Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
In 2021, the Fort Bend, Tex. sheriff excluded independent journalist Justin Pulliam from a press conference, claiming Pulliam was not "media." A few months later, deputies arrested Pulliam while he was filming their activities, claiming he was "interfering"—part of a pattern of retaliation against Pulliam for his journalism. But good news! A federal district court recently ruled that claims against the sheriff, his deputies, and the county can proceed. Click here to learn more.
Request for Paper Proposals
Snapshot:
Voices for Liberty, an initiative of the Liberty & Law Center at the Antonin Scalia Law School, seeks to examine the ways in which free speech propels civil and social progress. Authors are invited to submit proposals for original articles that will ultimately appear in academic journals and explore the role free speech plays in advancing civil rights movements, especially for marginalized or underrepresented groups.
PRIORITY DEADLINE of August 15th 2023, 5:00 ET for full consideration, with review on a rolling basis through September 8th.
All proposals should include a summary of issues to be addressed, the proposed methodology, and feasibility of having a completed draft by June 2024, with final submission by September 2024. Selection includes participation in a series of support and writing events. Full application details follow.
Full Details:
What role has freedom of speech played when it comes to the legal and social progress of groups that have been historically disadvantaged and/or socially marginalized? In the current public debate, some view freedom of speech as detrimental to minority groups, while others champion it as a necessary condition for protecting underrepresented voices. The former view is more often espoused in both the academy and the popular press. As a result, freedom of speech is frequently seen as a countervailing force in tension with civil rights. But is it?
Voices for Liberty aims to:
• Highlight and focus attention on important contributions to the welfare of minority and underrepresented groups made by the ability to speak throughout history;
• Analyze the effects of restricting speech;
• Assess the argument that limiting speech will help minority groups achieve greater equality; and
• Share evidence of the impact of robust speech protections on current and future civil rights movements.
Original scholarship of specific interest includes, but is not limited to:
• A historical examination of the relationship between social progress on minority rights and concerns and freedom of speech for groups and movements such as (but not limited to) abolition, women's suffrage, women's liberation, religious minorities, the Civil Rights Movement and LGBTQ rights.
• The role free speech plays in advancing the causes of contemporary social movements such as Black Lives Matter, transgender rights, the MeToo movement, etc.
• The role of free speech in making possible new and future civil rights movements.
• The impacts of speech regulation, including hate speech provisions, on civil rights movements and underrepresented groups.
• The impacts of social media and technology on the relationship between civil rights of minority and underrepresented groups and free speech. Read More
I tend to be a bit skeptical of the value of open letters, and I rarely sign them, partly for that reason, and partly because I rarely agree wholeheartedly with the entire letter.
That said, I signed the one below (as did co-Conspirator Randy Barnett, among other luminaries), and you can add your signature here if you are so inclined. (Note, this letter is a project of David Bernstein of the Jewish Institute for Liberal Values. This is not me, though we cause at least as much confusion as the two Ilyas. Making matters worse, we both published books last year, and our mutual editor at Post Hill press is … another David Bernstein.)
An Open Letter from Jewish Scholars about Today's Intellectual Environment
*THIS LETTER IS FOR JEWISH SCHOLARS AND FRIENDS IN THE ACADEMIC WORLD
Dear Friends,
We, the undersigned Jewish scholars and academics, are concerned about the current ideological environment in the US and elsewhere and the increasingly censorious culture in many institutions of higher learning. Although we are acutely aware of the illiberalism and threats to academic freedom emanating from the political right, and in no way downplay these dangers, in this letter we focus our attention on, and express our deep concern about, a dangerously intolerant ideology on the political left that has taken hold in academia.
We firmly believe that the purpose of education is to teach students how to think, not what to think. A liberal education, by definition, should present students with different approaches to important questions so they can appreciate the complexity of issues and at the same time attempt to formulate their own opinions. Too often, however, universities and campus communities have veered away from their core missions and have propagated—among both faculty and students—a set of moral and intellectual attitudes that restrict critical inquiry, viewpoint diversity, and intellectual openness. We regard such inquiry and openness as bedrocks of any liberal, democratic society. As taught in the Ethics of Our Fathers, "Who is wise? He who learns from every person, as it is said: 'From all who taught me have I gained understanding.'"
Moreover, the suppression of unpopular opinions impinges on society's ability to address problems. What happens in academia rarely stays in academia. Shutting down scholarly inquiry ultimately limits the range of popular discussion on social issues, including sensitive topics such as race and gender identity, and makes it difficult, if not impossible, for intellectual and political leaders to formulate sound policy, promote advances in science, and resolve social tensions. Good scholarship, which cannot thrive if it is blinkered by ideological demands, bureaucratic restrictions, and groupthink, can and must inform the public conversation.
The ascendency of an ideology that reduces people to "oppressed" and "oppressors" and categorizes individuals into monolithic group identities poses a particular threat to the Jewish people. In this stark, neo-Manichean worldview, Jews are frequently grouped with the privileged, and Israel is dogmatically singled out as an oppressor-state–a shallow dichotomy that foments new variants of antisemitism and reinforces old ones.
As scholars, we stand for the principles of free inquiry in our educational institutions. As Jewish scholars, we remind the Jewish community and others of the dangers of any ideology that diminishes the free exchange of ideas. Instead, we encourage leaders and educators to stand up for our deeply held liberal principles and our own tradition of "argument for the sake of heaven."
