The Volokh Conspiracy

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

The Volokh Conspiracy

Free Speech

Threatening to Tell Ex's Employer That Ex Was Sleeping With Her Boss Isn't "Obscene Harassment"

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From State v. Solis, decided last week by the Texas Court of Appeals (Justice Gina Benavides, joined by Chief Justice Dori Contreras and Justice Jaime Tijerina):

On August 5, 2020, Solis was charged by information with obscene harassment [a class B misdemeanor, Tex. Penal Code Ann. § 42.07(a)(4)]:

[O]n or about June 28, 2019, … SOLIS did then and there, with intent to harass, annoy, alarm, abuse, torment, or embarrass Jessica Gamboa [Moreno], intentionally and knowingly initiate communication by telephone OR by electronic communication with [Moreno], and in the course of the communication, make an obscene comment OR suggestion, to-wit: threatening to accuse [Moreno] of improper relations with co-workers AND/OR [Moreno]'s attorney to [Moreno]'s employer ….

Moreno [testified at trial that] she and Solis had a romantic relationship that ended in February of 2019. Moreno testified that after the relationship ended, Solis "constantly" called and left voicemails. Moreno described the nature of the voicemail Solis left on June 28, 2019:

[MORENO]: Basically, we could do this the hard way or the easy way and that he was going to call directly to the company that I worked with and let them know that I was sleeping with my boss and with an attorney from Robstown.

[STATE]: Okay. And by sleeping with, is that implying sex?

[MORENO]: Intercourse, yes….

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Guns

Fast reloading of guns in the 19th century

Manufacturing improvements made affordable many types of guns that previously had been available only to the wealthy

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This post describes the speediest means of reloading firearms in the 19th century. The main focus is not the ammunition capacity of any particular type of arm, but rather how quickly various arms could be reloaded after the initial ammunition was spent.

As the post also explains, although the 19th century was, by far, the century of the greatest advances in firearms, many of those advances were not truly new. Rather, the advances were the results of improvements in manufacturing that greatly reduced the price of gun types that previously had been very expensive.

The post covers, in order:

  • Spencer lever-action rifles (fast reloads of 7-round tubular magazines);
  • Girardoni rifles (20-round tubular speedloaders);
  • bolt-action rifles (reloads via detachable box magazines or stripper clips);
  • double-barreled shotguns (over 30 shots per minute);
  • semiautomatic handguns (detachable box magazines or stripper clips);
  • metallic cartridge revolvers (via circular speedloaders);
  • cap-and-ball revolvers and pepperboxes (for revolvers, cylinder swaps starting with an 1858 Remington patent);
  • finally, and perhaps most surprisingly, the large progress in reloading speed of single-shot muskets and rifles, thanks to the replacement of muzzleloading with breechloading.

Spencer lever-action rifles

The first repeating long guns that became a major commercial success were lever-action rifles. They were introduced in the late 1850s. The first commercially successful lever action was the Henry Rifle of 1860; it held 15 rounds in a tubular magazine under the barrel, plus one round in the firing chamber.

Lever action rifles are fast shooters. Today, the champions of the Single Action Shooting Society can fire 10 shots in 2 seconds. The competition requires use of unimproved replicas of common 19th century arms. Once the user had fired all 16 shots from a Henry -- or all 18 shots from its successor, the Winchester Model 1866 -- reloading would take some time, as the user would have to drop cartridges one at a time into the magazine.

Much faster reloads were possible with the Spencer lever action repeating rifles and carbines), which was also introduced in 1860. During the Civil War, the Spencer Repeating Rifle Company, of Boston, made 144,500 rifles and carbines (short rifles), including 34,000 subcontracted to the Burnside Rifle Company of Providence, R.I. Burnside also made the Burnside Carbine, similar to the Spencer but with different rifling. The company's founder, Ambrose Burnside, was a Union general, strong advocate of using black volunteers in combat, future R.I. Senator and Governor, future first President of the National Rifle Association, and the namesake of "sideburns."

Of the Boston production, 107,372 were sold to the U.S. government, as were 30,052 of the Providence production. The disposition of the rest was presumably private sale, which would almost certainly include some Union soldiers buying arms for themselves. The Spencer was a preferred firearm for cavalrymen. Norm Flayderman, Flayderman's Guide to Antique American Firearms 633 (9th ed. 2007).

The Spencer held 7 rounds in a tubular magazine in the buttstock. After firing 7 rounds, the user could pour in 7 fresh rounds using the Blakeslee speedloader, patented in 1864. The Blakeslee cartridge box kit could hold up to 13 tubes, with 7 rounds each.

The principle of the detachable magazine had been put into use long before, albeit not on a scale as large as Spencer's. After the American Revolution, American inventor Joseph Belton moved to England, where starting in 1786 he created 7-shot breechloading repeaters with detachable metal magazines for the British East India Company. The 1786 gun had 7 separate firing pans, each of which needed to be reprimed after a magazine change.

In America, Belton is most famous for a prior 1777 invention. During the Revolution, in Philadelphia he demonstrated a gun that fired 16 shots at once. The observing committee --which including two American generals and scientist David Rittenhouse--wrote to the Continental Congress urging adoption of the gun. Letter from Joseph Belton to the Continental Congress (July 10, 1777), in 1 Papers of the Continental Congress, Compiled 1774–1789, Petitions Addressed to Congress 139 (1957). The Continental Congress ordered a hundred, but could not come to terms with Belton on the price. J. Cont. Cong., at 324, 361 (May 15, 1777). He insisted on £130 per gun, equivalent to £27,258 today, or $34,174--too much for a government that already couldn't make ends meet.

Another ancestor of Civil War Spencer was the lever-action Kalthoff repeater of 17th-century Europe. Some of them could fire 30 rounds without reloading. They "spread throughout Europe wherever there were gunsmiths with sufficient skill and knowledge to make them, and patrons wealthy enough to pay the cost. . . . [A]t least nineteen gunsmiths are known to have made such arms in an area stretching from London on the west to Moscow on the east, and from Copenhagen south to Salzburg. There may well have been even more." Harold L. Peterson, The Treasury of the Gun 230 (1962).

