to disavow future enforcement proceedings" against the plaintiff. With the case pending at the Court, the State was obviously well aware of what the plaintiff had in mind and could have put everyone at ease by disavowing any interest in enforcement – as sometimes does happen as late as oral argument. Yet Colorado declined to do so. Instead, the State stayed conspicuously quiet about whether it would enforce. Given the circumstances, that silence speaks loudly. Who wouldn't view the threat as very credible indeed?

The Court then wrapped up: "Before us, no party challenges these conclusions." The dissent, too, declined to take any issue with this persuasive and largely undisputed analysis.

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Politics

Today in Supreme Court History: September 6, 1983

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9/6/1983: The City of Richmond solicited bids for installing plumbing fixtures at the city jail. The J.A. Croson Company's bid was denied because it did not meet the "set-aside requirement" for minority contractors. The Supreme Court declared this decision unconstitutional in City of Richmond v. J.A. Croson Co. (1989).

The Rehnquist Court (1989)

Free Speech

Arbitrators, Like Judges, Are Immune from Libel Lawsuits Based on Their Opinions

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[UPDATE 12/5/2023: See the end of the post for links to, and an excerpt from, Seltzer's arguments.]

[UPDATE 4/17/2024: In March, the D.C. Circuit affirmed the dismissal on statute of limitations grounds, without having to reach the arbitral immunity question.]

From today's decision by Judge Jia Cobb in Seltzer v. Financial Industry Regulatory Authority:

Plaintiff Susan Seltzer participated in an arbitration proceeding before the Financial Industry Regulatory Authority (FINRA). The arbitration concluded with a written award that was published online. Seltzer alleges that the award defamed her by incorrectly describing her actions in the arbitration proceeding. She also contends that FINRA took actions to "tag" the award to her name in a Google search. Seeking to recover for the harms she allegedly suffered from the publication of those statements, Seltzer sued FINRA….

The Court can make out the following from Seltzer's allegations. The events giving rise to this case involve an arbitration Seltzer initiated in FINRA's arbitration forum in 2017. The arbitration panel issued a written award dismissing Seltzer's claim. The award included some descriptions of the arbitration proceedings and characterized Seltzer as acting "vicious[ly]" and making "ad hominem attacks" against other parties, among other things. Seltzer acknowledges that FINRA's Codes of Arbitration Procedure requires that it make all arbitration awards publicly available. Accordingly, FINRA posted the arbitration award online…. Seltzer knew about the statements as early as November 6, 2018 ….

Seltzer also alleges that on July 13, 2020, FINRA began "publish[ing] the false and defamatory award tagged to [her] name in a Google Search."  Seltzer does not clearly explain how she claims FINRA did this, but she seems to allege that FINRA was responsible for the award appearing in Google searches of her name. She alleges that in 2022, FINRA created "knowledge graphs" that also linked the "defamatory award" to her. Her Complaint includes allegations that FINRA altered the complaint that she filed in the arbitration by removing the names of certain individuals, but she does not allege that FINRA altered any allegedly defamatory statements in the award.

The court held that plaintiff's claims were barred by D.C.'s one-year statute of limitations for libel claims:

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Free Speech

Woman Found Responsible for Internet Harassment in Canada Loses Defamation Suit Against N.Y. Times

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From today's decision by Judge Paul Oetken in Atas v. N.Y. Times Co.:

Plaintiff Nadire Atas, proceeding pro se, brings this action against Defendants The New York Times Company [and others], alleging defamation. According to Atas, The Times—through news articles, podcast episodes, and interviews of its journalists—defamed her by describing her as a mentally ill woman who has engaged in years-long campaigns of harassment against her perceived enemies using the internet and the Canadian court system…. [Defendants'] motions to dismiss are granted….

On January 30, 2021, The Times published an article titled "A Vast Web of Vengeance" on its website and in print. The article, written by Defendant [Kashmir] Hill, described the phenomenon of "complaint sites," which allow anonymous internet users to post malicious and often false accusations about people for the purpose of retribution for perceived slights. It reported that Plaintiff is one such person, responsible for anonymous internet posts targeting those who have slighted her with unfounded accusations of pedophilia, theft, and fraud, among other offenses. The article also reported on Canadian court proceedings against Plaintiff for defamation. It included the statement that in 2017, Judge David Corbett of the Ontario Superior Court of Justice deemed Plaintiff "a vexatious litigant who was 'ungovernable and bent on a campaign of abuse and harassment.'" Additionally, the article reported that on January 28, 2021, the same judge had issued a ruling stating that Plaintiff was responsible for "unlawful acts of reprisal" [referred to as the Caplan Judgment -EV].

On February 10, 2021, The Times published a follow-up article reporting that Plaintiff had been arrested the previous day for harassment and libel. On February 17, 2021, Hill gave an interview on CBC Radio referencing the two articles. On April 6, 2021, Defendant Michael Barbaro interviewed Hill about her reporting on The Daily Podcast, which is published by The Times.

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Free Speech

Responding to Reader Comments on The Five Internet Rights

Seven-layer stacks, messy anecdotes, and the conservative case for net neutrality.