Earlier today, a group of 83 prominent conservative (and a few libertarian) academics, intellectuals, and public policy experts issued the "Freedom Conservatism" Statement of Principles. One of the signers, John Hood, has written an article where he summarizes the group's principles, as follows:
We believe in free enterprise, free trade, free speech, strong families, balanced budgets, and the rule of law. We champion equal protection and equal opportunity. We think Washington has too much power and our states, communities, private associations, and household have too little. We believe Americans are safest and freest in a peaceful world that is led by a United States committed to pursuing its just interests.
With the caveat that it's far from entirely clear what counts as a "just interest" of the United States, this sounds great to me! I also agree with much of Stephanie Slade's Reason article about the "Freecon" statement, particularly where she notes its superiority over the rival "National Conservatism" statement of principles, issued last year. Compared to most of what is produced by the so-called New Right, the Freecon statement is a much-needed breath of fresh air.
I largely agree with all but one or two of the Freecon principles, and partly endorse even the latter. I'm also a longtime admirer of the writings of many of the signers.
But I still have some questions and reservations. I completely understand that any group statement will involve some compromise, and that no such statement can include much detail, without becoming too long and unwieldy. Still there are issues the signatories may need to rethink or at least consider in more detail as they move forward.
In what follows, the Freecon principles are in block quotes, and my comments in regular text:
Liberty. Among Americans' most fundamental rights is the right to be free from the restrictions of arbitrary force: a right that, in turn, derives from the inseparability of free will from what it means to be human. Liberty is indivisible, and political freedom cannot long exist without economic freedom.
I agree completely! But I wonder how far the signers are prepared to go with this idea. If "liberty is indivisible," does that mean they reject paternalistic restrictions on freedom supported by many social conservatives, such as the War on Drugs and laws banning pornography and prostitution? Are they on board with the "My body, my choice," principle, and all its implications? For some of the more libertarian signers, I think the answers to these questions are "yes." For others, I'm not so sure.
The pursuit of happiness. Most individuals are happiest in loving families, and within stable and prosperous communities in which parents are free to engage in meaningful work, and to raise and educate their children according to their values.
I completely agree with this one, as well! Though the caveat of "most" is significant. I assume the signers rightly acknowledge that some people are happiest remaining single. But, here too, I wonder how far the signers are willing to go. Does their conception of "loving families" include those built on same-sex marriage? Should parents be free to "raise educate their children according to their values" if those values are left-wing or allow for things like gender reassignment? Once, again, I am confident the answers to these questions are "yes" for the more libertarian-leaning signers, but not sure about some others.
The foundation of prosperity. The free enterprise system is the foundation of prosperity. Americans can only prosper in an economy in which they can afford the basics of everyday life: food, shelter, health care, and energy. A corrosive combination of government intervention and private cronyism is making these basics unaffordable to many Americans. We commit to reducing the cost of living through competitive markets, greater individual choice, and free trade with free people, while upholding the rule of law, freedom of contract, and freedom of association.
It's hard to find a bone to pick with this one! My only possible reservation is about the meaning of "free trade with free people." Taken literally, it may mean a rejection of free trade with the billions of people who live under oppressive dictatorships of one kind or another. I suspect the signers actually mean we might need some narrowly targeted trade restrictions to prevent, e.g., the sale of weapons technology to authoritarian adversaries like China and Russia. But the meaning of this point may require some clarification.
Full faith and credit. The skyrocketing federal debt—which now exceeds the annual economic output of the United States—is an existential threat to the future prosperity, liberty, and happiness of Americans. We commit to building a constructive reform agenda that can restore America's fiscal sustainability, ensuring that future generations inherit a more prosperous and secure nation than the one we now inhabit.
I would not have used the term "full faith and credit" (which has a technical legal meaning that may confuse readers) to denote this idea. "Fiscal sanity" might be better. But otherwise, I completely agree. I wish, however, the authors would have made clear the need to cut entitlement spending, as part any "reform agenda" for getting federal spending under control. This is a problem both major political parties, "national conservatives," and most left-liberals seem determined to ignore.
5. A nation of laws, not men. Equality under the law is a foundational principle of American liberty. Unfortunately, today this principle is under attack from those who believe that the rule of law does not apply to them. One manifestation of this problem is the explosion of unaccountable and unelected regulators who routinely exceed their statutory authority and abridge Americans' constitutional rights. The President should only nominate policymakers and judges who are committed to upholding these rights.
I agree with much of this, but have a reservation. The rule of law has been undermined because we have too many laws. But I'm not convinced that "unaccountable and unelected regulators" are a bigger menace than the elected politicians and voters who empower them. Many of the biggest power grabs and rights violations of recent years have been originated by the occupants of the White House, rather than by regulators and bureaucrats acting on their own initiative. Indeed, there are few bureaucrats and regulators that the president and Congress could not hold accountable if they wanted to. The problem is not so much rogue regulators as an excessive concentration of power in the federal government.
Americans by choice. Immigration is a principal driver of American prosperity and achievement. America is exceptional because anyone—from any corner of the earth—can seek to live in America and become an American. Nearly all American citizens descend from someone who came here from somewhere else, and we must treat all citizens equally under the law. To this end, the United States, as a sovereign nation, has the right to secure its borders and design a rational immigration policy—built on the rule of law—that advances the interests and values of American citizens.
