On July 14, the U.S. District Court for Oregon issued a 122-page opinion, styled Oregon Firearms Federation v. Kotek Oregon Alliance for Gun Safety, upholding Oregon's ban on magazines holding over ten rounds. Its author is Judge Karin J. Immergut. While the reasoning in the opinion is similar to like decisions by some other district courts, what I found remarkable was the disparate treatment of the expert witnesses for the parties.
Because this is an arms ban case, the court should have applied the common-use test required by the Supreme Court in District of Columbia v. Heller. But it didn't. The court rejected plaintiffs' claim that the Second Amendment protects firearms that are in common use and instead skipped to the next step set forth by the Supreme Court in Heller and in New York State Rifle & Pistol Ass'n v. Bruen, asking whether the magazine ban is "consistent with this Nation's historical tradition of firearm regulation." Bruen resolved the historical issue in that case by direct reference to the historical sources, with no need for experts. Judge Immergut wrongly relied on expert testimony. See my prior post on that issue.
Judge Immergut found that plaintiffs' historical expert was biased, but that the defendants' experts were neutral. Plaintiffs' expert was Ashley Hlebinsky, former curator at the Cody Firearms Museum at the Buffalo Bill Center of the West and current Senior Fellow at the University of Wyoming College of Law's Firearms Research Center. Despite her hands-on knowledge of historical firearms and her M.A. in history, she "lacks background and training as a historian," has received awards from the Second Amendment Foundation, and "[p]erhaps most importantly … is married to" a man who derives his income from the firearms industry.
By contrast, "[d]efendants' experts come from neutral academic backgrounds and possess no economic interest in the sale of LCMs [large-capacity magazines]." "This Court finds the testimony of Defendants' neutral historical experts to be significantly more credible—and entitled to more weight—than that of Ms. Hlebinsky." To determine how "neutral" those experts are, I'll focus on Robert Spitzer, who has a Ph.D. in political science and is a professor emeritus at the State University of New York.
In our last episode before the August break, the Cyberlaw Podcast drills down on the AI industry leaders' trip to Washington, where they dutifully signed up to what Gus Hurwitz calls "a bag of promises." Gus and I parse the promises, some of which are empty, others of which have substance. Along the way, we examine the EU's struggling campaign to persuade other countries to adopt its AI regulation framework. Really, guys, if you don't want to be called regulatory neocolonialists, maybe you shouldn't go around telling former European colonies to change their laws to match yours.
Jeffery Atik picks up the AI baton, unpacking Senate Majority Leader Chuck Schumer's (D-N.Y.) overhyped set of AI amendments to the National Defense Authorization Act (NDAA), and panning the claim by authors that AI models have been "stealing" their works. Also this week, another endlessly litigated and unjustified claim of high-tech infringement came to a close with the appellate rejection of a claim that linking to a site violates the site's copyright. We also cover the AI industry's unfortunately well-founded fear of enabling face recognition and Meta's unusual open-source AI strategy.
Richard Stiennon pulls the podcast back to the National Cybersecurity Implementation Plan, which I praised last episode for its disciplined format. Richard introduces me to an Atlantic Council report in which several domain experts marked up the text. This exposed flaws not apparent on first read; it turns out that the implementation plan took a few remarkable dives, such as omitting all mention of one of the strategy's more ambitious goals. That's the problem with strategies in government. They only mean something if the leadership is willing to follow them.
Gus gives us a quick assessment of the latest DOJ/FTC draft merger review guidelines. He thinks it's a overreach that will tarnish the prestige and persuasiveness of the guidelines.
In quick hits:
Richard updates us on the latest U.S. sanctions on European spyware firms. I offer a dissent from the whole campaign.
Gus covers the latest technopanic and media handwringing over the really very satisfying use of technology to catch serial killers and drug dealers.
Speaking of technopanics, I question the latest narrative expressing shock that an FBI agent searched the 702 database using the name of a Senator being targeted by a foreign intelligence service.
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.
"The professor, an expert on the opioids crisis, was placed on paid administrative leave and investigated, raising questions about the extent of political interference in higher education, particularly in health-related matters."
So reports the Texas Tribune (Kate McGee & James Barragan); though the leave was lifted after two weeks, this strikes me as quite troubling. (I've reached out to Texas A & M to see if they can provide more of a statement than what is quoted in the Texas Tribune.) Here's FIRE's letter to the Texas A & M Office of the President today (footnotes omitted, moved text indicated with {/}):
FIRE is deeply troubled by The Texas Tribune's report on Texas A&M University's censure and investigation of Clinical Assistant Pharmacy Professor Joy Alonzo for criticizing the Lieutenant Governor. {This letter reflects our understanding of the pertinent facts, based on public information. We appreciate that you may have additional information to offer and invite you to share it with us.} We urge you to take swift, decisive action to ensure the university will meet its First Amendment obligations to respect faculty's core expressive rights.
