(UPDATE: I have been rightly taken to task for not noting the earlier court cases in which either whites or non-black Americans were the group getting preferences. I of course am aware of that phenomenon and its significance. I happen to be working on an article about how courts dealt with (or ignored) the issue of racial classification in affirmative action cases, i.e., whether they addressed whether the classifications themselves were 'narrowly tailored' as opposed to other legal and constitutional objections to affirmative action preferences, and my post was created in that context. But my bad for not specifying. Also, to be clear, my point is not to criticize African Americans or any other group that received the preferences. Rather, just to show how the groups deemed entitled to such preferences has changed over time, because I think few people are aware of it and it's interesting.)
Looking at the underlying facts in major cases in the Supreme Court and circuit court cases, we see that Black Americans have always been eligible, the Mexican American classification expanded into all Hispanics, Asian Americans and subgroups thereof were initially eligible but later were considered "over-represented" and therefore at best ineligible for preferences, if not subject to higher standards than white applicants.
Defunis v. Odegaard: Black Americans, Chicanos, American Indians, and Filipino. Minority origin must be "dominant."
Regents of the University of California v. Bakke: Black Americans, Mexican Americans, American Indians, and Asian Americans.
Podberesky v. Kirwan: Black Americans (scholarship rather than admissions).
Hopwood v. Texas: Black Americans and Mexican Americans.
Grutter v. Bollinger: (1) African Americans, Hispanics and Native Americans (according to the defendant)
(2) African Americans, Mexican Americans, Mainland Puerto Ricans, and Native Americans (according to the district court's findings)
Fisher v. University of Texas: African Americans and Hispanics.
SFFA v. Harvard: African Americans, Hispanics, and Native Americans.
My home institution, SMU Dedman School of Law, is seeking to hire several tenured or tenure-track professors this year. The subject areas include: Constitutional Law; Natural Resources/Energy Law; Bankruptcy, Commercial Law, or International Business Law; Labor and Employment Law; and Intellectual Property. I'm on the hiring committee, which is actively considering candidates.
Here is the formal announcement, including links for applying:
SMU DEDMAN SCHOOL OF LAW is seeking applications from qualified persons for tenure- track faculty positions to begin Fall of 2024. We are seeking candidates with expertise in Constitutional Law; Natural Resources/Energy Law; Bankruptcy, Commercial Law, or International Business Law; Labor and Employment Law; and Intellectual Property. We will consider both experienced and beginning teachers with excellent credentials and scholarly distinction or promise. Candidates must hold a Juris Doctor (J.D.) degree. To ensure full consideration for the positions, applications must be received by October 1, 2023, but the committee will continue to accept applications until the positions are filled.
Applications should be submitted in Interfolio. Once you upload your information for one position, you can easily apply to multiple positions. Below are the Interfolio links to apply:
Constitutional Law (Position #6353)
http://apply.interfolio.com/127528
Natural Resources/Energy Law (Position #52842)
http://apply.interfolio.com/127529
Bankruptcy, Commercial Law, or International Business Law (Position #50369)
http://apply.interfolio.com/127530
Labor and Employment Law (Position #53424)
http://apply.interfolio.com/128119
Intellectual Property (Position #50642)
http://apply.interfolio.com/128121
Southern Methodist University (SMU) will not discriminate in any employment practice, education program, education activity, or admissions on the basis of race, color, religion, national origin, sex, age, disability, genetic information, or veteran status. SMU's commitment to equal opportunity includes nondiscrimination on the basis of sexual orientation and gender identity and expression. The Executive Director for Access and Equity/Title IX Coordinator is designated to handle inquiries regarding the nondiscrimination policies, including the prohibition of sex discrimination under Title IX. The Executive Director/Title IX Coordinator may be reached at the Perkins Administration Building, Room 204, 6425 Boaz Lane, Dallas, TX 75205, 214-768-3601, accessequity@smu.edu. Inquiries regarding the application of Title IX may also be directed to the Assistant Secretary for Civil Rights of the U.S. Department of Education. Hiring is contingent upon the satisfactory completion of a background check.
