The Volokh Conspiracy

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

The Volokh Conspiracy

Democracy

Volokh Conspiracy Symposium on the National Constitution Center "Restoring the Guardrails of Democracy" Project

The symposium will include representatives of all three teams that drafted reports for the project: conservative, libertarian, and progressive.

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I am pleased to announce that, this week, the Volokh Conspiracy will host a symposium featuring participants in the National Constitution Center's "Restoring the Guardrails of Democracy" project. The NCC commissioned reports by three teams making recommendations on the topic outlined in the title: a Team Conservative Report (written by team leader Sarah Isgur, David French, and Jonah Goldberg, all affiliated with The Dispatch), a Team Libertarian Report (also available on SSRN) (authored by Clark Neily and Walter Olson of the Cato Institute, and myself), and a Team Progressive Report (coauthored by prominent election law scholars Edward Foley and Franita Tolson).

The VC symposium will include contributions by members of all three teams. David French will represent Team Conservative, Walter Olson is the Team Libertarian participant, and Edward "Ned" Foley will bat for Team Progressive.  There will also be an introductory post by Lana Ulrich of the National Constitution Center.

Each of the three team representatives will write an introductory post outlining their team's main points, and possibly some similarities and differences between their positions and those of the other teams. Each will then have the opportunity to respond to the initial posts of the others.

I myself have previously written about the Guardrails project and areas of agreement and disagreement between the different reports here and here. But, though I am a coauthor of of the Team Libertarian Report,  in this symposium, I am just going to serve as a facilitator and moderator.

I welcome the participants to the Volokh Conspiracy blog, and look forward to the discussion!

Political Ignorance

The "Good Government Trilemma": Why We Can't Have Democracy, Accountability, and Big Government all at Once

Canadian legal scholar Leonid Sirota outlines some reasons why.

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Most people in modern democratic societies want a government that is simultaneously democratic, accountable, and large (in the sense that it carries out a wide range of functions). In an insightful recent blog post on "The Good Government Trilemma," Canadian legal scholar Leonid Sirota explains why we probably can't have all of these things at once. At most, we can only hope to get two out of three:

What is the respective role of democratic and other means of holding a government to account in a well-ordered polity? In one way or another, this question is the subject of live―and lively―debates in many (perhaps all?) democratic societies….

At the risk of generalizing, my impression is that these debates tend to present themselves as clashes between the values of, for lack of better terms, democratic government and accountable government. One side thinks that the important thing is that elected officials get to run the show as they think best, subject to eventually being booted out by the voters. The other thinks that what matters is that the government be kept in check and made to answer for its actions on an ongoing basis, through some mix of elections, judicial supervision, and other accountability mechanisms, either internal to the government (such as ombudsmen and auditors) or external (NGOs and media)….

However, I think that the debate framed in this way is incomplete. It ignores a third factor that needs to be taken into account: the size of the government in question….

I would suggest that the apparent need to trade off between democracy and accountability is in fact only special case of what I will, again for lack of a better term, call the good governance trilemma. Of democracy, accountability, and big government, you can have two ― if you do things well; many polities won't get two, or indeed even one ― but you cannot have all three. It is possible to satisfy the trilemma by choosing fractions ― a dose of democracy, a measure of accountability, a government not quite as big as one might dream of ― but the total cannot go above two, and it will certainly never go anywhere near three. You can't have it all.

How does the trilemma work? Let's start, as most people do, with big government a given. A government so big it takes scores of ― or, in the UK's case, close to a hundred ― ministers of various sorts (or, in the US, agency heads) to run itself, to say nothing of the tens or hundreds of thousands of civil servants. This, of course, is ….  our present reality. A citizen who wanted to keep track of what the government is getting up to at a rate of, say, half an hour per minister per week would have a full-time job on his or her hands. And for at least some departments…., half an hour per week hardly seems like it would be anywhere near enough to know what's going on. Never mind ordinary citizens: even members of Parliament would struggle mightily to keep the tabs on the administration by virtue of its sheer size….

