The Volokh Conspiracy

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

The Volokh Conspiracy
About The Volokh Conspiracy

CDC

Appellate Court Dismisses Case Challenging CDC Transportation Mask Mandate Because it has Become Moot

A case that began with a bang ends with a whimper. The issue of whether the CDC has the power to impose mask mandates remains unresolved.

|

iStock

Last year, federal district Judge Kathryn Kimball Mizelle attracted widespread attention when she issued a decision holding that the Centers for Disease Control mask mandate for airline flights, airports, and other transportation settings was illegal. The ruling was much criticized by legal commentators and by mandate advocates who felt the CDC rule was an essential tool for combatting the Covid-19 pandemic. But mandate opponents celebrated, and some passengers cheered when they heard about the ruling in mid-flight and were able to remove their masks.

Yesterday, the case that began with a bang ended with a whimper, as the US Court of Appeals for the 11th Circuit dismissed the Biden Administration's appeal of the district court ruling because of mootness:

A Mandate that, as we write, no longer exists. On April 10, 2023, President Biden signed a joint resolution of Congress that terminated the national emergency. Act of Apr. 10, 2023, Pub. L. No. 118-3, 137 Stat. 6 (2023). More relevant to this case, on May 11, 2023, the HHS Secretary's declaration of a public health emergency expired. See End of the Federal COVID-19 Public Health Emergency (PHE) Declaration, Centers for Disease Control and Prevention (May 5, 2023), https://www.cdc.gov/coronavirus/2019-ncov/your-health/end-of-phe.html. Therefore, even had the district court sided with the government, the Mandate would have expired by its own terms on May 11, 2023. See 86 Fed. Reg. 8025-01 at 8030 ("This Order will remain in effect . . . until the Secretary of Health and Human Services rescinds the determination . . . that a public health emergency exists.").

This development raises the jurisdictional question of mootness—that is, whether "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)….

The answer to that question is, quite clearly, yes. Appellees initiated this litigation in order to have the Mandate 1) declared unlawful and 2) set aside. Regarding Appellees' second objective, coming on the heels of a joint resolution from Congress and following the HHS Secretary's conclusion that the public health emergency has ended, the Mandate has expired on its own terms. As a consequence, there is no longer any Mandate for us to set aside or uphold. Indeed, even if we were to decide against Appellees and reverse the district court—as the government desires—there would be no Mandate to reinstate.

Regarding Appellees' first objective, we do not think asking for a declaratory judgment that the Mandate is unlawful saves this case from mootness. If it did, our case law would be turned on its head. That is, "[a]bsent exceptional circumstances, a challenge to the enforcement of a statute [would not become] moot when that law is no longer effective." Aaron Private Clinic Mgmt., 912 F.3d at 1335.

I'm no mootness expert. But this analysis seems right to me.

Because the case is moot, the 11th Circuit also vacated the district court ruling, as longstanding precedent usually requires in these situations. That means this litigation will not set any precedent on the question of whether the CDC has the power to impose mask mandates in order to try to combat the spread of the disease. If a new Covid-19 variant or some other viral threat leads to a new transportation mask mandate, the issue of the CDC's powers will likely be litigated again from square one.

Although I hate mask mandates and was happy to see this one end, I thought there were serious flaws in Judge Mizelle's reasoning. There were some plausible legal arguments against the CDC mandate; but many of those she advanced were really weak. Her ruling also came in for severe criticism from other commentators skeptical of mask mandates, such as Andrew McCarthy of the National Review, and David French and Sarah Isgur of The Dispatch.

When the Trump and Biden Administrations used the very same law to impose a nationwide eviction moratorium, the Supreme Court rightly ruled the CDC lacked the power to do so. But the transportation mask mandate was a much closer case.

The Biden Administration's handling of the issue also was not above criticism. Strikingly, they chose not to ask the appellate court to stay Judge Mizelle's nationwide injunction against the mandate. That's why the injunction remained in effect for over a year, up until yesterday's decision.

To my mind, this choice raised serious questions about whether administration officials genuinely believed the mask mandate was an essential public health measure saving large numbers of people from death or serious illness. If they did believe it, surely they should have tried to reinstate the mandate as soon as possible!

The administration's real priority may have been to preserve the CDC's power. By stringing out the case until it became moot, they avoided a precedent that might have tied their hands in the future.

In a sense, both the plaintiffs challenging the mask mandate and the Biden Administration ended up winning. The plaintiffs secured an injunction that put an early end to the mask mandate. The administration managed to avoid setting a precedent limiting the CDC's authority. Airline passengers who hate wearing masks (myself included!) won some extra months of mask-free flying.

But this sequence of events has also left a cloud of uncertainty over the scope of the CDC's power to set mask mandates. That uncertainty could come back to bite us in the future.

Making Sense of Arizona v. Navajo Nation

Justice Gorsuch's conservative colleagues now ignore him in Indian cases.

|

Arizona v. Navajo Nation is one of the more frustrating opinions I've read this term. Not frustrating in the sense that Justice Gorsuch wrote his tenth consecutive opinion favoring Indian tribes. By now, that is to be expected. Rather, I found this decision difficult to follow because Justice Kavanaugh's anemic majority opinion did not address, let alone acknowledge Justice Gorsuch's dissent. Much like in Brackeen, the Court's conservatives are simply ignoring Justice Gorsuch on Indian law. It's like a game of hide-and-seek where the seekers never stop counting. Or maybe, to fit the genre, a game of Cowboys and Indians where the Cowboys go play baseball.

