The Board of Education for the School District has issued several policies regarding harassment, bullying, and the use of personal communication devices that are intended to "maintain an education and work environment that is free from all forms of unlawful harassment." To that end, Policy 5517 prohibits students from engaging in discriminatory harassment or bullying based on the personal characteristics of other students, such as their race, national origin, sex, disability, religion, or ancestry. Similarly, Policy 5136 prohibits students from using their personal devices to send messages that threaten, humiliate, harass, embarrass, or intimidate other students. And lastly, the Code of Conduct prohibits speech that involves "discriminatory language," including the intentional misgendering of transgender students—i.e., failing to address a student by their preferred pronouns….
[The Court denies plaintiff's motion for a preliminary injunction] because [plaintiff] has failed to establish a substantial likelihood of success on its First Amendment claim.
While schoolchildren do not wholly "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969), kindergarten through 12th grade ("K-12") educators nevertheless retain "comprehensive authority … consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Thus, public schools are permitted to proscribe student speech that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."
Carlos Pena in his shop, which was destroyed by a SWAT team (Institute for Justice)
In a number of cases around the country, law enforcement agencies have destroyed or severely damaged the homes or businesses of innocent people. When property owners sue for compensation under the Takings Clause of the Fifth Amendment (which requires payment of "just compensation" when the government takes private property), law enforcement usually claims they aren't required to provide it because their actions fall within the "police power" exception to takings liability. The latest case of this kind involves an LA SWAT team that severely damaged an innocent man's store in the process of unsuccessfully trying to detain a suspect.
It took Carlos Pena decades to build his local business after immigrating to North Hollywood, California, from El Salvador. It only took a few hours to destroy it.
While Pena is the one who created NoHo Printing & Graphics, where he fashioned commercial signs and banners, T-shirts, headshots, and other products, he is not the one who did the damage, despite the fact that he has been left with the bill and without a livelihood.
In early August of last year, after a fugitive violently thrust Pena from his shop and barricaded himself inside, a SWAT team from the City of Los Angeles fired more than 30 rounds of tear gas canisters over the course of 13 hours. When the government entered the building, the officers found their target had escaped. Left inside was a shop that was a shell of itself, with Pena's inventory ruined and the bulk of his equipment unusable.
Pena didn't fault the city for attempting to subdue an allegedly dangerous person. But he objected to what came next: The government refused his requests for compensation, strapping him with expenses that exceed $60,000 and a situation that has cost him tens of thousands of dollars in revenue, as he has been resigned to working at a much-reduced capacity out of his garage, according to a lawsuit he filed this month in the U.S. District Court for the Central District of California.
"Apprehending a dangerous fugitive is in the public interest," the suit notes. "The cost of apprehending such fugitives should be borne by the public, and not by an unlucky and entirely innocent property owner."
As Pena acknowledges, the police were justified in seeking to arrest this suspect. Perhaps they were even justified in using tactics that ended up destroying much of an innocent man's store (though those tactics ultimately failed in their purpose and the fugitive got away). But the city is not justified in denying him compensation. As the Supreme Court famously stated inArmstrong v. United States (1960), "[t]he Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."
The "public burden" of law enforcement should not be arbitrarily imposed on innocent people who had the misfortune of having their property be in the wrong place at the wrong time when a fugitive decides to hole up there. Carlos Pena's property was taken by the government for a public use no less than if they had used eminent domain to build a road over his land.
Despite the strong case for compensation in such situations, previous court decisions have reached widely divergent decisions in these kinds of cases. The Tenth Circuit's 2019 decision in Lech v. Jackson is a notable recent example of a case where courts have ruled that the "police power" exception to takings liability immunizes nearly all law enforcement operation (I criticized Lechhere). In Lech, as in the present case, police inflicted massive damage on an innocent person's property in an attempt to smoke out a fugitive.