This is the one I have the most reservations about. The statement rightly praises immigration's crucial role in promoting American "prosperity and achievement" and in American exceptionalism, more generally. But it then seems to suggest (the text is not entirely clear on that point) that the US has a "sovereign" power to restrict immigration as it wishes, even equating this to "secur[ing] its borders." The latter, perhaps unintentionally, perpetuates the pernicious conflation of immigration restriction with security against attack. Noticeable by its absence is any recognition that immigration restrictions violate the "liberty" and "the right to be free from the restrictions of arbitrary force" that is at the heart of the statement's Principle 1. And, yet, immigration restrictions do in fact severely infringe the freedom of both would-be immigrants and current American citizens. Indeed, they likely do so more than any other US government policy - even if we consider only the liberty of native-born Americans.
Admittedly, Principle 6 is vague enough to be susceptible of more pro-immigration interpretations. For example, perhaps advancing "the interests and values of American citizens" requires abolition of all or most immigration restrictions (I certainly think it does!). But if that's what the authors mean, it would help to be more clear about it.
Out of many, one. The best way to unify a large and diverse nation like the United States is to transfer as many public policy choices as possible to families and communities. Much of the discord in America today comes from the fact that too many decisions are made for us by centralized authorities. The Constitution of the United States is the best arrangement yet devised for granting government the just authority to fulfill its proper role, while restraining it from the concentration and abuse of power.
America's promissory note. Martin Luther King, Jr. described the Constitution and the Declaration of Independence as containing "magnificent words…a promissory note to which every American was to fall heir." Prior to 1964, however, slavery and segregation were enforced by state governments and, in many cases, by the federal government. Many who descend from victims of this system now face economic and personal hurdles that are the direct result of this legacy. We commit to expanding opportunity for those who face challenges due to past government restrictions on individual and economic freedom. We adamantly oppose racial discrimination in all its forms, either against or for any person or group of people.
The shining city on a hill. American foreign policy must be judged by one criterion above all: its service to the just interests of the United States. Americans are safest and freest in a peaceful world, led by the United States, in which other nations uphold individual liberty and the sovereignty of their neighbors.
It's hard to disagree with any of this. But that's in large part because it's hard to tell what this principle actually means. Much depends on what exactly counts as "the just interests of the United States." Interpreted narrowly, it might mean indifference to all but direct security threats (narrowly defined), or narrow American material self-interest. But the second sentence suggests America has an interest in promoting a world where "other nations uphold individual liberty and the sovereignty of their neighbors." If so, that might justify things like humanitarian intervention, backing Ukraine in its resistance to Russian aggression, and much else.
Also, what if upholding "individual liberty" conflicts with upholding "sovereignty," as it often does in many situations where sovereigns perpetrate human rights violations? Is outside intervention to protect liberty justified in such cases, or must we respect to sovereignty of oppressive regimes?
I am somewhat more hawkish than many of my fellow libertarians, and believe we should back Ukraine and other relatively liberal states against authoritarian adversaries. But it's hard for me to tell what kind of foreign and security policy the Freecons are advocating here. Perhaps this vague language is an attempt to finesse internal disagreements. The issue is a crucial one that has led to major internal divisions among conservatives - and libertarians, as well.
Freedom of conscience. Essential to a free society is the freedom to say and think what one believes to be true. Under the First and Fourteenth Amendments to the Constitution, federal and state governments have a legal obligation to uphold and protect these freedoms. Private institutions have a moral obligation to do the same.
Agreed. My one caveat is I'm not sure what is meant here by the "moral obligation" of private institutions to uphold and protect freedom of speech and conscience. If it means merely that they have an obligation to abjure lobbying for censorship by the state, I agree. But I differ if it means all private organizations have a duty to promote free speech internally, similar to the government's obligations under the Constitution. For example, a conservative organization can legitimately hire only conservatives, publish only conservative views in its publications, and the like. The same goes for, e.g., a church that only wishes to promote speech compatible with its theology.
Much more can be said about many of these issues! But this post is already long, so I will leave off. Despite my caveats and reservations, there is much to praise in the Freecon statement. I hope and expect they will elaborate their ideas more fully in the future.
On June 30, 2022, just a week after the Supreme Court decided the Bruen case, Delaware Governor John Carney signed into law a ban on "assault weapons" and standard-capacity magazines, effective immediately. Apparently he didn't get the memo that a ban on firearms in common use is off the table constitutionally.
Delaware plagiarized California's 1989 findings that it was imperative to ban any gun that is not a "sports or recreational firearm." The state ignored the Delaware Bill of Rights guarantee of the right to bear arms "for the defense of self, family, home and State," and disregarded Heller's admonition that self-defense is "the central component of the right itself."
Delaware copied a definition from Connecticut that criminalizes a rifle depending on where one's fingers are placed when firing, and Maryland's long list of banned rifles, such as the Colt AR-15. Curiously, that list excludes AR-15 HBAR (heavy barrel) rifles, unless made by Bushmaster – any semiauto rifle made by that firm is banned.
The U.S. district court for the district of Delaware's denied a motion by challengers for a preliminary injunction on the basis that they are not likely to prevail on the merits. The case is Delaware State Sportsmen's Ass'n v. Del. Dep't of Safety & Homeland Security. Appeal briefs are now being filed, which includes an amicus curie brief on behalf of the Delaware Association of Second Amendment Lawyers by yours truly and co-counsel Dan Peterson. Here are some of our arguments.
