From George Orwell's novel "Coming Up for Air" (published in 1939):
It really was unspeakably meaningless, that time in 1918. Here I was, sitting beside the stove in an Army hut, reading novels, and a few hundred miles away in France the guns were roaring and droves of wretched children, wetting their bags with fright, were being driven into the machine-gun barrage like you'd shoot small coke into a furnace. I was one of the lucky ones. The higher-ups had taken their eye off me, and here I was in a snug little bolt-hole, drawing pay for a job that didn't exist. At times I got into a panic and made sure they'd remember about me and dig me out, but it never happened. The official forms, on gritty grey paper, came in once a month, and I filled them up and sent them back, and more forms came in, and I filled them up and sent them back, and so it went on. The whole thing had about as much sense in it as a lunatic's dream. The effect of all this, plus the books I was reading, was to leave me with a feeling of disbelief in everything.
I wasn't the only one. The war was full of loose ends and forgotten corners…. Nobody believed the atrocity stories and the 'gallant little Belgium' stuff any longer. The soldiers thought the Germans were good fellows and hated the French like poison. Every junior officer looked on the General Staff as mental defectives. A sort of wave of disbelief was moving across England, and it even got as far as Twelve Mile Dump. It would be an exaggeration to say that the war turned people into highbrows, but it did turn them into nihilists for the time being. People who in a normal way would have gone through life with about as much tendency to think for themselves as a suet pudding were turned into Bolshies just by the war. What should I be now if it hadn't been for the war? I don't know, but something different from what I am. If the war didn't happen to kill you it was bound to start you thinking. After that unspeakable idiotic mess you couldn't go on regarding society as something eternal and unquestionable, like a pyramid. You knew it was just a balls-up.
That guy could really write (see his wonderful essays "Why I Write" and "Politics and the English Language" for some of his views on the process of writing**). I can't think of another writer in English who will be equally long-remembered and admired both for his fiction ("Animal Farm," "1984" - surely the most influential fiction of the 20th Century) and for his non-fiction ("Homage to Catalonia," "Down and Out in Paris and London," and the remarkable "Road to Wigan Pier"). The excerpt above is as good a snapshot capturing the stupidity, and the tragedy, of WWI as anything of comparable length that I've ever read.
Never use a metaphor, simile or other figure of speech which you are used to seeing in print.
Never use a long word where a short one will do.
If it is possible to cut a word out, always cut it out.
Never use the passive where you can use the active.
Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.
Break any of these rules sooner than say anything outright barbarous.
"Coming Up for Air" was Orwell's fourth published novel, the last to be published before "Animal Farm" and "1984." It is largely unknown and unread today, which is really a shame; told through the eyes of George Bowling, a down-and-out, middle-aged insurance salesman ('two kids and a house in the suburbs'), it's a beautifully crafted picture of Britain-between-the-wars - although neither the characters in the novel nor Orwell himself knew for certain that the '20s and '30s would soon be known as the "between the wars" decades.
And it has that great final sentence: "You knew it was just a balls-up." I don't think I have ever seen or heard that expression anywhere else; for all I know, Orwell may have invented it. But it could not be more perfect.
As Sam notes below, one notable feature of the vacatur arguments in US v. Texas was the strong resistance of former D.C. Circuit judges, arguing from their personal experience. Here's Chief Justice Roberts:
I mean, this is a long -- that's what the D.C. Circuit and other courts of appeals have been doing all the time as a staple of their decision output.
And then an extended . . . statement from Justice Kavanaugh:
Can I move to remedy then because I still have -- I have some problems with that, as you might imagine. Set aside, you said the judges on the D.C. Circuit haven't paid attention to text, context, and history. I guess I would respectfully push back pretty strongly on that. I sat with judges like Silberman and Garland and Tatel and Edwards and Williams. They paid a lot of attention to that.
And the government never has made this argument in all the years of the APA, at least not that I remember sitting there for 12 years. I haven't seen it made. It's a pretty radical rewrite, as the Chief Justice says, of what's been standard administrative law practice. And you devote three pages in your brief to this complete change that all these judges have been doing for all these years, and the government comes up and acknowledges that in case after case after case with labor, energy, environmental. And I think it's a big step.
And you say they're not paying attention to the text. Yeah, we did. Set aside means set aside. That's always been understood to mean the -- the rule's no longer in place. No one's really had this -- no case has ever said what you're saying anywhere. No one -- you know, it's a recent law review proposal, good for that, but, you know, that's not been the law. And so I find it pretty astonishing that you come up here and make -- and I realize it's not your -- you know, the main part of your submission, but I'm just going to push back pretty strongly on the, you know, three pages for just -- just toss out decades of -- of this Court's law, of circuit law. . . .