In Baker v. City of McKinney, decided last year, a federal district court disagreed with Lech(the judge was in a different circuit and therefore not bound by the Tenth Circuit's decision), and paved the way for a jury verdict awarding over $59,000 in damages to a homeowner whose house was severely damaged by a police SWAT team trying to apprehend a fugitive who had holed up inside. In my view, Baker is a better-reasoned decision than Lech, for reasons I summarized here:
The fact that the "police power" may have been involved does not normally immunize the government from takings liability. As the Lech decision notes, the police power extends to government actions "for the protection of public health, safety, and welfare." Modern jurisprudence defines these concepts very broadly. Yet, in many contexts, courts nonetheless routinely rule that takings have occurred even though the purpose of the law at issue was to protect health or safety. For example, in the classic 1922 case of Pennsylvania Coal v. Mahon, the Supreme Court ruled that a prohibition on mining can qualify as a taking, even though its purpose was to protect the safety of people and property on the surface. Similarly, environmental regulations can sometimes qualify as takings if they destroy enough of the value of a property, even though their purpose is often to promote health or safety…
Outside the context of law-enforcement operations, the fact that the government was trying to promote public safety does not create blanket immunity from having to compensate innocent owners whose property is taken or destroyed in the process. There is no good reason to exempt law-enforcement operations from takings liability of the same kind that applies to other government actions that might enhance public safety.
Indeed, as the Supreme Court recognized in the 2015 Horne case, the Takings Clause was inspired in the first place in part by revulsion at both British and American forces' seizure of property during the colonial era and the Revolutionary War. Many of these British actions were, of course, undertaken for the purpose of enforcing British law against recalcitrant colonists.
In December 2019, the US Court of Federal Claims ruled that the US Army Corps of Engineers was liable for a taking when it deliberately flooded numerous properties in Texas during Hurricane Harvey in order to prevent even worse flooding elsewhere. In 2012, the Supreme Court ruled that the government could be liable for a taking when it inflicted recurrent flooding on property, even though the purpose of the flooding was to protect farm interests in the region. If the "police power" theory doesn't immunize the government in these kinds of cases, despite potentially massive benefits to public safety, it is difficult to see why law-enforcement operations should be given blanket immunity from takings liability.
Here, as elsewhere, if there really are great public benefits from the government's seizure or destruction of property, it should be willing to pay for the damage it inflicts on innocent owners. If, on the other hand, law enforcement agencies find that they routinely end up paying compensation that far exceeds any plausible benefit arising from the use of such aggressive tactics, then…. [m]aybe they should be more careful about destroying property in the future.
So far, the Supreme Court has turned down opportunities to resolve this issue. Perhaps they will take it up in the future.
NOTE: The plaintiffs in this case are represented by the Institute for Justice, for which I served as a summer clerk when I was a law student, and have written pro bono amicus briefs in various cases more recently. I do not have any involvement in the present litigation, however.
Cato Institute immigration policy expert Alex Nowrasteh explains the close parallels between a policy most conservatives hate, and one most them reflexively support.
People are seen both protesting and celebrating the U.S. Supreme Court ruling on affirmative action. (Allison Bailey/ZUMAPRESS/Newscom)
Many of the people who strongly oppose the use of racial preferences for affirmative action are also strong supporters of tight immigration restrictions. Few see any contradiction between these two positions. But, as Cato Institute immigration policy scholar Alex Nowrasteh points out in a recent post, immigration restrictions are a form of affirmative action for natives. They undermine meritocracy in much the same way as racial preferences in higher education do, except much more so:
The recent Supreme Court case about affirmative action in university admissions (SFFA v. Harvard) paralleled a broader social debate overmeritocracy. Those opposed to affirmative action broadly say they are supportive of meritocracy. They believe individual achievement should be more prominent in university admissions, at least when the government is involved in university funding. The debate over affirmative action and meritocracy intersects with the immigration debate in two ways. First, immigration restrictions are the most destructive form of affirmative action. Second, immigrants and their descendants have been essential in reducing the scope of affirmative action in the United States over the last 30 years….
U.S. immigration restrictions are the most anti‐meritocratic policies today, and they are intended as affirmative action for native‐born Americans…. Just peruse nativistwebsites, and you'll see many arguments about immigrants taking jobs from more Americans who are more deserving because of where they were born. When people think of anti‐meritocratic policies, they rightly jump to quotas, race‐based affirmative action, or class‐based affirmative action….
It's true; those are all anti‐meritocratic and likely wouldn't exist in a free market outside of a handful of organizations in the non‐profit sector. But U.S. immigration restrictions are worse. The U.S. population is about 4.2 percent of the global population. Immigration laws prevent the other 95.8 percent of the world from trying their hand in the U.S. market meritocracy.
There is disagreement about exactly what qualifies as meritocracy. But, generally speaking, meritocrats believe that important educational and economic opportunities should be distributed primarily based on some combination of skill, talent, and hard work, not based on arbitrary circumstances of birth outside students' and job applicants' control. The paradigmatic opposite of meritocracy is a system of hereditary aristocracy, in which opportunities are distributed primarily based on who your parents are…..
