From Commonwealth v. Muhammad, decided Wednesday, by Judge John Bender, joined by Judges Maria McLaughlin and Correale Stevens:
On August 12, 2021, Appellant was charged with disorderly conduct, pursuant to Sections 5503(a)(2) and (a)(3), in connection with an incident which the trial court summarized as follows:
The incident which resulted in the disorderly conduct charges occurred at the Judge Bernard C. Brominski building[,] which contains the domestic relations and child custody divisions of the Luzerne County Court of Common Pleas. [Appellant] attempted to enter the Brominski building without a mask at a time when masks were required. After obtaining a mask, [Appellant] was permitted to enter the building. As she was entering, [Appellant] told a security officer, "I'm not fucking talking to you." She then entered and said "fuck you" to a deputy sheriff and the security officer. [Appellant] then said "fuck you" again as she walked in the direction of the elevator. After entering the elevator, [Appellant] began screaming for help. As a result of her actions, [Appellant] was charged with one count of disorderly conduct for using obscene language and one count for making unreasonable noise. She was found guilty of [disorderly conduct for] using obscene language on April 6, 2022….
The relevant statute, though, prohibits "obscene language" or "obscene gesture[s]," and Pennsylvania courts had interpreted that (rightly or wrongly) to mean "obscene" in the First Amendment sense of being hard-core pornography; vulgarities don't count, so the conviction was reversed. (The court noted that the trial court never entered a disposition as to the "citation for disorderly conduct under 18 Pa.C.S. § 5503(a)(2), for making 'unreasonable noise.')
But the entire panel also joined Justice Stevens' concurring opinion:
WHEREAS: Ethnically insensitive and pejorative language has no place in official government documents or government employee titles;
WHEREAS: The government has a responsibility to respect its citizens and use ethnically appropriate language, particularly when referring to ethnic minorities;
WHEREAS: According to Pew Research, only three percent of American Latinos and Hispanics use the word "Latinx" to describe themselves;
WHEREAS: The Real Academia Española, the Madrid-based institution which governs the Spanish language, has officially rejected the use of "x" as an alternative to "o" and "a" in Spanish;
WHEREAS: One can no more easily remove gender from Spanish and other romance languages than one can remove vowels and verbs from English; and
WHEREAS: It is the policy of the Governor's administration to prohibit the use of culturally insensitive words for official state government business.
NOW, THEREFORE, I, SARAH HUCKABEE SANDERS, acting under the authority vested in me as the Governor of the State of Arkansas, do hereby order the following:
In our last four posts, we have described how our Federal Criminal Justice Clinic's Freedom Denied report reveals a culture of detention, with federal judges routinely violating the Bail Reform Act that they are tasked with upholding.
This post addresses the last of our four findings and recommendations: "Judges must stop unlawfully jailing people for poverty through excessive financial conditions."
[o]ur courtwatching study shows that federal judges consistently impose financial conditions of release that result in pretrial detention. This practice violates the explicit statutory language of the Bail Reform Act, perpetuates a system where wealth buys release and people are jailed for poverty, and has a disproportionate racial impact. These detentions, which violate the law, contribute to rising detention rates as well as racial and socioeconomic disparities in the federal system.
Today a panel of the Sixth Circuit (Judge Larsen writing, joined by Judges Siler and McKeague) affirmed a preliminary injunction against the enforcement of the COVID vaccination requirement for federal contractors. But the court narrowed the preliminary injunction, which had covered parties and non-parties alike in the plaintiff states. Now the injunction protects only the parties to the case--as it should. The court's opinion is here.
Co-blogger Jonathan Adler has already written about the opinion, especially about the merits. Here I will reproduce the court's discussion of the scope of the injunction:
The parties agree that federal courts should not issue relief that extends further than necessary to remedy the plaintiff's injury. Although a geographically limited injunction like the one issued here does not create all of the practical problems associated with "nationwide" or "universal" injunctions, see Arizona v. Biden, 31 F.4th 469, 484 (6th Cir. 2022) (Sutton, C.J., concurring), affording relief beyond the parties nonetheless raises substantial questions about federal courts' constitutional and equitable powers, see id. at 483; Dep't of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (mem.) (Gorsuch, J., concurring). We therefore take seriously the federal government's complaint about the overbreadth of the district court's injunction.