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I want to thank Eugene again for inviting me to guest-blog last week about my new article, The Five Internet Rights. See Parts I, II, III, IV, and V. I thought I'd follow up with just one more post to respond to some of the reader comments I received on the series.

In the first place, it was certainly an interesting (and educational) experience trying to distill a 100-page, heavily footnoted, academic article into five short-form blog posts. That translation forced me to elide over many important details and caveats that were addressed in the article, some of which readers focused on. For example:

Technical Objections

On the technical side, the savvy DNS practitioner might point out that having one's domain name suspended doesn't amount to getting kicked off the internet (just ask gab.com and ar15.com). Often, when a registrar suspends a domain name, it gives the registrant an opportunity to find another registrar. Given that more than a thousand ICANN-accredited registrars currently offer their services to the public, a registrant faced with a suspension for purely ideological reasons can usually find a substitute. Or a truly beleaguered speaker could theoretically become her own registrar (with a fair amount of money and effort). And even if a top-level domain registry (as distinct from a registrar) permanently deprived you of your domain name (say, example.com), you could probably register another string in a different top-level domain (say, example.xyz or even example.ru).

Likewise, even if a regional internet registry (RIR) revoked your IP addresses, you might manage to procure substitute address space within another RIR's service region. I address these nuances in a section of the article that distinguishes between "strict" and "fuzzy" classes of intermediaries and notes the hierarchy of control from registrars to registries to ICANN. But obviously, that would have been too in the weeds for a blog series (as would have been any description of the seven-layer OSI network stack).

Another important clarification is that even if a person lost her domain name, IP address, and commercial internet connection, those actions would only kick her website off the internet; they wouldn't necessarily kick her off the internet. She could probably continue to leverage the internet to express her viewpoints using non-web technologies, such as email, FTP, peer-to-peer, or video conferencing. I acknowledge as much in the article. But I also argue that websites enjoy a special status when it comes to online expression. Websites alone combine control, social valence, accessibility, discoverability, authority, and permanency. Not so with spoof-able emails, undiscoverable file objects, or ephemeral Zoom-casts. A viewpoint that is denied a home on every website might not be banished from the internet entirely, but it would be effectively banished from the public internet.

Messy Anecdotes

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Indian Law

Harriet McConnell Retford on Arizona v. Navajo Nation

"[The decision] showcases the now-familiar contrast between the Court’s two different approaches to conservative jurisprudence: the strict formalism of Justice Gorsuch—a stern insistence that the United States live up to the letter of its legal obligations come hell or high water—as opposed to the status-quo, stare decisis driven conservative jurisprudence of Justice Kavanagh and Chief Justice Roberts."

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As I noted in an earlier post, I'm delighted to report that we have two items on this June 2023 Supreme Court case today, both from people who know a great deal about Indian law; unfortunately, I know very little about the subject, but I know it's important, and I'm glad to have a chance to pass along these items. This is from Harriet McConnell Retford, who is a member of the American Indian Law group and Greenberg Traurig LLP and the co-author of an amicus brief in Navajo Nation on behalf of the Coalition of Large Tribes (the views expressed are her own and don't reflect those of Greenberg Traurig or the Coalition):

The Supreme Court's decision in Arizona v. Navajo Nation, No. 21-1484 comes at the messy intersection of two of the least functional doctrines in federal Indian law: reserved water rights under Winters v. United States (1908) and Indian trust doctrine under United States v. Mitchell (1980).

It also showcases the now-familiar contrast between the Court's two different approaches to conservative jurisprudence: the strict formalism of Justice Gorsuch—a stern insistence that the United States live up to the letter of its legal obligations come hell or high water—as opposed to the status-quo, stare decisis driven conservative jurisprudence of Justice Kavanagh and Chief Justice Roberts.

Justice Gorsuch would insist that if the United States serves as "trustee" for the lands and waters of Indian tribes then it has a duty to account for those waters and to make absolutely certain that it does not take any action that would divert those waters to other public or private purposes. The majority instead follows a long line of precedents that allow the United States to assert the privileges of trustee over Indian lands without assuming the corresponding obligations.

To be fair, however, there are significant problems with Arizona v. Navajo Nation as a vehicle for addressing these issues, especially the lack of clarity regarding the remedy being sought, so hopefully further opportunities will come to revisit these doctrines in a cleaner case.

Tribes have water rights in theory, but legal obstacles make the use of these rights prohibitively expensive.

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Indian Law

Prof. Todd Henderson (Chicago) on Arizona v. Navajo Nation

"[T]he Court held that despite being a 'trustee' for the Navajo Nation and despite having promised the Navajo water sufficient to make its lands productive, the United States does not have an obligation to help the Navajo obtain that water."