I don't pretend to be an expert in Indian law, so it is difficult for me to balance how strong or weak the opinions are. As a general matter, I am skeptical of any Gorsuch opinion that rules for an Indian tribe or member. McGirt and Brackeen will do that to you. But I am also skeptical of any Justice Kavanaugh opinion that is super short, repeats the same theme over and over and over again, and relegates a dispute about precedent to a footnote. Navajo Nation has all the hallmarks of trying to smooth over unclear/unfavorable precedent.

Without some back-and-forth, I have to venture out on my own to figure what the right answer is. And venture I will.

Read More

Gov.-DeSantis-Suspended Tampa Prosecutor Andrew Warren's State-Law Challenge Fizzles on Timeliness Grounds

The federal law challenge, which was rejected by the District Court, is still on appeal to the Eleventh Circuit.

|

From Warren v. DeSantis, decided today by the Florida Supreme Court in an opinion written by Justice Canady (for more on the case, see this post):

On August 4, 2022, Governor Ron DeSantis issued Executive Order 22-176 suspending Petitioner Andrew H. Warren, the elected State Attorney for the Thirteenth Judicial Circuit of the State of Florida, on the grounds of "neglect of duty" and "incompetence." More than six months later, Petitioner filed a petition in this Court arguing that the Governor lacked authority to issue the Executive Order and requesting the issuance of a writ of quo warranto directed to the Governor and alternatively seeking a writ of mandamus commanding the Governor to reinstate him…. We agree with the Governor that the petition should be denied on the ground of unreasonable delay.

Within two weeks of his suspension, Petitioner filed suit in federal district court seeking, among other things, a writ of quo warranto on the ground that the suspension order was facially insufficient under Florida law. Quite predictably, the federal district court promptly dismissed that state-law claim after concluding that the Eleventh Amendment to the United States Constitution barred that claim from being brought in federal court. See Pennhurst State Sch. & Hosp. v. Halderman (1984). Petitioner then waited almost five months before finally petitioning this Court and requesting our "expeditious review" of his state-law claim. Petitioner offers no explanation for the delay. We conclude that, under the circumstances of this case, the time for our review has passed….

Article IV, section 7 of the Florida Constitution grants "the governor" the power to "suspend from office any state officer not subject to impeachment" and enumerates the grounds for suspension, including "neglect of duty" and "incompetence." Art. IV, § 7(a), Fla. Const. A suspension is done "[b]y executive order stating the grounds and filed with the custodian of state records." Article IV, section 7 then grants "[t]he senate" the power to, "in proceedings prescribed by law, remove from office or reinstate the suspended official."

Although the text of article IV, section 7 does not attribute any role to the courts in suspension matters, our precedents recognize a narrow judicial role in reviewing the face of a suspension order to determine if it satisfies the constitutional requirement of " 'stating the grounds' of the officer's suspension." That is a "limited" role that entails no more than "determining whether the executive order, on its face, sets forth allegations of fact relating to one of the constitutionally enumerated grounds of suspension." The allegations need only "bear some reasonable relation to the charge made against the officer." The "some reasonable relation" standard is "a low threshold" to satisfy, and the executive order need only satisfy it "on the whole."

Read More

Due Process

A Troubling Supreme Court Habeas Decision

The Supreme Court was wrong to deny relief to a man imprisoned for activity that Court's own rulings indicate was not illegal - one who never had an opportunity to challenge his incarceration on that basis.

|

There aren't very many cases where the Supreme Court splits 6-3 along left-right ideological lines, and I think the liberal dissenters got it right. But today's important habeas corpus decision, Jones v. Hendrix, is one of those times.

The issue in Jones is whether a man incarcerated in a federal prison has the right to file a habeas petition challenging his imprisonment in a situation where an intervening Supreme Court decision - issued many years after his original conviction and appeal - ruled that the activity he was convicted and imprisoned for wasn't actually a crime.  Here is the Court's summary of what happened in the case of Marcus Jones:

In 2000, the U. S. District Court for the Western District of Missouri convicted petitioner Marcus DeAngelo Jones of two counts of unlawful possession of a firearm by a felon, in violation of 18 U. S. C. §922(g)(1), and one count of making false statements to acquire a firearm, in violation of §922(a)(6). The Court of Appeals for the Eighth Circuit affirmed his convictions and sentence of 327 months' imprisonment. See United States v. Jones, 266 F. 3d 804 (2001). After losing his appeal, Jones filed a timely §2255 motion to vacate, set aside, or correct his sentence, which resulted in the vacatur of one of his concurrent §922(g) sentences but no other relief. See United States v. Jones, 403 F. 3d 604 (CA8 2005); United States v. Jones, 185 Fed. Appx. 541 (CA8 2006) (per curiam). Years later, in Rehaif v. United States, 588 U. S. ___ (2019), this Court held that a defendant's knowledge of the status that disqualifies him from owning a firearm is an element of a §922(g) conviction. In doing so, it abrogated the Eighth Circuit's contrary precedent, which the Western District of Missouri and the Eighth Circuit had applied in Jones' trial and direct appeal….