So that's not really a question, but that is a . . . comment on what I think is a pretty extreme argument . . .
And then by the time Justice Jackson piled on ("As you might imagine, I would like to circle back to the concerns that the Chief Justice and Justice Kavanaugh raised about vacatur and the argument that you're making in this case,") Justice Kagan chimed in: "Seems to be a kind of D.C. Circuit cartel." Justice Jackson agreed: "It is. It is."
Anyway, this dynamic reminded of something I've read before. In Dred Scott v. Sandford, one of the many astonishing legal claims that Chief Justice Taney made was to question Congress's Article IV authority over the territories. Justice Catron responded with a rejoinder from his personal experience serving on a judge on circuit applying territorial law:
It is due to myself to say, that it is asking much of a judge, who has for nearly twenty years been exercising jurisdiction, from the western Missouri line to the Rocky Mountains, and, on this understanding of the Constitution, inflicting the extreme penalty of death for crimes committed where the direct legislation of Congress was the only rule, to agree that he had been all the while acting in mistake, and as an usurper. 60 U.S. at 522-523.
I think of this as the "Catron principle." Apparently there is an analogous proposition about asking former D.C. Circuit judges to agree that their past practice in administrative review was mistaken. I wonder what they think about Chevron.
I was invited to participate in a Hofstra Law Review symposium on free speech in law schools, which will be happening in February, and I thought I'd serialize my current draft article; there's still plenty of time to improve it, so I'd love to hear people's comments. Here are some follow-up thoughts on what I think law schools should try to teach, though you can read the whole PDF, if you prefer:
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F. Building Coalitions
Lawyers also often need to build coalitions in order to win. The most effective amicus supporting our position, for instance, might be a group with which our client would sharply disagree on most things—but which may agree with our client's position on, say, the freedom of speech, or the right to jury trial, or whatever issue is important in this case. If we're arguing against a regulation, we might deliberately want to seek comments from people on all points of the political spectrum. If we're lobbying for a statute or arguing to the voters in favor of a ballot measure, we may need to do the same.
Again, we can't do that if our first reaction is the natural human reaction of shunning one's adversaries for their ideological sins. Law schools need to teach students the habits and attitudes needed for effective coalition-building, and to unlearn the normal inclination towards viewing each one's ideological adversaries as permanent enemies.
G. Unflappably Confronting Unpleasant Facts and Arguments
Lawyers also need to be prepared to deal with difficult and unpleasant facts and arguments, whether in court, when reading precedents, when reviewing documents, or when interviewing witnesses or the client. Indeed, we need to react to such matters as calmly and rationally as possible, even when they are understandably disturbing.
Yesterday the Supreme Court heard argument in United States v. Texas. This case brings together standing, merits, and remedial issues of unusual complexity. Here are a few points of commentary on the vacatur question, about which there was a range of views on the Court, to put it mildly.
One of the occupational hazards of studying remedies is that the Court will often grant certiorari on remedial questions only to have them disappear because of how the question of standing or merits was resolved (e.g., Summer v. Earth Island Institute, Trump v. Hawaii). Here that is very possible given the challenges to Texas's argument on standing. But even if the Court does make it through standing and the merits, the Texas Solicitor General conceded to Justices Alito and Sotomayor that the Court didn't need to reach the question of whether the Administrative Procedure Act (APA) authorizes vacatur because the remedial question can be resolved entirely under Section 1252 (Transcript p. 120).
Today's oral argument in United States v. Texas featured an interesting exchange between Chief Justice John Roberts and Solicitor General Elizabeth Prelogar on whether the Adminsitrative Procedure Act allows courts to vacate agency decisions. From the transcript:
GENERAL PRELOGAR: . . . our argument is that if you actually drill down on the text of 706 and look at its context and also look at the history of the APA, which was not intended to create any kinds of new remedies but instead to simply
provide for the remedies that had preexisted the statute's enactment and the traditional forms of legal action under Section 703, it demonstrates that the courts have erred here.
CHIEF JUSTICE ROBERTS: How --
GENERAL PRELOGAR: And I don't think
CHIEF JUSTICE ROBERTS: -- how many cases would you say that we have issued over the past year, decade, whatever, where we have upheld decisions vacating agency rulings under the APA?
GENERAL PRELOGAR: The Court has --
CHIEF JUSTICE ROBERTS: Thousands?
GENERAL PRELOGAR: -- done it in a -- in a number of cases. Some of those involve special statutory review provisions, so I do want to box those off. But I acknowledge, yes, the Court has sometimes affirmed decisions that we think the agency --
CHIEF JUSTICE ROBERTS: No, no, sometimes, over and over and over again.