However, like all repeaters of the time, the Kalthoffs were much more expensive than standard infantry firearms. This is because repeaters, by their nature, have more intricate internal parts than single-shot guns, and the repeater's parts must fit together more precisely than in single-shots. If a Kalthoff part broke, the gun could only be repaired by a specialist gunsmith. The widespread adoption of lever action repeaters was impractical until the American industrial revolution, when, as described in a previous post, federal government industrial policy created a firearms industry that could mass produce high-quality intricate and interchangeable parts.

Although many Union soldiers provided their own firearms, as did Confederates, the majority of Union soldiers used firearms issued by War Department. When the Civil War ended, the U.S. government owned many more firearms than it would need for the soon-to-be much smaller post-war Army. Pursuant to General Order no. 101 (May 30, 1865), Union soldiers were allowed to buy their government-issued firearm for a deduction from their monthly pay. The most expensive was the Spencer, for $10. Muskets were $6, and revolvers or non-Spencer carbines $8. In 1865, the monthly pay for a Union private was $16. For sergeants it was $17 to $21, for lieutenants $105.50, and more for higher ranks.

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Free Speech

"The Right to Defy Criminal Demands"

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This article (which I serialized several months ago) is now out in the NYU Journal of Law & Liberty. The Introduction:

Craig is trying to force Danielle to do something, by explicitly or implicitly threatening to criminally retaliate if she doesn't go along. And, as often happens, Craig's threatened crime would endanger not just Danielle but also innocent bystanders.

Should the legal system require Danielle to comply with the demand, on pain of civil liability or even of criminal punishment? Or should Danielle have, in effect, a right to defy Craig's demands, even if this means a higher risk to bystanders?

These questions arise in many contexts: threats to abortion clinics; attempts to impose a "heckler's veto" on unpopular speakers; threats by robbers or kidnappers; attacks by jealous exes; and more. And they arise with many legal rules that might punish such defiance, such as nuisance law, negligence law, and the criminal law of disturbing the peace and recklessness endangerment. A version of the problem also arises with the criminal law duty to retreat and its lesser-known cousin, the duty to comply with negative demands.

In this Article, I'll try to bridge these topics, discussing the various facets of the problem together; I hope that showing these connections (which to my knowledge, had not been drawn before) can more clearly illuminate the core principles underlying the right. My conclusion is that, on balance, it's good for courts and legislatures to generally recognize a "right to defy criminal demands": a right to refuse to comply with such demands, without being held civilly or criminally liable for the consequences of this defiance, and without losing other important rights (such as the right to lethal self-defense) because of such defiance. And I think the legal system does indeed usually recognize it, though not completely consistently, and without a recognition that the right transcends various legal doctrines. (This Article is thus within the longstanding genre of works that infer a legal principle from a set of legal decisions that support the principle, even when the decisions haven't consciously articulated the principle.)

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Guns

"Could Hunter Biden Be the Next Poster Child for Second Amendment Rights?"

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An interesting article in Politico (Betsy Woodruff Swan):

The president's son is the target of a Justice Department investigation scrutinizing his purchase of a gun in 2018 — a time when he has said he was regularly using crack cocaine. Federal law bans drug users from owning guns.

But the constitutionality of that law — like many other provisions restricting gun ownership — is newly in question after a precedent-rocking decision the Supreme Court handed down almost a year ago.

His lawyers have already told Justice Department officials that, if their client is charged with the gun crime, they will challenge the law under the Second Amendment, according to a person familiar with the private discussions granted anonymity because they are not authorized to speak publicly. That could turn a case that is already fraught with political consequences into a high-profile showdown over the right to bear arms.

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Ex-San Francisco DA Chesa Boudin Appointed Director of Berkeley Law's new Criminal Law & Justice Center

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Chesa Boudin graduated Yale Law School in 2011. After two judicial clerkships bracketing a year as a post-doc fellow (!!??) at the San Francisco DA's office and several years practicing criminal law as a public defender, he ran successfully for San Francisco DA as a left-wing anti-racist reformist candidate. His tenure as DA was such a disaster that San Francisco voters recalled him by a 55% majority vote in June 2022.

I'm sure we're all happy to know that Chesa landed on his feet. Berkeley Law School has announced that he will be the founding executive director of Berkeley Law's new Criminal Law & Justice Center:

"Since coming to Berkeley Law, I have wanted to create a criminal law and justice center to further advance the important work of our tremendous faculty and clinics in this area," Dean Erwin Chemerinsky says. "I am delighted to launch the center and that Chesa Boudin will be its first executive director. Chesa was chosen after a national search and has substantial experience across the criminal justice system. He has thought deeply about the system, and I cannot think of anyone better to create and direct this important center."

Just in case it seems like Boudin may not be the best possible candidate for the position, the Berkelely Law press release assures readers that he has a "lifetime of experience." How so, given that he is only twelve years out of law school?

Boudin's parents, former members of the radical political group Weather Underground, spent more than six combined decades in prison for participating in a 1981 Brinks truck robbery that led to the death of two police officers and a security guard. Boudin was 14 months old at the time. His mother was released on parole after being incarcerated for 22 years, his father after 40.

"Led to the death." Hmmm. Anyway, lest you think that this is the mere awkward musings of a pr flak, Boudin agrees:

I wanted a job that draws on three personal and professional experiences that have been defining for me: a lifetime of direct experience with my biological parents spending 62 combined years in prison, my career as a public defender doing direct service work through individual client representation where I saw the everyday injustices of our so-called justice system, and my time in elected office where I focused on broader system change.

I certainly don't think we should disqualify people from academic positions because of their parents' actions. But the notion that having parents incarcerated for felony murder is a qualification to run an academic center is… interesting.

But wait, we also learn that Angela Davis endorses him! Then again, Davis herself narrowly escaped an almost-certainly deserved long prison term for her role in a courthouse takeover that resulted in multiple murders. So it's not surprising that she likes incompetent prosecutors. It might be a bit more surprising that Berkeley Law does.