This case is about Tornado Cash—but the parties disagree on how to characterize Tornado Cash. Plaintiffs contend that Tornado Cash is a decentralized, open-source software project comprised of a subset of smart contracts, or "pools," on the Ethereum blockchain. In contrast, the government argues that Tornado Cash is an organization that runs a cryptocurrency mixing service. It is undisputed that the Department of Treasury's Office of Foreign Assets Control added Tornado Cash to the Specially Designated Nationals and Blocked Persons ("SDN") List. Plaintiffs argue that the designation exceeds the Department's statutory authority over foreign nationals' interests in property and violates the Free Speech Clause….
According to the government, cryptocurrency mixing services, known as "mixers" or "tumblers," are designed to obscure the source or owner of particular cryptocurrency units, thereby allowing users to remain anonymous. A mixer customer typically directs mixer software to send a certain number of cryptocurrency units to a specific address that is controlled by the mixer, for a fee. The mixer then takes the sender's cryptocurrency units and pools them together with the cryptocurrency of other users (i.e., "mixes" the cryptocurrency) before delivering the specified number of units to the requested destination. This renders it difficult to determine the link between a sender and recipient wallet account….
The International Emergency Economic Powers Act ("IEEPA") authorizes the President to declare national emergencies "to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States." Once a national emergency is declared, IEEPA authorizes the President to:
[R]egulate, direct and compel, nullify, void, prevent or prohibit, any … transfer … of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest[,] by any person, or with respect to any property, subject to the jurisdiction of the United States[.]
Presidents have historically used this authority to impose economic sanctions on many countries, individuals, and entities, and those who provide support for malicious cyber-enabled activities…. On August 8, 2022, OFAC designated Tornado Cash pursuant to a [Presidential executive order]. The accompanying press release asserted that Tornado Cash "indiscriminately facilitates anonymous transactions by obfuscating their origin, destination, and counterparties, with no attempt to determine their origin." OFAC noted that illicit actors often use mixing services like Tornado Cash to launder funds. The press release claims that Tornado Cash has laundered hundreds of millions of dollars' worth of virtual currency since its creation in 2019, including hundreds of millions of dollars for the Lazarus Group, a North Korean state-sponsored hacking group. [Further factual details omitted. -EV] …
The court held that Tornado Cash was an entity that may be designated under the IEEPA:
More than two years after a Sacramento-area businesswoman was falsely accused of posting racist and hateful comments on the Facebook page for Sacramento's Black Lives Matter chapter, her lawsuit against BLM Sacramento has been settled with the group's founder issuing a public apology….
"On behalf of myself and Black Lives Matter Sacramento, I deeply apologize for my reckless behavior and the harm that we caused Ms. Crowley, her family and her business," Faison said in a 98-second video posted on Facebook.
Faison acknowledged in the video that she should have removed her post about Crowley after Crowley contacted her in 2021 and assured her the messages had not come from her and that she did not hold racist views.
"Nonetheless, I posted on the Facebook website that I had verified Ms. Crowley's identity," Faison said. "I posted Ms. Crowley's city of residence and work and I asked the public to make Ms. Crowley famous.
"Terrible consequences for Ms. Crowley followed, including death threats. Black Lives Matter Sacramento and I were wrong.
"We should have taken the Facebook post down after Ms. Crowley explained to me that she had not sent them."
Here's my post from March 2022 about the federal court decision that allowed the case to go forward:
Schmidt is an elder at the Laramie Faith Community Church…. He has reserved a table in the UW Union breezeway on a regular basis for the past 17 years. The UW Union allows campus groups and various outside organizations to utilize breezeway tables to communicate with students. The breezeway tables provide access to a high degree of student pedestrian traffic. Schmidt uses his breezeway table to display various DVDs and books. He also places on his table a Velcro-backed sign with plastic lettering to display different messages.