Realistically, voters are in no position to keep such a government accountable…. This is why taking big government as a given, as most people today do, leaves you with a necessary trade-off between democracy and accountability. If such a government it is going to be accountable for more than an infinitesimal fraction of its innumerable decisions and actions, it will have to be made accountable to, or at least through, non-democratic or indeed counter-majoritarian institutions….. Alternatively, a big government can be made answerable to voters alone, with no judicial and other interference. But then it would be foolish to expect it to answer for even fairly major screw-ups, let alone the small-scale indignities a large administration visits on those subject to it every day…. not because it's necessarily evil or even especially incompetent, let alone corrupt; but because it is run by fallible human beings….

If, however, one were willing to sacrifice government size, one could at least hope for a government held accountable primarily through electoral means. For one thing, as the government does less, there is simply less for courts and other non-democratic accountability mechanisms to sink their teeth into…. But, less cynically, if government only does a few things, it is easier for citizens to keep track of those few things, and the odds of their using their vote to reward things done well and punish things done badly improve….

Of course, I don't expect many people to share my interest in radically smaller government. Fair enough. But I think that it would be good if they recognized the reality of the trilemma I've outlined in this post. Its cause ― the difficulty for voters and even their representatives to keep track of a large administration ― should not be a matter of partisan controversy. It's a reality that needs to be acknowledged and responded to, whatever values will inform each person's response.

I largely agree with Sirota's position here, including his view that "radically smaller government" is probably the right approach (though, like him, I acknowledge that most people will resist that conclusion). I would add that the obstacles to democratic accountability created by large and complex government are exacerbated by the "rational ignorance" of voters.

Because there is so little chance that any one vote will make a difference to electoral outcomes, there is also little incentive for individual voters to spend more than minimal time and effort seeking out information about government and public policy. Thus, most are often ignorant even of very basic information, such as the names of the three branches of government, much less more complicated facts about the effectiveness (or lack thereof) of specific policies.  The interaction between rational ignorance and large, complicated government predictably creates a political system where voters' ability to assess government performance is highly questionable, at best. I go into this in much greater detail in my book Democracy and Political Ignorance: Why Smaller Government Is Smarter.

Furthermore, voters also have strong incentives to do a poor job of evaluating the political information they do learn, because many act as biased "political fans" rather than truth seekers. This problem is especially acute during periods of severe partisan polarization, like the present era in American politics.

Some scholars argue we need not worry too much about public ignorance and bias, because voters can use "information shortcuts" to offset the effects of ignorance - small bits of information that substitute for larger bodies of knowledge. Alternatively, even if individual voters are ignorant and make poor decisions, the electorate as a whole still does well because individual errors offset each other, leading to a "miracle of aggregation."

I criticize shortcut theories, miracle-of-aggregation arguments, and other similar ideas in great detail in my book on political ignorance, and other writings. Here, I will merely note that many - particularly on the left - who express great confidence in the ability of democratic government to handle a wide range of complex tasks well, are also deeply concerned about the exploitation of public ignorance and bias by Donald Trump and other right-wing populist leaders.

They are, in my view, right to worry about Trump and his ilk. But if shortcuts and miracles of aggregation are all that they are cracked up to be, Trump and the others should never have gotten as far as they did. And if much of the electorate nonetheless falls for Trump's relatively crude lies and distortions, it seems unlikely they can effectively use shortcuts or other tools to assess more complex tradeoffs and policy issues.

Trump is far from the only politician who effectively exploits public ignorance and bias. So too do more conventional political leaders, including as Barack Obama with his deception about how, under Obamacare, "if you like your health care plan, you can keep it."  If most voters don't even understand the basics of how Obamacare works, it's unlikely they can do a good job of evaluating it. The same goes for many other government programs. Trump is just a particularly egregious example of a much broader problem.