The plaintiff States offer two theories why the district court properly extended the injunction to non-parties. First, the States claim that if the injunction does not extend to nonparties, the federal government will "simply choose to do business with those against whom it could enforce the mandate." Appellee Br. at 41. Yet the States provide nothing but pure speculation that the government would switch providers.
The States' second theory fares no better. The States rightly point out that they have a sovereign interest in enforcing their duly enacted laws, see Kentucky II, 23 F.4th at 599, and that the mandate purports to preempt those laws, Task Force Guidance, supra, at 13. The States thus contend that the only way to prevent preemption is to prohibit enforcement of the mandate against any contractor in the state. This theory falls flat with respect to the States' policies regarding the vaccination status of their own employees. See Tenn. Code Ann. § 14-2-101; Amended Complaint, R. 22, PageID 410, 412. An injunction barring the federal government from enforcing the mandate against the States would also run to the States' subdivisions and thus would not encroach on the States' own vaccination policies for state employees. See Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 362 (2009).
Tennessee also bars private businesses from inquiring about another person's vaccination status, Tenn. Code Ann. § 14-2-102(a). We recognize the potential conflict: one cannot ensure an employee is vaccinated without asking. But this same Tennessee statute exempts federal contractors, subcontractors and "postsecondary grant[]" recipients if compliance with the Tennessee law "would result in a loss of federal funding." Tenn. Code Ann. § 14-6-102(a). Tennessee does not explain why a state-wide injunction is necessary to prevent preemption of its "don't ask" law, when the Tennessee statute itself provides exemptions from that rule. Without more, Tennessee has not shown that an injunction extending to nonparties is a remedy "no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." Califano v. Yamasaki, 442 U.S. 682, 702 (1979); Arizona, 31 F.4th at 484 (Sutton, C.J., concurring).
Because an injunction limited to the parties can adequately protect the plaintiffs' interests while the case is pending disposition on the merits, the district court abused its discretion in extending the preliminary injunction's protection to non-party contractors in the plaintiff States.
* * *
We AFFIRM the district court's issuance of the injunction but MODIFY its scope to prohibit the federal government from enforcing the contractor mandate against the parties only.
From Judge Larry Alan Burns' decision today in Doe v. Bonta (S.D. Cal.):
Five California registered gun owners have filed suit to prevent Rob Bonta, Attorney General of the State of California, from enforcing a California law that permits the State to disclose their personal identifying information to bona fide research institutions for the ostensible purposes of preventing gun violence, shooting accidents, and suicide….
The gun owners, all of whom are law abiding citizens who passed background checks, raise four claims. First, they argue that AB 173 violates—or at minimum, chills—their Second Amendment right to keep and bear arms. Second, they maintain that disclosing their personal identifying information to non-government researchers violates privacy protections guaranteed to them by the Fourteenth Amendment. Next, they assert that AB 173 violates their right to due process under the Fourteenth Amendment by retroactively expanding access to their restricted personal information. Their final claim, applicable only to applicants for concealed weapon permits ("CCW") and holders of such permits, is that federal law preempts AB 173 insofar as AB 173 authorizes disclosure of their social security numbers to third parties in derogation of the federal Privacy Act of 1974….
The court rejected the Second Amendment challenge:
Bruen didn't undo all preexisting gun regulations. Licensing requirements, fingerprinting, background checks, and mandatory gun safety training courses exist in many states and operate as prerequisites to exercising the right to possess and carry firearms. The legitimacy of these longstanding and common regulations was recognized in District of Columbia v. Heller (2008) and in McDonald v. Chicago (2010)—a point acknowledged by Bruen….
What one gleans from these qualifications is that there is a difference between prohibiting a right and regulating the right; so long as the regulation of the right to keep and bear arms doesn't amount to a prohibition of the right, the regulation is permissible. Read together, Heller, McDonald, and Bruen establish that "the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check." Rather, the cases collectively confirm that the Second Amendment permits laws and regulations that precondition the right to keep and bear arms on the obligation to comply with such ministerial tasks as providing personal identifying information and submitting to a background check—provided that the overall regulatory regime is neither overly discretionary nor overly burdensome. Laws requiring gun owners to comply with such ministerial tasks are presumptively valid and don't violate the plain text of the Second Amendment….