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I'm delighted to report that we'll have two items on this June 2023 Supreme Court case today, both from people who know a great deal about Indian law; unfortunately, I know very little about the subject, but I know it's important, and I'm glad to have a chance to pass along these items. First, from Prof. Todd Henderson (Chicago):

Although it did not garner as much attention as the decision in the Indian Child Welfare Act case, the Supreme Court's recent decision in a water dispute in Arizona is potentially more significant. In Arizona v. Navajo Nation, the Court held that despite being a "trustee" for the Navajo Nation and despite having promised the Navajo water sufficient to make its lands productive, the United States does not have an obligation to help the Navajo obtain that water.

The decision is the latest in a series of rulings that effectively gut the affirmative duties necessary under the trust obligation, absent explicit congressional command. Like many aspects of Indian law, the modern Court has flipped the script.

The old rule was the Court would interpret legal texts in favor of tribal interests, absent explicit congressional instructions to abrogate those rights—generally, the tie went to the Indian. Today, the opposite is increasingly true, with the Court looking for specific intent from Congress to give, rather than looking for specific intent to take away. Changing the default rule here, as elsewhere in law, has enormous implications.

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Free Speech

May a Judge Sanction Lawyers by Requiring Them to Get Remedial Training from a Particular Ideological Organization?

An important question, whether the judge orders lawyers to be trained on religious liberty by the Alliance Defending Freedom, on transgender rights by Lambda Legal, or on race discrimination law by the ACLU.

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This is one of many interesting free speech questions raised in Carter v. Transport Workers Union of Am. & Southwest Airlines Co. (N.D. Tex.). Let me discuss those questions in turn.

[1.] We begin with the employer's punishment of employee speech that led to the case in the first place:

In 2017, a flock of Southwest flight attendants descended upon Washington, D.C. for the so-called "Women's March" protesting President Donald J. Trump. Those flight attendants were also Local 556 members, and one—Audrey Stone—was the union's president. During the march, they carried signage emblazoned with Southwest's logo. Carter, a pro-life Christian, objected to the flight attendants' purported representation of Local 556, Southwest, and, by extension, herself—especially given Planned Parenthood's sponsorship of the protest. To voice her objection, Carter sent Stone several private Facebook messages, some of which contained videos of aborted babies. In one of those messages, Carter said, "[t]his is what you supported during your Paid Leave with others at the Women's MARCH."

Stone filed a complaint against Carter with Southwest. After a hearing, Southwest fired Carter, saying that when Carter messaged Stone, she was "identifiable as a Southwest Airlines Employee and represented our Company in a manner that is disparaging to Southwest Flight Attendants."

Carter sued, alleging that (1) Local 556 had breached its duty of fair representation, (2) Southwest and Local 556 had retaliated against Carter for exercising her protected rights under the Railway Labor Act …, and (3) Southwest and Local 556 had discriminated against Carter for her religious beliefs and practices under Title VII. A jury found for Carter on each claim ….

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Free Speech

From Prof. Richard Re: The Remarkable Discourse on 303 Creative

Is the legal left beginning to adopt a hawkish attitude toward standing?

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[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.

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Climate Change

Climate Liberalism in Public Choice

A nice review of Climate Liberalism by Jordan Lofthouse (and a less nice one by Robert Bradley).

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The economics journal Public Choice has published a nice review of my book, Climate Liberalism: Perspectives on Liberty, Property, and Pollution. The review is by Jordan Lofthouse.

The review begins:

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.

The full review is here.

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.

Immigration

Help Workers by Breaking Down Barriers to Labor Mobility - Both Domestic and International

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.

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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.

The vast new wealth created by breaking down migration barriers would obviously benefit migrants themselves. But it also creates enormous advantages for receiving-country natives, as well. They benefit from cheaper and better products, increased innovation, and the establishment of new businesses (which immigrants create at higher rates than natives). Immigrants also contribute disproportionately to scientific and medical innovation, such as the MRNA Covid-19 vaccines, that have already saved many thousands of lives around the world.

Similar, though somewhat less extreme, barriers to labor mobility also harm workers within the United States. Exclusionary zoning prevents many millions of Americans - particularly the poor and working class - from moving to areas where they could find better job opportunities and thereby increase their wages and standard of living. Recent evidence suggests that the problem is even worse than scholars previously thought. Occupational licensing further exacerbates the problem, by making it difficult for workers in many industries to move from one state to another.

Breaking down barriers to labor mobility is an oft-ignored common interest of poor minorities (most of whom are Democrats), and the increasingly Republican white working class. Both groups could benefit from increased opportunity to move to places where there are more and better jobs and educational opportunities available.

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.

On the right, conservatives who value meritocracy and reject racial and ethnic preferences, would do well to recognize that few policies are so anti-meritocratic as barriers to mobility. The case for ending them also has much in common with the case for color-blind government policies, more generally. A number of other conservative values also reinforce the case for curbing both domestic NIMBYism and immigration restrictions.

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.

In recent years, there has been important progress on both expanding immigration and reducing exclusionary zoning. Several states have also enacted occupational licensing reform, which facilitates freedom of movement between states. But there is much room for further progress on all these fronts.

Workers of the world, unite to demand more freedom of movement!

Free Speech

Prof. Richard Re (Virginia) on "Does the Discourse on 303 Creative Portend a Standing Realignment?"

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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.

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