According to UW Officials, they have over the years warned Schmidt to stay behind his breezeway table and not engage in a confrontational manner towards passersby. The University alleges it has received and documented complaints from students that Schmidt "got in people's faces" while trying to talk to them and chased after students who refused to speak with him. Schmidt states that he was not aware of any student complaints to University staff about him and received no warning from the University regarding student complaints.
In September of 2022, a UW student named Artemis Langford joined a UW sorority. Langford was born a biological male but identifies as female. In October, the UW university newspaper, the Branding Iron, ran a story about Langford joining the sorority, and included quotes from Langford. Other publications, including the Cowboy State Daily, Washington Examiner, and National Review, ran articles about Langford as the first openly transgender student in UW history to join a sorority.
Schmidt disagrees with the propriety of transgender students joining sororities, and on December 2, 2022, he placed a sign at his breezeway table in the Union stating, "God created male and female and Artemis Langford is a male." Various students gathered in front of his table in an attempt to block others, and Langford, from seeing Schmidt's sign. {Artemis Langford is both a UW student and an employee in the Wyoming Union.} These students engaged in tense debate with Schmidt.
This measure will enable Ukrainians in the US to live and work here legally until April 19, 2025. It's a step in the right direction, but Congress still needs to pass an adjustment act giving them permanent residency.
Today, the Biden Administration extended and redesignated Temporary Protected Status for Ukrainians in the United States who arrived here by August 16, 2023. TPS gives a foreign citizen the right to live and work in the US for a set period of time. The status is generally used for people whose home countries are in the throes of war, oppression, or a natural disaster.
In plain English, that means that the thousands of Ukrainians (the administration estimates their numbers at about 26,000) who currently have TPS in the US will be eligible for an extension through April 19, 2025. Otherwise, their status will run out on Oct. 19. Ukrainians currently in the US who do not have TPS, will be able to apply to get the status. That's important for the 140,000 or more who entered under the Uniting for Ukraine private sponsorship program, and whose residency rights (granted by parole) will otherwise run out in 2024 or early 2025 (including my own sponsorees). DHS estimates the total number of Ukrainians now eligible to get TPS status, despite not having it previously at 166,700.
However, the grant of TPS status may extend their residency or work rights only a few months past when they would have expired otherwise. It's possible that the president will address this problem by giving Ukrainian parolees a chance to apply for a two year extension of their parole status, as has already been done with Afghan parole recipients in a similar situation.
While this is a useful step, it is not a substitute for giving Ukrainians (and others in similar straits) permanent residency rights. Congress still needs to pass an adjustment act to do that; I outlined the case for doing so here.
The extension will in time expire. Moreover, what Caesar giveth he can taketh way (or his successor can). So this isn't the end of this issue. But it's an improvement, and it also gives more time for Congress to (hopefully) act.
For those on the watch for signs of ethnic bias or inconsistency, I remind readers that I am well aware that Ukrainians are not the only ones who need an adjustment act granting permanent status. I have repeatedly advocated taking the same step for other immigrant groups in similar situations, most recently in a post on the Afghan Adjustment Act.
Today, the Administration also extended and redesignated TPS for Sudanese in the United States (a total of about 4000 people are affected). Like Ukraine, Sudan has been wracked by a terrible war, and accompanying atrocities.
While there is some genuine politicization, it is not as great as often claimed. Proposals to undermine judicial review could easily end up empowering the very sort of authoritarian president progressives fear.
The UnPopulist recently published my article on judicial politicization and the dangers of schemes to undermine judicial review. While some of my recent writings primarily annoy conservative Republicans, this one is likely to have the opposite valence. Here is an excerpt:
In recent years, it has become commonplace to claim that the U.S. Supreme Court is deeply politicized. The court's current 6-3 conservative majority is often seen as pursuing a partisan or ideological agenda, and views on the Court's rulings often break down along partisan and ideological lines. For some on the left, this perceived politicization justifies drastic measures like court-packing or executive defiance of judicial decisions.