While Plaintiffs acknowledge the legitimacy of these regulatory prerequisites to gun ownership and possession, and expressly disclaim any purpose "to contest the statutory and regulatory scheme governing the collection of personal information in connection with firearms and ammunition transactions," they maintain that disclosure of such information to third party researchers denies ordinary citizens the right to keep and bear arms. Central to Plaintiffs' Second Amendment claims is the premise that sharing their personal information with outside gun research organizations jeopardizes their personal privacy and physical security. Plaintiffs hypothesize that if their identities are publicly revealed, they will be harassed, subjected to reprisals, and exposed to heightened risks of their homes being burglarized or becoming victims of violence. Notwithstanding that DOJ protocols and the California Penal Code forbid any approved research organization from publicly disseminating the personal information of gun owners, Plaintiffs argue that their information may still be hacked. They also surmise that renegade researchers—hostile to their Second Amendment rights—could surreptitiously release their information to the public. Either possibility, according to Plaintiffs, presents a threat of infringement to their Second Amendment rights.
From today's decision by Judge Ann Aiken (D. Ore.) in Hunter v. U.S. Dep't of Ed.; I think this is quite right, because the government has no constitutional obligation to prohibit sex discrimination (or race discrimination, religious discrimination political discrimination, or what have you) by private institutions, even ones that get government funds:
Plaintiffs challenge Defendants' application of the religious exemption included in Title IX of the Education Amendments of 1972 … to sexual and gender minority students who attend private religious colleges and universities that receive federal funding….
Title IX prohibits educational programs or activities receiving federal funds from excluding, denying benefits to, or subjecting to discrimination any person on the basis of sex…. One narrow exception to Title IX is when an educational institution "is controlled by a religious organization" with "religious tenets" inconsistent with the application of Title IX….
Plaintiffs are forty LGBTQ+ people who applied to, attended, or currently attend religious colleges and universities ("religious schools") that receive federal funding. They allege that their schools have discriminated against them by, among other things, subjecting them to discipline (including expulsion), rejecting their applications for admission, and rescinding their admissions because of their sexual orientation or gender identity. Plaintiffs seek to represent a class of "LGBTQ+ students who attend taxpayer-funded religious colleges and universities that openly discriminate against them in both policy and practice." [Plaintiffs' claims appear to be that sexual orientation and gender identity discrimination are forms of sex discrimination that would be forbidden by Title IX were it not for the religious exemption, just as the Court has concluded that Title VII's ban on sex discrimination in employment generally bans sexual orientation discrimination and gender identity discrimination as well.—ed.]
The court rejected plaintiffs' equal protection claim (under the "equal protection component" of the Fifth Amendment Due Process Clause); a short excerpt:
Say that you've copied a few paragraphs from Westlaw to Word, and they include yellow and red flags and similar items indicating the status of various cases (e.g., whether they've been questioned, overruled, appealed, and the like). That can be helpful for your own reading, but may not be so good if you want to use the passages in a brief, in a course handout, and so on. You can copy and paste the text without formatting, but that will get rid of italics as well, which isn't optimal. How do you just get rid of the flags?
I just recently learned it (though I probably should have known it earlier): Just do a search-and-replace for ^g (for graphics) and replace it with nothing. Voila.
Today a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit upheld a district court injunction against the Biden Administration's order that federal contractors ensure their employees receive COVID-19 vaccinations. The opinion in Commonwealth of Kentucky v. Biden was written by Judge Larsen, and joined by Judges McKeague and Siler. I wrote about earlier decisions concerning this mandate here and here.