After Rehaif, Jones hoped to leverage its holding into a new collateral attack on his remaining §922(g) conviction.

Jones apparently did not know he he was considered a felon under the relevant statute, because (relying on conversations with prosecutors) he thought his previous felony conviction had been expunged (see his counsel's Supreme Court brief, pp. 5-7, for a summary of these facts).

The majority, in an opinion by Justice Clarence Thomas, ruled that such challenges are barred by the Antiterrorism and Effective Death Penalty Act (AEDPA), in cases where the prisoner had filed a previous habeas petition challenging his conviction - even if there was no way for him to bring up the Supreme Court's later ruling (which reversed the lower-court precedent under which Jones was convicted). The majority also rejected various constitutional challenges to a rule that effectively allows continued imprisonment of legally innocent people who never had a chance to raise the relevant legal issue.

I won't try to assess the purely statutory issues in this case. I think both sides have some plausible arguments as to that, and I am not nearly enough of an AEDPA expert to have a strong view on who's right. But Justice Ketanji Brown Jackson's thorough dissent raises crucial constitutional points that the majority flubbed:

I am also deeply troubled by the constitutional implications of the nothing-to-see-here approach that the majority takes with respect to the incarceration of potential legal innocents… Apparently, legally innocent or not, Jones must just carry on in prison regardless, since (as the majority reads §2255) no path exists for him to ask a federal judge to consider his innocence assertion. But forever slamming the courtroom doors to a possibly innocent person who has never had a meaningful opportunity to get a new and retroactively applicable claim for release reviewed on the merits raises serious constitutional concerns…..

[the majority rules] a person in prison for noncriminal conduct cannot ask a federal court to review the legality of his detention if he has previously filed a §2255 petition. This position is stunning in a country where liberty is a constitutional guarantee and the courts are supposed to be dispensing justice. It also raises hackles under at least two provisions of our founding charter [Suspension Clause and 8th Amendment].

Justice Jackson makes a compelling argument that Suspension Clause bars imprisonment of a person who is legally innocent and never had a chance to raise the relevant legal issue [pp. 29-36 of her dissent]. The majority contends that habeas does not protect mere "statutory" claims of legal innocence in cases like this one (as opposed to constitutional claims). Jackson has a powerful answer:

[T]he majority conspicuously downplays the stakes in this case. Not once does its opinion make direct mention of the fact that the claim the majority says §2255(h) silently precludes is one that implicates core values because it involves legal innocence. Instead, the majority repeatedly describes Jones's bid for access to the postconviction review process as bringing a mere "statutory" claim…. But statutory claims that suggest a person's innocence are different in kind from more run-of-the-mill statutory claims, such as a technical, nonprejudicial violation of a criminal procedure rule….

Even if the majority was right with respect to its assumption that founding-era practices bear on whether the clear-statement rule [requiring a clear statement for abrogations of habeas corpus] applies here, historical practice plainly undermines its assertion that legal innocence claims are of recent vintage. Supreme Court Justices riding circuit in the early 19th century repeatedly considered the merits of habeas petitions filed by individuals who argued they were being wrongfully incarcerated because the laws that had been invoked to justify their confinement, properly construed, did not reach their conduct.

As Jackson notes, the majority's approach also creates ridiculous inconsistencies in treatment of prisoners with virtually identical habeas claims:

Consider two individuals who have been convicted of the same federal crime—perhaps two codefendants who were tried and sentenced together. Both complete their direct appeals, but only one files a §2255 motion within AEDPA's statute of limitations, while the other one decides not to or misses the deadline. If §2255(h) bars a successive petition raising a legal innocence claim, then when Rehaif is handed down—altering the elements of the crime of conviction such that both prisoners have a colorable claim of legal innocence—only the one who did not previously file a §2255 petition can raise this retroactive statutory innocence claim.

To my mind, keeping a legally innocent person in prison also violates the Due Process Clause of the Fifth Amendment. The clause bars the government from depriving a person of "life, liberty, or property, without due process of law." Keeping a man in prison when the activity he was convicted of was not actually illegal seems an obvious deprivation of "liberty" without any basis in "law." And, because Jones never had a chance to raise the relevant issue, this practice can't be justified on the basis of efficiency or procedural finality.

Jones' lawyers raised the Due Process Clause argument in their brief (pp. 43-45). As they note the Supreme Court has previously held (albeit before the passage of AEDPA) that  "conviction and punishment for an act that the law does not make criminal inherently results in a complete miscarriage of justice and present(s) exceptional circumstances that justify collateral relief under § 2255." But the majority disposes of the due process issue in a cursory footnote, and the dissenting justices ignore it entirely.  The issue at least deserved more serious consideration.

At the very least, there are plausible serious constitutional problems here. And, as Justice Jackson goes on to point out, this triggers the Supreme Court's longstanding rule requiring it to interpret federal laws in ways that avoid constitutional problems, if at all possible. In his well-known controlling opinion in NFIB v. Sebelius (2012), Chief Justice John Roberts ruled that courts must avoid constitutionally problematic interpretations of statutes  in "any case where it is "fairly possible" to do so – even if "the most natural interpretation" of the law supports a different outcome.