Heller held that arms that are in common use for lawful purposes – those chosen by the American people – are protected by the Second Amendment. That rule should resolve any gun ban without further ado. Bruen's methodology, which evaluates restrictions by reference to the text of the Second Amendment and historical analogues, applies to regulations such as about where guns may be carried, not to outright bans on possession, where the common-use test applies. Read More
In Fourth Amendment law, the authority to grant consent to search allows you withdraw that consent, too, at least before the search occurs. But consider this wrinkle. When the government searches a computer, the forensic process has two distinct steps. First, the government makes a perfect copy of the data (known as an "image") and saves in on a government storage device. Second, the government searches the image rather than the original.
So how does withdrawal of consent work now? There are two key questions.
First, if a computer owner grants consent to search, an image is made, and then consent is withdrawn, does the withdrawal of consent extend to the image? That is, does the owner's control include control of the copy on the government's machine? Or does the government necessarily control the image?
Second, if an owner retains rights in the image, is there a different result if the owner signed a consent form stating that, once the government made the copy, the owner relinquished rights in the copy? That is, can rights retained in the image that might generally exist with a general consent be relinquished if there is specific and explicit disavowal of rights as to the image?
There have been a few district court rulings that touched very briefly on the first of these questions. Long-time readers may remember I blogged about two of those cases; you can read my 2009 post from our volokh.com days here and my 2015 post from the Washington Post era here.
All of this is a wind-up to say that, last week, the Maryland Supreme Court ruled on both questions in considerable detail in an important new case, State v. McDonnell. McDonnell is the first case to address both of the issues, and it did so in detail. Given the detail of McDonnell's reasoning, and how sparse the caselaw has been, I think McDonnell is worth a close look.
The basic facts are simple. McDonnell signed and initialed a consent form that said the following:
I have been informed of my right to refuse to consent to such a search. I hereby authorize the undersigned Special Agent, another Special Agent or other person designated by USACIDC, to conduct at any time a complete search of: . . . all digital media including cell[ ]phones, thum[b ]drive[s], hard disk drives, laptops & any other media relevant to this investigation.
I understand that any contraband or evidence found on these devices may be used against me in a court of law.
I relinquish any constitutional right to privacy in these electronic devices and any information stored on them. I authorize USACIDC to make and keep a copy of any information stored on these devices.
I understand that any copy made by USACIDC will become the property of USACIDC and that I will have no privacy or possessory interest in the copy.
I give this written permission voluntarily. I have not been threatened, placed under duress, or promised anything in exchange for my consent. I have read this form or it has been read to me and I understand it. . . .
I understand that I may withdraw my consent at any time.
Based on McDonnell's consent, investigators seized McDonnell's devices and imaged his computer a few days later. And a few days after that, McDonnell's lawyers sent a message to the government withdrawing consent. Relying on the language in the consent form, agents then searched the image anyway. McDonnell later moved to suppress the evidence found on the image, arguing that it was the fruit of an unlawful search and seizure because he had previously withdrawn his consent.
In the new case, the Maryland Supreme Court unanimously agreed with McDonnell. First, McDonnell's withdrawal of consent blocked the government's ability to rely on consent to search the image as well as the original. And second, the potentially contrary language in the consent form did not alter that holding.
Here's the court's reasoning as to the first holding, that a person generally retains rights to withdraw consent as to images, at least until the images are searched:
The October 2022 Term of FantasySCOTUS has come to a close. This term was one a bit of a letdown after last term, but still packed some punch. And FantasySCOTUS did quite well. In the aggregate, our crowd predicted 75% of the cases accurately, down from 81% last term.
This year, the Chief Justice of the league was Brady Kelly. Players receive ten points for each correct prediction of a Justice's vote. We recorded 56 merits cases (DIGs do not count). A perfect score would have been 5,600 points. Brady scored 4,650 points. Bill Corteal, who was the champion last year, was the runner-up with 4,250 points.
Brady lives in the District of Columbia and works in analytics consulting, but not in politics, government, or law. In fact he has no legal training or background whatsoever. Brady tells me that he enjoys problem-solving, whatever the context.
Brady's first exposure to Supreme Court cases was reading ones with a direct impact on his life - especially United States v. Windsor (2013). From there he developed an interest in appellate law and the Supreme Court. Brady first begin to predict case outcomes after hearing about FantasySCOTUS in 2015. But, he explains, after predicting a few cases, life got in the way, and he took a pause. The October 2022 term was his first time reading more than a handful of the cases in a given year, and he really enjoyed the process and the competition.
I asked Brady how he goes about predicting cases. He said the first thing he always does is read the decision below. And if he still doesn't fully understand the issues, he reads the petitioner and respondent briefs too. From there, he really tries to focus on what he personally thinks the right interpretation of the law is, focusing squarely on the text and on precedent. Brady admitted that he is certainly not qualified to have an opinion on these questions, but finds it most helpful to start there rather than as an outside observer just predicting what other people will think. Brady acknowledged that he does not always expect his interpretation to be the majority opinion, just that he finds it a helpful framework to start with. Only then does he try to predict which justices he'll end up agreeing vs. disagreeing with. Once he has formed a tentative opinion, he'll listen to the oral arguments and change predicted votes around as needed.
I asked Brady what case gave him the most difficulty. He responded, Health and Hospital Corporation of Marion County v. Talevski. He felt pretty confident in predicting a 7-2 majority that FNHRA could theoretically be enforced through section 1983, but there were still multiple layers of questions after that point. Brady missed this case, when other top players got it right. Brady explained that he missed the implicit-preclusion path question. Brady told me that having so many separate questions, each of which could change the case's outcome, was stressful.