Today, hereditary aristocracy is widely condemned in liberal democratic societies. Even relatively limited forms of it come in for widespread criticism. For example, many point out that "legacy admissions" at elite universities are unmeritocratic, and should be rejected for that reason…. Conservatives and other critics of affirmative action for racial minorities similarly argue that an applicant's race or ethnicity are outside her control and in and of themselves tell us nothing about her merit.
But that which is widely condemned in the domestic context is equally widely accepted when it comes to migration restrictions—even though the departure from meritocracy is far greater in the latter case. Our system of immigration restrictions—and that used by most other nations—is essentially a form of hereditary aristocracy by another name….
For most people, citizenship status determines where you are allowed to live and work, which in turn largely determines not only your economic fate, but often whether you will have protection for even very minimal human rights. And citizenship itself is largely determined by birth—much like membership in old-time aristocracies. If you were not born a US citizen or a close relative of one, there is very little chance you will ever be allowed to emigrate here…..
The deviation from meritocracy here is vastly greater than those many complain about in other contexts. If you were born in Cuba, Venezuela, or Zimbabwe, and migration restrictions force you to stay there, you are highly unlikely to ever escape poverty and oppression—no matter how talented, hard-working, or otherwise meritorious you might be….
By contrast, if legacy preferences or affirmative action prevent you from getting admitted to Harvard…., there is a good chance you can still attend a selective college, often one that is just one rung down from the one that rejected you. There is still a deviation from meritocracy. But it's far smaller than in the case of migration restrictions.
Conservative meritocrats are quick to condemn affirmative action programs premised on the assumption that we need to give blacks and Hispanics a leg up against whites and Asians. But these meritocratic principles are forgotten when it comes to immigration restrictions. That happens even though the departure from meritocracy is far greater in the case of the latter. Moreover, unlike African-Americans and some other minority groups, native-born citizens can't plausibly claim they deserve affirmative action preferences in order to compensate them for historic injustices, such as slavery and segregation.
In this respect, immigration restrictions are actually more akin to legacy preferences than affirmative action for historically discriminated-against minorities. Both represent a form of privilege for the already advantaged. Even for relatively poor Americans, being born in the US and growing up here is a major advantage relative to the conditions faced by migrants who were born and raised in poor and oppressive societies.
Racial discrimination and immigration restrictions are also akin in being driven by zero-sum logic. The implicit assumption is that there is a fixed set of opportunities and the only way to benefit Group A is at the expense of B, and vice versa. Thus, for example, old-time segregationists argued that we must protect white workers against black and Asian competition. Immigration restrictionists claim that gains to immigrant workers necessarily come at the expense of natives. "Woke" leftists argue that progress for minorities depends on racial preferences in education and employment.
In a certain sense, this is true. If a black worker beats out a white one for a job, the latter loses out. Ditto if an immigrant beats out a native. But focusing on this narrow frame overlooks the ways in which opening up opportunities to more people benefits all of society, including previously advantaged groups. My co-blogger David Bernstein explained why in a 2016 post:
Virulent racists and anti-racist activists would seem to have little in common, but in fact they tend to agree on one mistaken premise: Race relations are a zero-sum game. If whites are doing well, it's at the expense of members of other races. If members of other races are doing well, it's at the expense of whites….
In fact, whites, as a group, don't benefit from discrimination against, or oppression of, other groups, except perhaps psychologically if such discrimination and oppression make them feel superior…. But from a purely economic perspective, wealth comes from gains from trade, and the wealthier your trading partners, the more wealth you can accrue….
[C]onsider as a real-world example the huge opening of economic opportunities for women in the past 50 years. Men, as a group, may have lost some psychic benefit in feeling superior to women, and one can argue about the social effects on marriage and family, but men as a group are much better off economically now that women can pursue all sorts of careers that were closed to them in the past. In pursuing careers commensurate with their talent, women make American society much wealthier, which means that men have better doctors, better products to buy, better job opportunities and so on….