Some legal scholars reject the avoidance canon, and I myself think Roberts took it too far in NFIB. But the canon remains on the books, backed by a long line of precedent. If the Court wants to narrow the canon's scope or even abolish it entirely, it is free to do so. But the majority should at least indicate they are doing so and explain why. In this case, Justice Thomas doesn't even try to address it.

I don't agree with every point Justice Jackson makes in her dissent. But her position is much stronger than that of the majority. The Court made a grave error today, that will likely have the effect of consigning a substantial number of legally innocent people to long prison terms.

Congress could potentially fix the problem by passing a legislative fix, allowing prisoners in situations like Jones' to file habeas claims. But I am not optimistic it will happen anytime soon, if ever.

NOTE: In addition to Jackson' dissent, there is also a brief joint dissent by Justices Kagan and Sotomayor, which I won't try to cover here. They indicate agreement with much of Jackson's position. It isn't clear to me why they didn't just join her dissent, as well as writing their own much less detailed one.

Legal Ethics

Sanctions Issued in Case Where Lawyers Cited ChatGPT-Hallucinated Precedents

|

From today's opinion in Mata v. Avianca, Inc., by Judge Kevin Castel (S.D.N.Y.), which stems from an incident blogged about here last month (and see this follow-up):

In researching and drafting court submissions, good lawyers appropriately obtain assistance from junior lawyers, law students, contract lawyers, legal encyclopedias and databases such as Westlaw and LexisNexis. Technological advances are commonplace and there is nothing inherently improper about using a reliable artificial intelligence tool for assistance. But existing rules impose a gatekeeping role on attorneys to ensure the accuracy of their filings.

Peter LoDuca, Steven A. Schwartz and the law firm of Levidow, Levidow & Oberman P.C. (the "Levidow Firm") (collectively, "Respondents") abandoned their responsibilities when they submitted non-existent judicial opinions with fake quotes and citations created by the artificial intelligence tool ChatGPT, then continued to stand by the fake opinions after judicial orders called their existence into question.

Many harms flow from the submission of fake opinions. The opposing party wastes time and money in exposing the deception. The Court's time is taken from other important endeavors. The client may be deprived of arguments based on authentic judicial precedents. There is potential harm to the reputation of judges and courts whose names are falsely invoked as authors of the bogus opinions and to the reputation of a party attributed with fictional conduct. It promotes cynicism about the legal profession and the American judicial system. And a future litigant may be tempted to defy a judicial ruling by disingenuously claiming doubt about its authenticity.

The narrative leading to sanctions against Respondents includes the filing of the March 1, 2023 submission that first cited the fake cases. But if the matter had ended with Respondents coming clean about their actions shortly after they received the defendant's March 15 brief questioning the existence of the cases, or after they reviewed the Court's Orders of April 11 and 12 requiring production of the cases, the record now would look quite different. Instead, the individual Respondents doubled down and did not begin to dribble out the truth until May 25, after the Court issued an Order to Show Cause why one of the individual Respondents ought not be sanctioned.

For reasons explained and considering the conduct of each individual Respondent separately, the Court finds bad faith on the part of the individual Respondents based upon acts of conscious avoidance and false and misleading statements to the Court.

Read More

Free Speech

"Moms for Liberty" Member's Suit Against School Board for Reporting Critic to Justice Dep't Can Proceed

|

From Judge Mark Goldsmith's opinion in Hernden v. Chippewa Valley Schools(E.D. Mich.); note that the question here is simply where the Board could potentially be held liable as an entity for the Bednard e-mail, not yet whether the e-mail actually violated Hernden's constitutional rights (for more, see the Complaint and the attached e-mails):

Hernden alleges that she is a police officer and the mother of a child who was educated in the Chippewa Valley school system in Clinton Township, Michigan. The Board allegedly implemented policies that limited in-person instruction during the COVID pandemic, and Hernden expressed her opposition to these policies by contacting members of the Board via Zoom, email, and in-person Board meetings.

On December 11, 2020, Defendant Elizabeth Pyden—a member of the Board serving as its secretary—allegedly forwarded a series of emails between Hernden and Pyden to Hernden's "then-supervisor, challenging Plaintiff's conduct as unbecoming of a police officer." Hernden submits that her supervisor then commenced an investigation to determine whether Hernden had violated any departmental rules, though Hernden was not disciplined.

In a subsequent email to the Board, Hernden allegedly "cautioned" the Board against "interrupting her public comments" and suggested that doing so violated the First Amendment. In Hernden's view, this email constituted "an implied threat of legal action against the Board and/or its individual members for perceived violations of Plaintiff's First Amendment rights during public comments at the Board's public meetings."