Judge Larsen begins with a summary of her opinion:
A fundamental tenet of our constitutional order is that the President's authority "must stem either from an act of Congress or from the Constitution itself." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). The critical question in this case is whether the President heeded this rule when he ordered all federal agencies to include in their new contracts a provision obligating contract recipients to require their employees to wear face masks at work and be vaccinated against COVID-19. The President has claimed no inherent constitutional power here; instead, he maintains that the Federal Property and Administrative Services Act of 1949 authorized his order. The district court and a motions panel of this court concluded that the President likely exceeded his powers under that Act. We agree. We therefore affirm the district court's decision to preliminarily enjoin the federal government from enforcing the mandate, but we modify the scope of the injunction.
The primary legal quesiton in this litigation concerns the scope of the President's authority to impose conditions on federal contractors under the Federal Property and Administrative Services Act, generally known as the "Property Act."
As I discussed in my post on a different Sixth Circuit panel's earlier refusal to stay the district court injunction, the leading cases on this question are from the U.S. Court of Appeals for the D.C. Circuit, which construed the President's authority under the Property Act quite broadly. The Supreme Court has not addressed the question, and there are reasons to doubt whether the D.C. Circuit got this issue right.
Whereas the prior Sixth Circuit opinion tried to distinguish the D.C. Circuit caselaw, Judge Larsen explained why that caselaw did not, and should not, control, as it adopted an unduly expansive notion of the President's authority. As she explains, the federal government's position relies upon assuming the Property Act confers broad authority to pursue the statute's purposes, despite the lack of any such delegation of authority in the law's operative provisions.
The government's statutory arithmetic starts with a fundamental error: It searches for power in a powerless provision. . . . A statutory statement of purpose provides no legal authority. . . . Indeed, just a few terms ago, the Supreme Court unanimously applied this rule, rejecting an assertion by the National Park Service that a statute's "general statement of purpose" could give it power that the Act's operative provisions did not confer. See Sturgeon v. Frost, 139 S. Ct. 1066, 1085–87 (2019). In the end, the government puts up no fight on this front, conceding that § 101 of the Property Act "is not an affirmative grant of authority." Reply Br. at 2. . . .
The operative language in § 121(a) empowers the President to issue directives necessary to effectuate the Property Act's substantive provisions, not its statement of purpose. . . . The text of § 121(a) itself tells us as much. The phrase "carry out" requires a task to be done—something "to put into practice or effect." . . . Yet a purpose provision, on its own, does nothing. . . . True, "carry out" might sometimes refer to a goal rather than a task, but that would be a particularly odd construction of § 121(a). For one thing, that interpretation would be anomalous,if not unprecedented. . . . When asked to provide examples (outside of the Property Act) of a court countenancing an agency's attempt to carry out a purpose provision, in addition to its operative provisions, the government could not provide a single one. More importantly, "no legislation pursues its purposes at all costs," . . . and the Property Act is no exception. Through dozens of operative provisions, Congress chose the means by which to pursue the ends declared in § 101. We decline the government's invitation to construe § 121(a) as authorizing the President to ignore the limits inherent in the Property Act's operative provisions in favor of an "anything-goes" pursuit of a broad statutory purpose. . . .
Even if we were to indulge the government's reliance on the Property Act's declaration of purpose, we would still conclude that the contractor mandate is unlawful. . . . In the government's view, the Act "empowers the President to 'prescribe policies and directives that the President considers necessary' to 'provide the Federal Government with an economical and efficient system' for '[p]rocuring . . . property and nonpersonal services, and performing related functions including contracting.'" Appellant Br. 18 (quoting §§ 101, 121(a)). As the stay panel noted, the most natural reading of this language is that it "authorizes the President to implement systems making the government's entry into contracts less duplicative and inefficient." . . . And the government does not contest that this language—an "economical and efficient system" of procurement—is internally focused, speaking to government efficiency, not contractor efficiency. Recording of Oral Argument at 26:32–26:39 ("We don't dispute the stay panel's conclusion that 'system' points the court's analysis inward."). Yet the government's justifications for the mandate center not on how it would make contracting more efficient, but how it would make contractors more efficient. E.g., 86 Fed. Reg. at 63,422. ("Requiring any workers who have not yet done so to receive a COVID-19 vaccine would generate meaningful efficiency gains for Federal contractors." (emphasis added)).
Judge Larsen also explained why the court rejected reliance upon the D.C. Circuit's broad construction of the President's authority.