Another challenging case for Brady was Jones v Hendrix. On that one, his predictions were right. But Brady said it was very difficult - as a certified non-lawyer - to try to understand federal Habeas Corpus law. He is still not sure he understands it. (Join the club).
Brady really enjoys listening to the oral arguments on Oyez, especially when someone just hits it out of the park. He told me he personally thought the best two examples this term were Solicitor General Prelogar in Groff v. DeJoy and Colleen Roh Sinzdak in Amgen v. Sanofi.
Brady also has a favorite writer: Justice Kagan, with Justice Barrett in second place, even though he might not agree with Barrett as often as he agrees with Kagan. If the two of them are on the same side (e.g. the dissent in Mallory, the dissent in Bittner, or the concurrence-in-judgment in Abitron Austria), he is guaranteed to end up agreeing with them.
Congratulations Brady, and to all the participants in the competition. We will launch next term's competition on the first Monday in October.
When people search for Jeffery Battle in Bing, they get the following (at least sometimes; this is the output of a search that I ran Tuesday):
But it turns out that this combines facts about two separate people with similar names: (1) Jeffery Battle, who is indeed apparently a veteran, businessman, and adjunct professor, and (2) Jeffrey Leon Battle, who was convicted of trying to join the Taliban shortly after 9/11. The two have nothing in common other than their similar names. The Aerospace Professor did not plead guilty to seditious conspiracy.
And this Bing output doesn't just list the facts about each of the Battles separately, the way that search engine results have long listed separate pages separately. Rather, it expressly connects the two, with the "However, Battle was sentenced …" transition, which conveys the message that all the facts are about one person. And to my knowledge, this connection was entirely made up out of whole cloth by Bing's summarization feature (which is apparently based on ChatGPT); I know of no other site that actually makes any such connection (which I stress again is an entirely factually unfounded connection).
Battle is now suing Microsoft for libel over this, in Battle v. Microsoft (D. Md.) (filed Friday). He's representing himself, and the Complaint is flawed in various ways. But, if the case is properly framed, he may well have a serious argument. That is especially so if he can substantiate his allegations that he had informed Microsoft of the problem and it didn't promptly fix it.
In law schools, generations of students have been taught the IRAC model to answer legal questions. First, students must spot the issue--what legal doctrine do the facts implicate? Second, students must state the rule--what particular legal precedent, statute, or principle governs this conflict? Third, students must then apply the rule to these facts--under a particular legal standard, how should the court rule? Fourth, students must state the conclusion--who wins, the plaintiff or the defendant?
Of course, there are many variations of IRAC, and invariably, many students stop using it rigidly at some point during the second year. But the basic process--applying a rule to particular facts is a cornerstone of legal education.
That background brings me to the NextGen bar exam. I have written about this new formulation of the multistate bar exam, which will launch in some states in 2026. Justice Jay Mitchell of the Alabama Supreme Court already expressed a concern that the National Conference of Bar Examiners (NCBE) is placing DEI concerns over competence. (Critics contend that the bar exam is racist, and should be eliminated). I have another concern, which may be related--the NCBE seems to be making the exam substantially easier.
The NCBE released a batch of questions to demonstrate how the NextGen exam will function. The multiple choice questions reflect a new approach. Rather than forcing students to memorize particular rules, and then apply them, the new questions only ask students to spot the issue. The thinking is that practicing attorneys do not actually have to memorize particular rules, or even know how to apply them. So long as they can recognize what doctrine is implicated, a quick query on WestLaw, Lexis, and (lord help us) ChatGPT can locate the particular rule, and then the lawyer can figure out how to apply that rule to the facts (or just ask ChatGPT to do it). In short, bar examinees will not have to know the rule, apply the rule, or conclude the case. They only have to spot the issue. Only I, not RAC.
Consider this Criminal Procedure question:
You are a criminal defense lawyer representing a client who has been charged with fentanyl possession. The police found the fentanyl in the guest bedroom of the client's uncle's house when responding to a noise complaint at the house. Before entering the house, the officers knocked on the door. When the uncle answered the door, the officers asked if they could look inside the house, and the uncle agreed. The client did not live in the house and was not there at the time of the search. The client had stayed in the guest bedroom of the house two nights prior to the search. The uncle told the officers that the client was the last person to have slept in that room.
You are considering filing a motion to suppress the fentanyl under the Fourth Amendment.
Which of the following legal topics are the most important for you to research to determine the likelihood of success on a motion to suppress? Select two.
A. Consent search.
B. Exigent circumstances.
C. Hot pursuit.
D. Probable cause.
E.Reasonable suspicion.
F. Standing.
The correct answer here is A (Consent Search) and F (Standing). Those are the legal topics that are "most important" to research. First, would the Uncle have authority to consent to the search? Second, would the criminal defendant have standing to challenge the Uncle's consent? Now the examinee does not actually have to answer whether the motion to suppress would be granted. Who cares if the Uncle could consent to the search? It doesn't matter if the defendant has standing. The test taker doesn't even have to know the relevant rules for consent searches and standing. All she has to do is spot the issue. I suppose the NCBE thinks that a first-year lawyer can simply enter "consent search" and "standing" into ChatGPT, knowing nothing more, and download the answer. I am not confident anyone can figure out these doctrines on the fly.
Let's try a Property question.