Hernden alleges that Defendant Frank Bednard—member and president of the Board— then forwarded Hernden's email to the United States Department of Justice (DOJ) with a complaint about her behavior. Bednard also informed the other members of the Board about his communication with the DOJ. The email from Bednard reflects that, on October 5, 2021, Bednard wrote an email addressed to "DOJ" that contained the following assertions, and then shared this communication with the Board members listserv:

Read More

Justice Alito Shouldn't Have To Do The Media's Job

|

In a series of stories, ProPublica has charged Justices Clarence Thomas and Samuel Alito with two types of misconduct. First, the reports contend that the justices failed to disclose certain travel they received. Second, ProPublica alleges that the justices failed to recuse themselves from cases that indirectly involved the people who provided that travel. There are very straightforward responses to each of these accusations. Until fairly recently, the ethics rules were reasonably understood to not require disclosing such "personal hospitality." Moreover, the Justices were unaware of alleged potential conflicts because the Supreme Court briefs did not indicate any connection between the parties in the cases and those who provided the travel. ProPublica is no doubt aware of these two facts. Yet, the outlet still persists in a globetrotting quest to tar the judicial branch with the brush of corruption.

Now, Justice Alito has taken matters into his own hands. On Friday, ProPublica asked Alito to provide comments about a planned story concerning Alito's 2008 fishing trip to Alaska. On Tuesday evening, he provided such a response--in the Wall Street Journal. Why did Justice Alito take this unorthodox step to preempt the scoop? Because ProPublica has proven itself unreliable. The outlet could not be trusted to accurately provide Alito's rejoinder in context. And Alito's concerns proved prudent. 

Consider two examples. ProPublica wrote that "Alito appears to have violated a federal law that requires justices to disclose most gifts, according to ethics law experts." But ProPublica does not even acknowledge the 2023 rule revision. Indeed, the fact that the rule was changed reflects the prior uncertainty. ProPublica could fully inform readers about the relevant rule change. But it chose not to.

Second, ProPublica charged that Alito should have recused from Republic of Argentina v. NML Capital (2014). ProPublica reported that NML Capital was affiliated with billionaire Paul Singer, on whose private jet Alito flew to Alaska. ProPublica included a single explanatory sentence from Alito's Wall Street Journal op-ed to explain his failure to recuse: "It was and is my judgment that these facts would not cause a reasonable and unbiased person to doubt my ability to decide the matters in question impartially." But that generic line barely scratches the surface of what Alito wrote. Alito explained that "Singer was not listed as a party" in the briefs, and his name did not "appear in any of the corporate disclosure statements." Alito observed that it "would be utterly impossible . . . to search filings with the SEC or other government bodies to find the names of all individuals with a financial interest in every such entity." 

Alito is correct on both fronts. On a plain reading of the old ethical rule, he complied with the standards as they were understood at the time. To prove the point, Judge A. Raymond Randolph of the D.C. Circuit Court of Appeals received permission from the ethics office to take a similar trip to Alaska in 2005. Moreover, there is no expectation that Justices unravel intricate business arrangements or comb through press stories to stumble upon phantom conflicts of interest.

ProPublica styles itself as "an independent, nonprofit newsroom that produces investigative journalism with moral force." But consistently, their reporting targets only conservatives, with the same cookie-cutter series of allegations that crumble under the slightest scrutiny. Regrettably, this pervasively-progressive "moral force" undermines any pretenses of "investigative journalism." Justice Alito shouldn't have to do the media's job. Fortunately for the Supreme Court, he did so.

--

Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston.  

Free Speech

Journal of Free Speech Law: "Saving the News," by Prof. Ramsi A. Woodcock

Just published as part of the symposium on Media and Society After Technological Disruption, edited by Profs. Justin "Gus" Hurwitz & Kyle Langvardt.

|

The article is here [UPDATE: link fixed]; here is the Introduction:

It is usually a mistake to suppose that a company is the best judge of how its business works. Or that an industry is the best judge of how the industry works. AT&T is a good example. When the Justice Department sat down with management in 1981 to negotiate a breakup of what was then a monopoly provider of telephone service, government lawyers asked which part of the company management wanted to keep after the breakup—the long-distance operations or the regional networks. The long-distance operations had long been the company's most profitable, so management asked for those.

It was a mistake. The long-distance operations had been profitable only because AT&T had owned the regional networks and could use them to deny access to competing long-distance companies seeking to complete calls. Once AT&T had spun off the regional networks, the company could no longer do that. Competitors flooded the long-distance market, driving down AT&T's profits. But the regional networks remained protected from competition thanks to the prohibitive cost of running new wires to individual homes. They flourished. Management had failed to grasp that the real source of AT&T's power was its regional-network monopolies, not its long-distance operations. Two decades later, AT&T was forced to sell itself—to one of the regional networks.

If management sometimes has trouble understanding the value proposition of the single company that it runs, we can forgive newspapers for not understanding the value proposition of the entire industry that they constitute.

Read More

Free Speech

Volunteer Yale Psych Prof's Nonrenewal for Publicly Diagnosing Trump & Dershowitz Doesn't Violate Conn. Law,

holds the Second Circuit.

|

From Lee v. Yale Univ., decided yesterday by the Second Circuit (Judges Rosemary Pooler, Richard Sullivan & Beth Robinson):

Bandy Lee appeals from the district court's order dismissing, pursuant to Federal Rule of Civil Procedure 12(b)(6), her complaint against Yale University following its 2020 decision to not reappoint Lee as a voluntary Assistant Clinical Professor of psychiatry at the Yale School of Medicine after she publicly suggested that a prominent supporter of former President Donald Trump [Alan Dershowitz] had a "shared psychosis" with the former president and had "wholly taken on [his] symptoms by contagion." …

The court rejected "Lee's claims for breach of contract and breach of the implied covenant of good faith and fair dealing":

[Lee] has not adequately alleged a promise that Yale would not decline to renew her appointment on account of her public statements. In her opening brief in this Court, Lee argues that an express or implied contract was formed, primarily through Yale's Faculty Handbook and a Yale committee report referenced therein (the "Woodward Report"), in which Yale promised it "would not consider or rely upon [Lee's] exercise of freedom of expression and academic freedom when deciding whether to … renew [her] faculty appointment."