As Sirota recognizes, the reality of tradeoffs between democracy, accountability, and size of government doesn't by itself tell us what the role of government in society should be. More generally, there is a range of different potential responses to the problem of political ignorance, which is at the root of the trilemma he outlines. I cover a number of possible approaches in my forthcoming article on this very topic.

If we can radically increase voter knowledge, while simultaneously curbing "political fan" tendencies, then the trilemma might be greatly mitigated. But, for reasons outlined in my book, I highly doubt either is likely to be achieved anytime soon, if ever.  Even if you are more optimistic than me on this score, it's hard to deny that the problem is a difficult challenge. Unless and until we do create a vastly more competent electorate, we should at least recognize that there are genuine tradeoffs here. As Sirota reminds us, we "can't have it all."

 

Democracy

My New Book Chapter on "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance""

It is now available for download on SSRN. The chapter is part of a forthcoming volume on "The Epistemology of Democracy," edited by Hana Samaržija and Quassim Cassam.

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My forthcoming book chapter, "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance," is now available for free download on SSRN. Here is the abstract:

There is broad, though not universal, agreement that widespread voter ignorance and irrational evaluation of evidence are serious threats to democracy. But there is deep disagreement over strategies for mitigating the danger. "Top-down" approaches, such as epistocracy and lodging more authority in the hands of experts, seek to mitigate ignorance by concentrating more political power in the hands of the more knowledgeable segments of the population. By contrast, "bottom-up" approaches seek to either raise the political competence of the general public or empower ordinary people in ways that give them better incentives to make good decisions than conventional ballot-box voting does. Examples of bottom-up strategies include increasing voter knowledge through education, various "sortition" proposals, and also shifting more decisions to institutions where citizens can "vote with their feet."

This chapter surveys and critiques a range of both top-down and bottom-up strategies. I conclude that top-down strategies have systematic flaws that severely limit their potential. While they should not be categorically rejected, we should be wary of adopting them on a large scale. Bottom-up strategies have significant limitations of their own. But expanding foot voting opportunities holds more promise than any other currently available option. The idea of paying voters to increase their knowledge also deserves serious consideration.

The chapter builds, in part, on my previous work, particularly elements of my books Free to Move: Foot Voting, Migration, and Political Freedom and Democracy and Political Ignorance: Why Smaller Government is Smarter. But it also offers new assessments of several strategies for alleviating political ignorance, as well as a new way of categorizing such solutions. I particularly want to highlight the idea of paying voters to increase their knowledge levels, which has not gotten nearly as much attention as it deserves.

Politics

Short Circuit: A Roundup of Recent Federal Court Decisions

Burning crosses, incurable violence, and filming in national parks.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: Minnesota appellate attorney Scott Flaherty joins the show to talk Indian Law. With a special guest appearance by Captain Ahab.