Finding no shelter in the statutory text, the government seeks refuge in out-of-circuit caselaw. The leading case is the en banc D.C. Circuit's decision in Kahn, which held that the President did not exceed his powers under the Property Act by ordering federal contractors to comply with wage and price regulations because there was a "sufficiently close nexus" between those regulations and "the values of 'economy' and 'efficiency.'" 618 F.2d at 792. In so holding, the court relied on the Act's declaration of purpose to give content to the textual delegation of authority to the President. Id. at 783–89. That logic, as we have explained, is mistaken. . . . Other cases on which the government relies simply assume that Kahn's analysis was correct. . . .
Indeed, the only other decision to independently adopt the government's reading of the Property Act, Contractors Association, is even less help to the government's case than Kahn. In cataloging the history of executive orders prohibiting discrimination by federal contractors, the court explained that while many of those orders relied on World War II-era defense statutes, two orders issued by President Eisenhower "seem[ed] to be" authorized by the Property Act, even though the President had not invoked that power. 442 F.2d at 170. In one paragraph, and without a single mention of the statutory language, the court concluded that the Property Act authorized two non-discrimination orders because the United States has an interest in reducing costs and delays in procurement. Id. That conclusion, moreover, was dictum. Neither Eisenhower order was before the court, and the order that was before the court involved construction projects in which the federal government merely provided financial assistance, rather than directly procuring the services, so it cannot have rested on the Property Act. See id. at 170–71. Contractors Association's cursory and gratuitous assessment of the Property Act is far too thin a reed on which to rest the contractor mandate.
While the court rejected the federal government's defenses of the contractor mandate, it agreed with the Biden Administration that the lower court's injunction was overbroad insofar as it bound nonparties in the plaintiff states.
We still must decide, however, whether the district court abused its discretion by prohibiting enforcement of the mandate against non-parties in the plaintiff States. We hold that it did.
The parties agree that federal courts should not issue relief that extends further than necessary to remedy the plaintiff's injury. Although a geographically limited injunction like the one issued here does not create all of the practical problems associated with "nationwide" or "universal" injunctions, see Arizona v. Biden, 31 F.4th 469, 484 (6th Cir. 2022) (Sutton, C.J., concurring), affording relief beyond the parties nonetheless raises substantial questions about federal courts' constitutional and equitable powers, see id. at 483; Dep't of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (mem.) (Gorsuch, J., concurring). We therefore take seriously the federal government's complaint about the overbreadth of the district court's injunction. . . .
Because an injunction limited to the parties can adequately protect the plaintiffs' interests while the case is pending disposition on the merits, the district court abused its discretion in extending the preliminary injunction's protection to non-party contractors in the plaintiff States.
It will be interesting to see whether the Biden Administration files a petition for rehearing en banc or a petition for certiorari.
Our Federal Criminal Justice Clinic's recent national report on federal pretrial detention—Freedom Denied—revealed a severe misalignment between the Bail Reform Act's requirements and on-the-ground practice. In the preceding two posts, we focused on the Initial Appearance hearing. This post now turns to the Detention Hearing.
This post addresses the third of our four findings and recommendations: "Judges must follow the correct legal standard in presumption-of-detention cases to reduce racial disparities and high federal jailing rates."
The Bail Reform Act clearly favors pretrial release in most cases. At the Detention Hearing, a person must be released unless "the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e). But the Act contains a rebuttable presumption of detention for some crimes—most federal drug offenses and § 924(c) gun charges.
This presumption was intended to apply extraordinarily narrowly:
Congress intended this presumption of detention to capture only the "worst of the worst" offenders. "[L]egislators wanted the drug presumption to prevent rich people suspected of high-level drug trafficking from fleeing." But in practice, the presumption now applies in a high percentage of federal cases—including 93% of federal drug cases—very few of which pose any special risks of flight or recidivism.
As a legal matter, the presumption should have, at most, a limited effect:
To anyone paying attention, it's pretty clear that freedom of thought is under assault in society. What people don't realize, however, is that freedom of thought may be even more endangered in the era of neurotechnology. It's technology that can empower or oppress us. The choice is still ours to make.