But the statements that Lee relies on as the genesis for this alleged contract reduce merely to generalized support for academic freedom. Because those statements were not "sufficiently definite to manifest a present intention on the part of [Yale] to undertake immediate contractual obligations to [Lee]" concerning what it could or could not consider when making a reappointment decision, they are not adequate to plausibly allege the formation of a contract of the type Lee asserts.

And the court rejected her claim under the Connecticut statute (§ 31-51q) that protects private employees from being disciplined or discharged based on their First-Amendment-protected speech, because Lee was a volunteer, not an employee:

Read More

Justice Stevens's Papers Reveal How The Fortune Cookies Were Baked In Lawrence v. Texas

Believe it or not, Justice Kennedy's final opinion toned down some of the "awkward language."

|

So far, I have not been blown away by the revelations from Justice Stevens's papers. Maybe my expectations were too high. In one sense, the earlier drafts are something like legislative history history, and do not represent the full opinion of the Court. But more precisely, Stevens did not have all of the memos that explain why certain changes were made. I suppose those records may be found with Justice Kennedy's papers.

In any event, the latest story from Joan Biskupic and Devan Cole includes a few worthwhile revelations about Lawrence v. Texas.

First, believe it or not, Justice Kennedy's draft opinion had even more cringeworthy rhetoric. And the Court's progressives objected!

Kennedy also withdrew language that some of his colleagues regarded as awkward or out of place, such as, "The sexual instinct is of endless fascination for the human. Its beauty and power are best respected when the individual has substantial freedom to explore it to attain a better understanding of the concept of self and the place he or she has in a larger universe."

His final opinion, instead, said in that section, "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice."

Justice Scalia, preach:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity," I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

And to paraphrase Scalia and Bismarck, "no one should see how sausages or Kennedy opinions are made."

Second, at conference, Justice Breyer only wanted to grant cert if there were five votes to reverse Bowers:

When the nine justices considered in December 2002 whether to take up the appeal, Stevens, Kennedy, David Souter and Ruth Bader Ginsburg voted to hear the case. (It takes four to grant a case a hearing but five to decide it.)

Breyer signaled that he wanted to hear the case, too, Stevens' notes indicate, but only if those ready to hear it were prepared to stick together for a majority to reverse Bowers' holding that constitutional due process of law does not cover private same-sex relations.

I don't know if we have ever seen confirmation that there is such an overt discussion of the merits at the conference vote to grant cert. I always assumed these conversations happened, but Stevens's papers reflects that practice exists.

Third, Justice O'Connor voted not to grant cert--perhaps to avoid having to revisit Bowers.

Then-Chief Justice William Rehnquist and Justices O'Connor, Scalia and Clarence Thomas voted to let the lower court action and the charges against the men stand. It is not known why O'Connor voted against the appeal at this stage, but she may have wanted to avoid confronting her vote with the majority in the earlier Bowers case.

Fourth, O'Connor reached her decision on equal protection after oral arguments, and never planned to join Justice Kennedy's majority opinion.

After oral arguments on March 26, 2003, the five votes held, according to Stevens' notes from their private meeting, and O'Connor moved to their side as well. She wanted to reverse the lower court ruling, on the grounds that the Texas law violated the equal protection of the law. That allowed O'Connor, also an appointee of Ronald Reagan, to avoid casting a vote to outright reverse her Bowers v. Hardwick position.

Fifth, Justice Breyer urged Justice Kennedy to limit his majority opinion to the sodomy ban. Breyer, ever the pragmatist, realized that Lawrence should not, overtly at least, reach out to the same-sex marriage issue. That (inevitable) result would come twelve years later in Obergefell.

"After reading my first circulation, Stephen [Breyer] suggested revisions to make it clear we do not decide more than the question presented," Kennedy wrote on June 10 of that year of a conversation with Breyer. "These, plus a few other edits, are contained in a new circulation to the entire Court. Stephen's suggestions were quite constructive, and I am hoping how he can join."

Sixth, it seems that Justice O'Connor initially framed her equal protection concurrence in terms of a classification. But she had discussions with Amy Wildermuth, a Stevens clerk, who was the only-out gay law clerk at the Court that term. Wildermuth suggested other language that focused on "moral disapproval."

At the top of Stevens' copy of O'Connor's first draft is the small notation, "Suggested changes to SOC's opinion from Amy Wildermuth." Throughout the eight-page draft are various edits, mainly concerned with the nuances of phrasing. . . .

In her conclusion, for example, O'Connor had originally written, "A law branding one class of citizens as criminal solely because the majority disapproves of the defining characteristic of the class runs contrary to the values of the Constitution and the Equal Protection Clause."