You are representing a client in a dispute with a neighbor. The client owns a single-family home with several acres of surrounding land. Recently, the client noticed that his neighbor had built a fence that extends onto the client's land. The client is unsure when the fence was built because that part of the client's land is obscured by large trees. When the client contacted the neighbor about the fence, the neighbor claimed that she did not know the location of the property line. The client has shown you a recent survey of the property that confirms the encroachment and has asked you whether he has a claim against the neighbor.
Which of the following legal topics are the most important for you to research before advising the client? Select two.
A. Adverse possession.
B. Conversion.
C. Implied easement.
D. License.
E. Negligence.
F. Trespass.
The answers here are, once again, A (Adverse Possession) and F (Trespass). The question presented is whether the neighbor's fence encroaches (trespasses) on the client's property, and if there is an encroachment, has the neighbor acquired the right to do so through adverse possession. This question is complicated, because trees obscure the boundary (affecting the open and notorious prong), and the neighbor may not have even known if he was obtaining land through adverse possession (in the lingo, did he have the right claim of right?). I could see a student struggling with applying the rules to this question. But on the bar, an applicant only needs to spot the relevant doctrine, and pray they can figure stuff out when in practice.
I worry that these questions are far too simple. If the states end up adopting the NextGen exam, they should increase the cut score (the relevant percentage needed to pass the exam). Finally, I worry how this exam will trickle down to law school pedagogy. Will professors shift their coverage to no longer require memorizing and applying the rules--only spotting issues? It's true that all lawyers have sophisticated tools at their disposal to research different topics. This new format seems to be a surrender to this technology--don't require students to do what they don't have to. I, for one, do not plan to change how I teach for this exam. And state supreme court justices should take a very long pause before adopting this new exam.
Some scholars and commentators argue that legacy preferences at public universities are unconstitutional because they are a form of hereditary privilege. If so, the same is likely true of the far more consequential hereditary privilege of citizenship that severely restricts the right to live and work in the United States.
In my last post about legacy preferences in higher education, I argued for their abolition, but expressed skepticism about claims that they are illegal under current civil rights laws. I still think they are likely legal under current precedent. But it's worth noting that scholars and legal commentators such as Indiana University law professor Gerard Magliocca and my Cato Institute colleague Thomas Berry have put forward strong arguments that legacy preferences at public institutions are banned by the Fourteenth Amendment. The key idea is that state-created hereditary privileges are at least presumptively forbidden.
I am not fully convinced these arguments are right. But if they are, the principle has potentially radical implications for other policies, particularly the hereditary aristocracy of citizenship, under which the rights to live and work in the United States are largely reserved for children of US citizens and those who had the good fortune to be born on US soil.
Here's Berry:
Legacy preferences at public universities violate the 14th Amendment for a simple reason: They discriminate between applicants on the basis of an "accident of birth," namely the identity and alumni status of the applicant's parents. The history of the 14th Amendment shows that it was understood to put an end to this type of state discrimination based on parentage at the time of its adoption….
Representative John Bingham was the primary drafter of Section 1 of the amendment, which guarantees both "the equal protection of the laws" and respect for the "privileges or immunities" of citizens. Bingham had previously praised the Constitution's ban on any "Title of Nobility" as signaling that "all are equal under the Constitution" and that "no distinctions should be tolerated, except those which merit originates." Bingham also noted that the Fifth Amendment furthered this republican value by guaranteeing "Due Process" of the law to all persons, with "no distinction either on account of complexion or birth." One of Bingham's core motivations for drafting the 14th Amendment was to extend these principles to state governments and ensure that state laws would "be no respecter of persons."
Senator Charles Sumner, another key proponent of the 14th Amendment, had cited the Constitution's guarantee of a "Republican Form of Government" as support for a Senate resolution banning any "Oligarchy, Aristocracy, Caste, or Monopoly." Sumner had also condemned discrimination against foreigners, because it was based on "the accident of birth."
Berry cites additional original-meaning evidence, as well. And there is much more in this 2009 law journal article by Steve Shadowen, Sozi Tulante, and Shara Alpern, on which Berry in part relies.
Magliocca's Prawfsblawg post focuses on the Supreme Court's 1947 decision in Kotch v. Board of River Port Pilot Commissioners, which narrowly upheld a Louisiana law that had the effect of restricting some types of pilot licenses to relatives of current pilots. But the Court suggested other state-granted hereditary privileges might well be unconstitutional:
Louisiana required that ships entering New Orleans port and the Mississippi have a local licensed pilot to avoid shallow water and underwater obstacles. (This is a longstanding rule for maritime commerce.) State law provided neutral criteria for getting a pilot license that included an apprenticeship, but in practice pilots would almost always take only their relatives as pilot apprentices. Some wannabe pilots who could not get a license challenged this practice on equal protection grounds.
The Supreme Court (in 1947) rejected this claim by a 5-4 vote. Justice Black wrote for the Court and leaned heavily on the idea that pilot regulation was a traditional state function and that pilotage was "a unique institution and must be judged as such." Basically, he said that a pilot needed local knowledge and that this need for personalized knowledge was (or could be) rationally related to picking mainly relatives of existing pilots. The Court went out of its way, though, to say that this deference might not apply to other professions or business that used family ties to make selections.
Justice Rutledge dissented and said: "The result of the decision therefore is to approve as constitutional state regulation which makes admission to the ranks of pilots turn finally on consanguinity. Blood is, in effect, made the crux of selection. That, in my opinion, is forbidden by the Fourteenth Amendment's guaranty against denial of the equal protection of the laws. The door is thereby closed to all not having blood relationship to presently licensed pilots." He added: "The discrimination here is not shown to be consciously racial in character. But I am unable to differentiate in effects one founded on blood relationship."
