The Volokh Conspiracy

The Judiciary Act of 1891, commonly known as the Evarts Act, restructured the federal judiciary. This law created the now-familiar circuit courts of appeals. At the time, there were nine circuit courts of appeal. Now there are twelve.

Prior to the Evarts Act, there were circuit courts in the states. For example, there was the U.S. Circuit Court for District of Maryland. (This court may seem familiar to those who've read Ex Parte Merryman). And Justice Bushrod Washington decided Corfield v. Coryell while riding circuit on the U.S. Circuit Court for the Eastern District of Pennsylvania.

I have a question, for which I cannot find the answer. Would a pre-1892 decision of the U.S. Circuit Court for District of Maryland, which was in the 4th Circuit, have been binding precedent on the U.S. Circuit Court for the Fourth Circuit after 1891?

In a related context, I know that decisions of the "old" Fifth Circuit are binding precedent on the Eleventh Circuit, which broke off from the Fifth Circuit in 1981. But I am not certain about the relationship between the pre-Evarts Act Circuit Courts and post-Evarts Acts Circuit Courts of Appeals.

If you have any insights, please email me. I never check the comments or tweets. (But you all knew that already).

It is easy enough for a District Judge to be all alone in Amarillo or Lubbock. But it is quite difficult for a judge to maroon herself on a deserted island along the Acela corridor. Yet, Judge Colleen Kollar-Kotelly somehow managed that Crusoan feat.

Judge Kollar-Kotelly is presiding over prosecutions against anti-abortion advocates. And post-Dobbs, the defendants had the temerity to state that "the Constitution does not confer a right to abortion." Bad move to accurately state Supreme Court precedent. Sua sponte, the court ordered briefing on whether "any other provision of the Constitution could confer a right to abortion as an original matter, which may or may not be addressed in Dobbs, such that Dobbs may or may not be the final pronouncement on the issue, leaving an open question." This is the sort of move that an eager law clerk cooks up, but a judge is supposed to veto. Not here.

You see, Dobbs was a 14th Amendment case. But Dobbs did not address the 13th Amendment. The majority opinion did not answer whether a restriction on abortion amounts to "involuntary servitude." Thus, this issue was left open! Apparently, Justice Alito hid an invisible elephant in a non-existent mousehole.

Judge Kollar-Kotelly explained:

Mindful that that this Court is bound by holdings, and in consideration of the Supreme Court's longstanding admonition against overapplying its own precedent, it is entirely possible that the Court might have held in Dobbs that some other provision of the Constitution provided a right to access reproductive services had that issue been raised. However, it was not raised.

I suppose anything is possible. Maybe Justice Thomas penned a secret concurrence about the Thirteenth Amendment, and spiked it. (Josh Gerstein, go find it!) But this analysis is not how lower court judges are supposed to treat Supreme Court precedent. Consider an easy example. Imagine if a district court judge, pre-Dobbs requested supplemental briefing on whether the Preamble to the Constitution protects a right to fetal personhood. After all, it "secure[s] the Blessings of Liberty to ourselves and our Posterity." Nothing in the text says Posterity has to be born. And neither Roe nor Casey squarely addressed this issue. How would that sort of order fly from Victoria or Wichita Falls?

Judge Kollar-Kotelly framed her order in terms of minimalism, but she is inviting the parties to put forward arguments that could overturn Supreme Court precedent. And to what end? This constitutional issue has almost no bearing on the case. The judge is simply riffing on an accurate statement from a defendant's brief. Are we really going to get an entire constitutional exegesis on involuntary servitude in a dictum?

If the Thirteenth Amendment actually protected a right to abortion, then Dobbs must be overruled. And why stop there? What about the Free Exercise Clause and RFRA? Those issues are being litigated, and were not settled by Dobbs. Hell, everyone forgets about the Ninth Amendment? That provision was actually cited in Roe, and I don't think Justice Alito affirmatively rejected those pearls of wisdom from Justice Blackmun. Another invisible elephant!

I think there is some room for lower-court judges to decline to extend Supreme Court precedent to new contexts, but judges cannot take the Supreme Court's silence as a ground to subvert Supreme Court precedent.

For decades, conservative lower-court judges dutifully, and begrudgingly, followed Roe and Casey. Do not forget that Judge Ho joined the Fifth Circuit opinion that ruled in favor of Jackson Women's Health Organization. But what we are seeing here is massive resistance to Dobbs, much like we are seeing massive resistance to Bruen, and will soon see massive resistance to Students for Fair Admission. Judges do not like these rulings, so they will be read as narrowly as humanly possible, to maintain the pre-2022 status quo.