O'Connor changed it to Wildermuth's suggested language: "A law branding one class of persons as criminal solely based on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause."

Wildermuth's revision here would prove quite significant down the road. This theme of "moral disapproval" played an important role in Justice Kennedy's majority opinion, and would ultimately form the basis for Windsor and Obergefell. Justice Scalia predicted as much in his Lawrence dissent:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. Texas's interest in § 21.06 could be recast in similarly euphemistic terms: "preserving the traditional sexual mores of our society." In the jurisprudence JUSTICE O'CONNOR has seemingly created, judges can validate laws by characterizing them as "preserving the traditions of society" (good); or invalidate them by characterizing them as "expressing moral disapproval" (bad).

One final point on sourcing. CNN quotes Wildermuth:

"'Are we using the right terms?' 'Are we saying this in a way that could be offensive?' If you're not in the culture, you just don't know," Wildermuth said in an interview with CNN about the kinds of questions that came her way.

Wildermuth, now teaching at Ohio State Moritz College of Law, emphasized the era, when justices were less familiar with LGBTQ interests. "I was happy to share my perspective," she said. "It was not something I was uncomfortable with."

Nothing in the Stevens files indicated why Wildermuth was enlisted. When reached by CNN, she explained, "It wasn't unusual for people working on cases to be asked to help the clerks in other chambers, to provide feedback. It also was true that I was the only out gay law clerk at the time. That may also have prompted interest in getting feedback from me and from my co-clerks."

CNN apparently also spoke with other clerks from "various chambers" who confirmed Wildermuth's account, and commented on other aspects of deliberations. Jeannie Suk Gersen likewise wrote an article about the deliberations in Grutter and Gratz, based on the Stevens papers. She quoted two clerks from that term, Cristina Rodriguez (O'Connor) and Adam Mortara (Thomas).

Is talking to the press about internal deliberations the new normal? Is there some sort of statute of limitation--an O'Connor-esque 20 year clock on law clerk confidentiality? Or, is it that law clerks can speak out of turn to confirm information in publicly-available files.

Torts

Colorado Ban on Any Law "Retrospective in Its Operation" Means Old Sex Assault Claims Can't Be Revived

The Colorado Supreme Court holds that the state constitution precludes revival of claims on which the statute of limitations has expired.

|

Article II, section 11 of the Colorado provides that,

No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly.

Bans on ex post facto laws have long been interpreted as applying only to criminal statutes (see, e.g., Calder v. Bull (1798)), but the Colorado Supreme Court had held that bans on retrospective laws also extend to lawsuits dealing with civil liability; and while deciding what counts as a "retrospective" law can be complicated, the court had held that revival of claims on which the statute of limitations had expired is indeed impermissibly "retrospective." In yesterday's Aurora Public Schools v. A.S., the court unanimously held (in an opinion by Justice Monica Márquez) that the Colorado Legislature's revival of time-barred sexual assault claims was thus unconstitutional. And it added,

Read More

Yet Another Synthetic Moral Panic over Privacy

Episode 463 of the Cyberlaw Podcast

|

Senator Ron Wyden (D-OR) is to moral panics over privacy what Andreessen Horowitz is to cryptocurrency startups. He's constantly trying to blow life into them, hoping to justify new restrictions on government or private uses of data.  His latest crusade is against the intelligence community's purchase of behavioral data, most of which is already generally available to everyone from Amazon to the GRU. He has relaunched his campaign several times, introducing legislation, holding up Avril Haines's confirmation over the issue, and extracting a DNI report on the topic that has now been declassified. The report was a sober and reasonable explanation of why commercial data is valuable for intelligence purposes, so naturally WIRED magazine's headline summary was, "The U.S. Is Openly Stockpiling Dirt on All Its Citizens." Matthew Heiman takes us through the story, sparking a debate that pulls in Michael Karanicolas and Cristin Flynn Goodwin.

Next, Michael explains IBM's announcement that it has made a big step forward in quantum computing.

Meanwhile, Cristin tells us, the EU has taken another incremental step forward in producing its AI Act – mainly by piling even more demands on artificial intelligence companies. We debate whether Europe can be a leader in AI regulation if it has no AI industry. (I think it makes the whole effort easier, since the EU doesn't have to worry about whether its regulatory regime is even remotely plausible. This looks like the EU's working strategy, to judge by a Stanford study suggesting that every AI model on the planet is already in violation of the AI Act's requirements.)

Michael and I discuss a story claiming persuasively that an Amazon driver's dubious allegation of racism led to an Amazon customer being booted out of his own "smart" home system for days. This leads us to the question of how Silicon Valley's many "local" monopolies enable its unaccountable power to dish out punishment to customers it doesn't approve of.

Matthew recaps the administration's effort to prevail in the debate over renewal of section 702 of FISA. This week, it rolled out some impressive claims about the cyber value of 702, including 702's role in identifying the Colonial Pipeline attackers (and getting back some of the ransom). The administration also introduced yet another set of FBI reforms, this time designed to ensure that agents face career consequences for breaking the rules on accessing 702 data.