In some ways, the judiciary is indeed politicized. But there are many occasions where conservative judges have prioritized jurisprudential values over any partisan or ideological goals, showing that the court is much more than a merely political body. Moreover, resorting to steps like court-packing in response to real or imagined judicial excesses risks destroying or gravely weakening judicial review—a cure far worse than the disease, one that would leave the country more vulnerable to aspiring authoritarians….
While accusations of judicial politicization are often overblown, the court's critics aren't completely wrong. In recent decades, political conflict over judicial appointments has increased, largely as a result of the increased polarization of U.S. politics….
There is, therefore, some basis for claims that the judiciary has become politicized. Indeed, it has never been completely free of politics.
But claims of politicization are also dangerously overstated. They overlook or minimize a wide range of important issues on which conservative judges have elevated legal and constitutional principles over partisanship and thereby curbed dangerous right-wing initiatives and abuses of power.
Such cases are not hard to find. Perhaps the most obvious and important example is that conservative judges serving on both lower courts and the Supreme Court rejected Trump's and other GOP efforts to overturn the result of the 2020 election….
Undermining judicial review through tools like court-packing is a standard tactic of incipient illiberal authoritarians like Hungary's Viktor Orban and Venezuela's Hugo Chavez as they seek to concentrate power in the executive; it's especially useful in the early stages of authoritarian consolidation. American progressives readily see this when it comes to countries like Russia, Turkey, Hungary and—most recently—Israel, where the right-wing government has been trying to eviscerate the power of that country's judiciary….
The point applies here at home, too. If you think Trump and other Republicans pose a grave danger to liberal democracy, you should be wary of dismantling one of the major institutions standing in their way. Imagine, for example, if Trump had been able to successfully resist judicial rulings against his efforts to overturn the 2020 election.
Even some controversial U.S. Supreme Court decisions opposed by the left bolster safeguards against authoritarianism. For example, the court's "major questions doctrine" requires Congress to "speak clearly when authorizing an [executive branch] agency to exercise powers of vast 'economic and political significance….'"
[I]f you fear concentration of power in a potentially authoritarian and illiberal executive, this doctrine is just the sort of approach you should support, since it prevents the president from using vaguely worded statutes to engage in massive power grabs. Even if you trust President Biden to wield such authority, you probably do not have similar faith in the next Republican president, who could well be Donald Trump, Ron DeSantis, or someone with a similar mindset….
The courts are far from perfect, and there is indeed a degree of politicization that impacts them. But conservative judges' willingness to rule against right-wing causes in a variety of important cases gives the lie to claims that Supreme Court justices are just politicians in robes. Even more importantly, destroying judicial review is likely to undermine liberal democratic values, rather than promote them, leaving us more vulnerable to authoritarian gambits in an era where authoritarianism is resurgent.
As noted in the article, I don't oppose all possible efforts to curb judicial prerogatives. For example, I think it would be good to impose term limits on Supreme Court justices, and that Congress may be justified in imposing new ethics restrictions on the justices, including limiting the gifts they are allowed to receive from private citizens. But proposals that threaten to destroy or severely weaken judicial review are a different matter.
UPDATED: In the initial version of this post, I accidentally neglected to include a link to my UnPopulist article. I apologize for the mistake, which has now been fixed.
With great sadness, I relay that James L. Buckley passed away at the age of 100. I wrote about Judge Buckley in March on his 100th birthday:
On Thursday, James L. Buckley turns 100 years old. Most law students will know his name from the seminal case of Buckley v. Valeo. But he did so much more. He served as a lieutenant in the Navy. He was elected as New York Senator on the conservative party ticket. President Reagan appointed Buckley as undersecretary of state for international security. And Reagan latter tapped Buckley as a judge on the D.C. Circuit Court of Appeals. He is one of the most remarkable public servants of the 20th century. (I would add Judge Silberman to that list.)
