The Volokh Conspiracy

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

In Brackeen, Justice Barrett repeatedly faulted counsel for the petitioners for failing to meet their burden. Here, I'd like to focus on one of her criticisms:

We recognize that our case law puts petitioners in a difficult spot. We have often sustained Indian legislation without specifying the source of Congress's power, and we have insisted that Congress's power has limits without saying what they are. Yet petitioners' strategy for dealing with the confusion is not to offer a theory for rationalizing this body of law—that would at least give us something to work with.Instead, they frame their arguments as if the slate were clean. More than two centuries in, it is anything but. [FN4]

[FN 4] Texas floated a theory for the first time at oral argument. It said that, taken together, our plenary power cases fall into three buckets: (1) those allowing Congress to legislate pursuant to an enumerated power, such as the Indian Commerce Clause or the Treaty Clause; (2) those allowing Congress to regulate the tribes as government entities; and (3) those allowing Congress to enact legislation that applies to federal or tribal land. Tr. of Oral Arg. 55. According to Texas, ICWA is unconstitutional because it does not fall within any of these categories. We have never broken down our cases this way. But even if Texas's theory is descriptively accurate, Texas offers no explanation for why Congress's power is limited to these categories.

In my earlier post, I mentioned this passage reminded me of United States v. Lopez (1995). Here, I'd like to expand on that theme.

Lopez presented a constitutional challenge to the Gun-Free School Zones Act. This law made it a federal crime "for any individual knowingly to possess a firearm" within 1,000 feet of a school zone. The law did not purport to regulate any commercial activity. Under the law, the government did not need to show that the firearm had traveled in interstate commerce — the so-called jurisdictional hook. At the time, the federal government had a six-decade winning streak in Commerce Clause challenges. Law students were taught that no limits existed on federal power. But that standard would all change in 1995.

Alfonso Lopez, the Defendant in this case, was a high school senior. He was represented by John R. Carter, a federal public defender from San Antonio, with the assistance of Carter Phillips and Sidley & Austin. (I emailed John Carter more than a decade ago to express my thanks for his service, but never received a reply.) I encourage you to read Lopez's brief. Here is the relevant paragraph:

Even if this Court finds that Congress need not have made formal or informal findings or even have before it concrete evidence of an effect on commerce when passing the Gun-Free School Zones Act, the Act still cannot withstand constitutional scrutiny. Chief Justice Marshall recognized long ago that Congress's power under the Commerce Clause is not unlimited, because "[t]he enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State." Gibbons v. Ogden, 9 Wheat. (22 U.S.) at 194. Thus, "the power to regulate commerce, though broad indeed, has limits." Maryland v. Wirtz, 392 U.S. 183, 196 (1968). Because it regulates noneconomic activity without a substantial nexus to interstate commerce, the Gun-Free School Zones Act exceeds those limits.

The brief is well done, but I submit it would not meet Justice Barrett's standard. The respondent here was attempting to draw a line that had never been drawn before. In candor, Lopez did not offer a comprehensive theory to rationalize two centuries of commerce clause doctrine. There is not a straight line from Gibbons to Wickard.

Rather, that theory would only be developed by Chief Justice Rehnquist's majority opinion. He delineated the scope of federal power since the New Deal. The three buckets that Chief Justice Rehnquist identified resemble the three buckets that Texas Solicitor General Judd Stone presented at oral argument. Rehnquist, like Stone, did not expressly explain "why Congress's power is limited to these categories." Rather they were attempting to rationalize non-originalist precedent in the service of originalism. That is, even if the Court had approved erroneous expansions of federal power in the past, those expansions can be cabined under a limiting principle. In Lopez, Chief Justice Rehnquist found that the Court had never approved a federal regulation of non-economic activity. The United States, and legions of law professors, insisted this limiting principle was illusory. But the Supreme Court drew this important line in the sand to prevent the further erosion of the original meaning of the Constitution. As my colleague Randy Barnett, explains, this far, but no farther.

How would Justice Barrett have voted in Lopez? Given her opinion in Brackeen, I think she would have found that the economic/non-economic distinction did not fully account for, and rationalize, all of the Court's cases. Therefore, Justice Barrett would not disturb that line of precedent. She would have deferred to Congress, and upheld the Gun-Free School Zones Act. Or what about NFIB? Did the plaintiffs put forward a comprehensive theory that accounted for all of the Court's cases regarding the line between activity and non-activity? I can show you an army of law professors who would say no.

In many regards, I see Justice Barrett's framework in Brackeen as consistent with her framework in Doe v. Mills: she is erecting barriers to make it harder for litigants to obtain relief. In the abstract, I don't object to neutral principles, like the party presentation rule, as a means to cabin judicial power. But Barrett's novel rules have never been applied before. And they are novel, since she cannot cite any precedent stating that litigants must "offer a theory for rationalizing [a] body of law." If we take Barrett's approach seriously, than landmark decisions like Lopez and NFIB likely would have never happened. And, of course, there is the asymmetry because progressive litigants will not need to clear any of these hurdles. Liberals are graded on a generous curve while conservatives are stuck on a pass/fail basis.