Cristin and I award North Korea the "Most Improved Nation State Hacker" prize for the decade, as the country triples its cryptocurrency thefts and shows real talent for social engineering and supply chain exploits. Meanwhile, the Russians who are likely behind Anonymous Sudan decided to embarrass Microsoft with a DDOS attack on its application level. The real puzzle is what Russia gains from the stunt.

Finally, in updates and quick hits, we give deputy national cyber director Rob Knake a fond sendoff, as he moves to the private sector; we anticipate an important competition decision in a couple of months as the FTC tries to stop the Microsoft-Activision Blizzard merger in court, and I speculate on what could be a Very Big Deal – the possible breakup of Google's adtech business.

Download 463rd 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.

Free Speech

Journal of Free Speech Law: "Structuring a Subsidy for Local Journalism," by Prof. Kyle Langvardt

Just published as part of the symposium on Media and Society After Technological Disruption, edited by Profs. Justin "Gus" Hurwitz & Kyle Langvardt.

|

The article is here; here is the Introduction:

The commercial market for local news in the United States has collapsed. Many communities lack a local paper. These "news deserts," comprising about two-thirds of the country, have lost a range of benefits that local newspapers once provided. Foremost among these benefits was investigative reporting—local newspapers at one time played a primary role in investigating local government and commerce and then reporting the facts to the public. It is rare for someone else to pick up the slack when the newspaper disappears.

The local newspapers that do remain in operation are badly diminished. Most have cut their print circulation either by narrowing geographical reach, distributing the paper only a few days a week, or moving to an online-only model. Almost all surviving newspapers have made severe cuts to reporting staff. These cuts have diminished the quantity and depth of local coverage. Investigations that dig beneath the surface of police reports and press releases are costly and beyond most surviving newspapers' means. It is much more convenient, and much more common, to run low-cost pro forma stories that merely repeat the official line.

Local newspapers of the twentieth century had their own problems, but overall these problems were much less dire. When newspapers made cuts and their quality suffered, it was usually because management wanted to report high profit margins to investors. But revenues themselves remained quite high.

Read More

Justice Alito Preempts ProPublica "Investigative Journalism"

"ProPublica has leveled two charges against me. . . . Neither charge is valid."

|

ProPublica styles itself as "an independent, nonprofit newsroom that produces investigative journalism with moral force." Let me translate "moral force" for you: ambushing conservatives with misleading accounts of dated accusations that, at worst, concerned good faith attempts to comply with the rules. I've lost count of the number of times that wild accusations against Justice Thomas have fallen apart. I think the only upshot of this breathless reporting is that the public has become tired/bored/numb to this "moral force."

ProPublica's latest research target is (you guessed it) Justice Alito. On Friday, ProPublica contacted Justice Alito, and asked him to respond to questions by a deadline of noon EDT Tuesday. Justice Alito provided such a response--in the Wall Street Journal.

Alito's decision was a masterstroke. Rather than providing comments to ProPublica, which can be cherry-picked and quoted out of context, Alito spoke directly to the public. Indeed, I long ago decided that if any outlet were running a hit job on me, and asks me for comment, I would pre-empt their story and post my reply on the blog. Alas, most of the hit jobs on me never bother seeking comment. But such is life.

Why did Alito speak directly to the public? Because there is a sustained movement to destroy the Supreme Court. In the past, the Court could have expected members of the Bar and the Academy to defend the Court. But no longer. Because five justices had the audacity to let the people cast votes on abortion (and in the past year, that decision has overwhelmingly resounded in favor of Democrats), the Supreme Court must be obliterated. I think several of the Court's moderates are swinging left this term to forestall more attacks. Who would have predicted that Justice Sotomayor would be the Justice in the majority the most on 6-3 "conservative" Court? Stay tuned for the affirmative action cases.

I have described Justice Alito as the heart of the Supreme Court. He defends the Supreme Court in ways that Chief Justice Roberts simply cannot.

I'll write more on this issue when I finally see the ProPublica allegations. One point to flag. Justice Alito offered a factual rebuttal to ProPublica's "investigative journalism." Apparently, ProPublica alleged that Alito was served wine that cost more than $1,000 at some luxury resort. Alito claims that accusation is "misleading." And who are you going to believe? ProPublica's shoddy reporting in the past has undermined any benefit of the doubt. On a personal note, a reporter from ProPublica contacted me last week seeking comment. I never even hit reply.

More

Recent Volokh Posts

1

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

2

Justice Gorsuch on Abuse of Emergency Powers

3

How Would A Judge Butler Actually Affect The Fifth Circuit?

4

Todd Butler Compared Street Preacher In Supreme Court Case To "Domestic Terrorism"

5

Red Mass Explosive Man Asked S. Ct. to "Remove Arizona from the United States" and "Declare It a 'Foreign Enemy'"

6

Salman Rushdie Attempted Murder Case: Court Upholds Jury Verdict …

7

Jews and Discrimination Based on Religion or Based on Ethnicity?

8

Defamation by Retroactive Scrubbing of Coach from Roster?

9

Today in Supreme Court History: October 2, 1967

10

Open Thread

Reason's July 4 Special!

For America's 250th, Get 2 Years of Reason for $17.76

Celebrate your independence with a subscription to Reason magazine, your most trusted source of honest, insightful news and analysis.

Subscribe to Reason