Interviewing Jimmy Wales, Cofounder of Wikipedia

Episode 460 of the Cyberlaw Podcast

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In this bonus episode of the Cyberlaw Podcast, I interview Jimmy Wales, the cofounder of Wikipedia. Wikipedia is a rare survivor from the Internet Hippie Age, coexisting like a great herbivorous dinosaur with Facebook, Twitter, and the other carnivorous mammals of Web 2.0. Perhaps not coincidentally, Jimmy is the most prominent founder of a massive internet institution not to become a billionaire. We explore why that is, and how he feels about it.

I ask Jimmy whether Wikipedia's model is sustainable, and what new challenges lie ahead for the online encyclopedia. We explore the claim that Wikipedia has a lefty bias, and whether a neutral point of view can be maintained by including only material from trusted sources. I ask Jimmy about a concrete example -- what looks to me like an idiosyncratically biased entry in Wikipedia for "Communism."

We close with an exploration of the opportunities and risks posed for Wikipedia by ChatGPT and other large language AI models.

Download 460th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@gmail.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

Supreme Court

Does a Footnote in Sackett II Indicate How SCOTUS Will Resolve the Affirmative Action Cases?

Could the Court treat Justice Powell's Bakke opinion the way it treated Justice Kennedy's Rapanos opinion?

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In Sackett v. United States (Sackett II), the Supreme Court narrowed the scope of federal jurisdiction under the Clean Water Act. In doing so, Justice Alito's opinion for the Court adopted the interpretation of the CWA articulated in Justice Scalia's four-justice plurality from Rapanos v. United States, and rejected the "significant nexus" test articulated in Justice Kennedy's concurrence. This was significant because, for over fifteen years, the federal government, and most lower-courts, had embraced Justice Kennedy's opinion as the controlling opinion. As the 1 in the Court's 4-1-4 split, Justice Kennedy's opinion was understood as embodying the narrowest grounds under Marks v. United States.

While most viewed Justice Kennedy's opinion as articulating the outer bounds of federal regulatory jurisdiction under Rapanos, that was not how the case was presented to the Court, and none of the justices viewed that opinion as a controlling precedent. Wrote Justice Alito in footnote 3 of his opinion for the Court: "Neither party contends that any opinion in Rapanos controls. We agree."

While Justices Kavanaugh and Kagan disagreed strongly with Justice Alito's embrace of the Scalia plurality, neither contended that the Court was obligated to follow the Kennedy concurrence under principles of stare decisis. They objected to the substance of the Alito majority, not its treatment of Justice Kennedy's Rapanos opinion.

What does any of this have to do with affirmative action? Recall that one of the key affirmative action precedents is Regents of the University of California v. Bakke. This decision, like Rapanos, was a 4-1-4 decision. And just as Sackett II called upon the Court to revisit the question at issue in Rapanos, this term's two affirmative action cases call upon the Court to revisit whether the consideration of race in university admissions is unlawful, either under the Constitution or federal statute.

Subsequent decisions have often treated Justice Powell's Bakke concurrence -- the 1 in the 4-1-4 split -- as controlling, particularly on the question of whether the Equal Protection Clause of the Fourteenth Amendment prohibits race-conscious admissions policies. But there was another issue in the Bakke case: How to interpret the Civil RIghts Act. As with the question in Rapanos and Sackett II, this is a question of statutory interpretation, where concerns for adherence to precedent are typically at their height. Yet in Sackett II no justice claimed that rejecting Justice Kennedy's interpretation of the CWA in favor of the Justice Scalia plurality offended stare decisis principles.

If rejecting Justice Kennedy's Rapanos concurrence did not offend principles of stare decisis, would not the same apply to Justice Powell's Bakke opinion? Might this give room for the Court to revisit the  question of whether federal law bars the use of race in university admissions and to embrace the four-justice plurality from Bakke that concluded race conscious admissions violate the Civil Rights Act? Might this provide a way for the Court to revise the common understanding of what federal law allows without offending statutory stare decisis? We should soon see.

Textualism

Beyond Textualism? on SSRN

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A few months ago I linked to a lecture called "Beyond Textualism?" that I gave at Harvard Law School in the "Scalia Lecture" series -- on what the core insight of textualism is and how we might extend it even in cases where the text itself is silent. I now have a written version of those remarks available on SSRN (they will be forthcoming in the Harvard Journal of Law and Public Policy).

It opens:

Last fall, I was at another law school, visiting with a friend, a co-author. So of course, we started talking about legal interpretation. I went into his office, he shut the door, and then the first thing he asked me was, "Do you think textualism has sort of played itself out?" This lecture is about the answer to that question.

and continues:

In general, the textualist revolution was correct and salutary. But it is getting to be time to solve some problems where standard textualist teaching might lead us astray. If we think of textualism, or the phrase, "the plain text," as just mantras -- prayers to ward off the demons of bad judging -- we will not find salvation. We need to understand why textualism is right. If we do, then it may mean that sometimes in some cases our analysis will have to move a little bit beyond the text.

What do I mean?

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Law & Government

The Source of Law in Tyler v. Hennepin County

a sub silentio invocation of the general law and positive law approaches

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Several provisions of the Bill of Rights seem to rely on common law concepts to define the rights they protect, such as the Fourth Amendment's protection of "persons, houses, papers, and effects" and the Fifth Amendment's protection of "property." A few years ago, I wrote (with James Stern) an article arguing that the Fourth Amendment should be understood to rely on positive law -- the law of the specific jurisdiction in which the search or seizure took place -- to bound what counts as a search or seizure. (Orin vehemently disagrees.) But we noted one important limit to the use of positive law -- one should look to the law that would bind ordinary private parties, not the law that specifically binds the government. After all, if the government tries to give itself a special legal privilege to commit batteries and trespasses, that is exactly what the Fourth Amendment limits.

Earlier this year, Danielle D'Onfro and Dan Epps wrote an interesting article that the Fourth Amendment should be understood not in light of a specific state's law but in light of general law -- the unwritten, transjurisdictional law that was ubiquitous in federal courts during the era of Swift v. Tyson, before the revolutionary decision in Erie Railroad v. Tompkins. And while those pieces are about the Fourth Amendment specifically, the same kind of debate could translate to the Fifth Amendment's provisions as well.