GENERAL PRELOGAR: But also never with attention to the remedial arguments that we're making here, and I -- I don't think it's ever too late for this Court to give the statute its proper construction when you actually look at its text, context, and history.
Set aside the particular questions involving the proper scope of remedial authority courts have under the APA. In this statement (which was not followed up on), the Solicitor General appears to be saying that statutory stare decisis should not stand in the way of getting a statute right in light of its text, context, and history. This is quite a claim, and one that I wish the justices had pressed on. Among other things (as Ed Whelan notes here) this claim could have implications in other cases currently before the Court, including the cases challenging university admission policies, as the relevant precedents rest on a contested interpretation of Title VI.
I hope to have more to say about the United States v. Texas argument once I have had the chance to listen to the whole thing.
Today the U.S. Court of Appeals for the Sixth Circuit decided Doster v. Kendall, the federal government's appeal of district court decisions enjoining the Air Force from requiring that religious objectors obtain COVID-19 vaccines, and certifying a class of such objectors. The Sixth Circuit affirmed the lower court's decisions in an opinion by Judge Murphy, joined by Judges Bush and Kethledge.
Here is how Judge Murphy summarizes the issues and the court's decision:
The Department of the Air Force has ordered all of its over 500,000 service members to get vaccinated against COVID-19. Some 10,000 members with a wide array of duties have requested religious exemptions from this mandate. The Air Force has granted only about 135 of these requests and only to those already planning to leave the service. Yet it has granted thousands of other exemptions for medical reasons (such as a pregnancy or allergy) or administrative reasons (such as a looming retirement). The 18 Plaintiffs who filed this suit allege that the vaccine mandate substantially burdens their religious exercise in violation of the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA). Finding that these claims would likely succeed, the district court granted a preliminary injunction that barred the Air Force from disciplining the Plaintiffs for failing to take a vaccine. But its injunction did not interfere with the Air Force's operational decisions over the Plaintiffs' duties. The court then certified a class of thousands of similar service members and extended this injunction to the class.
The Air Force appeals the individual and class injunctions. Its briefs across the two appeals work at cross-purposes. In its challenge to the class-action certification, the Air Force (correctly) states that RFRA adopts an individual-by-individual approach: the Air Force must show that it has a compelling interest in requiring a "specific" service member to get vaccinated based on that person's specific duties and working conditions. Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 431 (2006). In its challenge to the Plaintiffs' injunction, however, the Air Force fails to identify the specific duties or working conditions of a single Plaintiff. It instead seeks to satisfy RFRA with the "general interests" underlying its vaccine mandate. Id. at 438. We are thus asked to deny that common questions exist for purposes of certifying a class but to accept that common answers exist for purposes of rejecting all 18 Plaintiffs' claims on their merits.
We decline this inconsistent invitation. Under RFRA, the Air Force wrongly relied on its "broadly formulated" reasons for the vaccine mandate to deny specific exemptions to the Plaintiffs, especially since it has granted secular exemptions to their colleagues. Id. at 431. We thus may uphold the Plaintiffs' injunction based on RFRA alone. The Air Force's treatment of their exemption requests also reveals common questions for the class: Does the Air Force have a uniform policy of relying on its generalized interests in the vaccine mandate to deny religious exemptions regardless of a service member's individual circumstances? And does it have a discriminatory policy of broadly denying religious exemptions but broadly granting secular ones? A district court can answer these questions in a "yes" or "no" fashion for the entire class. It can answer whether these alleged policies violate RFRA and the First Amendment in the same way. A ruling for the class also would permit uniform injunctive relief against the allegedly illegal policies. We affirm.
Based upon the court's opinion, it appears the government's attorneys had not fully thought through their theory of the case(s) and how the various arguments interact --and they got caught. This sort of problem is common in administrative law, where the strongest arguments for one claim may undermine the strongest arguments for another (e.g. claiming an agency action is not a rule may mean it's not a challengable "final agency action" and wasn't required to comply with APA Section 553, but such an argument also foregoes Chevron deference). It is the sort of thing lawyers need to watch out for, particularly when appearing before jurists like Judge Murphy.
From Publicola v. Lomenzo, decided today by the Second Circuit (Judges Robert Sack, Richard Sullivan, and Eunice Lee):
Appellant, proceeding pro se and under the pseudonym "Publius Publicola," appeals from the district court's judgment (1) denying his motion to proceed under a pseudonym and (2) dismissing his claims under 42 U.S.C. § 1983 against various state and municipal officials and agencies for actions they took in response to his efforts to seal records pertaining to criminal cases from his youth. In this appeal, Appellant has signed his briefs and other submissions to the Court using a pseudonym, without either obtaining the Court's authorization to do so or clearly disclosing his identity to the Court. After the Court ordered him to refile his briefs under his real name, with leave to request filing under seal should circumstances justify the filing of a redacted version on the public docket, Appellant submitted a letter indicating his refusal to comply with the Court's order.