  • Two judges say the National Park Service's permit-and-fee requirements for filmmakers violate the First Amendment. Unfortunately for the plaintiff, it's the district judge and the dissent. D.C. Circuit: The requirements are reasonable.
  • A John Doe plaintiff alleges that he was put through a biased Title IX tribunal while a student at MIT. But before that can be resolved, we need to know if he can proceed pseudonymously. First Circuit: Which is a question that has bedeviled the federal courts. So here is some detailed-but-not-exhaustive guidance for how courts in this circuit should think about it.
  • Members of the Shinnecock Indian Nation would like to fish in the Shinnecock Bay, but New York officials keep ticketing and prosecuting them. Tribe members: We have a right to fish in the bay based on these colonial-era deeds. District court: Congratulations! You've won the suing-the-gov't trifecta! You lose on sovereign-immunity grounds. And Younger abstention. And lack of Article III standing. Second Circuit: Actually, those defenses don't apply to at least some of these claims.
  • Pennsylvania man pays off loan from the U.S. Dept. of Agriculture, but the USDA tells a credit reporting agency that he's in arrears, damaging his credit. Feds: Sovereign immunity; we can't be sued for any Fair Credit Reporting Act violations. Third Circuit (adding to a juicy circuit split): Reversed. The FCRA waives sovereign immunity by allowing civil damages claims against "any person" who violates the Act, and that plainly includes the federal gov't.
  • Mississippi's constitution disenfranchises felons convicted of certain crimes. The section was originally adopted in 1890 and at a convention steeped in racism. It's since been reenacted twice—in 1950 and 1968—via legislative proposal and ratification by the people. Fifth Circuit (en banc, per curiam): The 1968 reenactment cleansed the provision of its previous discriminatory taint. Judge Graves, dissenting: A law expressly aimed at preventing Black Mississippians from voting cannot be saved via reenactment by a virtually all-white group of people who engaged in massive and violent resistance to the Civil Rights Movement—some of whom burned a cross on my grandmother's lawn, two doors down from where I grew up.
  • Can a Baylor student sue the university for only providing online instruction during the Spring 2020 semester after the COVID-19 shutdown? District court: Get out of my courtroom. Fifth Circuit: "We espy a potential ambiguity in the definition of 'educational services' and remand for further consideration of that issue." Concurrence: Also, a "merger clause" ain't a force majeure clause. That'll be bad for Baylor on remand.
  • Friends, you may remember the time the Fifth Circuit granted qualified immunity to Arlington, Tex. officers who tased a suicidal man who'd doused himself in gasoline, knowing it would set him on fire. It did; he died; and it burned down his family's house. This week, the Fifth Circuit (unpublished, over a dissent) says the district court was a little too quick to dismiss the family's claims against the city.
  • Intoxicated San Antonio, Tex. man found sleeping in the driver's seat is arrested, spends over 16 months in pretrial detention before charges are dismissed. Fifth Circuit: The length of his detention is a "wretched commentary," but he can't sue the arresting officers.
  • The Chief of Investigation for the Mississippi State Penitentiary at Parchman is fired for testifying at a criminal hearing on behalf of one of his investigators (who was criminally charged following a convoluted throwdown fight between investigators and prison officials). The now-former chief sues for First Amendment retaliation. Fifth Circuit: It's clearly established that a public employee can't be fired for testifying outside of their ordinary job duties. But mayhaps the chief's testimony was within his job duties, and it's not clearly established he can't get fired for that. Qualified immunity. Judge Costa (dissenting): But actually, it's obvious he wasn't testifying as part of his duties. He was subpoenaed by the criminal defendant, after all.
  • Texas state troopers pull over man, smell marijuana, and then find a handful of ecstasy pills. He's arrested and they search the car, finding a small amount of pot plus "100 pairs of women's underwear, a number of sex toys, and lubricant," "children's school supplies" and three cellphones. Intrigued, the troopers apply for warrants to search the phones—ostensibly for drug dealing and based on the drug evidence only. Yikes! They find some child porn on the phones, which leads to a second set of warrants that then lead to almost 20k child porn images. Was there probable cause for the search? Fifth Circuit (en banc): "Close call" but who cares because the good-faith exception applies. Concurrence: Yeah, good faith, but we've got to be careful going forward with phones. People have a lot of stuff on them. Dissent: There was only evidence of drug possession, not drug dealing.