In light of that background, I was especially interested in the Court's decision last week in Tyler v. Hennepin County. As readers surely know from Ilya's many posts on it, Tyler is a takings case, where Minnesota law defines away a homeowner's property rights in a way that would make it easy for the state to circumvent the just-compensation requirement. Thus, Chief Justice Roberts explains for the Court, it cannot rely purely on state law:

The Takings Clause does not itself define property. Phillips v. Washington Legal Foundation, 524 U. S. 156, 164 (1998). For that, the Court draws on "existing rules or understandings" about property rights. Ibid. (internal quotation marks omitted). State law is one important source. Ibid.; see also Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 560 U. S. 702, 707 (2010). But state law cannot be the only source. Otherwise, a State could "sidestep the Takings Clause by disavowing traditional property interests" in assets it wishes to appropriate. Phillips, 524 U. S., at 167; see also Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980); Hall v. Meisner, 51 F. 4th 185, 190 (CA6 2022) (Kethledge, J., for the Court) ("[T]he Takings Clause would be a dead letter if a state could simply exclude from its definition of property any interest that the state wished to take."). So we also look to "traditional property law principles," plus historical practice and this Court's precedents. Phillips, 524 U. S., at 165–168; see, e.g., United States v. Causby, 328 U. S. 256, 260–267 (1946); Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1001–1004 (1984).

Now this list of additional sources has been criticized as somewhat indeterminate. But I think what the Court is describing is basically the pre-Erie general law approach. General principles and historical practice make up the more general principles of the common law, not necessarily beholden to any one jurisdiction's local law. Because we live in a post-Erie world, it no longer seems natural to use the label "general law," but it is general law by another name.

Interestingly, in a later part of the opinion that Court invokes a slightly different argument-- that the ordinary state property law that applies to non-government transactions would also recognized a property right here:

Finally, Minnesota law itself recognizes that in other contexts a property owner is entitled to the surplus in excess of her debt. Under state law, a private creditor may enforce a judgment against a debtor by selling her real property, but "[n]o more shall be sold than is sufficient to satisfy" the debt, and the creditor may receive only "so much [of the proceeds] as will satisfy" the debt. Minn. Stat. §§550.20, 550.08 (2022). Likewise, if a bank forecloses on a home because the homeowner fails to pay the mortgage, the homeowner is entitled to the surplus from the sale. §580.10.

In collecting all other taxes, Minnesota protects the taxpayer's right to surplus. If a taxpayer falls behind on her income tax and the State seizes and sells her property, "[a]ny surplus proceeds . . . shall . . . be credited or refunded" to the owner. §§270C.7101, 270C.7108, subd. 2. So too if a taxpayer does not pay taxes on her personal property, like a car. §277.21, subd. 13. Until 1935, Minnesota followed the same rule for the sale of real property. The State could sell only the "least quantity" of land sufficient to satisfy the debt, 1859 Minn. Laws p. 58, §23, and "any surplus realized from the sale must revert to the owner," Farnham, 32 Minn., at 11, 19 N. W., at 85.

The State now makes an exception only for itself, and only for taxes on real property. But "property rights cannot be so easily manipulated." Cedar Point Nursery v. Hassid, 594 U. S. ___, ___ (2021) (slip op., at 13) (internal quotation marks omitted). Minnesota may not extinguish a property interest that it recognizes everywhere else to avoid paying just compensation when it is the one doing the taking. Phillips, 524 U. S., at 167.

This, in essence, is the positive-law/legality approach, in which we judge the government's actions by the same legal baselines that apply to all other parties.

Thus, without quite saying so, the Court seems to have adopted insights from both the general law and positive law models of constitutional property, using both to explain why state law usually -- but not completely -- describes the baseline for one's legal entitlements.

Political Ignorance

Political Ignorance and Misinformation on the Left

Liberal political commentator Matt Yglesias explains why these problems are far from being confined to the right side of the political spectrum.

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Political ignorance and the closely related phenomenon of misinformation are serious problems. But most commentators are far quicker to identify them on the opposing side of the political spectrum than on their own. For that reason, prominent liberal political commentator Matt Yglesias deserves credit for recognizing that left-wing public opinion is far from immune to these dangers. In a recent post, he highlights two types of misinformation that are widely believed by left-liberals: climate catastrophism and massive overestimation of the number of unarmed African-Americans killed by police:

In a democracy, those who govern are accountable to a mass public that overwhelmingly comprises people who don't think much about politics and policy and who really don't know much about it. That real-world citizens are not idealized deliberators is a really important aspect of how society functions, and it's important that everyone who cares about such things try to understand it….

But this whole genre of genuine inquiry into public opinion dynamics has gotten derailed, I think, by the sort of goofy idea that Donald Trump was swept into power by a tidal wave of "misinformation…."

The thing that makes this sort of superficial analysis so seductive is that it's not exactly wrong. Most people really are very poorly informed about politics and policy. A lot of campaign messaging is pretty misleading. A lot of media coverage is sloppy and propagandistic. It's also true that as a result of education polarization, over the past few cycles, Democrats have mostly done worse with relatively uninformed demographic groups (poor white people, working-class Hispanics) and better with relatively well-informed high-SES whites. This is to say that if you set out to find misinformation among people voting Republican, it's not hard to do so. But it's a totally unprincipled inquiry unless you take a systematic look at misinformation, in which case you'll see it's hardly confined to Republicans…..

I think the most salient example of this is climate change, where you not only have rightists spreading insane conspiracy theories (Trump used to say it was a Chinese hoax), but you also have a lot of very influential wrongheaded ideas on the left.

Perhaps the most prominent version of this is the idea that the world faces a hard tipping point to climate apocalypse sometime around 2030. This is routinely debunked (here's Scientific American) but keeps popping up….

I also think many people don't realize that natural disaster deaths have become much rarer over time because for most people, the benefits of living in a richer world with better technology far outweigh the hazards of living in a warmer world…..