When citizens criticize public officials, the First Amendment's protection is "at its zenith." Public university faculty also have broad expressive and academic freedom rights to raise those criticisms in their classrooms, which the Supreme Court has held "occupy a special niche in our constitutional tradition," and where "government should be extremely reticent to tread." {Numerous courts—including the Supreme Court and the Fifth Circuit Court of Appeals, whose decisions are binding on Texas A&M—have recognized the First Amendment's protection of freedom of speech is closely intertwined with academic freedom. See, e.g., Buchanan v. Alexander, 919 F.3d 847, 852-53 (5th Cir. 2019) (academic speech enjoys First Amendment protection even if it occurs pursuant to a professor's official duties.); DeJohn v. Temple Univ., 537 F.3d, 301, 314 (3rd Cir. 2008) ("[F]ree speech is of critical importance [at universities] because it is the lifeblood of academic freedom[.]"); Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) ("academic freedom [is an area] in which government should be extremely reticent to tread.").}
Texas A&M's punishment of Alonzo to please powerful political forces is a stunning abdication of its constitutional obligations, deeply chilling faculty and student expression on campus. It is of no consequence that the Alonzo investigation ultimately resolved in her favor, as the First Amendment prohibits state actors like Texas A&M from any action that "would chill or silence a person of ordinary firmness from future First Amendment activities[.]" Any adverse action taken in response to protected expression—including investigations by state actors with disciplinary authority—can violate the First Amendment.
Today, in a lawsuit brought by the ACLU and other immigrant rights organizations, federal district Judge Jon Tigar of the Northern District of California issued a ruling holding that Biden's new asylum restrictions are illegal. The decision is unsurprising, given that the same judge had previously issued a ruling against a similar Trump policy in 2019 (it was upheld on appeal). The Biden policy, like Trump's before it, violates the plain text of the Refugee Act of 1980, which as Judge Tigar notes, "provides that any noncitizen who arrives in the United States, 'whether or not at a designated port of arrival' and 'irrespective of [their] status, may apply for asylum.'" Asylum can then be granted if the migrant in question is "unable or unwilling to return to" his or her home county "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Asylum can potentially be denied if the migrant had a "safe option" for refuge in another country.
By contrast, under the new Biden policy, non-Mexican migrants who cross the southern border are presumptively barred from applying for asylum unless they fall within certain specified exceptions:
[U]nder the Rule, noncitizens other than Mexican nationals who cross the southern border are presumed ineligible for asylum unless they (1) have received advance permission to travel to the U.S. to apply for parole; (2) present at a port of entry for a pre-scheduled appointment (or without an appointment, if they can demonstrate an "ongoing and serious obstacle" that precluded pre-scheduling); or (3) have already sought and been denied asylum or other protection in another country en route to the U.S.
The Biden Administration argues that these exceptions distinguish the policy from the previously invalidated Trump rule, which was more restrictive. It is indeed true that innovations such as the "CNVH" parole policy for migrants from Cuba, Nicaragua, Haiti, and Venezuela and the possibility of making an appointment using an electronic app, make the Biden rule less onerous than Trump's was.
But, as Judge Tigar explains, the new rule still violates the Refugee Act, particularly when it comes to migrants who are ineligible for the exceptions or unable to take advantage of them:
As written, the Rule imposes a presumption of ineligibility on asylum seekers who did not apply for or were granted asylum in a transit country regardless of whether that country is a safe option. That noncitizens may try to escape the presumption by satisfying a different exception, or that the presumption of ineligibility may be rebutted in exceptionally compelling circumstances, does not address whether a noncitizen has a safe option in another country. While Defendants are correct that failure to seek protection in a transit country alone may not be dispositive for many noncitizens subject to the Rule, it would be so for the subset of noncitizens for whom the other exceptions are unavailable. and who cannot rebut the presumption….
The Court concludes that the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum. The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress's clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option.
Many migrants potentially eligible for asylum cannot take advantage of the various exceptions because they are not from the CNVH nations, have no safe opportunity to apply for asylum elsewhere, and cannot effectively use the often clunky app appointment system. As Judge Tigar notes:
Parole programs are not meaningfully available to many noncitizens subject to the Rule. Though other parole programs exist,…. the Rule generally relies on the parole programs for Cuban, Haitian, Nicaraguan, Venezuelan, and Ukrainian nationals. These programs are country-specific and "are not universally available, even to the covered populations." 88 Fed. Reg. at 31408. The programs are further limited numerically, capped at 30,000 total individuals from Cuba, Haiti, Nicaragua, and Venezuela per month….
Seeking protection in a transit country is similarly infeasible for many asylum seekers subject to the Rule….