The same dynamic applies, though not as obviously, when a majority imposes economic restrictions on a minority, whether through law, custom or some combination thereof. Let's say a young African American man born in 1920 had the potential to be a great scientist, but because of discrimination and racism instead wound up enmeshed in the criminal justice system. How did that benefit the majority? The majority lost whatever scientific contributions that individual could have made, was at risk of being victimized by his criminal behavior and had to use its tax money to pay for any jail time he may have served. Even if a potential scientist becomes a laborer rather than a criminal because of racism, that's still a loss to society, including to the white majority. Multiply such scenarios by millions of people, and the huge economic loss to the majority should become clear.
David's logic applies to immigration restrictions as well as to domestic gender and racial discrimination. I outlined the reasons why here. Indeed, immigration restrictions have a massive negative impact on the freedom and prosperity of native-born Americans, perhaps more so than any other federal government policy.
A few whites were still net beneficiaries of discrimination against blacks. For example, if you were a marginal white Major League Baseball player who lost his job as a result of the integration of baseball in the 1940s, it is possible that the gains of integration for you weren't enough to offset the loss of what might be a vastly better career than anything you could find elsewhere. The same goes for a modern native-born athlete who is denied a job in the NBA or the National Hockey League because of competition from immigrant players. But, on the whole, whites have benefited greatly from reductions in racial discrimination enabling minorities to access a wider range of careers, and natives from the economic contributions of immigrants.
In the last part of his post, Nowrasteh also notes that increased immigration since the 1960s has helped undermine affirmative action politically. In particular, the growing presence of Asian students in higher education has weakened traditional rationales for racial preferences. I discussed this aspect of the issue myself, here.
As noted in my 2020 post on immigration and meritocracy, I am not a pure meritocrat myself. My views on these issues are primarily driven by considerations of liberty, justice, and increasing human welfare. If we can become wealthier, happier and freer, by being less meritocratic, I'm willing to take that tradeoff. But when it comes to immigration, domestic racial discrimination, and legacy preferences, meritocracy and these other considerations go hand in hand. A more meritocratic society on these fronts is also likely to be freer, wealthier, and more just.
At the very least, those who value meritocracy highly should take a far dimmer view of immigration restrictions than many of them currently do. If you truly oppose hereditary privilege, you cannot exempt from scrutiny what is by far the biggest example of it in our society.
From Wednesday's decision in Wright v. McCormack (Ct. App. Eng. & Wales) (Lord Justice Warby, joined by Lord Justice Singh and Lady Justice Andrews) (headings and paragraph numbers deleted):
The issue on this appeal is whether damages for defamation can properly be reduced to reflect the claimant's fraudulent exaggeration of the claim. That is what the trial judge did here. The appellant says that he was wrong in law to do so because it can never be legitimate to make a reduction on that ground.
The appellant is Dr Craig Wright. He is a businessman active in the field of cryptocurrency who maintains that he is Satoshi Nakamoto ("Satoshi"). Satoshi is the name used by the author or authors of a famous 2008 "White Paper" entitled Bitcoin: a Peer to Peer Electronic Cash System. It is widely believed that Satoshi invented the cryptocurrency of that name and currently holds a large quantity of Bitcoin. Dr Wright is involved in the promotion of something called "Bitcoin Satoshi Vision" or BSV. Dr Wright's claim that he is Satoshi has been widely published.
In April 2019 Peter McCormack, a blogger and podcaster about cryptocurrency, posted a series of tweets about the appellant's claims and conduct. He began with "Craig Wright is not Satoshi". He repeated that assertion, adding "Craig Wright is a fraud", "BSV is a fake Bitcoin run by frauds", "Craig Wright fraudulently claimed to be Satoshi", "let's go to court and prove once and for all that he is a liar and a fraud", and other similar statements. In October 2019 Mr McCormack also took part in a video discussion on YouTube in which he said, among other things, "Craig Wright is a fucking liar, and he's a fraud; and he's a moron; he is not Satoshi." Dr Wright sued him for libel.
7/28/1880: San Francisco prohibits operation of laundires in wood buildings, "without having first obtained the consent of the board of supervisors." The Supreme Court found this ordinance unconstitutional in Yick Wo v. Hopkins (1886).
In Biden v. Nebraska, Justice Barrett wrote a concurrence about the major question doctrine. Her analysis invoked an example that any parent could relate to:
Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: "Make sure the kids have fun." Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter's trip consistent with the parent's instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent's instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park. If a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to "make sure the kids have fun."