If any of these arguments is valid, it obviously can't be limited to legacy preferences, but must also apply to other state-created hereditary privileges. By far the most significant of these is what I have called the hereditary aristocracy of citizenship. Under this longstanding legal regime - which most of us take for granted - only those lucky enough to have a US-citizen parent or be born on American soil have a presumptive right to live and work in the United States. For almost everyone else, that right is only available if the federal government chooses to grant it. And, for the vast majority of would-be immigrants, there is little or no chance of ever getting it (especially those who lack close family ties to current US citizens).
Of course a small percentage of would-be immigrants attain citizenship or permanent resident status through pathways made available at the discretion of the federal government. But that no more eliminates the hereditary privilege of citizenship than traditional hereditary aristocracy was eliminated by virtue of the fact that kings would occasionally elevate a commoner to the nobility. The same point applies to arguments that immigration restrictions aren't really based on heredity, because people can sometimes overcome them by meeting occupational requirements and the like. So long as similar requirements aren't imposed on the native-born, hereditary privilege is still very much present. Moreover, such work visas are extremely difficult or impossible to get, even for most who meet the relevant qualifications.
The aristocracy of citizenship is a form of hereditary privilege with far more dire consequences than being disadvantaged in admissions to selective universities. Many of those excluded by the hereditary privilege of citizenship are thereby consigned to a lifetime of oppression and poverty in their countries of origin. And they end up in this situation largely because of "accident of birth," as Charles Sumner put it in a speech quoted in Berry's article. There are also severe consequences for current US citizens, who are denied the economic and social benefits of interacting with migrants.
If the Constitution categorically - or even presumptively - bans state-imposed hereditary privileges, than the privileges associated with citizenship cannot be excluded. Indeed, they are a vastly more egregious case than legacy preferences at state universities.
One possible response to this argument is that birthright citizenship is itself required by the Constitution, in Section 1 of the Fourteenth Amendment, which grants citizenship to all persons "born … in the United States and subject to the jurisdiction thereof." This provision was, of course, enacted in response to the notorious passages in the 1857 Dred Scott ruling, which held that blacks could not be citizens of the United States.
But, while the Citizenship Clause requires the government to grant citizenship to people born in the United States, it does not require denying it to would-be immigrants. Still less does it require denying the latter the right to live and work in the United States. These rights could potentially be decoupled from citizenship and presumptively granted to anyone willing to come and exercise them, subject to nondiscriminatory constraints (e.g. - restrictions on espionage, terrorism, and the like). Access to citizenship could also be liberalized in a variety of ways.
Moreover, current law goes beyond birthright citizenship (granting citizenship to all born on US soil) by also granting citizenship to all children of US citizens, regardless of place of birth. But even if the grant was limited to those born on US soil, it still makes vital rights dependent on an arbitrary "accident of birth," one in most cases only attainable by being born to a US citizen.
Another possible justification for treating citizenship rules differently from other hereditary privileges is that the relevant text of the Fourteenth Amendment applies only to state governments, while citizenship and immigration law is largely federal. However, the Supreme Court has long held that the Equal Protection Clause's nondiscrimination requirements apply to the federal government, as well - a principle established in the Court's famous 1954 ruling in Bolling v. Sharpe, which struck down racial segregation in public schools in the District of Columbia, despite the fact that DC is a federal territory, not a state. While Bolling has been criticized by some originalists, few are willing to advocate its reversal and thereby give the federal government a blank check to engage in racial and ethnic discrimination.
If, as Carlton Larson argues, the constitutional case against legacy preferences rests on the Titles of Nobility Clause rather than the 14th Amendment, then it indisputably applies to the federal government - and thus to immigration and citizenship law. Larson suggests, in his article, that there are special justifications for granting citizenship to children of US citizens born abroad because it "would be absurd to suggest that the United States could not grant citizenship to this narrow category without also granting it to every other inhabitant of the globe." But it's far from absurd to suggest that people not lucky enough to be born in the US or children of US citizens, should not be presumptively barred from living and working here, if they wish. Similarly, it's not absurd to suggest that they be allowed a path to citizenship that isn't virtually unattainable for the vast majority of those who might want it. There is a major difference between automatically granting citizenship to vast numbers of foreign-born people who, in most cases, don't even want it (which would indeed be absurd), and eliminating heredity-based bans on living and working in the United States for those who very much do want it.
It could also be argued that the ban on hereditary privilege only applies to people who are already members of the society, which immigrants (by assumption) are not. But nothing in the text of the Titles of Nobility Clause or the relevant provisions of the Fourteenth Amendment (most obviously, the Equal Protection Clause, which protects all "persons") is limited to current members of society or to current US citizens. It's also not clear why "membership" can justly be restricted based on heredity, while other legal rights cannot.
If the ban on hereditary privilege is merely presumptive (subject to something like the "strict scrutiny" applied to racial and ethnic discrimination), rather than absolute, then perhaps some immigration restrictions could be preserved in situations where they are the only way to prevent great harm. I discuss possible scenarios of this type (and various strategies for addressing them) in Chapter 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.
But even if some heredity-based migration restrictions could pass strict scrutiny in extreme situations, the vast majority likely cannot. At the very least, the federal government would have to meet a heavy burden of proof to justify them.