Meanwhile, in addition to overstating the most likely consequences of the status quo, it's common to hear grossly exaggerated accounts of the ease of getting to net zero with current technology. That's often paired with undervaluing energy in general… These are errors that have had meaningful policy and political impacts, but that get totally ignored in a misinformation discourse that locates misinformation exclusively on the right….

One suggestive survey indicated that about 40-50% of liberal or very liberal people believe 1,000 or more unarmed Black men are shot and killed by the police in a typical year. I have a lot of qualms with the methods used in that survey, which I think encouraged overestimation across the board. But if nothing else, it demonstrates that a huge share of the population is operating with very little factual information about a subject it purports to believe is very important. This is not unique to liberals or the topic of police misconduct —it is, rather, fairly typical of average citizens' general lack of engagement with policy or facts.

For context, the total number of people killed by police in recent years is about 1000 per year, and a plurality of them (389 of 1097 in 2022, as compared to 225 blacks; there were 341 fatalities whose race is unknown) are white. And a large percentage of these fatalities were in fact armed criminals, not innocent people that police shot because of bigotry or just for kicks. Police brutality and racial profiling are serious problems. I recently urged my fellow libertarians to devote more attention to the latter. But the scale and severity of them (at least the former) are far less than much of left-wing public opinion believes.

To Yglesias' discussion of left-wing misinformation on climate change, I would add that, relative to conservatives and moderates, left-wing Democratic voters are also most likely to oppose nuclear power, by far the most effective "clean" energy source. It should not be hard to see how the combination of catastrophism and opposition to nuclear power is likely to strengthen support for a range of terrible policies.

The two issues Yglesias identifies are just the tip of a much larger iceberg of left-liberal political ignorance and susceptibility to misinformation. Other examples include Barack Obama's highly successful use of lies ("if you like your health care plan, you can keep it") to sell the Affordable Care Act to the public, disproportionate left-wing susceptibility to 9/11 "trutherism" (a counterpart to right-wing susceptibility to "birtherism"), and much else. An important recent study on economic ignorance underlying NIMBYism suggests that at least some of these misconceptions (that developers, rather than zoning regulations are responsible for high housing prices) are particularly prevalent on the left. As a longtime supporter of housing deregulation and author of The Rent is too Damn High, Yglesias can surely appreciate the significance of this particular type of left-wing ignorance.

Overall, social science research suggests that susceptibility to misinformation cuts across the political spectrum, and isn't necessarily much greater on one side of it than the other. The fundamental problem is that most voters have little incentive to seek out information about policy issues, or to objectively evaluate what they learn. They are instead rationally ignorant, and often act as biased "political fans" rather than truth-seekers. Yglesias is right to highlight that "[m]ost people really are very poorly informed about politics and policy" and that this is a deeply rooted aspect of democratic politics. And the problem is exacerbated by the enormous size, scope, and complexity of modern government, which makes it difficult for even relatively conscientious voters to have more than a very superficial understanding of most policy issues.

The fact that left-wing voters often behave in these ways should not blind us to the dangers of ignorance and misinformation on the political right, of which Donald Trump's lies about the 2020 election are just one particularly egregious example. He effectively exploited political ignorance and misinformation in 2016, as well. I think Trump's lies and deceptions are, overall, worse than those of Obama before him, and have caused greater harm. But even if you believe the reverse, you still should not give your side of the political spectrum a pass, or assume that ignorance and misinformation only exist on the other side.

In many cases, it's possible to argue that ignorance and misinformation isn't causing much harm or are even having beneficial effects. For example, perhaps excessive fear of climate change has the beneficial effect of pushing progressives to work harder on finding a solution. Or perhaps it's a useful counterweight to climate change denialism on the right. "Miracle of aggregation" theorists argue that the errors of one side of the political spectrum can offset those of the other, leading the public as a whole to make good decisions.

In Democracy and Political Ignorance, I describe a number of scenarios where political ignorance can actually be beneficial. But I also explain why such cases are likely to be rare, and why "miracles of aggregation" are unlikely to occur in plausible real-world circumstances (though it's easy to construct theoretical models where they happen frequently). If you find yourself attracted to a story in which your own side's ignorance and bias just happens to have beneficial effects, while that of the other side is uniformly harmful, there's a good chance you're being misled by your own biases. At the very least, it pays to be skeptical of such stories.

In my view, the best approach to addressing widespread voter ignorance and bias is to empower people to make more decisions by "voting with their feet" and fewer at the ballot box. Foot voters have much better incentives to seek out relevant information and use it wisely than ballot-box voters do. Yglesias likely has a very different perspective on what should be done. I certainly can't resolve that longstanding debate here. But the beginning of wisdom is to recognize that the problem is widespread and not just confined to the terrible people on the other side of the political spectrum.

New York District Attorney Bragg Argues That President Trump Was Not An "Officer Of The United States"

Bragg’s argument may harm Trump in the removal case, but in the long run, this argument could help Trump in future political disqualification-related litigation under Section 3 of the Fourteenth Amendment.

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[This post was co-authored with Seth Barrett Tillman]

Last month, a Manhattan grand jury indicted Donald J. Trump for violating state law based on alleged "hush money" payments to Stormy Daniels. Trump moved to remove that case to federal court. Trump's lawyers invoked the federal officer removal statute. This statute allows an "Officer of the United States" to remove a prosecution from state court to federal court. But the former president can only remove the case to federal court if he was an "Officer of the United States."

On Tuesday, Alvin Bragg, the New York District Attorney filed a brief in federal court opposing the removal motion. Bragg made various arguments for why removal was not proper. But the final section of the brief contended that Donald Trump, while serving as President, was not an "Officer of the United States." Part IV of the brief (pp. 30) explains this position:

The arguments above defeat defendant's attempt to remove this state criminal prosecution and require remanding this matter to state court. Although this Court need not go further, remand would also be independently mandated by defendant's failure to establish that he was an "officer . . . of the United States" entitled to invoke removal at all under 28 U.S.C. § 1442(a)(1).