When I read this example, I thought, yeah, that makes sense. As a parent of two young children, if I gave a babysitter my credit card and said "make sure the kids have fun," and she took them to an amusement park, I would be incensed, and would almost certainly fire the babysitter. I distinctly remember when I was about eight years old my parents hired a babysitter to watch me and my younger sister. They gave the babysitter some cash to buy food. The babysitter drove to a nearby convenience store and bought some food, including a small, single-serve container of ice cream. (If my memory serves, it was vanilla Häagen-Dazs). When we got home, the baby sitter refused to share the ice cream with us. When our parents came back, we told them about the ice cream incident. They were not happy, and they did not hire that baby sitter again. I asked my dad what would happen if our babysitter had taken us on a road trip to Six Flags without express authorization. He said they probably would have called the police and accused her of kidnapping the kids. Indeed, since Six Flags was in New Jersey, there would have been an interstate crime!
I think parents generally leave their kids with babysitters with fairly specific instructions. Perhaps the example would be different with a full-time nanny, rather than an ad-hoc babysitter. A regular nanny may have more latitude, but I think a roadtrip, combined with a hotel, would require express authorization.
But maybe I'm an outlier? Kevin Tobia, Daniel Walters, Brian G. Slocum wrote a new paper, titled Major Questions, Common Sense? The authors respond to Justice Barrett on the major question doctrine. They conducted a survey of roughly 500 people to determine whether Justice Barrett's hypothetical about the babysitter was actually "common sense." They asked respondents a series of questions to determine whether a babysitter who took the kids to the amusement park acted "reasonably." (I am grossly oversimplifying their methodology, and I urge you to read the entire paper.) The results? Only 8% of respondents thought that the amusement park hypothetical violated the parents' instruction. That's it!
Although people evaluate Barrett's "major" action (taking the kids to an amusement park) as less reasonable than at least one alternative, they nevertheless understand it as consistent with the rule.
I couldn't tell from the paper how many of the 500 respondents have children, or have ever actually hired a babysitter. A cynic might argue that people who have children probably lack the free time to earn $1 for a five-minute task. Or maybe the sort of people who take surveys for $1 would love a trip to an amusement park! Then again, maybe the respondents have so much free time because their kids on roadtrips with the babysitter.
When Justice Barrett referred to the "normal course," she may be referring to people who are familiar with the process of hiring babysitters. Or maybe the authors would respond that language can't be restricted to a specific category of people, including parents. Maybe the argument is that parents wouldn't be ordinary people, to understand an example about parents hiring a babysitter.
Diversity of views is very important. One facet of diversity is having children. More than any other experience, my kids have fundamentally changed the way I view the world. Careful readers may have noticed a shift over the last five years.
Plaintiff began this litigation pro se on August 16, 2022, drafting and filing his original Complaint without the assistance of counsel. However, Plaintiff recently retained an attorney, who enrolled in May of 2023. The proposed Amended Complaint, which was drafted by counsel, is largely intended to clean-up the original Complaint. The allegations of race discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), see 42 U.S.C. §§ 2000e-2(a)(1) (disparate treatment and hostile work environment), remain unchanged. Plaintiff does, however, include a jury demand for the first time. See Fed. R. Civ. P. 38 (jury demand)….
Defendant objects to the proposed Amended Complaint because it: (1) includes an untimely jury demand; and (2) now spells out the racial epithet allegedly directed at Plaintiff by his supervisor. Defendant considers the inclusion of this racial epithet to be "scandalous," "prejudicial," and "unnecessary." Compare (On "September 5, 2019 … Mr. Adams referred to me as a "stupid f***ing n***er."), with ("On September 5, 2019, Jason Adams called Plaintiff, 'A stupid fucking nigger.'")….
Defendant claims:
RAMCO asserts that Plaintiff's allegations contained in Paragraph 19 of the Amended Complaint, using the fully spelled out "n-word" are scandalous, are highly and unduly prejudicial and defamatory to Defendant and its business reputation, and should be stricken or redacted from the pleading.
The Plaintiff's use of this word is unnecessary, and the allegation could be sufficiently plead by redacting this word so that it does not appear in its full form or by simply redacting the allegation to allege that a racial slur was used.
Economic secretary Andrew Griffith told the bosses of some of the UK's biggest banks on Wednesday that it is important to protect freedom of expression….
It came after former politician Nigel Farage's bank account with Coutts—a bank for the ultra wealthy—was closed.
The account was shut after Mr Farage's mortgage payments came to an end. Due to extra checks on so-called politically exposed persons (PEPs), Mr Farage and other politicians are expensive to provide services to.