The hereditary aristocracy of citizenship isn't going to be eliminated anytime soon. But if we truly believe state-mandated hereditary privilege is unconstitutional and unjust, we cannot give a pass to what is by far the most significant example of such privilege in modern America. I summarized some of what can be done to mitigate its impact here. Broadly speaking, we should pursue a combination of expanding access to citizenship and reducing the the extent to which citizen status determines where people are allowed live and work.
If nothing else, when we consider the issue of state-created hereditary privilege in our society, we should stop turning a blind eye to what is by far the biggest example of it.
UPDATE: For those interested, elsewhere I have addressed the related, but distinct issue of whether governments may restrict immigration because nations are analogous to private houses or clubs. I cover this in greater detail in Chapter 5 of my book Free to Move.
I had the pleasure of appearing on CBC Radio's Alberta at Noon with Judy Alduous yesterday to speak about romance scams. The recording is available here and you can hear my intermittent commentary from around 14:30 to 26:50.
For a quick list of safety measures to take to protect yourself against romance scams, check out the FBI's list here. This recent NBC piece also discusses the mental health toll that such scams can take on their victims in addition to the financial cost - another good reminder to treat those kindly who have suffered enough in this context.
For a generation, Justice Kennedy was the Court's swing vote. Erwin Chemerinsky used to joke that if he could, he would have put Anthony Kennedy's face on the cover of the brief. Now we are seeing similar appeals to the Court's new median voter, Justice Kavanaugh.
Today's New York Times includes a guest essay by Kathy Hochul. The Governor of New York wrote about Rahimi. But in practice, the essay functions as an amicus brief aimed at Justice Kavanaugh. She extolled his Bruen concurrence, and said there was a "split" with the majority:
Before oral arguments are heard, there's no way to tell which way the Supreme Court will rule. The precedent set by Bruen is extraordinarily troubling. Yet even within the court's majority in Bruen, there was a split. Justice Thomas kept his focus on historical arguments. But a concurrence by Justice Brett Kavanaugh, in which Chief Justice John Roberts joined, left room for certain basic protections, noting that "properly interpreted, the Second Amendment allows a 'variety' of gun regulations."
Huh? Justice Kavanaugh joined the majority opinion in full. There was no "split." But, Justice Kavanaugh did what he always did--reach out to decide issues that were not in front of the Court in order to signal moderation. He did so in Bruen, Dobbs, and other cases. Regrettably, Justice Kavanaugh has taken the mantle from Justice Kennedy as the chief mediator of the United States.
Indeed, Governor Hochul claimed that the concurrence "helped inform" New York's response to Bruen.
This concurrence helped inform New York's response to Bruen. After New York State's century-old gun law was overturned, I took immediate steps to restore protections from gun violence, including signing new laws to strengthen training and gun licensing requirements.
To paraphrase Chief Justice Roberts in Students for Fair Admissions, it is poor practice to read a concurrence to figure out what the majority opinions means. Moreover, much of New York's legislation amounts to "massive resistance" of Bruen, that finds no grounding even in the Kavanaugh concurrence.
Hochul ends with a naked emotional appeal to Justice Kavanaugh, laced with the obvious gender-motivated violence charge:
An extreme, out-of-control Supreme Court put gun safety laws at risk in Bruen. Across America, survivors of domestic abuse will now wait in fear to see whether Justice Kavanaugh and his colleagues deem laws that protect survivors to "properly" interpret the Constitution.
Over the next year, we will see a similar litany of appeals to Justice Kavanaugh. The subtext is clear: rule against Rahimi and atone for the allegations made during the confirmation hearing. Preview: it won't work. Nothing will ever make these people not want to destroy Justice Kavanaugh.
It's surely fitting that a decision released on the 4th of July would set off fireworks on the Cyberlaw Podcast. The source of the drama was U.S. District Court Judge Terry Doughty's injunction prohibiting multiple federal agencies from leaning on social media platforms to suppress speech the agencies don't like. Megan Stifel,Paul Rosenzweig, and I could not disagree more about the decision, which seems quite justified to me, given the threatening and incessant White House message telling the platforms exactly whose speech they should suppress. Paul and Megan argue that it's not censorship, that the judge got standing law wrong, and that I ought to invite a few content moderation aficionados on for a full hour episode on the topic.
Sultan walks us through the wreckage of the American cryptocurrency industry, pausing to note the executive exodus from Binance and the end of the view that cryptocurrency could be squared with U.S. regulatory authorities. That won't happen in this administration, and maybe not in any, an outcome that will delay financial modernization here for years. I renew my promise to get Gus Coldebella on the podcast to see if he can turn the tide of negativism.
In quick hits and updates:
There's an effort afoot to amend the National Defense Authorization Act to prevent American government agencies, and only American government agencies, from buying data available to everyone else. We are skeptical that it will pass.
Canada, which already looks ineffectual for passing a link tax that led Facebook and Google to simply drop their links to Canadian media, now looks ineffectual and petty, announcing it has pulled its paltry advertising budget from Facebook.
Oh, and last year's social media villain is this year's social media hero, at least on the left, as Meta launches Threads and threatens Twitter's hopes for recovery from a year of turmoil.
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The All-Argentina Issue is Here
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Brady lives in the District of Columbia and works in analytics consulting, but not in politics, government, or law. In fact he has no legal training or background whatsoever. Brady tells me that he enjoys problem-solving, whatever the context.