In construing a variety of other constitutional and statutory provisions, the Supreme Court has long interpreted "officer" to exclude the President and Vice President because those officials are elected to their positions rather than appointed. See Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 497-98 (2010) ("The people do not vote for the 'Officers of the United States.'" (quoting U.S. Const. art. II, § 2, cl. 2)); United States v. Mouat, 124 U.S. 303, 307 (1888) ("[A] person in the service of the government" who does not "hold[] his place by virtue of an appointment . . . is not, strictly speaking, an officer of the United States."). (emphasis added).

We are very sympathetic to this argument. Indeed, we have contended for years that the President is not an "Officer of the United States." We made this point most recently two weeks ago on Lawfare. And on Lawfare, we observed that the District Court should call for the views of the Department of Justice. That observation is even more salient since Bragg stated that the Department of Justice shares his view that the President is not an "Officer of the United States."

The Executive Branch shares this view. See, e.g., Memorandum from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, U.S. Dep't of Justice to Kenneth A. Lazarus, Associate Counsel to the President, Applicability of 3 C.F.R. Part 100 to the President and Vice President 2 (Dec. 19, 1974) ("[W]hen the word 'officer' is used in the Constitution, it invariably refers to someone other than the President or Vice President. . . . This use of the word 'officer' in the Constitution has led the Department of Justice consistently to interpret the word ['officer'] in other documents as not including the President or Vice President unless specifically stated.") (Ex. 23). (emphasis added).

Tillman wrote about this Scalia memo in December 2016. 

Bragg concludes:

The Court should therefore conclude—consistent with the views of the Supreme Court, the Executive Branch, and defendant himself—that the President is not an "officer" of the United States, and thus may not invoke federal-officer removal under 28 U.S.C. § 1442(a)(1). (emphasis added).

In the short-term, Bragg's argument may harm Trump in the removal motion. If Trump is not an "Officer of the United States" for purposes of the federal removal case, then the criminal prosecution will remain in a New York criminal court. Indeed, the court could only grant the removal motion if it affirmatively finds that Trump was an "Officer of the United States." 

In the long run, such a finding, however, may have ramifications in the not-so-distant future. Specifically, Section 3 of the Fourteenth Amendment would only apply to President Trump if he took the presidential oath as an "Officer of the United States." And we have written that the President is not an "Officer of the United States" for purposes of Section 3. If Bragg is successful here, and the federal courts adopt the argument that Trump is (or was) not an "Officer of the United States" for purposes of the federal removal statute, then that precedent could be cited by Trump in debates and litigation involving Section 3. Perhaps this potential for setting precedent on this issue is even more reason to call for the views of the Department of Justice. 

There are many grounds on which the federal court can rule here. And certainly the federal district court might not reach the "officer" issue. Still, it may reach that issue, and for that reason, we will keep a close eye on this litigation in Manhattan.

Economic Liberty

Georgia S. Ct.: Right to Pursue Lawful Occupation Invalidates License Requirement for Lactation Consultants

The court so holds applying the Georgia Constitution's Due Process Clause, which the court had long interpreted as securing a right to pursue a lawful occupation.

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Today's unanimous decision in Raffensperger v. Jackson, written by Chief Justice Boggs, strikes down the 2016 Georgia Lactation Consultant Practice Act, which requires lactation consultants to have an International Board Certified Lactation Consultant (IBCLC) license, issued by a private licensing organization (or "a license issued by another jurisdiction if the requirements for that license are equal to or greater than" the IBCLC requirements):

IBCLC certification may be obtained in three different pathways, each of which requires that a person pass a written examination and complete 14 courses in health sciences, eight of which must be college-level courses; 95 hours of lactation-specific education, including five focused on communication skills; and at least 300 supervised clinical hours. The IBCLC examination costs approximately $600-$700.

{According to the affidavit of the Secretary's expert, the eight required college-level courses are biology; human anatomy; human physiology; infant and child growth and development; introduction to clinical research; nutrition, psychology, counseling skills, or communication skills; and sociology, cultural sensitivity, or cultural anthropology. The other six courses, which may be completed as continuing education courses, are basic life support, medical documentation, medical terminology, occupational safety and security for health professionals, professional ethics for health professionals, and universal safety precautions and infection control.}

A Certified Lactation Counselor (CLC) license, offered by another organization, doesn't suffice; that license requires that the licensee "complete a 52-hour course; demonstrate competency in breastfeeding assessments, counseling, teaching, infant weight gain, contraindications, and the CLC Code of Ethics; and pass a written examination, which costs approximately $120." Likewise, it doesn't suffice to have training from a separate group, such as ROSE (Reaching Our Sisters Everywhere), which sued to challenge the law:

ROSE, which was founded in 2011, trains individuals to provide breastfeeding education and support to mothers, primarily in African-American communities, through a research and evidence-based curriculum in a free 16-hour course.

The Georgia Supreme Court began by noting that it had long held that the Georgia Constitution's Due Process Clause protects a right to pursue a lawful occupation:

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Guns

Georgia Campus Carry Rules Upheld Against State Constitutional Separation of Powers Challenge

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From today's unanimous Georgia Supreme Court decision in Knox v. State, written by Justice Ellington:

Five University System of Georgia ("USG") professors filed suit to block a 2017 statutory amendment that removed public colleges and other public postsecondary educational institutions from the statutory definition of "school safety zone." Before the 2017 amendment, carrying or possessing a weapon on any real property or in any building owned by or leased to any postsecondary educational institution was a misdemeanor, and the 2017 amendment decriminalized that conduct. The professors alleged that, as a result of the 2017 amendment, the Code requires the Board of Regents, the USG, and USG institutions to permit persons to carry or possess weapons on the campuses of public postsecondary educational institutions, contrary to longstanding USG policies.

The professors sought a declaration that the statutory amendment is unconstitutional as applied because it usurps the Board's constitutional authority to govern, control, and manage the USG and its member institutions…. In the complaint, the professors articulated in detail reasons they believe that the revised policy regarding the carrying of weapons on USG campuses, following the 2017 statutory amendments, greatly increases the risk of injury and death to themselves, their students, and other persons on USG campuses, and significantly impairs their ability to fulfill their role in the educational mission of the USG…. The professors alleged that they are injured by what they deem a "separation-of-powers violation."