In many cases today, counting to five is much easier on the left than on the right, even with three Trump appointees on an alleged 6-3 conservative court. Governor DeSantis is not wrong.

I have written at some length about the Kavanaugh concurrence. Last term, in Dobbs and Bruen, we saw the Kavanaugh concurrences when he swings right. In both cases, Justice Kavanaugh decided questions that were not presented. In Dobbs, Justice Kavanaugh reached out to decide the right-to-travel issue. And in Bruen, he stated that states can require "mental health records checks" to obtain a carry permit. I won't rehash my criticism of these concurrences.

Recently, we have seen two Kavanaugh concurrences when he swings left in Allen v. Milligan and in Haaland v. Brackeen. Both cases share a common trait: he rules for the liberal side, but writes a short concurrence raising possible ways that conservatives may win in the future.

In Brackeen, Justice Kavanaugh joined Justice Barrett's majority opinion in full. He was MIA in the originalist debate between Justices Gorsuch and Thomas. The majority found that the plaintiffs did not have standing to bring a facial equal protection claim. Rather, Justice Barrett observed in Footnote 10, the "the individual petitioners can challenge ICWA's constitutionality in state court, as the Brackeens have done in their adoption proceedings." Justice Kavanaugh wrote a solo concurring opinion that stretched two paragraphs. He said that the "equal protection is serious" and "raise[s] significant questions under bedrock equal protection principles and this Court's precedents." It's serious and significant! Justice Kavanaugh predicted that "this Court, will be able to address the equal protection issue when it is properly raised by a plaintiff with standing." Will there even be four votes to grant certiorari in such a case? I can count to three: Thomas, Alito, and apparently, Kavanaugh. Will Justice Barrett, who just upheld this momentous social legislation turn around and say it is actually unconstitutional in most applications? I am doubtful, given her exceptionally high bar to disturb precedent. Justice Kavanaugh can write a powerful dissental, saying "this issue is still really serious!"

In Allen, Justice Kavanaugh cast the deciding fifth vote to rule against Alabama. He also wrote a four-page concurrence that clarified how he understands the precedents. But in the penultimate paragraph, he offers a glimmer of hope:

JUSTICE THOMAS notes, however, that even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post, at 44–45 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.

Maybe, just maybe, Justice Kavanaugh will adopt a Shelby County-esque framework, such that the 1982 amendments have an expiration date--just like the 25-year clock in Grutter. But you know there will be a Northwest Austin interim decision, that gives Congress a chance to fix the VRA. And maybe, if Congress doesn't update a five-decade-old statute, the Court will lower the boom. By that time, the Court will likely have at least 15 members. Justice Kavanaugh can write a partial dissent for a 9-6 Court. I'm holding my breath the Court will ever reach this issue.

In Dobbs and Bruen, Kavanaugh stated unequivocally how liberals could win in the future. But in Allen and Brackeen, Kavanaugh could only write "we'll see." I've heard this script before. There was a time when Justice Kavanaugh urged the Court to take on the Independent State Legislature Doctrine. But he promptly backed off that theory after the 2020 election. And stay tuned for Moore v. Harper. Justice Kavanuagh's predictions are not worth much. But in the interim, lawyers will spend vast resources litigating the issue, hoping that maybe, just maybe, Justice Kavanaugh can provide a fifth vote. Reminds me of the era when Justice Kennedy was in charge, and we tried to read tea leaves in his concurrences. Don't count on it.

In its recent decision in Ideker Farms, Inc. v. United States, the US Court of Appeals for the Federal Circuit ruled that temporary, but continuously recurring, flooding of private property by the government qualifies as a per se taking under the Takings Clause of the Fifth Amendment. It thereby automatically requires payment of "just compensation." It is not subject to a balancing test of the kind that applies to other non-continuous flooding cases. The Federal Circuit is the appellate court whose duties include (among other things) hearing appeals of takings cases filed against the federal government. So its takings jurisprudence has great precedential force.

In this case, the US Army Corps of Engineers and the Fish and Wildlife Service had adopted changes to previous practices controlling the flow of the Missouri River, resulting in recurring flooding of land belonging to property owners in the area, including farmers whose crops were damaged or destroyed. The evidence suggests that the agencies will keep engaging in such intermittent flooding indefinitely. Here is the key passage from the court's takings analysis, in an opinion written by Chief Judge Kimberley Moore:

The trial court accepted based on the parties' stipulation that the flooding in this case is permanent, not temporary, in nature. Phase II, 151 Fed. Cl. at 592–93. In short, the Government has not ceased and does not plan to cease flooding Plaintiffs' lands. To the extent Arkansas Game & Fish II's narrow holding and reiteration of the well-established principle that permanent yet intermittent physical invasions are per se takings is not enough, the Supreme Court's decision in Cedar Point, issued after the trial court
decision in this case, makes that abundantly clear. It stated that the "approach in Arkansas Game and Fish Commission reflects nothing more than an application of the traditional trespass-versus-takings distinction to the unique considerations that accompany temporary flooding." 141 S. Ct. at 2078–79….