Therefore, when he had paid off his mortgage he fell below Coutts' "commercial criteria" basis. The bank cited this, and his public profile as an at times controversial figure with opinions which it said clashed with the bank, as the reasons for why it terminated his account….
The Treasury said the bank bosses at the meeting had committed to "the principle of non-discrimination based on lawful freedom of expression."
From Ex parte Lee, decided last week by the Tenth District Texas Court of Appeals, in an opinion by Chief Justice Tom Gray, joined by Justices Matt Johnson and Steven Lee Smith:
Allen Michael Lee is charged with one count of aggravated sexual assault of a child and two counts of sexual assault of a child. Bail amounts were set at $400,000 in total for the three charges. He has not been able to make bail. He filed a pre-trial application for a writ of habeas corpus asking to either be released or have bail reduced to $15,000 total. After a hearing, the trial court denied Lee's application.
In one issue, Lee contends the trial court abused its discretion in denying Lee's request for a bail/bond reduction. Specifically, he contends the initial bail set was excessively high and that the trial court abused its discretion by denying his application without an explanation.
In presenting error to this Court, an appellant's brief must contain a clear and concise argument of the contentions made with appropriate citations to authorities and to the record. That has not occurred in this case. In the "Standard of Review" and "Applicable Law" sections of his brief, Lee cites to the general, applicable case law and statutes.
However, in his "Argument" section, where appropriate citations must be included, Lee cites to five cases to support the two sub-arguments to his issue. Only three of those five cases are published. None of the three published cases cited actually exist in the Southwest Reporter. Each citation provides the reader a jump-cite into the body of a different case that has nothing to do with the propositions cited by Lee. Two of the citations take the reader to cases from Missouri. As the State points out, even Texas cases with the same names as those cited by Lee do not correspond with the propositions relied upon. [A footnote lays out the details, quoting the State's brief. -EV]
I'd been following Ha v. Nguyen (E.D. Tex.) because it's a libel case, involving claims of false allegations of (among other things) "being a 'Communist'"; but here's an order from yesterday that's about broader matters, by Judge J. Campbell Barker:
On December 6, 2022, plaintiffs sued defendant for defamation. Defendant did not answer the complaint by the deadline established by Federal Rule of Civil Procedure 12(a)(1)(A)(i). After the answer deadline passed, plaintiffs asked the clerk of court to enter defendant's default; the clerk did so shortly thereafter. Defendant now moves to set aside that entry of default.
Defendant alleges that there is good cause to set aside default. Defendant reports that she was unable to retain counsel and answer the complaint because, among other reasons, she was ill. To support that claim, she furnished to the court a doctor's note attesting to a serious COVID-related illness. That note, dated January 26, 2023—many weeks after defendant's deadline to respond to the complaint—speaks of defendant's being "very ill over this time period." But the note doesn't indicate any period.
Defendant is ordered to furnish to the court by August 9, 2023, a revised note signed by Kelsie Court, MD, identifying the period in which she was under Dr. Court's treatment for her COVID-19 related illness. At minimum, the note should state the exact date that treatment began and the date it ended. Defendant must furnish to Dr. Court this court order before the note is prepared.
I blogged about the underlying libel case, Tera Shanley a/k/a T.S. Joyce & Wicked Willow Press, LLC v. Robyn A. Hutchings a/k/a Terry Bolryder a/k/a Domino Savage two months ago; here's a quick summary of the allegations:
Ms. Shanley and Ms. Hutchings both write paranormal romance fiction. Readers of such fiction gather online to discuss books and promote authors. For instance, Ms. Hutchings avers that she has 8,000 followers on Facebook and 1,500 followers on Instagram. Ms. Shanley and Ms. Hutchings interacted in one online community for four months in 2016.
At diverse times, Ms. Hutchings published various negative comments about Ms. Shanley. She accused Ms. Shanley of being a "known homewrecker[,]" "sexually coerc[ing] and blacklist[ing] male models[,]" and engaging in "white supremacy dog whistling." She asked Ms. Shanley to "come answer for all the cheating and husband stealing[.]" Ms. Hutchings called Ms. Shanley a "repeat offender" rapist who "ruined everyone's rep[utation]" and said, "now its [sic] your turn."