Judge Tigar goes on to explain in some detail why many migrants cannot effectively avail themselves of the exception for those who use an app to make an advance appointment.
The judge also ruled against the policy because he concluded that it is "arbitrary and capricious" in violation of the Administrative Procedure Act (APA), and because the rule-making process did not give members of the public (including the plaintiffs) sufficient opportunity to comment on the proposed policy, thereby violating the APA in a different way. I find these arguments less persuasive than the straightforward statutory point. But I will leave them to commentators with greater administrative law expertise.
Regardless, Biden's policy here, like Trump's seems clearly contrary to the text of the Refugee Act. On that point, Judge Tigar's reasoning seems very strong.
The Biden Administration is going to appeal this ruling to the US Court of Appeals for the Ninth Circuit. But unless the Ninth Circuit overrules its decision striking down the Trump asylum policy, it seems likely Judge Tigar's ruling will be upheld. Perhaps the case will then go to the Supreme Court. The conservative justices there tend to be supportive of executive discretion in immigration policy. But should the Court take the case, they might not be willing to go against a statutory text as clear as the one here.
In the meantime, Judge Tigar has stayed implementation of his ruling for 14 days, to give the administration a chance to appeal and apply for a permanent stay. If the Ninth Circuit denies the stay or if it ultimately uphold the lower court decision on the merits, a key part of the Administration's border policy will have been swept away.
In my view, the better approach to border management is not to preemptively bar asylum-seekers fleeing terrible conditions, but to make legal migration easier - thereby obviating the need for many migrants to come to the border at all, and enabling others to quickly move on to their final destinations in the interior. Some of the Biden administration's other policies effectively demonstrate this point.
Regardless, Biden, like Trump before him has tried to bar asylum seekers in a way that blatantly violates the text of the law. Hopefully, this litigation will force the administration to back off and reconsider.
So reports a new Pew Research poll; the view that "The U.S. government should take steps to restrict FALSE information online, even if it limits people from freely publishing or accessing information" polled at 37%-60% (i.e., mostly against) with Republicans, and 40%-57% with Democrats in 2018 (no statistically significant difference there), but now Republicans are 39%-59% against and Democrats are 70%-28% for. Unsurprising, it seems to me: People's views on the question likely depends on how much you trust the U.S. government's judgment of what is "false information," and Democrats today trust it more than do Republicans.
To be sure, the poll question is potentially ambiguous: For instance, if one views "U.S. government" as including state and federal courts, and focuses on libel law as a kind of restriction on false information, one might say yes to the question just because one supports some sort of libel liability. But in practice, I expect that most respondents did focus on broader attempts by the Administration or by Congress to restrict supposedly false information.
Note that the debate in the U.S. about federal government power to restrict false information—including false information that is seen as harmful because it wrongly undermines confidence in the government—is almost as old as the U.S. itself, which dates back to the debates about the Sedition Act of 1798 and similar speech restrictions. The Sedition Act, for instance, banned
From Magistrate Judge Stewart Aaron's Report and Recommendation today in Kelly v. Comm. Workers of Am. (S.D.N.Y.), the factual allegations (assumed to be true for purposes of the motion to dismiss, though of course there hasn't been any finding yet about what the facts actually were):
Plaintiff, a Caucasian male, was employed by Verizon as a Field Technician from February 21, 2000 until May 19, 2021. During this time, Plaintiff was a member of the Union, which was the sole and exclusive bargaining agent of all Field Technicians employed by Verizon. Verizon and the Union are parties to a collective bargaining agreement (the "CBA") that governs the terms and conditions of Union members' employment. The CBA provides that Plaintiff could be terminated from his employment only for cause and includes a grievance and arbitration procedure which provides the exclusive means of enforcing the terms and conditions of the CBA.
On April 6, 2021, when working in the field, not on Verizon property, and during his lunch break, and while sitting on a park bench, Plaintiff took a personal call during which he discussed the news that rapper DMX had been hospitalized and, in discussing DMX's music, used the word "nigga." Unbeknownst to Plaintiff, he inadvertently had answered a call on his company cellular phone, and a Verizon employee who listened to his private call for approximately forty-five seconds overheard him use the word "nigga."
On April 23, 2021, Verizon suspended Plaintiff pending an investigation for discrimination and harassment. On May 10, 2021, Plaintiff was placed on a ten-day suspension pending dismissal and then was informed that he officially would be terminated by Verizon effective May 19, 2021, for violating Verizon's discrimination and harassment policy, the purpose of which was to maintain a respectful, safe and professional workplace, and a work environment free from abusive behavior.
Plaintiff alleges that many non-Caucasian employees routinely used words like "bitch," "cunt," "nigger," "nigga," "kike," and "spic" in the workplace without being reprimanded or disciplined in any way. Plaintiff also alleges that other employees violated Verizon's zero-tolerance policy against violence and never were disciplined for it.