I've been following developments in neuroscience and neurotechnology for more than a decade. I'm excited about the promise the developments for humanity. But it wasn't until I started to see major investments by mainstream technology companies into wearable brain-computer interface that I believed neural interface will become part of our everyday lives. But there are powerful headwinds against change, including challenges to our right to access and alter our own brains.
There has been major progress in the past few years by neurotech companies focusing on implanted devices. From Synchron, to Blackrock Neurotech and Neuralink. But it's the mainstream wearable devices and applications that interest me the most -- and make me believe that we need an update to Mill's On Liberty. By recognizing a right to cognitive liberty.
Co-blogger Sam Bray and I have just filed an amici brief in Biden v. Nebraska, the Supreme Court student loan forgiveness case, taking what I suspect is a unique position among any of the public filings. Here is the introduction to our brief:
Amici believe that the administration's student loan forgiveness program is unlawful. But even if the executive branch has exceeded its authority under Article II, that does not permit the judicial branch to exceeditsauthority under Article III."The case-or-controversy doctrines state fundamental limits on federal judicial power in our system of government." Allenv.Wright,468U.S.737,750(1984).Any executive overreach is troubling.But "[t]here is no reason to magnify the separation-of-powers dilemma . . . by letting Article III judges—like jackals stealing the lion's kill—expropriate some of the power that [the Executive] has wrested from [Congress]."FCC v. Fox Television Stations, Inc.,556 U.S. 502, 525-26 (2009) (plurality opinion).
The standing theories that have been thrown at the wall in these cases are wrong, and many of them would have dangerous implications.Each theory falters on several grounds, but amici focus this brief on three points.
First,whenitcomestostanding,thecritical question is who is the "proper party" to sue.This inquiry has been framed in different ways but the central aim is to ensure that the person most affected by the challenged action is before the court. Applying thatprinciplehere,Missourihasnostandingto complainabouttheloanservicingfeesthatthe MissouriHigherEducationLoanAuthority (MOHELA) might lose. Missouri set up MOHELA as a separate legal and financial entity, with the power to sue and be sued.MOHELA is far and away the most interested plaintiff, with Missouri's claims being merelyderivativeofMOHELA's.MOHELAhas chosen not to bring a lawsuit, and as the "proper party" to the suit, its decision ought to carry the day.
Second,thereisdangerincountenancing extravaganttheoriesofstatestandingthathave explodedinthewakeofthisCourt'sdecisionin Massachusetts v. EPA, 549 U.S. 497 (2007).In the last decade, state attorneys general have relied on that case's underexplained language about "special solicitude,"see id.at 520, producing a barrage of suits withtenuousstandingtheoriesagainst administrationsoftheopposingpoliticalparty. Overbroad readings of that caseshould be forcefully rejected by this Court, lest state standing be allowed to transform the role of the federal judiciary.
Third,there is a fundamental disconnect between the states' weak claim for standing and the broad remedy they obtained—a national injunction.That disconnect is incompatible with the traditional limits ofequitablejurisdictionandwiththisCourt's instruction that standing must be demonstrated for each form of relief. The Court has not granted review specifically on the scope of the injunction, and may not wish to consider all aspects of that question in this case.But the scope of the relief is relevant, whether as part of the standing inquiry or as part of the broader questions of judicial power the Court should consider.Not only did the states seek and obtain a nationalinjunction—aremedylackingany traditional basis in equity—but they obtained this exceedingly broad remedy with an unusually weak basis for standing.That combination is at odds with basic principles of standing and equity jurisprudence that are applicable in the federal courts.
In Surdak v. DXC Technology (decided Dec. 20 by Judge Stanley Blumenfeld, Jr. (C.D. Cal.), but just posted a few days ago on Westlaw), plaintiff claimed he was fired (1) because of his "complaints … that he was not being paid all his wages" and (2) "in retaliation for posting a tweet on his personal Twitter account and complaining that DXC's request that he remove the tweet constituted illegal censorship"; "Plaintiff's colleague filed an internal complaint about the tweet, posted by Plaintiff, which stated, 'I'll have those niggers voting Democrat for the next 200 years,' and attributed the quote to Lyndon B. Johnson."