In addition to the rape allegations, Ms. Hutchings accused Ms. Shanley of being "an actual child molester" who "raped a kid[,]" including her own child. She offered one thousand dollars if "anyone brings [Ms. Shanley] … here." And she uploaded a picture of a man with a noose around his neck after a post stating, "I'm really mad [Ms. Shanley] … you existing is like a total blight on humanity."
Even then, defendant Hutchings had apparently not complied well with her discovery obligations, and this "obstreperous litigation behavior" seems to have continued. As a result, in a detailed order issued today Magistrate Judge Jared C. Bennett (D. Utah) imposed serious sanctions on the defendant:
Though the First Amendment generally limits only actions by the government, many states have statutes that limit even private employers' ability to fire employees for their political activities (see this article for more details); some of them broadly cover ideological advocacy, and not just election-related activities:
[Cal. Labor Code § 1101:] No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics … [or] (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.
[§ 1102:] No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.
And Napear v. Bonneville Int'l Corp., decided yesterday by Judge Dale A. Drozd (E.D. Cal.), allowed claims under these statutes to go forward:
In the fictional town of Lake Wobegon, "all the children are above average." It seems many of those wee Wobegonians have been admitted to law school. Two authors surveyed more than six-hundred incoming law students at the University of Illinois College of Law. Their findings suggest that 1Ls vastly over-estimate their ability to perform well:
The average student predicted that they would finish close to the top 25% of the class (74.9 percentile). Virtually all students (94.9%) predicted that they would finish at the 50th percentile or higher. More than three-quarters (78.2%) of students predicted they would finish in the top 30% of the class, half (53.1%) predicted they would finish in the top 20% of the class, and nearly one-quarter (22.4%) of students thought they would finish in the top 10% in the class. Just 6.2% of students thought they would finish in the top 5% of the class, but thirteen students (2.1%) predicted they would finish at the very top of the class.
Unsurprisingly, 95% of the students were not in the top 50% of the class. Students did not accurately predict their performance. But some students predicted worse than others. As it turns out, the students who ended up performing better underestimated their grades, while students who performed worse overestimated their grades:
Given the high estimates made by students across the board, and consistent with the prior literature, the gap between predictions and outcomes was the biggest for those students who performed the least well. Overconfidence is substantial, in particular, for those in the bottom 25% percent of the 1L class. In contrast, and also in line with earlier studies, students finishing in the top quartile slightly underestimated their eventual 1L ranking.
My sense is that most law students were at the top of their undergraduate classes, and generally did well. When they arrive at law school, they bring that same level of confidence. And in some cases, that overconfidence might lead students to under-prepare for class.
On a personal note, I did quite well in undergraduate, and never received a B. I expected I would do well as a law student. My first semester in law school, when I was an evening student working full-time, was not pleasant. I had no idea what I was doing (see my essay on my 1L year). After the first semester ended (as the numbers would suggest) I was in the 50th percentile. I quickly figured out what I was doing wrong, completely changed my student habits, and finished the 1L year in the top 25%. By the end of my second year I was in the top 10%, and I graduated very close to the top 5%. (For these reasons, I am skeptical of judges who hire law clerks who have only received one semester of grades; they systematically exclude prospects who needed more runway to take off).
Students can improve, but they must have realistic expectations about the process. This study should be presented to all 1Ls at orientation. Students need to recognize that their performance in undergraduate is a thing of the past, and says nothing about their future law school grades.
From Redacted v. Barr, decided April 19 by Judge Cormac Carney (C.D. Cal.):
In this case, Plaintiff [Redacted], acting pro se, challenged child pornography statutes in this era of advanced technology. The Court granted Defendants' motion to dismiss on December 11, 2019, and the Ninth Circuit affirmed on April 22, 2021. Recently, Plaintiff was fired from his job and has faced obstacles with respect to future employment opportunities. Based on an email on which Plaintiff believes he was "mistakenly included" that refers to his "extracurricular legal activities," Plaintiff believes that his involvement in this litigation is the reason he was fired and has faced these obstacles. Now before the Court is Plaintiff's unopposed petition to reopen this case in order to redact his name from the docket and proceed instead under the pseudonym "John Doe."
Plaintiff's unopposed petition is GRANTED. There is a "strong presumption" in favor of public access to court records "based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice."
However, "a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity." In cases when "pseudonyms are used to shield the anonymous party from retaliation," courts determine the need for anonymity by evaluating (1) the severity of the threatened harm, (2) the reasonableness of the anonymous party's fears, and (3) the anonymous party's vulnerability to such retaliation.
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