I had the honor of meeting Judge Buckley at Justice Thomas's Story Lecture in 2021.I don't get star-stuck easily, but I got star-struck when I shook Judge Buckley's hand. I mentioned that I always teach his case in First Amendment, and he made a comment about the partisans that tried to shut him down.
He was a giant, and his contributions to our nation are immeasurable. Rest in peace, Judge Buckley.
Generally speaking, the law can't punish false statements about the government—even knowing lies—on the grounds that they damage the government's reputation. In the words of New York Times v. Sullivan (1964),
For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence."
Likewise, Rosenblatt v. Baer (1966) made clear that "in the absence of sufficient evidence that the attack focused on the plaintiff, an otherwise impersonal attack on governmental operations cannot be utilized to establish a libel of those administering the operations." A claim "based on libel of government," rather than of a particular government official, "is constitutionally insufficient." And this offers more First Amendment protection than the more famous New York Times v. Sullivan rule that an alleged libel of a public official can't lead to civil or criminal liability without a showing of knowing or reckless falsehood. An alleged libel of the government can't lead to such liability, period.
But courts have long taken a different view with regard to attorney disciplinary proceedings; there, courts generally conclude that lawyers' knowingly or recklessly false statements, especially with regard to the judiciary, can lead to discipline, even if they are said in a political campaign (usually for judicial office). Indeed, some courts even allow such liability based on a showing of negligence, but I set this aside here. Here's how this analysis played out in Wednesday's Maryland Supreme Court decision in Attorney Grievance Comm'n v. Pierre, where a lawyer who was running for judicial office was accused, among other things, of making three false statements in her campaign (I also blogged about a related facet of the case earlier this morning):
MARPC [Maryland Attorneys' Rules of Professional Conduct] 8.2(a) provides: "An attorney shall not make a statement that the attorney knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office." As we have noted, "the purpose of [MARPC] 8.2(a) is not to protect judges, judicial officers, or public legal officials from unkind or undeserved criticisms. Rather, [MARPC] 8.2(a) protects the integrity of the judicial system, and the public's confidence therein[.]"
This Attorney Grievance Commission of Maryland proceeding concerns the alleged professional misconduct of Marylin Pierre, the respondent and a member of the Bar of this State. It also concerns an overlay of factors that significantly complicates our review of Ms. Pierre's alleged violations of the Maryland Attorneys' Rules of Professional Misconduct ("MARPC"). That overlay arises from the circumstances in which the investigation of Ms. Pierre began and the absence of provisions in our rules to guide investigations arising in such circumstances.
The core allegations against Ms. Pierre arose from accusations made in an August 2020 campaign email. The email was sent by the campaign manager for a slate of four sitting judges against whom Ms. Pierre was running for a seat on the Circuit Court for Montgomery County. Sent just over two months before election day, the email was directed to Montgomery County attorneys and identified an "Urgent Need for Action." The email alleged, among other things, that Ms. Pierre's campaign had made false statements about the sitting judges, that Ms. Pierre had misstated her professional qualifications, and that she had engaged in unprofessional conduct in connection with a lawsuit more than two decades earlier.
Among the recipients of the campaign email was then-Bar Counsel. In the absence of any rules or procedures governing the investigation of allegations of misconduct arising in the midst of a judicial election, Bar Counsel immediately opened an investigation, informed the sitting judges' campaign manager of the existence of the investigation, and sought additional information. Soon thereafter, less than two months before the election, Bar Counsel sent Ms. Pierre a letter summarizing many of the allegations leveled by her rivals' campaign and insisted that Ms. Pierre respond to them in writing, in many cases by explaining and justifying statements made by her or her campaign, within two weeks….
"[T]he fate of Plaintiff's claims hinges to some extent on the truth or falsity of Defendant's statements regarding Plaintiff's conviction of a crime. Whether Defendant's statements are false—a determination that relies at least in part on Plaintiff's criminal records—is directly relevant to the public."