In contrast to the temporary intermittent flooding at issue in Arkansas Game & Fish II, Cedar Point explained that permanent intermittent flooding is a physical taking subject to a per se rule. Id. at 2071…. The "government likewise effects a physical taking when it occupies property–say by recurrent flooding as a result of building a dam. These sorts of physical appropriations constitute the 'clearest sort of taking,' and we assess them using a simple, per se rule: The government must pay for what it takes." Id….

This is not to say that an analysis of whether a permanent taking or a trespass has occurred might not overlap in part with the Arkansas Game & Fish II analysis of whether a temporary taking or trespass occurred. But sometimes distinguishing between takings and trespasses will be much simpler. This is such a case. Where the government takes a permanent right of access, akin to an easement in gross, even if used only intermittently, it is unquestionably an appropriation of the owner's right to exclude. It is undisputed that the Corps has permanently burdened Plaintiffs' land with a right to access their land with flood waters…. And, as in Cedar Point, where California granted union workers "a formal entitlement to physically invade" the farmers' land, 141 S. Ct. at 2080, here the Government has permanently caused recurring physical occupation of Plaintiffs' land by floodwaters. The fact that the floodwaters come and go during the year, i.e., are intermittent, does not negate the existence of a taking. Those considerations "bear only on the amount of compensation." Id. at 2074.

I think C.J. Moore is right to cite the Supreme Court's ruling in Cedar Point Nursery v. Hassid (2021). If indefinitely recurring mandated access by union organizers is a per se taking, the same goes for indefinitely recurring flooding. If anything, the latter is likely to be far more intrusive and far more disruptive of the property owners' rights.

But I would have taken the point further. Cedar Point did not merely say that indefinitely recurring physical invasions are per se takings. It held that, as a general rule, "a physical appropriation is a taking whether it is permanent or temporary." Even temporary physical invasions qualify as per se takings under this reasoning, without the need for any complex balancing tests. To my mind, the same reasoning applies to temporary deliberate flooding, which - as already noted - is an even more severe physical burden on property rights than most other physical invasions, including the one at issue in Cedar Point.

In fairness, the Federal Circuit didn't need to go that far to decide this particular case. But she also need not have indicated that multifactor balancing tests should continue to apply "[i]n cases that are closer calls than this one." After Cedar Point, that should not be the case, at least not in situations where the government has deliberately authorized or undertaken the physical invasion at issue.

I expect this will not be the last case where courts seek to apply Cedar Point to situations where the government engages in deliberate flooding of private property.

Robert Thomas has a helpful and detailed discussion of various aspects of this decision at the Inverse Condemnation blog.

I wrote about the Supreme Court's ruling in Arkansas Game and Fish Commission v. United States (2012), which established a multifactor balancing test for most flooding takings cases, in this article, published soon after the decision came down. I and other commentators predicted that the decision would lead to litigation on how to apply its far-from-clear test. And that has indeed happened in the years since.

On the Supreme Court, the two most committed originalists are Justices Thomas and Gorsuch. Indeed, when Justice Thomas writes a separate opinion, urging the Court to return to first principles, the member most likely to join him is Justice Gorsuch. Still, these two originalists do not always agree. Perhaps one of the most striking examples of this discordance is Brackeen. Justice Gorsuch wrote a vigorous originalist decision which contended that ICWA was squarely supported by Congress's enumerated powers. And Justice Thomas wrote a vigorous originalist decision which argued that ICWA was beyond Congress's enumerated powers.

In many regards, this debate reminded me of Zivotofsky v. Kerry (2015), where Justices Scalia and Thomas vigorously disagreed about whether the recognition power belonged to Congress or to the President. In that case, there were so many respectful, but pointed back-and-forths between Scalia and Thomas. Here Scalia accused Thomas of favoring King George over George Washington:

Whereas the Court's analysis threatens congressional power over foreign affairs with gradual erosion, the [Thomas] concurrence's approach shatters it in one stroke. The combination of (a) the concurrence's assertion of broad, unenumerated "residual powers" in the President (b) its parsimonious interpretation of Congress's enumerated powers; and (c) its even more parsimonious interpretation of Congress's authority to enact laws "necessary and proper for carrying into Execu- tion" the President's executive powers; produces (d) a presidency more reminiscent of George III than George Washington.

And Thomas called Scalia a legislative supremacist:

JUSTICE SCALIA disapproves of my "assertion of broad, unenumerated 'residual powers' in the President," but offers no response to my interpretation of the words "executive Power" in the Constitution . . .

And his decision about the Constitution's resolution of conflict among the branches could itself be criticized as creating a supreme legislative body more reminiscent of the Parliament in England than the Congress in America.