Plaintiff grieved the termination of his employment. Plaintiff alleges that Union officials understood that Verizon's termination of Plaintiff's employment was without cause, but the Union refused to take Plaintiff's meritorious grievance to arbitration. Plaintiff further alleges that Dennis G. Trainor, the Union's Vice President, District 1, informed Plaintiff that the Union officials believed that arbitrating Plaintiff's grievance would have a negative effect upon the Union's reputation with its members and employees because it would be enforcing the rights of a white man who used the word "nigga" and, therefore, that race was a motivating factor in the Union's decision. Plaintiff also alleges that the Union has arbitrated the grievances of the very few African American employees whom Verizon chose to discipline for using the word "nigger" in the workplace….
The court allowed the case to go forward, denying the union's motion to dismiss:
I thought I'd pass along an amicus brief that I submitted earlier this month in Doe v. Sidar, an appeal of a case where the District Court reconsidered its earlier position in favor of pseudonymity. Here's the Summary of Argument:
In deciding this case, this Court ought to be attentive to the costs of one-sided pseudonymity in sexual assault cases—generally, when a plaintiff seeks to sue pseudonymously, but names the defendant. This brief does not take a categorical position on whether such one-sided pseudonymity should always be forbidden in sexual assault cases, but it does seek to explain why there may be an especially strong presumption against it.
In particular:
[1.] While plaintiffs in many cases are understandably concerned that being identified as (for instance) an alleged sexual assault victim is stigmatizing, defendants' being identified as an alleged sexual assaulter is at least as stigmatizing.
[2.] Some plaintiffs may be deterred from filing even meritorious lawsuits, for fear that being publicly identified will damage their reputations—for instance, stigmatize them as litigious employees—or, especially in sexual assault cases, will compromise their privacy. Pseudonymity for plaintiffs is sometimes defended as diminishing this risk. But defendants may be equally deterred from raising even meritorious defenses (such as "I did not do it," or "any sexual behavior was consensual"), for fear that being publicly identified will damage their reputations—especially when defending the lawsuit, rather than settling before it is filed, stigmatizes them as alleged rapists. The case for pseudonymity for sexual assault defendants thus stands on roughly the same footing in this respect as the case for pseudonymity for sexual assault plaintiffs.
[3.] One-sided pseudonymity can also be unfair to the nonpseudonymous sexual assault defendant because of how it affects the process of litigation. One-sided pseudonymity can change the settlement value of a case. Party-witnesses' pseudonymity may diminish their incentives to tell the whole truth. Party pseudonymity may also prevent other witnesses from coming forward. And allowing one party to proceed pseudonymously may signal to the jury that the other party is dangerous and thus perhaps culpable.
To be sure, one possible solution to the problem—mutual pseudonymity—interferes with the public's right of access to court proceedings even more than one-sided pseudonymity does. But on balance, the unfairness of one-sided pseudonymity should generally cut against allowing such pseudonymity, whether or not the optimal solution for a case would be mutual pseudonymity or no pseudonymity.
[4.] In this particular case, where defendant Sidar has already been determined to be liable because of his refusal to provide a DNA sample, there may be reason for this Court to be less concerned about his interests than about Jane Doe's interests. But if this is the basis for this Court's decision, this Court should stress that it is relying specifically on this unusual feature of the case, and is not deciding in favor of one-sided pseudonymity more broadly.
From Full Circle of Living and Dying v. Sanchez, decided earlier this month by Kimberly J. Mueller (E.D. Cal.), denying the parties' joint request to conduct a Final Pretrial Conference remotely:
The court strongly prefers in-person oral argument for its civil law and motion calendar. Attorneys appearing in person are often better prepared, more professional and answer the court's questions more thoroughly, without talking over others. Although the court has previously accepted stipulations for virtual appearance due to the exigencies of the COVID-19 pandemic, as the court has transitioned out of a state of emergency, the court has returned to many of its prior protocols.
The court acknowledges that remote appearances can be useful, as they reduce cost and burden for parties. But the court will no longer routinely grant these requests. Virtual appearance is discouraged.
Here's the scandal. In March 2020, a group of scientists — in particular, Kristian G. Andersen the of The Scripps Research Institute, Andrew Rambaut of The University of Edinburgh, Edward C. Holmes of the University of Sydney, and Robert F. Garry of Tulane University — published a paper in Nature Medicine that seemingly contradicted their true beliefs about COVID's origins and which they knew to be misleading. The paper, "The proximal origin of SARS-CoV-2", has been cited more than 5,900 times and was enormously influential in shaping the debate about the origins of COVID-19.