In light of Appellant's letter, we are tasked primarily with deciding (1) whether a litigant may comply with Federal Rule of Appellate Procedure 32(d)—which requires that "[e]very brief, motion, or other paper filed with the [C]ourt [of Appeals] must be signed by the party filing the paper"—by signing his submissions under a pseudonym; and (2) whether a pro se appellant's failure to comply with that requirement warrants dismissal of his appeal. We conclude that, because papers signed under a pseudonym cannot adequately "ensure[] that a readily identifiable attorney or party takes responsibility for every paper," they do not satisfy Rule 32(d). We further conclude that under Rule 3(a)(2) and our precedents emphasizing the obligation of pro se litigants to comply with Court orders, dismissal is warranted here….
As Ilya noted, Balkinization is hosting a symposium on Andrew Koppelman's new book, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed. This book is a critique of libertarian political theory and its impact on contemporary public policy, with a particular focus on the more "radical" libertarians, such as Murray Rothbard and Robert Nozick, and a partial embrace of the less dogmatic classical liberalism of F.A. Hayek.
Andrew Koppelman's Burning Down the House is a simultaneously engaging and frustrating book. It offers a refreshing center-left appreciation F.A. Hayek and provides insightful critiques of more rigid and radical libertarian thinkers. Yet it also strangely resists serious consideration of the broader application of Hayekian insights and is too quick to assume a conscientious Hayekian would be part of the today's center-left coalition.
Part of what is so refreshing about Koppelman's book is that his appreciation of Hayekian insights is so rare in center-left discourse. He understands that liberals should be more concerned with poverty than inequality. Market-driven increases in standards of living around the world have been a boon for humanity, increasing lifespans and reducing human suffering. Moreover, there can be no meaningful wealth redistribution if there is not sufficient wealth to redistribute. Koppelman also appreciates that the benefits of markets are not purely economic. "In a diverse society, markets facilitate peaceful cooperation among people who radically disagree about fundamental values," he observes. (175) As a consequence, the market "stimulates not only competition but empathy." (176) . . .
Although Koppelman clearly prefers Hayek to the likes of Rothbard, he does not offer Hayek unqualified praise. Some of his criticisms are more persuasive than others however. He charges that Hayek has an "excessively crude understanding" of private property (18). Apparently Hayek's understanding is too "limited" because he lacks a full understanding of all they ways the state may recognize or structure such rights. (18) It seems to me that it is Koppelman who is missing the point, for the contours of private property are not infinitely malleable if it is to facilitate a Hayekian market order and safeguard liberty.
Just as a central planner lacks sufficient information to direct a modern economy, property rights cannot be simply "designed" from the ground up to generate particular distributional consequences. Transferable property rights are the foundation of private markets, and thus are essential to the Hayekian order Koppelman rightly celebrates for generating wealth and prosperity. It is one thing to levy taxes to provide for public goods. It is quite another to treat property rights as mere "conventions" that can be "designed with their likely distributional consequences in mind." (98) Property rights without a solid core are much like the markets without prices against which Hayek inveighed. Indeed, the market discovery process Hayek described is dependent upon a system of secure and transferable property rights. . . .
Koppelman wants to argue that "the standard justification for most of the regulation we have now is Hayekian" (46) He identifies the pervasiveness of "externalities" to support this claim, but then turns around to acknowledge that "This argument will not, however, necessarily justify the regulations that actually exist." (49) He admits that "in any specific area of policy, imperfect markets need to be compared with imperfect government." (49) This is because "whatever the defects of an unregulated market, the effects of regulation are sometimes worse." (50) Precisely so, but then Koppelman cannot resist making broad pronouncements about the terrible consequences of limiting regulatory authority and magisterial benefits of expansive regulation. . . .
In short, a truly Hayekian perspective would require far more humility about regulatory interventions than Koppelman evinces.
In Commonwealth v. Narvaez, decided Tuesday by the Massachusetts high court, the defendant had allegedly deliberately "urinated on the floor both inside and outside of [his jail] cell":
Based on the location of the toilet in the cell, the officer stated that "it [was] apparent that [the defendant] purposely urinated through the cell bars on to the floor outside the cell." The urine had "seeped into the cracks between the floor tiles, potentially causing permanent damage to the sub floor beneath." Because urine, like other bodily fluids, can carry potentially dangerous bacteria and viruses, police hired a cleanup company specializing in cleaning hazardous fluids and spills to clean the defendant's cell.