At the time, I wrote, "These intellectual giants rarely duel like this, but this was a battle worthy of the ages." But if Zivotofsky was a clash of the titans, Brackeen was like two boats passing each other on the River Styx. Justice Gorsuch never cited Justices Thomas, and Justice Thomas never cited Justice Gorsuch.

Without any sort of back-and-forth, readers will have a tough time figuring out which originalist decision is stronger. Indeed, critics of originalism can seize on these two opinions as evidence that originalism is bunk--an indeterminate modality that can reach two diametrically opposite conclusions.

I've now finished reading and thinking about the entire decision. It took me a while. For those who care about originalism, Brackeen is probably the most significant case of the term. I'll put aside the commandeering issue, since neither Justice Gorsuch nor Justice Thomas engages it. Rather, I'll focus on the question of whether ICWA is within Congress's Article I powers. All parties agree that the treaty-making power is irrelevant. And Justices Gorsuch and Thomas both seem to reject the nebulous "plenary" power doctrine, which is not tethered to any constitutional text. ICWA, to the extent it is within Congress's Article I powers, can only be supported by Article I, Section 8, Clause 3:

The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

In United States v. Lopez (1995), Justice Thomas wrote that the word "commerce" in the Interstate Commerce Clause referred to "trade or exchange—not all economically gainful activity that has some attenuated connection to trade or exchange." And recently, Justice Gorsuch joined Justice Thomas's concurrence in Sackett, which reaffirmed that definition of "commerce" from Lopez. So as best as I can tell, Justice Gorsuch agrees with the methodology Justice Thomas used to reach that definition of "commerce"--namely, original public meaning originalism.

However, Justices Thomas and Gorsuch disagree about the meaning of "commerce" in the Indian Commerce Clause. Justice Gorsuch contends the meaning of "commerce" is broader with regard to Congress's powers to regulate Indian tribes. This analysis, which stretches about two pages, appears in Part II-C-2 of the concurrence. Part III-A-2 of Justice Thomas's dissent provides the counter.

I will walk through several points on which Gorsuch and Thomas disagree.

Law review editors, lawyers, and paralegals are trained to check whether cited legal authorities have been overruled or otherwise abrogated. This is the right thing to do, but it's also the smart thing to do, since it helps avoid embarrassing and credibility-destroying errors. Fortunately, law has long had tools for doing this, from the old process of "Shepardizing" to electronic tools available in Westlaw, Lexis, and elsewhere.

But I'm not sure whether there are similar protocols for checking whether scientific articles or other academic articles have been retracted. My sense is that there are tools for doing this in various fields, but they aren't well-integrated with each other. Does your law journal or law firm have guidance for doing this? It would be good to share this information, especially if (as I suspect) many journals and firms don't actually have systems in place to do this.

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The Pacific Legal Foundation is sponsoring a symposium entitled "Rethinking Penn Central," which may be of interest to legal scholars and other academics and policy experts interested in property rights issues. The PLF website has instructions on how to submit a proposal at their website. Here is the description:

Pacific Legal Foundation seeks papers for a research roundtable on the landmark regulatory takings case, Penn Central Transportation Company v. City of New York, to be held in October 2023. We are calling for scholars and practitioners to imagine how courts might best "make clear when [a taking] occurs." We seek papers that propose alternatives or changes to the Penn Central standard.

Research Proposal Submission Details

Please submit a brief proposal that describes your thesis and how your paper will contribute to the legal discussion regarding how to fix or replace the Penn Central regulatory takings test.
Proposals should be submitted by July 1 to Ethan Blevins at eblevins@pacificlegal.org. Early proposal submission is encouraged, however, as proposals will be reviewed on a rolling basis, and approvals will allow authors to begin work early.

Honorarium and Other Support

Authors of accepted papers will receive a $2,500 honorarium. Authors will benefit from robust feedback on their research at a workshop in October 2023. Papers will be published as working papers on the PLF website, but not exclusive of other publications.

Note: PLF is also my wife's employer. But she does not have any involvement in organizing this symposium or assessing proposals.

Confederate General Braxton Bragg (1817-76).

The Department of Defense recently changed the name of the Fort Bragg army base in North Carolina to Fort Liberty. In doing so, they shifted from a name honoring an incompetent Confederate general who betrayed the US to fight for slavery, to a name honoring America's most fundamental value. Seems like a no-brainer!

Nonetheless, GOP presidential candidates Ron DeSantis and Mike Pence have condemned the move and vowed to change the name back if they win the presidency. DeSantis called the name change "political correctness run amok." They could hardly be more wrong.

Who was Braxton Bragg? He was a slaveowner and a Confederate general, best known for commanding the largest Confederate army in the west in 1862-63. During his time as commander of the Army of Tennessee, he became known for incompetence, quarreling with key subordinates, and losing major battles. As one historian put it, Bragg "had done as much as any Confederate general to lose the war."