  • After New Orleans officials began experimenting with a licensing scheme for allowing short-term rental on platforms like Airbnb, the city decided to scale things back, restricting such rentals to a single owner-occupied house per applicant. Out-of-state license holders—now rendered ineligible—sue, alleging violations of the Takings Clause and the dormant Commerce Clause. Fifth Circuit: The out-of-staters have no takeable property interest in the temporary licenses, but they can't be treated worse than locals.
  • Sixth Circuit: It feels like this should be unnecessary, but if you are a defense attorney representing a Black man convicted of murder, and your goal is to keep him off death row, maybe don't have a shrink testify during the penalty phase that a huge proportion of Black people are incurably violent.
  • Two off-duty Indianapolis officers choke bar patron unconscious, drag him facedown to parking lot, beat him still further, empty his wallet, and leave him covered in blood. Jury: The city needs to pay the man $1.2 mil. Seventh Circuit: On the contrary, the officers violated a bunch of city policies, and (under doctrine that your humble editor blithely asserts is wrong) the city can't be held liable simply for employing some baddies. (The officers were fired—but acquitted of felony battery.)
  • After a local paper reported that Wisconsin financial adviser Thomas Batterman had been accused of mishandling funds and committing wrongdoing, he sued for defamation. But, says the Seventh Circuit, he cannot prevail because Wisconsin financial adviser Thomas Batterman had, in fact, been accused of mishandling funds and committing wrongdoing.
  • Arkansas healthcare professionals cannot legally provide minors with or refer them for gender transition procedures, including medication and surgeries. Eighth Circuit: The law discriminates on the basis of sex, and the state hasn't met its burden of showing that the law is supported by an "exceedingly persuasive justification." Preliminary injunction affirmed.
  • Overseer of federal consent decree gets five Oakland, Calif. cops, who fatally shot a homeless man, fired. A violation of the city charter? District court: No. Ninth Circuit: Vacated. The procedure to fire cops is a state-law issue, and this case should be in state court. Dissent: This case is all about what the federal consent decree requires, so it does belong in federal court.
  • Kissimmee, Fla. seventh grader is having a bad hair day, and when his mom takes off his hoodie (to comply with the school dress code) he pushes her away. A school resource officer arrives, curses and mocks the 13-year-old for several minutes, and then slams him to the ground without warning. Eleventh Circuit: The officer had arguable probable cause to arrest him for battering his mother, so qualified immunity on the false arrest claim. But (over a dissent) it is "obviously clear" the officer used excessive force. (The officer was convicted of battery.)
  • Eleventh Circuit: The FDA failed to consider vaping companies' marketing plans before denying approval for sale of their vaping devices and liquids. They need to go back and do that. Dissent: "SPOILER ALERT," we all know how that's going to turn out. Let's not waste everyone's time.
  • On-duty Bureau of Indian Affairs officer threatens to arrest woman and have her children taken away if she does not have sex with him. (She does and has the officer's child; he's sentenced to three years in prison.) Feds: Ah, but she can't sue under the Federal Tort Claims Act because he was acting outside the scope of his employment. Montana Supreme Court: Wrong, she can sue. (IJ signed onto an amicus brief that urged the court to reach this result.)
  • And in en banc news, the Seventh Circuit will not reconsider its decision that it did not violate the Eighth Amendment to deny an Illinois inmate access to exercise for two years. In concurrence, Judge Scudder says it's an issue that "cries out" for review in a different case.
  • And in panel rehearing news, the Ninth Circuit will reconsider its decision that federal law does not preempt a California law that makes it a crime for employers to require unwilling employees to agree to arbitration as a condition of employment.