We know this because of a series of leaked and FOIAed emails and Slack messages that have been reported on by Public, Racket News, The Intercept and The Nation along with other small, independent media outlets. You can find a detailed summary of the claims and a copy of the emails and messages here at Public. There's also good context around the messages here (very detailed) or here and here (more high-level).
The messages show that the authors were highly uncertain about COVID's origins — and if anything, they leaned more toward a lab leak than a spillover from an animal source. But none of that was expressed in the "Proximal Origin" paper, which instead said that "we do not believe that any type of laboratory-based scenario is plausible". Granted, there is a little bit of ass-covering — "More scientific data could swing the balance of evidence to favor one hypothesis over another," they also wrote in the paper. But the message — natural origin good, lab leak bad — was received clearly enough by mainstream news outlets. "No, the new coronavirus wasn't created in a lab, scientists say", reported the CBC in covering the paper. "COVID-19 coronavirus epidemic has a natural origin" was the headline at Science Daily….
What were the authors' motivations to mislead the public? … [Y]ou can find prominent virologists quoted on record as to why the lab leak theory was so problematic — even if it wasn't necessarily wrong. The problems fall into three buckets:
In 1950, Eleanor Roosevelt, serving as the first Chairperson of the United Nations Commission on Human Rights, was involved in a bitter dispute about the limits of free speech. Stalin's Soviet Union fought tooth and nail to ensure that states should not only be permitted, but obliged to prohibit "hate speech" under international human rights law. Roosevelt issued a stark warning, as she found the Soviet proposal "extremely dangerous." It would "only encourage Governments to punish all criticisms in the name of protection against religious or national hostility," and she warned the commission "not to include… any provision likely to be exploited by totalitarian States for the purpose of rendering the other articles null and void."
Fast forward to July 12, 2023, and a majority of the United Nations Human Rights Council proved Roosevelt prophetic. It did so by adopting a resolution that drives a stake through Roosevelt's vision of an international human rights system that protects oppressed citizens against their oppressive governments.
The resolution calls on member states to, among other things, "address, prevent and prosecute acts and advocacy of religious hatred." The resolution is a response to the increasing number of Quran burnings in Denmark and Sweden by Danish far-right extremist Rasmus Paludan and a few copycats. No doubt Paludan is a bigot and revels in the attention and mayhem that his gratuitous provocations elicit. But however tempting it is to silence an extremist like Paludan, criminalizing the burning of "holy books" because it constitutes "advocacy of religious hatred," as the HRC resolution proposes, is short-sighted and dangerous.
It's July, and many academics are likely finalizing their syllabi for the upcoming academic year. For those who may be considering adopting one of my books, I have an offer: if you assign the book, or any substantial part of it, I will do a free virtual presentation to your class. It can be on Zoom or other similar platform. If you are located in the Washington DC area, I can come in person instead - also for free. Outside the DC area, I can potentially come in person, as well; but your institution will have to pay for transportation costs. I've given talks at dozens of universities and other institutions across the United States, and in twenty other countries. So I have experience speaking to a wide range of audiences, including law students, graduate students, undergraduates, and even high school students.
Yes, this is shameless self-promotion. But self-promotion is a time-honored academic tradition. It's a blogging tradition, too. What books do I have available? I'm glad you asked!
My most recent book is Free to Move: Foot Voting, Migration, and Political Freedom(Oxford University Press, revised and expanded edition, 2022). Free to Move makes the case for expanding opportunities for people to "vote with their feet" in the private sector, within federal systems, and through international migration. It explains why all three types of foot voting can do much to expand political freedom and human welfare, and addresses a wide range of possible objections. It's the first book to fit all three types of foot voting in a common framework. FTM is a good fit for courses on democratic theory, migration rights, constitutional structure (there's a whole chapter on the implications of foot voting for latter), international law (chapter on that, too) and general political theory. While the book is relatively new, it has already been used in courses at multiple universities in the US and Canada, including Georgetown and the University of Montreal. I have even heard of it being assigned to at least one high school class. Fifty percent of all royalties generated by FTM go to charities benefiting refugees.
Democracy and Political Ignorance: Why Smaller Government is Smarter (Stanford University Press, 2nd ed., 2016) is my mostly widely assigned book. It explains why widespread political ignorance is a major problem for democracy, critiques standard solutions and attempts to dismiss the problem, and outlines a new approach to addressing it. As with the subject of FTM, you might say that the Trump era and its aftermath has made the issues covered by this book great again. DPI has been assigned in various economics, political science, communications, and law courses at Harvard, NYU, Duke, Swarthmore, BYU, and elsewhere. Also various universities and seminars outside the US, including one as far afield as Ethiopia. It's even been assigned in several high school classes, as well as both undergrad and graduate courses. There are Japanese and Italian translations of the book, if you want to use it in courses in those languages.