Bragg was deeply racist even by the very low standards of Confederate generals. For example, he opposed raising black troops late in the war, because he did not think blacks could be reliable soldiers. Many other Confederate generals differed, most notably Robert E. Lee (though Lee's support for this last-ditch measure should not be confused with opposition to slavery, an institution he was determined to preserve).

I suppose it could be argued that Bragg deserves recognition because his incompetent leadership made a major (unintentional) contribution to Union victory in the Civil War. That aside, a militarily incompetent traitor who fought for slavery is the last person whom a major US Army base should be named after.

The debate over the renaming of Fort Bragg is tied up with broader controversy over removing Confederate monuments and renaming sites named after Confederate leaders. I previously wrote about that issue here, here, and here. In those posts, I rebutted a variety of arguments against renaming and monument removal, such as claims that the Civil War wasn't really about slavery (the Confederates themselves said that was what they were fighting for!), concerns that removal and renaming amount to "erasure" of history, and slippery slope considerations.

I won't go over that ground again in detail here. But I will reiterate that I have no desire to "erase" Braxton Bragg and other Confederate leaders from history. Much the contrary. I just don't think we should honor them. Similarly, I don't think we should abjure honoring anyone who ever expressed racist sentiments, or even anyone who ever owned slaves. Some historical figures who committed such wrongs also did great good in other ways (most notably, many of the Founding Fathers). But we should not honor people whose role in waging a war for slavery was their only major claim to fame.

If he had not become a prominent Confederate general (even if an incompetent one), hardly anyone today would remember the name of Braxton Bragg. It's long past time we stopped honoring people like that. If recognizing that is "political correctness run amok," then we should let it run amok some more.

From U.S. v. Holden, decided Friday by the Seventh Circuit (Judge Frank Easterbrook, joined by Judges Diane Wood and Doris Pryor); seems quite correct to me:

"Our legal system provides methods for challenging the Government's right to ask questions—lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood." …

When John Holden sought to buy a firearm in August 2021, he had to complete ATF Form 4473. Among the questions was whether he was then "under indictment or information" for any crime punishable by imprisonment for a year or more. He answered "no," but that answer was false. Holden had been accused of battering a public safety official, in violation of Ind. Code § 35-42-2-1(c)(1), (e)(2).

In August 2022 Holden pleaded guilty to violating 18 U.S.C. § 922(a)(6), which makes it a crime

knowingly to make any false or fictitious oral or written statement … intended or likely to deceive [an] importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of [a] firearm or ammunition under the provisions of this chapter[.]

He sought to withdraw the plea in order to contend that 18 U.S.C. § 922(n), which makes it a crime to purchase or receive a firearm while under indictment for a felony, violates the Second Amendment as understood in New York State Rifle & Pistol Association, Inc. v. Bruen. The district judge granted this motion and dismissed the indictment, ruling that § 922(n) is invalid….

Guns

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The article is here; here are the Introduction, Part I, and the start of Part II:

Despite the sharp decline in the number of local newspapers, it's important to understand that other legacy news-delivery platforms—particularly local TV news—have not been suffering the same degree of loss. Pew Research Center found that local TV news actually saw its audience increase across the evening and late-night timeslots in 2020, and that local TV companies earned more revenue than the previous year. In fact, local TV was deemed to be on par with or outpacing cable and network TV. Pew survey data show more Americans still prefer to get their local news from television than from any other medium, including online. Even with an increasing preference for digital delivery, "local television stations have retained a strong hold in the local news ecosystem."

Why and how has local TV news managed to stay afloat while local newspapers close their doors? Even as we mourn the loss of local news from print media, we should not overlook its surviving sibling that continues to churn out news to small and medium markets. Why do some media survive in the face of competition from new, disruptive media technologies? What lessons might be learned? Is there a role that government might play? Yet with the loss of local newspapers, are broadcast stations and online platforms adequate substitutes for providing local news? Or is local broadcast news actually just on a slower decline compared to newspapers?

[I.] Surviving Disruption

Much of the blame for the fall of the newspaper industry rests with the rise of the Internet and online competition. For example, digital offerings have cannibalized the editorial side of the business as online aggregators. Social-media sites have become the alternate entry point for daily news as readers rapidly migrate to social media.

Free Speech

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Today is Juneteenth, the holiday commemorating the abolition of slavery in 1865 - established as an official federal holiday in 2021. You might think that commemorating an event like the abolition of slavery would be uncontroversial. But, like almost everything else these days, Juneteenth has gotten swept up in the left-right culture war. A recent University of Massachusetts poll found that 69%of Democrats, but only 13% of Republicans and 32% of independents supported making it a federal holiday. The ideological divide mirrors the partisan one (77% of self-described liberals express support, 40% of moderates, and only 14% of conservatives).

There are various possible non-ideological reasons why people might oppose the establishment of this federal holiday. For example, some might believe there were too many federal holidays already. In addition, a large minority of respondents (39%), simply don't know what Juneteenth is; if you don't know what the holiday celebrates, you might quite reasonably refrain from expressing support until you know more. Some of those who don't know the right answer about what Juneteenth commemorates actually endorsed wrong answers (14%) as opposed to simply saying they don't know (25%). Members of the former group, too, may have reasons for opposing the holiday that have little to do with left-right ideological divisions.