No, said the court, because the Georgia Board of Regents had itself changed its policies in response to the 2017 amendment:

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Affordable Housing

Bryan Caplan on NIMBYism and Economic Ignorance

Leading expert on political ignorance and housing comments on evidence indicating that ignorance, not self-interest, is at the root of most opposition to zoning reform.

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Regulatory restrictions on the construction of new housing inflict immense harm by cutting off millions of people from housing, educational, and job opportunities. They are also a major affront to property rights. The traditional explanation for such "exclusionary zoning" is that it is driven by the narrow self-interest of "NIMBY" ("not in my backyard") homeowners. Although society as a whole would benefit from deregulation, the NIMBYs oppose it because it might reduce their property values and allow less affluent people to move into their neighborhoods.

In a recent post, economist Bryan Caplan - a leading academic expert on both housing and public opinion - summarizes evidence challenging the traditional self-interest explanation of NIMBYism. He relies heavily on "Folk Economics and the Persistence of Political Opposition to New Housing," an important new article by legal scholar Chris Elmendorf and political scientists Clayton Nall and Stan Oklobdzija:

Why is housing regulation so draconian? The conventional answer is self-interested voting. Housing regulation is mostly local; local voters are mostly homeowners; homeowners want high housing prices; homeowners know low supply keeps prices high. Economists are especially staunch in their belief in this classic NIMBY (Not In My Backyard) story.

Part of the reason is that economists like self-interested stories of everything. In daily life, this is a reasonable presumption. But in politics, most economists have yet to realize that theory and empirics stand squarely against what I call the Self-Interested Voter Hypothesis. Since one voter has near-zero effect on political outcomes, there is near-zero reason to vote on the basis of material self-interest. And a mountain of public opinion research confirms that "symbolic attitudes" - especially ideology and group identity - are the main determinants of issue views, partisanship, and voting itself.

But even economists who accept these truths will still probably try to carve out an exception for housing regulation. What ideology urges us to make housing as expensive as possible?! If naked self-interest doesn't explain draconian regulation, what on Earth does?

My top explanation is sheer economic illiteracy. Much of the public flatly denies that housing deregulation would make housing more affordable. For them, supply-and-demand is the "ideology" - and popular complaints about the downsides of new construction are "common sense."

Do I have any evidence that economic illiteracy is the foundation of draconian housing regulation? Until recently (with notable exceptions), I only had base rates. Since there is overwhelming evidence of the public's economic illiteracy, of course they'll be economically illiterate on housing as well. But in 2022, Clayton Nall, Chris Elmendorf, and Stan Oklondzija (henceforth NEO) ran a large survey on the origins of NIMBY. Their recent paper, "Folk Economics and the Persistence of Political Opposition to New Housing" strongly supports my story.

The rest of Caplan's post is an insightful summary and analysis of NEO's important findings. I discussed those findings myself here. I don't think the NEO paper proves that all NIMBY opposition to housing deregulation is caused by ignorance. In my earlier post on their work, I note some other factors:

Economic ignorance is not the only factor driving NIMBYism. Some people really do oppose new construction based on careful calculations of their narrow self-interest. While current homeowners can often benefit from development in various ways, if you're an owner who does not have children (or doesn't care about their housing costs), doesn't care much about promoting growth and innovation, and wants to ensure that the "character" of your neighborhood changes as little as possible, you might rationally oppose zoning reform, even if you understand its effects perfectly well. Historically, racial and ethnic prejudice has also been an important factor, though it has waned more recently, as education levels have risen and white suburbanites have become more open to integration.

While the NEO paper doesn't prove that ignorance is the only factor here, it does demonstrate that it is extremely important, probably far more so than the traditional NIMBY story of homeowners carefully calculating their self-interest. At this point in time, I think it's also more significant than old-fashioned racist hostility to a potential influx of minorities. Among other things, NEO show there are few differences between homeowners and renters on housing deregulation issues, and that many in both groups actually believe that building more housing will increase prices rather than reduce them!

NEO also demonstrate that voters tend to (illogically) blame developers  for increased prices, even though the latter are actually the ones whose activities are likely to reduce them. This is much like blaming high egg prices on farmers' efforts to increase egg production. But many people believe it, nonetheless.

As Caplan and I emphasize in our respective posts, such ignorance and economic illiteracy is far from unique to this issue. It's a widespread problem arising from the "rational ignorance" of voters. But it's especially pernicious in this instance, because of the enormous harmed caused by exclusionary zoning.

In another commentary on the NEO article, Alex Tabarrok (Caplan's colleague at the George Mason University economics department) summarized it as "look around at the housing market and declare there are idiots" - contrary to economists' usual assumption that people behave rationally. But, for most voters, being ignorant and biased about public policy is in fact rational, given the very low likelihood that your vote or other activities will have a decisive impact on policy outcomes. You don't have to be an "idiot" to hold ignorant and foolish views about zoning - just a person who would rather spend his or her time on things other than studying housing policy. That preference is often entirely rational, especially if you have many other demands on your time, you don't find housing policy interesting, and you know that you are unlikely to have much impact on it, even if you did study it carefully.

Caplan ends on a note of optimism:

Is this good news or bad news? As I've argued before, given the existence of awful policies, it's good news. If the status quo were a durable expression of self-interest, it would be nigh invulnerable. Why? Because (a) human nature won't change, and (b) the costs of bargaining are plainly too high to reconcile our conflicting self-interests. Otherwise, such bargaining would be common already, and we wouldn't find ourselves in our current predicament. If the problem is economic illiteracy, however, at least we don't have to change human nature to dramatically change policy. Perhaps we can just repeatedly hit the public over the head with a friendly sledgehammer of economic education.