He was prosecuted for vandalizing a building with a "noxious or filthy substance," which provides,
Whoever wilfully, intentionally and without right throws into, against or upon a … building … or puts or places therein or thereon oil of vitriol, coal tar or other noxious or filthy substance, with intent unlawfully to injure, deface or defile such … building … shall be punished by imprisonment in the [S]tate prison for not more than five years or in jail for not more than two and one half years or by a fine of not more than [$300].
Some comments on the thread about pronouncing foreign country names (such as Qatar and France) raised the question of how we should pronounce foreign people's names. Here too my answer is: We should follow the English norms, which often depart from the norms in those people's native languages—just like, I expect, how foreigners follow their own languages' norms when pronouncing English speakers' names in those languages.
Let me give some illustrations from the two languages I know, English and Russian. When pronouncing Russians' names, there are at least two separate questions:
[1.] Translate or transliterate? Some famous Russians' first names are conventionally translated into English, when they are commonly understood to be translatable. Lev Tolstoy usually becomes Leo Tolstoy, Aleksandr Pushkin usually becomes Alexander Pushkin, the fictional Yevgeniy Onegin usually becomes Eugene Onegin, Piotr Tchaikovsky usually becomes Peter Tchaikovsky, Czar Nikolai II usually becomes Czar Nicholas II, Lev Trotsky usually becomes Leon Trotsky, Yosif Stalin usually becomes Joseph Stalin.
Russian at least used to do the same in the past; the French Kings Louis in Russian are usually Liudovik, and the English Kings Henry are usually Genrikh. (Lincoln is apparently Avraam rather than Abraham, though all the other Presidents' names appear not to be translated.) If Wikipedia is to be trusted, the English Kings James in Russian are Yakov and in French are Jacques. Elizabeth II was apparently Isabel II in Spanish.
I was invited to participate in a Hofstra Law Review symposium on free speech in law schools, which will be happening in February, and I thought I'd serialize my current draft article; there's still plenty of time to improve it, so I'd love to hear people's comments. Here are some follow-up thoughts on what I think law schools should try to teach, though you can read the whole PDF, if you prefer:
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C. Being Willing to Make Arguments That We Disagree With
Lawyers often also have to make arguments that, as independent thinkers, they might disagree with or otherwise find generally distasteful. A lawyer who rejects originalism or textualism may need to make originalist or textualist arguments; likewise, a committed originalist may need to make living constitutional arguments. A lawyer who deeply supports religious freedom may need to respond to the religious freedom claims raised against his client. A lawyer who thinks that practices that have a racially disparate impact are "structural racism" that needs to be fought may nonetheless sometimes need to make an argument that, for a particular client in a particular case, such disparate impact should not be seen as legally significant.
Again, it's normal (and may well be human nature) to view such actions with distaste. As scholars, for instance, we're generally expected to affirmatively make arguments only when we sincerely believe are correct. If we make arguments in our academic work that we believe are mistaken, just to win a point, we may well be condemned as "intellectually dishonest." Likewise, if our friends learn that we are trying to persuade them of something using arguments that we ourselves don't believe, they may view us as insincere and untrustworthy.
But lawyers' duty to their clients requires them to make the best arguments they can, regardless of whether they personally view those arguments as sound. Even if they believe that originalism is logically incoherent, they need to be able to make originalist arguments on their clients' behalf, when they think that the judge is most likely to be persuaded by those arguments. Law schools must thus teach students the kinds of arguments that are effective in various contexts (what Anup Malani has referred to as the educational institution's transmission of culture[1]), entirely apart from whether professors or students agree with all those arguments.
Plaintiff Devin Nunes, a former Member of the House of Representatives, alleges that he was defamed by defendant NBCUniversal Media, LLC. According to Nunes, statements made on the March 18, 2021 broadcast of The Rachel Maddow Show on MSNBC portrayed him in a false and defamatory light. The statements purported to describe Nunes's conduct regarding a package addressed to him from Andriy Derkach, a Ukrainian legislator with ties to Russian officials and intelligence services….
On December 11, 2019, a package was delivered to the House Permanent Select Committee on Intelligence …, of which Nunes was Ranking Member. It was addressed to Nunes from Andriy Derkach and was handled solely by Nunes' staff and delivered, unopened, to the offices of the FBI. That same day, Nunes sent a letter to Attorney General William P. Barr advising him of the receipt of the package.
On July 29, 2020, the Intelligence Committee held an open business meeting. During this meeting, Representative Sean Maloney asked Nunes two questions. First, Maloney asked if Nunes had received materials from Derkach. Second, Maloney asked if, in the event that Nunes had received materials, whether he was prepared to share them with the Committee. When asked if he wished to respond to the questions, Nunes declined.