But the stark partisan and ideological divide in support for Juneteenth suggests that much of the opposition is based on fears - expressed in 2021 by Republican critics of the establishment of the holiday - that it represents a form of left-wing identity politics, an attack on America, or a repudiation of July 4.

Nothing can be further from the truth. In reality, Juneteenth celebrates one of America's greatest achievements. And the way that achievement came about is an indictment of bigotry and racial identity politics, both left and right.

In 2021, I wrote a post about the meaning of the then-newly instituted federal holiday that covers these points in more detail, and I think remains relevant today. I reprint it with some modifications below:

Juneteenth commemorates the abolition of slavery in 1865. Some conservatives who opposed its establishment as a national holiday argue it might somehow detract from Independence Day on July 4, or promote left-wing identity politics. For their part, some on the left may view it as a condemnation of America's history of slavery and racism, or even a celebration of black nationalism.

In reality, however, the abolition of slavery was the greatest achievement of the universal principles underlying the American Revolution, and a rebuke to ethnic nationalism and separatism. Slavery was America's worst injustice, and its abolition is obviously worthy of celebration.

Abolition was only achieved thanks to a multiracial movement that emphasized the universality of the right to liberty, and the moral arbitrariness of distinctions based on race.

Josiah Wedgewood's famous 1787 image created for the antislavery movement.

It is no accident that the antislavery movement was also accompanied by what historian Kate Masur calls "America's First Civil Rights Movement," which sought equal rights for blacks that went beyond simply abolishing slavery.

As Masur and other scholars have documented, both black and white abolitionists routinely cited the universalist principles of the Founding in making the case for abolition and racial equality, even as many of them also criticized the Founders (and later generations of white Americans) for their hypocritical failure to fully live up to their own principles. From early on, critics of the American Revolution denounced the contradiction between its professed ideals and the reality of widespread slavery. "How is it," Samuel Johnson famously wrote, "that we hear the loudest yelps for liberty among the drivers of negroes?"

While the hypocrisy and contradictions were very real, so too is the fact that Revolution and Founding made abolition possible, in part by giving a boost to universalistic Enlightenment liberalism on both sides of the Atlantic. Among other things, it inspired the First Emancipation in the US (the abolition of slavery in the North that became the first large-scale emancipation of slaves in modern history). Without the First Emancipation, we could not have achieved the second and greater one.

For all their failings, the Revolution and Founding paved the way for abolition. That happened in large part because they were the first large-scale effort to establish a polity based on universal liberal principles rather than ties of race, ethnicity, or culture.

Those principles are at the root of most of America's achievements, of which the abolition of slavery was among the most important. They are also what enabled America, at its best, to offer freedom and opportunity to people from a wide range of racial and ethnic backgrounds from all over the world.

Abraham Lincoln, who issued the Emancipation Proclamation whose belated enforcement Juneteenth celebrates - put it best in his famous speech on the Declaration of Independence and its implications for slavery:

I think the authors of that notable instrument intended to include all men, but they did not mean to declare all men equal in all respects…. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, or yet, that they were about to confer it immediately upon them…

They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit.

They meant to set up a standard maxim for free society which should be familiar to all: constantly looked to, constantly labored for, and even, though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence and augmenting the happiness and value of life to all people, of all colors, every where.

The success of the antislavery movement's appeal to liberal universalism has been a model for later expansions of freedom, as well - including equal rights for women, the Civil Rights Movement of the twentieth century, and the struggle for same-sex marriage. It is a model that advocates of migration rights would do well to emulate today.

The work of fully living up to the ideals of the Founding wasn't completed in Lincoln's time, and it remains seriously incomplete even now. But Juneteenth commemorates perhaps our greatest step in the right direction. And it reminds us that further progress towards liberty and equal rights depends on emphasizing the same principles that made abolition possible.

UPDATE: Some commentators on Twitter and elsewhere point out that slavery was not fully abolished on June 19, 1865, which was merely the date when Union troops reached Galveston, Texas, and announced the implementation of the Emancipation Proclamation in one of the last parts of the former Confederacy where it had not yet been implemented. Slavery in the US was not fully banned until the ratification of the Thirteenth Amendment in December 1865. I am well aware of this. But the Juneteenth holiday is nonetheless is meant to commemorate the end of slavery as a whole, and that is in fact how it has been understood for many decades, long before it became a federal holiday.

July 19 is the traditional date for commemoration of abolition, even if it is not the anniversary of the day on which the last vestiges of slavery were actually banned. Similarly, we celebrate Independence Day on July 4, even though July 2, 1776 was the date when the Continental Congress actually voted for independence.

If people want to move the celebration of abolition to some other appropriate date, such as the day of ratification of the Thirteenth Amendment, I don't object. But that's not what most objections to Juneteenth have been about.