I hope this optimism is justified. But I'm not sure it is. Breaking through rational ignorance and bias is possible - but often very difficult. If it were easy, more political leaders would try to combat public ignorance rather than manipulate it to their advantage.  In Chapter 2 of my book Democracy and Political Ignorance, I describe why an electorate of highly knowledgeable but narrowly self-interested voters might actually be preferable to one that is altruistic, but highly ignorant and biased.

Nevertheless, there have been several successful zoning reform efforts in various states over the last few years, most recently in Montana. Strong are the forces of ignorance. But not invincible.

UPDATE: I have made some minor additions to this post.

Religion and the Law

"Appeasement"? Or, Avoiding Error?

Justice Breyer did not always vote with the Court’s strict-separationist justices. Good for him.

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I appreciate the invitation to blog, here at The Volokh Conspiracy, about a recent (short!) paper of mine, "Justice Breyer and the Establishment Clause." I set out the background and context for the paper in an earlier post. In this one, I summarize my account of what I regard as the first of the three distinctive features of Justice Breyer's judicial legacy with respect to the First Amendment's no-establishment rule.

Scholars and informed commentators know that the just-so story about the Supreme Court in which most cases are decided along ideological or partisan lines is misleading. That said, it cannot be denied that the Court's cases involving the Establishment Clause are regularly resolved by close votes that track familiar "liberal" and conservative" classifications.

Justice Breyer's record, though, is interesting. He was confirmed in the summer of 1994, replacing Justice Harry Blackmun, just a few weeks after the Court handed down a splintered 6-3 ruling in the Kiryas Joel case, holding that New York had violated the Establishment Clause by creating a new school district that tracked the boundaries of a village inhabited entirely by Satmar Hasidim. Just one year later, Justice Breyer revealed his reservations about inflexible judicial policing of a strict form of public secularism: In Capitol Square, he joined concurring opinions by Justices Sandra Day O'Connor and David Souter rejecting the claim that it unconstitutionally "endorsed" religion for an official body to permit a private group to display a cross during the Christmas season in Columbus, Ohio's Capitol Square. On the same day, he dissented, with Justice Souter and two other "liberal" justices, in Rosenberger, insisting that the Free Speech Clause did not require, and the Establishment Clause did not permit, the University of Virginia's Student Activities Fund to pay the printing expenses of a Christian newspaper.

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When AI poses an existential risk to your law license

Episode 459 of the Cyberlaw Podcast

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This episode of the Cyberlaw Podcast features the second half of my interview with Paul Stephan, author of The World Crisis and International Law. But it begins the way many recent episodes have begun, with the latest AI news. And, since the story is squarely in scope for a cyberlaw podcast, we devote some time to the so-appalling-you-have-to-laugh-to-keep-from-crying story of the lawyer who relied on ChatGPT to write his brief. As Eugene Volokh noted in his post on the story, the AI returned exactly the case law the lawyer wanted – because it made up the cases, the citations, and even the quotes. The lawyer said he had no idea that AI would do such a thing.

I cast a skeptical eye on that excuse, since when challenged by the court to produce the cases he relied on, the lawyer turned not to Lexis-Nexis or Westlaw but to ChatGPT, which this time made up eight cases on point. And when the lawyer asked ChatGPT, "Are the other cases you provided fake," the model denied it. Well, all right then. Who among us has not asked Westlaw, "Are the cases you provided fake?" and accepted the answer without checking? Somehow, I can't help suspecting that the lawyer's claim to be an innocent victim of ChatGPT is going to get a closer look before this story ends. So if you're wondering whether AI poses existential risk, the answer for at least one law license is almost certainly "yes."

But the bigger stories of the week were the cries from Google and Microsoft leadership for government regulation of their new AI tools. Microsoft's President, Brad Smith has, as usual, written a thoughtful policy paper on what AI regulation might look like. Jeffery Atik and Richard Stiennon point out that, as usual, Brad Smith is advocating for a process that Microsoft could master pretty easily. Google's Sundar Pichai also joins the "regulate me" party, but a bit half-heartedly. I argue that the best measure of Silicon Valley's confidence in the accuracy of AI is easy to find: Just ask when Google and Apple will let their AI models identify photos of gorillas. Because if there's anything close to an extinction event for those companies it would be rolling out an AI that once again fails to differentiate between people and apes.

Moving from policy to tech, Richard and I talk about Google's integration of AI into search; I see some glimmer of explainability and accuracy in Google's willingness to provide citations (real ones, I presume) for its answers. And on the same topic, the National Academy of Sciences has posted research suggesting that explainability might not be quite as impossible as researchers once thought.

Jeffery takes us through the latest chapters in the U.S. - China decoupling story. China has retaliated, surprisingly weakly, for U.S. moves to cut off high-end chip sales to China. It has banned sales of U.S. - based Micron memory chips to critical infrastructure companies. In the long run, the chip wars may be the disaster that Invidia's CEO foresees. Certainly, Jeffery and I agree, Invidia has much to fear from a Chinese effort to build a national champion in AI chipmaking. Meanwhile, the Biden administration is building a new model for international agreements in an age of decoupling and industrial policy. Whether the effort to build a China-free IT supply chain will succeed is an open question, but we agree that it marks an end to the old free-trade agreements rejected by both former President Trump and President Biden.

China, meanwhile, is overplaying its hand in Africa. Richard notes reports that Chinese hackers attacked the Kenyan government when Kenya looked like it wouldn't be able to repay China's infrastructure loans. As Richard points out, lending money to a friend rarely works out. You are likely to lose both the money and the friend, even if you don't hack him.

Finally, Richard and Jeffery both opine on Ireland's imposing – under protest – a $1.3bn fine on Facebook for sending data to the United States despite the Court of Justice of the European Union's (CJEU) two Schrems decisions. We agree that the order simply sets a deadline for the U.S. and the EU to close their third deal to satisfy the CJEU that U.S. law is "adequate" to protect the rights of Europeans. Speaking of which, anyone who's enjoyed my rants about the EU will want to tune in for a June 15 Teleforum in which Max Schrems and I will  debate the latest privacy framework. If we can, we'll release it as a bonus episode of this podcast, but listening live should be even more fun!

Download 459th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@gmail.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

 

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