The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press, 2015) assesses one of the Supreme Court's most important and controversial property rights decisions. It's useful for law, econ, or political science courses on property rights, law and economics, judicial review, and the interaction of law and popular movements. Suitable for undergrad as well as graduate and law classes. Don't take my word on the latter point. Take that of the American Political Science Association's Law and Politics Book Review, which made this very suggestion!
Eminent Domain: A Comparative Perspective(Cambridge University Press, 2017) is suitable for classes on property and comparative law, and has been used successfully in seminars for government officials in various Asian nations (I co-edited the book with two Korean law and economics scholars).
In some cases, the publishers may offer a bulk discount to students in a class where the book is assigned. Reach out to me or to the publisher for additional information on that, if interested.
Israeli Prime Minister Benjamin Netanyahu. (Chris Emil JanßEn/Zuma Press/Newscom)
Today, Israel's parliament, the Knesset, enacted a law severely limiting judicial "reasonableness" review of government policy. The new law bars reasonableness review of policies enacted by the national cabinet and by individual ministers, but leaves it in place for policies adopted by lower-level government officials and municipal governments.
Critics of "reasonableness" review argue that it's an amorphous standard easily abused by judges. It goes well beyond practices in most other constitutional democracies. While there are some similarities to US "rational basis" review, the latter is far more deferential. The Israeli test is somewhat more akin to various types of heightened scrutiny that in US jurisprudence are usually reserved for government policies that threaten fundamental rights or discriminate on the basis of suspect classifications, such as race, gender, or religion.
Unlike the rest of the Israeli government's judicial reform plan, constraining reasonableness review probably poses only a minor danger to important individual rights. The latter are - for now - still protected by judicial enforcement of the various rights specifically guaranteed by Israel's Basic Laws.
I am not convinced that "reasonableness review" should be as sweeping as it was prior to today's reform. In some cases, it verges on dubious judicial policymaking. Consider, for example, this list of policy decisions the Supreme Court overturned as "extremely unreasonable," compiled by Israeli legal scholar Amichai Cohen (a supporter of reasonableness review):
The decision by the minister of defense not to install protection against rocket attacks in all classrooms in the city of Sderot, and instead to retain the system of common "protective spaces" despite the immediate danger to students (2007).[8]
The decision not to automatically recognize doctoral degrees issued by foreign universities, ignoring the fact that many students had relied on previous decisions by the Ministry of Education when they began their studies (2005).
The decision to suspend the decision of the minister of finance, according to which full-time Kollel (yeshiva) students would lose subsidies for daycare for their children, without giving Haredi families sufficient time to make alternative arrangements (2022).[9]
The decision not to construct a ritual bath (mikve) for women in the town of Kfar Vradim (2014).[10]
Several of these decisions seem right on policy or moral grounds. But I have serious doubts whether any of these issues are the kind well-suited to judicial resolution based on a very vague standard.
Given the highly centralized nature of Israeli government, which has very few checks and balances other than judicial review, I think some kind of more limited "reasonableness" review of executive policies may be justifiable. But, ideally, it would be less expansive than the system in place before today, and focus on specifically enumerated types of abuses of power.
If the right-wing government's judicial reform agenda were limited to the law enacted today, there would only be modest cause for concern. But it goes far beyond that, and would - if fully enacted - gut judicial review and gravely threaten individual rights, especially for Israel's many minority groups. Prime Minister Benjamin Netanyahu recently told US media that he plans to scrap the "override" clause enabling the Knesset to overturn judicial decisions with a simple majority vote. But various right-wing elements of his coalition are trying to force him to reverse himself on that issue. They may succeed, since Netanyahu can't stay in power without their support.
In previous posts, I outlined the reasons why I oppose the right-wing government's attack on judicial review, and how this is consistent with my opposition to left-wing proposals to undermine judicial review in the US. In the latter post, I also responded to various arguments for differentiating the two cases, such as claims that Israeli judicial review is illegitimate because Israel does not have a written constitution. Some commentators on both right and left have taken inconsistent stances on the Israeli and US cases. Here, as elsewhere, partisan and ideological commitments often trump long-term institutional principles.
Left-wing Americans who (justifiably) condemn Netanyahu's plan, but favor gutting judicial review in this county, should ask themselves whether they really want the next right-wing Republican president to be free of judicial constraints. They might also consider whether it would have been a good thing if Donald Trump had been able to successfully defy judicial rulings against his efforts to overturn the results of the 2020 election.
While I oppose the right-wing government's plans, I have also argued (as have many experts in both Israel and the US), that Israel would do well to develop stronger non-judicial checks on centralized government power, such as systems of federalism and separation of powers. It's dangerous to put too many eggs in the vulnerable judicial basket. Israel should also adopt a written constitution that clearly elevates fundamental rights and structural constraints on state power above ordinary legislation, and puts judicial review on a firm foundation.