From Gregory v. Chohan, decided Friday by the Supreme Court of Texas, in an opinion by Justice Jimmy Blacklock, joined by Chief Justice Nathan Hecht and Justice Brett Busby, and mostly joined by Justice Jane Bland (three Justices didn't participate in the decision, so these four were a majority of the remaining six):

This case arises from a fatal accident on an icy, unlit stretch of highway near Amarillo. An eighteen-wheeler driven by Sarah Gregory jackknifed across lanes of traffic, and the resulting pileup caused four deaths. Among those killed was Bhupinder Deol, a truck driver, but more importantly a husband, son, and father of three.

Deol's wife and family brought a wrongful death action against Gregory and her employer, New Prime, Inc. The jury awarded approximately $16.8 million to Deol's family. Noneconomic damages—awarded to six family members for past and future mental anguish and loss of companionship—accounted for just over $15 million of the total. On appeal, the defendants challenged the size of the noneconomic damages award….

Assigning a dollar value to non-financial, emotional injuries such as mental anguish or loss of companionship will never be a matter of mathematical precision. But when properly called upon, appellate courts have a duty to ensure that the damages awarded for a noneconomic injury are the result of a rational effort, grounded in the evidence, to compensate the plaintiff for the injury…. "[T]here must be evidence that the amount found is fair and reasonable compensation, just as there must be evidence to support any other jury finding." Rather than limit review of noneconomic damages to elastic, impractical standards like the "shocks the conscience" test, our precedent instead requires evidence of both the "existence of compensable mental anguish" and "evidence to justify the amount awarded." …

"While the impossibility of any exact evaluation of mental anguish requires that juries be given a measure of discretion in finding damages, that discretion is limited." No matter the cause of action, the results of litigation should always be justifiable based on evidence and reason. "Juries cannot simply pick a number and put it in the blank." To guard against arbitrary outcomes and to ensure that damages awards are genuinely compensatory, the plaintiff in a wrongful death case should be required to demonstrate a rational connection, grounded in the evidence, between the injuries suffered and the dollar amount awarded.

Mental anguish and loss of companionship damages are neither punitive nor exemplary. They are compensatory. That label is illusory if courts do not require a rational connection between the amount awarded and the evidence of injury. While precision is not required—and surely cannot be achieved when placing a dollar value on the emotional toll of losing a loved one—some rational basis for the size of the judgment is a minimal requirement on which the law must insist.

Here, the plaintiffs produced—and the court of appeals recounted—sufficient, even ample, evidence demonstrating the existence of compensable mental anguish and loss of companionship suffered by Deol's family. But nothing in the record or in the plaintiffs' arguments demonstrates a rational connection between the injuries suffered and the amount awarded. The arguments made to the jury regarding the proper amount included references to the price of fighter jets, the value of artwork, and the number of miles driven by New Prime's trucks. Rather than rationally connect the evidence to an amount of damages, these arguments did just the opposite by encouraging the jury to base an ostensibly compensatory award on improper considerations that have no connection to the rational compensation of Deol's family….

Torts Civil Procedure

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From Basulto v. Netflix, Inc., decided May 25 by Magistrate Judge John Goodman, but just posted on Westlaw:

In this defamation lawsuit against Defendant Netflix, Inc. and other Defendants, certain Defendants known as "the Foreign Defendants" filed a Motion to Dismiss for Lack of Jurisdiction….

As explained below, the Undersigned is recommending that the District Court grant the Foreign Defendants' Motion. However, before turning to the specific legal principles which will inform this recommendation, the Undersigned offers the following introductory remarks about a theme articulated in a business management book:

"Confront the Brutal Facts" and its companion concept, "The Stockdale Paradox," developed in business management consultant Jim Collins' book Good to Great, tout the following principle: a successful person must maintain unwavering faith that he will prevail in the end, regardless of the difficulties, while also having the discipline to simultaneously confront the most brutal facts of the current reality, whatever they might be.

Collins' perspective comes to mind in connection with the motion to dismiss the Undersigned will analyze here. Plaintiffs Jose Basulto and Brothers to the Rescue, Inc. seem to have unbridled confidence in their ability to prevail on the motion and to obtain personal jurisdiction over these Defendants. But, as this ruling will soon explain, Plaintiffs' enthusiastic optimism is not enough to overcome the harsh facts (including a lack of facts) undermining their legal position. In many instances, Plaintiffs either ignore the negative facts, describe them incompletely, omit troublesome aspects, fail to address omitted facts and/or exaggerate the significance of other facts.

Politics

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6/19/1992: New York v. U.S. is decided.

The article is here; here are the Introduction and the start of Part I:

Current approaches to content moderation generally assume the continued dominance of "walled gardens": social-media platforms that control who can use their services and how. Whether the discussion is about self-regulation, quasi-public regulation (e.g., Facebook's Oversight Board), government regulation, tort law (including changes to Section 230), or antitrust enforcement, the assumption is that the future of social media will remain a matter of incrementally reforming a small group of giant, closed platforms. But, viewed from the perspective of the broader history of the Internet, the dominance of closed platforms is an aberration. The Internet initially grew around a set of open, decentralized applications, many of which remain central to its functioning today.