In March 10, 2021, the National Intelligence Council declassified a report titled "Foreign Threats to the 2020 US Federal Elections" (the "DNI Report"). The report stated that Derkach and his associates sought to use prominent Americans to "launder their narratives to US officials and audiences." The report also stated that Derkach provided materials to individuals linked to the Trump administration and attempted to contact several senior U.S. officials.
In the March 18, 2021 broadcast of The Rachel Maddow Show, host Rachel Maddow discussed the declassified DNI Report as part of a longer segment about Derkach, Russian disinformation and election interference. Maddow referred to the report and discussed the package addressed to Nunes, as well as the interaction between Nunes and Maloney at the Intelligence Committee meeting. Maddow said that Nunes had accepted a package from Derkach and refused to answer questions about the package. Maddow also said that Nunes refused to hand the package to the FBI.
The court allowed the libel claim to proceed as to the last sentence in the statement that "Congressman Nunes has refused to answer questions about what he received from Andriy Derkach. He has refused to show the contents of the package to other members of the intelligence community. He has refused to hand it over to the FBI which is what you should do if you get something from somebody who is sanctioned by the U.S. as a Russian agent." (Emphasis added.)
Today the U.S. Court of Appeals for the Sixth Circuit decided an interesting case concerning Auer deference, the sentencing guidelines, and how to determine the number of "images" in a video. In United States v. Phillips, the panel affirmed a district court's decision that Trinity Phillips merited a five-level sentencing enhancement due to his possession of child pornography. The panel split over the rationale, however.
Judge Boggs delivered the opinion of the court, for himself and Judge Davis, concluding that the court should defer to the U.S. Sentencing Commission's conclusion that a single pornographic video should count as 75 images for the purposes of sentencing enhancements. According to Judge Boggs, the term "image" as used in the sentencing guidelines is ambiguous as applied to a video, and the Sentencing Commission's interpretation was worthy of Auer deference, even as narrowed by the Supreme Court's decision in Kisor v. Wilkie.
Judge Larsen disagreed, and wrote a separate opinion concurring in the judgment. According to Judge Larsen, the sentencing guidelines are not ambiguous and the decision to equate a single video with 75 images is a policy choice, not the resolution of an ambiguity.
I'm delighted to post a summary from Professor John Harrison of his forthcoming article Vacatur of Rules Under the Administrative Procedure Act. Professor Harrison's work was recently highlighted by Professor Amanda Frost at SCOTUSBlog as one side of a debate critical to United States v. Texas, which will be argued tomorrow. (The other side of the debate is ably represented by Professor Mila Sohoni, whose work Frost also highlights.) Here is Professor Harrison's post:
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As recently discussed on this blog, many lower federal courts take the position that they are authorized to give a remedy that vacates an agency regulation. Vacatur of a regulation deprives the regulation of binding legal force, as vacatur of a lower court's judgment by an appellate court deprives the lower court's judgment of binding force. Vacatur is distinct from an injunction against enforcement of a regulation, which operates on the defendant but not on the content of the law, and from a declaratory judgment, which conclusively states the parties' legal relations as they exist, without changing those relations. The standard justification for vacatur is that it is called for by section 706(2) of the APA, which directs reviewing courts to "hold unlawful and set aside" certain agency actions that it describes, such as agency action that is "contrary to constitutional right, power, privilege, or immunity." 5 U.S.C. § 706(2).
This post summarizes an article titled Vacatur of Rules Under the Administrative Procedure Act, forthcoming in the Yale Journal on Regulation Bulletin. The article discusses the historical pedigree of vacatur, considered as a remedy distinct from injunctions and declaratory judgments. From the adoption of the APA in 1946 to the pivotal case of Abbott Laboratoriesv. Gardner, 387 U.S. 136 (1967), vacatur was absent where it would have been present had legislators, judges, lawyers, and scholars been familiar with it. A remedy of vacatur, under that name or called setting aside, was unknown to the drafters of the APA and to experts in administrative law for two decades thereafter. The APA's drafters and later administrative law experts were familiar with injunctions against enforcement and declaratory judgments as remedies when a regulation was unlawful and invalid. Vacatur as the lower courts understand it today developed well after the APA was adopted.
We spend much of this episode of the Cyberlaw Podcast talking about toxified tech – new technology that is being demonized by the press and others. Exhibit One, of course, is "spyware," i.e., hacking tools that allow governments to access phones or computers otherwise closed to them. The Washington Post and the New York Times have led a campaign to turn NSO's Pegasus tool for hacking phones into a radioactive product. Jim Dempsey, though, reminds us that not too long ago, in defending end-to-end encryption, tech policy advocates insisted that the government did not need to mandate access to encrypted phones because they could just hack them instead. David Kris joins in, pointing out that, used with a warrant, there's nothing uniquely dangerous about hacking tools of this kind. I offer an explanation for why the public policy community and its Silicon Valley funders have changed their tune on the issue: Having won the end-to-end encryption debate, they feel free to move on to the next anti-law-enforcement campaign.