I'll skip the wage complaint question here, and turn to the Tweet issue, which arises under California's employee free speech statutes; opinions applying such statutes are fairly rare, though this one struck me as noteworthy:
However, Plaintiff also alleges that he was terminated in violation of Cal. Labor Code §§ 1101 and 1102. "Sections 1101 and 1102 of the California Labor Code prohibit employers from interfering with the fundamental right of employees in general to engage in political activity." Couch v. Morgan Stanley & Co. Inc., 656 F. App'x 841, 842 (9th Cir. 2016) (internal quotation omitted). "Liability … is triggered only if an employer fires an employee based on a political motive." A political motive might include "punishing him for expressing political views contrary to [the employer's] or, by discharging plaintiff, attempting to discourage other employees from expressing political views different from [the employer's]." Nava v. Safeway Inc., No. F063775, 2013 WL 3961328, at *8 (Cal. Ct. App. July 31, 2013).
This post is a list of my upcoming speaking engagements for the Spring 2023 semester. Unless otherwise noted, all events are free and open to the public—and in person. The listed times are those in the time zone where the event is being held.
I will add additional events and information to this post, over time. In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business! You can get an overview of the issues I write and speak about at my website.
January 25, 7-8:15 PM, Georgetown University Law Center, Washington, DC:Panel on "Higher Education and the Law," Panel will have a Q&A format, so I will not be giving prepared remarks. Other participants include Prof. Blake Morant (former George Washington University law school dean), Prof. Erica Hashimoto (Georgetown), Andrew Cornblatt (Dean of Admissions, Georgetown University Law Center), and Ishan Blatt (Jenner & Block, moderator). Co-sponsored by the Coke Inn, Georgetown University Law Center, the Georgetown Center for the Constitution, and ICAP.
Jan. 26, 5:30-7:30 PM: Scalia Law School, George Mason University, Hazel Hall, Rm. 215, 3301 Fairfax Dr., Arlington, VA. "Migration Rights and Refugee Crises." A talk covering current refugee crises, based in part on my book Free to Move: Foot Voting, Migration, and Political Freedom. Sponsored by the Washington, DC Amherst College alumni association. Additional information and RSVP here (though registration is not required). This event is open to Amherst College alumni and George Mason University students and faculty.
Feb. 1, 12-1:15 PM, Institute for Liberal Studies, Ottawa, Canada: "Liberty in Science Fiction and Fantasy." A presentation on the role of libertarian ideas in these immensely popular genres. Online seminar - free with registration. Free registration here.
February 2, 5-6:15 PM, Cornell Law School, Ithaca, NY, Rm. 182: "Biden's Loan Forgiveness Plan as a Trumpian Abuse of Emergency Powers." Debate with Prof. Michael Dorf (Cornell). Sponsored by the Cornell Law School Federalist Society.
February 9, 12-1:15 PM (tentative time), Rm. RB 140, Northwestern University School of Law, Chicago, IL. "The Case for Libertarianism" (tentative title). Debate with Prof. Andrew Koppelman (Northwestern). Sponsored by the Northwestern University Federalist Society.
Feb. 18, 10:30-12:30 AM, Cralle Theatre, Wyatt Center for the Arts, Bellarmine University, Louisville, KY: "Judicial Review, Political Ignorance, and Voting with Your Feet." Constitution Symposium.
February 24, 10:15-11:45 AM, Francis King Carey School of Law, University of Maryland, Baltimore, MD: "The Supreme Court and the Major Questions Doctrine," panel on "Examining the Court's Recent Activity," symposium on "Understanding Constitutional Law: Perspectives From the Left, Right, and Center." Sponsored by the Maryland Law Review.
March 3, 4-5:30 PM, Salem Center, McCombs School of Business, University of Texas at Austin, Robert B. Rowling Hall (RRH), RRH 4.314, 300 W Martin Luther King Blvd, Austin, TX: "Free to Move: Foot Voting, Migration, and Political Freedom." Additional information here.