Email is an instructive example. Although email is hardly without its content-moderation issues—spam, in particular, has been an ongoing problem—there is far less discussion about email's content-moderation issues than about social media's. Part of this is because email lacks some of the social features that can make social media particularly toxic. But it is also because email's architecture simply doesn't permit the degree of centralized, top-down moderation that social-media platforms can perform. If "ought" implies "can," then "can't" implies "need not." There is a limit to how heated the debates around email-content moderation can be, because there's an architectural limit to how much email moderation is possible. This raises the intriguing possibility of what social media, and its accompanying content-moderation issues, would look like if it too operated as a decentralized protocol.

Fortunately, we don't have to speculate, because decentralized social media already exists in the form of the "Fediverse"—a portmanteau of "federation" and "universe." Much like the decentralized infrastructure of the Internet, in which the HTTP communication protocol facilitates the retrieval and interaction of webpages that are stored on servers around the world, Fediverse protocols power "instances," which are comparable to social-media applications and services. The most important Fediverse protocol is ActivityPub, which powers the most popular Fediverse apps, notably the Twitter-like microblogging service Mastodon, which has over a million active users and continues to grow, especially in the wake of Elon Musk's purchase of Twitter.

Free Speech

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From Southern Utah Drag Stars v. City of St. George, decided Friday by Judge David Nuffer (D. Utah.); seems generally correct to me:

Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces. The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression….

Plaintiffs Southern Utah Drag Stars, LLC ("Drag Stars") and Mitski Avalōx ("Avalōx") seek their opportunity to speak in the public square through a community drag show which they say conveys messages of diversity, inclusion, and support for individuals with non-traditional gender expression and identities. Drag Stars applied for a special event permit (the "Permit") to hold "Our Allies & Community Drag Show" ("Allies Drag Show") at a public park in St. George, Utah (the "City").

The City denied the Permit based on never-previously-enforced ordinances that prohibit special event advertising until a final event permit is issued. The record shows the use of this prohibition was a pretext for discrimination.

The City also enacted a moratorium barring all new special event permit applications for six months. At the same time the City's two-step blocked Drag Stars from holding the Allies Drag Show for at least six months, the City retroactively exempted the majority of other known violators of the advertising prohibition and exempted major swaths of events from the moratorium….

The court's opinion is long (60 pages) and detailed, so let me focus on the brief section on why the drag show is constitutionally protected speech, and then provide the court's summary of the other matters:

Free Speech

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WEVV (Evansville) reports:

An Evansville woman is behind bars after police say she set an American flag on fire and hung up an ISIS flag….

Authorities say they arrested Sierra Malloy, who made a comment about cutting off two of the officer's heads….

The affidavit shows Malloy had taken down the American flag off Spectrum's flag pole and set it on fire….

Malloy claimed to be ISIS and was saying homophobic slurs to officers.

Malloy was booked into the Vanderburgh County Jail for two counts of communication intimidation, criminal trespass, criminal mischief, and flag desecration.

It is certainly a crime to destroy someone else's flag, like it's a crime to destroy other people's property more generally; that's the criminal mischief charge. But it can't be punished as "flag desecration."

Free Speech

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According to the Indictment in U.S. v. Comiskey, the defendant tweeted, about Rep. Lauren Boebert,

"If I ever saw Lauren I'd be glad to take her out and go to prison. Would be job well done."
"Don't worry Lauren, someone is coming soon to show your face the 2nd amendment in practice with a copper jacket. Enjoy."
"Someone needs to put Lauren down like a sick dog. She is a true waste of life! Someone exercise their 2nd amendment right to her face! Since the @CIA is a failure and @FBI is incompetent at charging her for being a terrorist it's time to do it ourselves! Pew pew Lauren."
"I got my 2 amendment tool all ready to destroy Lauren's face! Hopefully in front of her kids."
"[D]on't come to Florida us libs have big guns here and we stand out [sic] ground. Take you down like Trayvon."

Defendant pleaded guilty (and was sentenced Monday), so we don't have more detailed facts about the context here. But on its face, these do indeed seem like constitutionally unprotected "true threats" of criminal conduct. And the court agreed that the indictment sufficiently alleged true threats, despite defendant's argument "that two of the Twitter posts contain conditional statements, while another does not indicate that Defendant 'personally' threatened to shoot the Representative."

Annika Marie Miranda, Karla Albite & Yara Klukas represent the government.

Free Speech

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6/18/1787: Alexander Hamilton introduces his plan to the Constitutional Convention.

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How Should Juries Decide Noneconomic Damages Awarded to Family Members in Wrongful Death Cases?

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Exclusion of Drag Show from Public Park Violates First Amendment

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Man Sentenced to 15 Months in Prison for Threatening Congresswoman

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