That campaign includes private lawsuits against NSO by companies like WhatsApp, whose case was briefly delayed by NSO's claim of sovereign immunity on behalf of the (unnamed) countries it builds its products for. That claim made it to the Supreme Court, David reports, where the U.S. government recently filed a devastating brief that will almost certainly send NSO back to court without any sovereign immunity protection.
Meanwhile, in France, Amesys and its executives are being prosecuted for facilitating the torture of Libyan citizens at the hands of the Muammar Qaddafi regime. Amesys evidently sold an earlier and less completely toxified technology – packet inspection tools – to Libya which is alleged to have tracked down dissidents with it. The criminal case is pending.
And in the U.S., a plethora of tech toxification campaigns are under way, all aimed at Chinese products. This week, Jim notes, the Federal Communications Commission came to the end of a long road that began with jawboning in the 2000s and culminated in a flat ban on installing Chinese telecom gear in U.S. networks. On deck for toxification are DJI's drones, which several Senators see as a comparable national security threat that should be handled with a similar ban. Maury Shenk tells us that the British government is taking the first steps on a similar path, this time starting with a ban on some government uses of Chinese surveillance camera systems.
Maury and I take a moment to debunk efforts to persuade readers that Artificial Intelligence (AI) is toxic because Silicon Valley will use it to take our jobs. AI code writing is not likely to graduate from facilitating coding any time soon, we agree. Whether AI can do more in replacing Human Resources (HR) staff may be limited by a different toxification campaign – the largely phony claim that AI is full of bias. Amazon's effort to use AI in HR, I predict, will be sabotaged by this claim, as its effort to avoid charges of bias will almost certainly lead the company's HR department to build race and gender quotas into its AI engine.
Maury praises an MIT Technology Review piece that argues persuasively that China's social credit system is not quite as dystopian as it's been portrayed. I point out that, with Airbnb practicing guilt by association and PayPal taking your money for saying things PayPal doesn't like, Silicon Valley can brag that it's going to reach Full Tech Dystopia well before China.
And we close with a downbeat assessment of Elon Musk's chances of withstanding the combined hostility of European and U.S. regulators, the press, and the left-wing tech-toxifiers in civil society. He is a talented guy, I argue, and with a three-year runway, he could succeed, but he probably does not have three years.
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In a much-discussed recent Marginal Revolution post, my George Mason University colleague, economist Tyler Cowen, argues that the main factor that divides "classical liberals" and the "New Right" is attitudes towards elites. In my view, by contrast, other factors are far more significant - most notably nationalism.
Where Cowen uses the term "classical liberal," I prefer "libertarian" to denote the view that government power must be tightly constrained in both the "economic" and social spheres in order to protect liberty and expand human welfare. "New Right" is an even more fuzzy term than "classical liberal" or "libertarian." But, in this context, I think it refers to the main strands of the Trump-era conservative right, particularly "national conservatism."
Here's Cowen:
A common version of the standard classical liberal view stresses the benefits of capitalism, democracy, civil liberties, free trade (with national security exceptions), and a generally cosmopolitan outlook, which in turn brings sympathy for immigration. The role of government is to provide basic public goods, such as national defense, a non-exorbitant safety net, and protection against pandemics.
In the classical liberal view, elites usually fall short of what we would like. They end up captured by some mix of special interest groups and poorly informed voters. There is thus a certain disillusionment with democratic government, while recognizing it is the best of available alternatives and far superior to autocracy for basic civil liberties.
That said, classical liberals do not consider the elites to be totally hopeless. After all, someone has to steer the ship and to this day we do indeed have a ship to steer. Most elites are intelligent and also they are as well-meaning as the rest of us, even if the bureaucratic nature of politics hinders their performance. We can entrust them with supplying basic public goods, and indeed we have little choice…..
In the classical liberal view, the great failing of elites is that they do not keep society as free as it ought to be.
The New Right thinkers are far more skeptical of elites. They are more likely to see elites as evil and pernicious, and sometimes they (implicitly) see these evil elites as competent enough to actually wreck society. The classical liberals see checks and balances as strong enough to limit the worst outcomes, whereas the New Right sees ideological conformity and indeed collusion within the Establishment. Checks and balances are a paper tiger.