For those curious, the district court judges in Texas have an almost-perfect affirmance rate at the Fifth Circuit. Me thinks that not even the Reidified D.C. Circuit would affirm an order finding that the Thirteenth Amendment protects a right to abortion. And if this case slips upstairs, that's a GVR.

This episode of the Cyberlaw Podcast is dominated by stories about possible cybersecurity regulation. David Kris points us first to an article by the leaders of the Cybersecurity and Infrastructure Security Administration (CISA) in Foreign Affairs. Jen Easterly and Eric Goldstein seem to take a tough line on "Why Companies Must Build Safety Into Tech Products." But for all the tough language, one word, "regulation," is entirely missing from the piece. Meanwhile, the cybersecurity strategy that the White House has reportedly been drafting for months seems to be hung up over how enthusiastically to demand regulation.

All of which seems just a little weird in a world where Republicans hold the House. Regulation is not likely to be high on the GOP to-do list, so calls for tougher regulation are almost certainly more symbolic than real.

Still, this is apparently the week for symbolic calls for regulation. David also takes us through an National Telecommunications and Information Administration (NTIA) report on the anticompetitive impact of Apple's and Google's control of mobile app markets. The report points to many problems and opportunities for abuse inherent in the two companies' headlock on what apps can be sold to phone users. But, as Google and Apple are quick to point out, the stores do play a role in regulating app security, so breaking the headlock could be bad for cybersecurity. In any event, practically every recommendation for action in the report is a call for Congress to step in – and thus almost certainly a nonstarter for reasons already given.

Not to be outdone on the phony regulation beat, Jordan Schneider and Sultan Meghji explore some of the policy and regulatory proposals for AI that have been inspired by the success of ChatGPT. The EU's AI Act is coming in for lots of attention, mainly from parts of the industry that want to be exempted. Sultan and I trade observations about who'll be hollowed out first by ChatGPT, law firms or investment firms.

In other news, Sultan also tells us why the ION ransomware hack matters. Jordan and Sultan find a cybersecurity angle to The Great Chinese Balloon Scandal of 2023. And I offer an assessment of Matt Taibbi's story about the Hamilton 68 "Russian influence" reports. If you have wondered what the fuss was about, do not expect mainstream media to tell you; the media does not come out looking good in this story. Unfortunately for Matt Taibbi, he doesn't look much better than the reporters his story criticizes. David thinks it's a balanced and moderate take on the story, for which I offer an apology and a promise to do better next time.

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Today I had an unusually large number of travel glitches. Yet, much to my astonishment, I still made it to my destination.

1. My inbound flight was delayed about 40 minutes. No big deal for a Sunday evening flight.
2. After we boarded--approximately one hour late--the flight attendant announced that we need to switch to a new plane due to technical problems. A bigger deal, as switching hardware always creates more delays.
3. We had to wait for the new plane to land, taxi, deplane, and be cleaned, which took about 45 minutes.
4. Shortly before we were set to push back, the pilot announced that he was going to "time out." (The FAA limits the number of "duty hours" a pilot can fly in a given day.) The pilot said he pleaded to push out early so he wouldn't exceed his hours. But no luck. I was certain they would cancel the flight. But much to my surprise, the pilot announced that there was a "Standby" pilot on duty at the airport, who could take over the flight. About 30 minutes later, the new pilot comes on board. Ultimately, we finally took off about 2.5 hours late. Kudos to United for having enough flexibility in hardware (a new plane) and staffing (a standby pilot) to avoid cancelling the flight.
5. While in the air, I received an e-mail from Avis--they couldn't hold my reserved car for more than two hours, so the reservation was closed. Now I would have to go to the rental desk when I landed, rather than go to my reserved spot number. And there is no guarantee anyone would actually be at the desk after 1 AM. Avis may have even sold out of cars! Fortunately, there was still a manager on duty, and I promptly received a car. However, Avis should not have cancelled the reservation. I included my flight number on the record, and Avis should have been able to track that my flight was delayed.
6. I drive to the hotel, and one last glitch for the night. The Marriott reservation system was down. Bonvoyed! There were about 5 people in the lobby, milling around. Curiously, four of them were on my flight--one of them was my seatmate! Eventually, the system comes back online. I make it to my room at 2:30 a.m.

I am shocked, shocked, that despite all of these glitches, I actually made it to my destination, there was a car available, and I got into my room. So many things went wrong, and I was certain I would spend the night back home in Houston. My advice: never panic, stay calm, and realize no trip has to be taken.

In any event, two talks tomorrow, err today. Stay tuned!