From Ferrari v. Francis, decided earlier this month by Judge Karen Gren Scholer (N.D. Tex.):
Plaintiff brought this lawsuit because of Defendant's alleged "false and defamatory statements" regarding Plaintiff. Among other things, Plaintiff alleges that Defendant falsely informed various entities that Plaintiff is a convicted felon…. Defendant moved to dismiss Plaintiff's claims. Defendant attached materials from Plaintiff's Colorado criminal record to the Motion to Dismiss as Exhibits B-2 through B-9[, including] … arrest warrant-related documents, a mugshot, an appearance bond, minute orders, docket sheets, and findings of fact as to Plaintiff's guilty plea. These documents are currently under seal by order of the Denver District Court. That court sealed Plaintiff's criminal record after Plaintiff completed a term of deferred adjudication.
Seeking to continue to shield his criminal record from public access, Plaintiff filed the instant Motion, in which he asks the Court to: (1) seal Exhibits B-2 through B-9 to Defendant's Motion to Dismiss and (2) order the parties to file copies of their Motion to Dismiss briefing that redact any references to Plaintiff's criminal record….
The Court "heavily disfavor[s] sealing information placed in the judicial record." In determining whether a document should be sealed, the Court undertakes a "document-by-document, line-by-line balancing of the public's common law right of access against the interests favoring nondisclosure." …
It's the predictable result of the combination of federal regulations barring asylum seekers from working legally and local policies offering free housing, while severely restricting new housing construction.
But two other flawed policies are even more significant, especially in the long run: one federal and one local. The federal culprit is the rule that asylum seekers are not allowed to work legally in the US until at least 6 months after arrival, and in practice the wait can be much longer. I have written about this problem in detail previously. The obvious bottom line is that the vast majority of asylum-seekers (like other migrants) could support themselves, if only the federal government would let them. That's especially true in a city like New York, which has a significant labor shortage. Immigrants can and do make major contributions to our economy, including ones that enormously benefit natives. But they can't do it if we don't let them work.
New York authorities are not to blame for this federal rule. But they have made the situation worse by perpetuating some of the nation's most severe zoning restrictions on the construction of new housing, which predictably drives up the cost and reduces the availability of apartments for migrants and natives alike. This is a major problem even aside from asylum-seekers. NYC, like other cities, would do well to abolish exclusionary zoning and let property owners build new housing in response to demand. It would simultaneously promote economic growth, and enormously benefit working and lower-middle class people of all origins - white and minority, native and immigrant.
If you restrict the construction of new housing while offering it for free, basic Economics 101 suggests you will end up with shortages. Those shortages get worse if you bar many people from working to support themselves, leaving the putatively free housing as their only viable option in the city.
In sum, the feds should let asylum seekers work legally, and state and local government should replace offers of free housing with curbs on exclusionary zoning. In that way, migrants could support themselves, the city's economy could benefit from their contributions, and immigrants and natives alike could get better and cheaper housing, thereby enabling more people of all backgrounds to move to places that offer better work and educational opportunities.
The Big Apple has been such a destination for many, throughout American history. And it can be so again, if only federal, state, and local officials would revoke some awful restrictions on migrant employment and housing construction.
Today, the Foundation for Individual Rights and Expression filed a lawsuit on behalf of six California community college professors to halt new, systemwide regulations forcing professors to espouse and teach politicized conceptions of "diversity, equity, and inclusion." …
Under the new regulations, all of the more-than-54,000 professors who teach in the California Community Colleges system must incorporate "anti-racist" viewpoints into classroom teaching.
The regulations explicitly require professors to pledge allegiance to contested ideological viewpoints. Professors must "acknowledge" that "cultural and social identities are diverse, fluid, and intersectional," and they must develop "knowledge of the intersectionality of social identities and the multiple axes of oppression that people from different racial, ethnic, and other minoritized groups face." Faculty performance and tenure will be evaluated based on professors' commitment to and promotion of the government's viewpoints.
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The All-Argentina Issue is Here
New from Reason: a look into what Javier Milei
has accomplished and what it will take to make the most of Argentina’s window for real change. Out now
for subscribers.