March 4, 2-3:45 PM, Federalist Society National Student Symposium, University of Texas Law School, Zlotnik Family Ballroom, AT&T Hotel and Conference Center, 1900 University Ave, Austin, TX: "How Federalism Can Promote Unity by Empowering Diversity," panel on "Does Federalism Lead to a More United or Disunited Democracy?" Other participants include Prof. Jud Campbell (Univ. of Richmond), and Prof. Michael Greve (George Mason).
March 10, Loyola University New Orleans, College of Law, New Orleans, LA, time TBA: "The Case Against Court-Packing." Loyola Law Review symposium.
March 23, noon-1 PM University of Michigan Law School, Ann Arbor, MI, Hutchins Hall, Rm. 138: "Opening the Golden Door: The Case for Ending Migration Restrictions" (sponsored by University of Michigan Federalist Society).
March 31, Time TBA, University of Pennsylvania Carey Law School, Philadelphia, PA: ""Biden's Loan Forgiveness Plan as a Trumpian Abuse of Emergency Powers." Panel on "Student Loan Forgiveness," symposium on "The Future of the Administrative State and the Roberts Court: Dangers to the Fourth Branch" (Sponsored by the Penn Federalist Society).
April 5, Duke Law School, Durham, NC, noon-1 PM (tentative time): "No More Travel Bans and Double Standards: Rethinking the Constitutional Law of Immigration," with commentary by Duke Prof. Kate Evans (sponsored by the Duke Law School Federalist Society).
April 15, Drake University Law School, Des Moines, IA, time TBA. "Why the Supreme Court Should Rule Against the Use of Racial Preferences to Promote 'Diversity'." Panel on affirmative action. Debate with Prof. Vinay Harpalani (University of New Mexico). Conference on "The Scales of Justice Tilt Right: Abortion, Affirmative Action, and the Administrative State." Sponsored by the Drake University Constitutional Law Center.
In Part II of our series describing the culture of detention that pervades the federal pretrial system, we explained how our Federal Criminal Justice Clinic's new report, Freedom Denied, found that judges and lawyers frequently misapply the Bail Reform Act's standard for detention at the Initial Appearance—often resulting in illegal jailing.
This post addresses the second of our four findings and recommendations: "Judges must stop unlawfully jailing poor people without lawyers at the Initial Appearance hearing."
We were the first to uncover a serious and previously unexplored "access-to-counsel crisis" in the federal system. In more than a quarter of federal district courts across the country, an indigent individual can be jailed without a lawyer by their side:
In many federal courts, judges lock poor people in jail without a lawyer during their Initial Appearance, in violation of federal law. Our study uncovered a national access-to-counsel crisis: judges in more than one-quarter of the 94 federal district courts do not provide every arrestee with a lawyer to represent them during the Initial Appearance. See Figure 6. In fact, 72% of the districts where we interviewed or surveyed stakeholders deprive at least some individuals of counsel at this first bail hearing. While the scope of the problem varies across districts and divisions, in every court that exemplifies this particular crisis, arrestees are jailed without counsel. These widespread deprivations of counsel contribute to the culture of detention and drive high jailing rates at Initial Appearances nationwide….
On January 5, 2023, at around 11:30 p.m., a 46-year-old diner-patron was sitting in a booth at the southwest Houston's El Ranchito Taqueria #4 when a masked robber began pacing around the restaurant demanding money from the patrons at gunpoint. As the robber walked past the patron the patron pulled out a handgun. The patron then shot and killed the robber, who has been identified as 30-year-old Eric Eugene Washington.
The handgun later turned out to be a fake (the shooter can be seen throwing it against a wall in apparent disgust after the shooting). Yet there can be little question that the employees and customers, some of whom crawled under a table desperately seeking cover, had every reason to fear they would be killed or seriously injured that day. According to the as-of-yet unnamed shooter's attorney, "[i]n fear of his life and his friend's life [the shooter] acted to protect everyone in the restaurant." The attorney further accurately commented that in Texas, "a shooting is justified in self-defense, defense of others and in defense of property."
A Texas Grand Jury is now reportedly considering whether that shooter's conduct qualifies as justified self-defense under Texas law. And although the so-called "smart money" understandably is on the prosecutor's office not charging the shooter, his situation is perhaps not as entirely clear-cut as it may at first blush appear.