There is in fact a long history of Israeli proposals for a written constitution, including a recent call to draft one by opposition leader and former prime minister Yair Lapid. But the idea seems unlikely to come to fruition anytime soon.
In the meantime, it is probable that severe conflict over judicial reform is going to continue in Israel. The government seems intent on pursuing at least some of the more radical elements of its agenda, and opponents have responded with massive protests- among the biggest in Israeli history, and various strikes and disruptions. I hope the government fails in its efforts, and that the conflict over its dangerous policies does not cause too much harm.
UPDATE: I should note that, in suggesting that Israel would do well to adopt a written constitution, federalism, and separation of powers, I do not mean to suggest that these structures should be the same as those in the US. While extreme centralization and concentration of government power is a bad idea for both countries, it doesn't follow that they should adopt identical (or very similar) approaches to limiting and decentralizing it.
Law students around the country will be starting classes over the next few weeks. Back in 2018, I wrote a post offering advice to entering students, which I updated in 2019 and last year. I tried to focus on points that I rarely, if ever, see made in other pieces of this type. I think all three of my original suggestions remain just as relevant today. So I reprint my advice from earlier posts largely unaltered, but with the addition of some modest editing and updating, and a new point:
1. Think carefully about what kind of law you want to practice.
Law is a profession with relatively high income and social status. Yet studies repeatedly show that many lawyers are deeply unhappy, a higher percentage than in most other professions. One reason for this is that many of them hate the work they do. It doesn't necessarily have to be that way. There are lots of different types of legal careers out there, and it's likely that one of them will be a good fit for you. A person who would be miserable working for a large "Biglaw" firm might be happy as a public interest lawyer or a family law practitioner, and so on. But to take advantage of this diversity, you need to start considering what type of legal career best fits your needs and interests.
There are many ways to find out about potential options. But one place to start is to talk to the career services office at your school, which should have information about a range of possibilities. Many also often have databases of alumni working in various types of legal careers. Talking to these people can give you a sense of what life as a practitioner in Field X is really like.
Regardless, don't just "go with the flow" in terms of choosing what kind of legal career you want to pursue. The jobs that many of your classmates want may be terrible for you (and vice versa). Keep in mind, also, that you likely have a wider range of options now than you will in five or ten years, when it may be much harder to switch to a very different field from the one you have been working in since graduation.
2. Get to know as many of your classmates and professors as you reasonably can.
Law is a "people" business. Connections are extremely important. No matter how brilliant a legal thinker you may be, it's hard to get ahead as a lawyer purely by working alone at your desk. Many of your law school classmates could turn out to be useful connections down the road. This is obviously true at big-name national schools whose alumni routinely become judges, powerful government officials, and partners at major firms. But it's also true at schools whose reputation is more regional or local in nature. If you plan to make a career in that area yourself, many of your classmates could turn out to be useful contacts. The same holds true for professors, many of whom have extensive connections in their respective fields. They are sometimes harder to get to know than students. But the effort is often worth it, anyway. And many of them are actually more than eager to talk about their work.
This is one front on which I didn't do very well when I was in law school, myself. Nonetheless, I still suggest you do as I say, not as I actually did. You will be better off if you learn from my mistakes than if you repeat them.
3. Think about whether what you plan to do is right and just.
Law presents more serious moral dilemmas than many other professions. What lawyers do can often cost innocent people their liberty, their property, or even their lives. It can also save all three. Lawyers have played key roles in almost every major advance for liberty and justice in American history, including the establishment of the Constitution, the antislavery movement, the civil rights movement and many others. But they have also been among the major perpetrators of most of the great injustices in our history, as well.
Robert Cover's classic book Justice Accused - a work that made a big impression on me when I was a law student - describes how some of the greatest judges and legal minds of antebellum America became complicit in the perpetuation of slavery. While we have made great progress since that time, the legal system is not as far removed from the days of the Fugitive Slave Acts as we might like to think. There are still grave injustices in the system, and lawyers whose work has the effect of perpetuating and exacerbating them. We even still have lawyers who do such things as come up with dubious rationales for deporting literal escaped slaves back to places where they are likely to face further oppression.
Law school is the right time to start working to ensure that the career you pursue is at least morally defensible. You don't necessarily have a moral obligation to devote your career to doing good. But you should at least avoid exacerbating evil. And it's easier to do that if you think carefully about the issues involved now (when you still have a wide range of options), than if you wait until you are already enmeshed in a job that involves perpetrating injustice. At that point, it may be too late - both for you and (more importantly) for the people harmed.
4. Legal knowledge isn't as different from other kinds of knowledge as you might think.
This is the new point for 2023. Students often ask me how best to study for law school classes. My answer is that there isn't one way that's best for everyone. You probably know what works for you far better than I do.