Once you start seeing elites as so bad and also so collusive, many other changes in your views might follow. You might become more skeptical about free speech, because you view it as a recipe for putting a lot of power in the hands of (often Democratic-led) major tech companies. And is there de facto free speech if a conservative sociologist cannot get hired at Yale? You also might become more skeptical about immigration, not because you are racist (though of course there are racists), but because you see it as a plot of the Democratic Party to remake America in a new image and with a new set of voters ("you will not replace us!"). Free trade becomes seen as a line peddled by the elite, and that is an elite unconcerned with the social and national security costs of a deindustrialized America. Globalization more generally becomes a failed project of the previous elite.
In the Unpopulist, Robert Tracinski correctly points out that the New Right isn't actually interested in limiting the power of elites. To the contrary, they're happy to grant elites vast discretionary authority, so long as those elites are on the right side of the political spectrum:
To the extent populists have a legitimate complaint against those with power and influence, they have no solution. Their one-sided obsession with the supposed corruption of the elites leads to the toleration of even worse corruption by new, "populist" elites.
Worse, by using these claims as an attack against liberal institutions, the populists are actively insulating their own champions from scrutiny and accountability.
According to the populist, the only way to confront the bogeyman of "the establishment" is to fight fire with fire, abusing government power on the behalf of one's own side in order to counter abuses of power by the elites. This was proclaimed from the stage at a recent conference of nationalist conservatives, where the message, according to American Conservative's Rod Dreher, a fan of Hungarian strongman Viktor Orban, was that "we on the right have got to get comfortable using state power to achieve conservative ends."
This comfort with elite influence is reflected in such elements of New Right thought as their support for very broad executive power (which necessarily empowers the president and his elite subordinates), their backing of "industrial policy" (which simultaneously empowers elites in both government and politically influential private industries), and much else.
Of course, many New Rightists do genuinely hate and fear left-wing and centrist political elites. But in that respect, they are little different from adherents of various other ideologies. As Tracinski notes, the political left also has a long history of hostility to rival elites, such as wealthy businessmen and socially conservative religious leaders.
For that matter, I think Cowen understates the extent of libertarian/classical liberal hostility to various elites. It's true that most libertarians don't regard political elites as "totally hopeless" and believe those elites might have some useful function. But most of us also believe that elite power should be much more tightly constrained than is presently the case, which is one reason why we favor radical reductions in the power of government. In one sense, libertarians are actually more anti-elitist than New Rightists. Instead of seeking to replace one set of overmighty elites with another, we advocate severe restrictions on the power of government, regardless of which elites happen to be in power at the time.
With the possible exception of anarchists, libertarians do not propose to dispense with political elites entirely. But the same is even more true of New Rightists.
If anti-elitism is not the main factor dividing libertarians from the New Right, what is? I would suggest it is the conflict between the cosmopolitanism of the former and the nationalism of the latter. As Cowen notes, libertarianism (or classical liberalism) is a cosmopolitan worldview committed to liberty and equal rights for all, regardless of background. That includes a commitment to free trade and free migration, among other things. By contrast, the New Right - especially in its "national conservative" manifestation - are exactly the opposite. They are European-style ethno-nationalists who view foreign cultures and people with suspicion, often descending into xenophobia.
It is no accident that protectionism and severe restrictions on immigration are their signature policies. And Donald Trump's border wall project is perhaps their most symbolically resonant initiative.
In his farewell speech, Ronald Reagan - the iconic representative of the previously dominant form of conservatism - praised immigration and envisioned America as a "shining city" that should be "open to anyone with the will and the heart to get here." It is virtually impossible to imagine any New Right leader saying anything like that. In contrast to Reagan's emphasis on mutually beneficial openness, today's New Rightists hold a largely zero-sum view of the world in which foreign goods, people, and cultures are objects of suspicion and fear.
This cultural insecurity also leads them to be willing to use state power to suppress what they regard as domestic cultural threats, as well. Thus we get speech restrictions such as Florida's "Stop Woke Law" and moral panics over things like "drag queen story hours," which many New Rightists would also like to suppress by force.
In his classic 1960 essay, "Why I am Not a Conservative," F.A. Hayek wrote that "strident nationalism," partly rooted in what he called "the conservative distrust of the new and the strange," often "provides the bridge from conservatism to collectivism." This is a prescient description of the New Right (as well as a critique of the right-wing nationalists of Hayek's own day). Their combination of nationalism and fear of cultural change leads them to favor massive use of state power.
That, in turn, puts them at odds with libertarians to a greater extent than Reagan-era conservatives were. The latter differed with libertarians on various issues, and were certainly far more socially conservative than we are. But they still had considerable commitment to universal liberal principles, and were therefore less xenophobic and less statist than today's ethno-nationalist conservatives are.