In law school, you are likely to be bombarded with all sorts of complex methods of studying and outlining cases. Advocates of each will often tell you theirs is the One True Path to law school success. Some students really do find these methods useful.
But I would urge you to consider the possibility that you can study for law school classes by using…. much the same methods as you used to study other subjects in the past. If you were successful in social science and humanities classes as an undergraduate, the methods that worked there are likely to carry over.
I know because that's largely what I did as a law student myself. I did the reading, identified key points, and didn't bother with complicated outlines or spend money on study guides. If I did badly in a class, it wasn't for lack of more complex study methods (usually, I either got lazy or just had a bad day on the final exam). And I've seen plenty of other people succeed with similar approaches. You can save a lot of time and aggravation (and some money) that way. And that time, energy, and money can be better devoted to other purposes - including advancing your studies and your career in other ways!
Ultimately, when reading a legal decision (or any assignment), you need to 1) identify the key issues, and 2) understand why they are important. With rare exceptions, the case was likely included in the reading because it highlights some rule, standard, or issue that has a broader significance. If you know what that is and why it matters, much of your work is done.
The experience of the Covid-19 pandemic has highlighted the importance of Point 2. The loss of much in-person contact was a serious problem, one we would do well to avoid repeating.
I don't think I need to dwell on how the events of the last few years have reinforced the significance of Point 3. Suffice to say there are many recent examples of lawyers facilitating both good and evil. Even if you don't maximize the former, you should at least avoid contributing to the latter.
Tomorrow I will argue that families who lost relatives in the crashes of two Boeing 737 MAX aircraft should be able to confer with prosecutors about prosecuting Boeing for lying to the FAA.
Previously I blogged about my petition to the Fifth Circuit under the Crime Victims' Rights Act (CVRA). My petition argues the families who lost relatives in the crashes of two Boeing 737 MAX crashes should have been afforded their CVRA rights to confer with prosecutors about prosecuting Boeing for its admitted crime of lying to the FAA about the safety of the MAX. The Fifth Circuit has set oral argument on the case, and tomorrow I will argue to the Circuit that it should grant the petition. In this post, I briefly set out the procedural history of the case and link to important briefs on both sides of the case (some citations omitted) for those who are interested.
The case arises out of "the deadliest corporate crime in our nation's history," as the district court described it. During the development of the Boeing 737 MAX, Boeing lied to the FAA about new safety features of the aircraft. As a result of that deception, the FAA did not require pilot training on those new features--ultimately causing the crashes of two of the aircraft and producing the deaths of 346 passengers and crew.
Ultimately, the Justice Department began an investigation into Boeing crimes. And late in 2020 and early 2021, the Department reached a deferred prosecution agreement (DPA) with Boeing. Under the DPA, Boeing admitted that it criminally conspired to deceive the FAA. But, under the DPA, Boeing will not be prosecuted for its crimes in exchange for various concessions.
On January 7, 2021, the DPA was filed in the U.S. District Court for the Northern District of Texas. The 346 families whose relatives were killed in the crashes were not informed about the deal--and never were given an opportunity to confer with prosecutors about it. Instead, they learned about the DPA through social media.
Eleven months later, after I agreed to represent some of the family members pro bono, the families filed a challenge to the DPA. The families argued that the DPA had been entered into in violation of their rights under CVRA, including their right to confer with prosecutors before any deal was finalized. After lengthy proceedings, on October 21, 2022, the district court found that the families represented "crime victims"--that is, their relatives who were killed as a result of Boeing's crimes. And the district court found that the families' CVRA rights, including the right to confer, had been violated. But several months later, on February 9, 2023, the district court concluded that it could not award any remedy to the families to enforce their rights. Read More
I received a long and thoughtful response to my post last month about the codified text of 42 U.S.C. 1983, from two lawyers at the Institute for Justice, Patrick Jaicomo and Daniel Nelson. I will reproduce it in full here (it continues after the break).
In a post last month, Professor William Baude joined a growing body of lawyers, judges, and commentators who have come upon a long-overlooked yet "game-changing"clause in the original text of 42 U.S.C. Section 1983, the federal statute which authorizes civil rights lawsuits against state officials. This clause, it turns out, shatters the foundation for one of today's rightfully most criticized legal doctrines: qualified immunity.
The original text of Section 1983 proclaimed, in unequivocal terms, that state officials who had violated someone's rights would be liable under federal law, "any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding." In other words, this Notwithstanding Clause took all state-law defenses, including qualified immunity, completely off the table. But just three years after Section 1983 was passed, the Notwithstanding Clause was clipped for space, as compilers organized federal law into the Revised Statutes of 1874.
Because the language was dropped from Section 1983 when the statute was reworded, Baude wonders if the Notwithstanding Clause is relevant today. It absolutely is.
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