IJ client Visibly offers online vision tests to consumers so they can easily renew prescriptions for eyeglasses or contacts. But in 2016, South Carolina legislators overrode the governor's veto and banned such tests even though there is no plausible concern about their safety or reliability. We are pleased to announce, however, that after six years of litigation the South Carolina Supreme Court announced this week that our clients unequivocally have standing to challenge the law that bans them from operating in the state. To the merits!

Campus Free Speech

Academic Freedom Alliance on Diversity Statements

Diversity statements have become common in university admissions and hiring, and that's a problem

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Earlier this week, the Academic Freedom Alliance released a new public statement. It called for an end to mandatory diversity statements in university admissions and hiring.

In recent years, a growing number of colleges and universities have begun to require applicants for graduate school admission and for faculty jobs to write an essay explaining their commitment to diversity, equity and inclusion goals and how they plan to advance those goals. In some institutions, those statements have been used as a filter for limiting the pool of applicants that would get substantive consideration for an opening. In practice, those statements become political litmus tests, requiring that scholars pledge themselves to believe and advance a set of contested political values.

The University of California at Davis mathematician Abigail Thompson was an early critic of how those statements were being used in the California system, and sparked an intense controversy by comparing them to the now-reviled loyalty oaths of the McCarthy era. The University of Chicago law professor Brian Leiter has argued that they are illegal at state universities, though UC Davis law professor Brian Soucek disagrees, at least when the statements are "done the right way" (which they often aren't). The Fort Lewis College philosopher Justin McBrayer compares them to the faith statements required by some religious institutions. An interesting extended analysis of the legal issues by the Pacific Legal Foundation's Daniel Ortner can be found here. The Foundation for Individual Rights and Expression recently released a statement on using DEI criteria in faculty hiring and promotion as well.

The Academic Freedom Alliance statement was authored by a committee that included Harvard law school professor Randall Kennedy, former Harvard medical school dean Jeffrey Flier, and University of Southern California chemistry professor Anna Krylov. As AFA co-chair and Harvard law professor Janet Halley observes, "Academics seeking employment or promotion will almost inescapably feel pressured to say things that accommodate the perceived ideological preferences of an institution demanding a diversity statement, notwithstanding the actual beliefs or commitments of those forced to speak."

From the statement:

The Academic Freedom Alliance supports efforts to ensure that colleges and universities offer to all members of their communities – staff, students, and faculty – environments free of bigotry. We also support efforts by institutions of higher learning to do all that they can, consistent with their academic mission, to ensure that faculty members offer their services on an equitable basis. It is, however, our firm conviction that compelled diversity statements undermine the best of the intentions that propel DEI initiatives. It is one thing for schools to take action against wrongful discriminatory conduct; institutions are under a legal as well as moral and pedagogical obligation to do that. A very different and disturbing thing is monitoring beliefs by demanding pledges of allegiance to an array of policies that are often vague, frequently ambiguous, and invariably controversial.

Read the whole thing here.

Immigration

Video of Bipartisan Policy Center Panel on "The Expanding Mandate: Immigration and the Courts"

I was one of the participants, along with Karen Tumlin (Justice Action Center), Leon Fresco (formerly of the Department of Justice), and moderator Eileen Gilmer (Bloomberg).

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Yesterday, I participated in an online Bipartisan Policy Center event on "The Expanding Mandate: Immigration and the Courts." The other speakers were Karen Tumlin (Director, Justice Action Center), Leon Fresco (Former Deputy Assistant Attorney General for the Office of Immigration Litigation, U.S. Department of Justice), and moderator Eileen Gilmer (Senior Homeland Security Reporter, Bloomberg). Video of the event (which also aired on C-SPAN) is now available here. I have posted it below:

Free Speech

Protecting People from Their Own Religious Communities: Judicial Evaluation of a Religious Community's Qualities

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This new article of mine will be coming out next year in the Journal of Law and Religion, and I thought I'd serialize it here; there's still plenty of time for editing, so I'd love to hear people's feedback. Here's Part III (Part II is more doctrinal, so I'm skipping it for now, but you can read it in the PDF, if you'd like).

[* * *]

Weighing a person's religious community membership in deciding whether to let the person remain pseudonymous might thus not be unduly burdensome or unfair to litigation adversaries [in violation of the Establishment Clause]. But might it be unfair to the religious community?

Consider, for instance, two of the cases described in Part I.A, plus a third one which strikes me as a plausible hypothetical:

    1. A woman whose family and friends are Trinidadian Muslims seeks pseudonymity in suing over an alleged rape.
    2. A woman whose family and friends are Southern Baptists seeks pseudonymity in an employment lawsuit stemming from her work as a stripper.
    3. A man whose family and friends are Orthodox Jews seeks pseudonymity in a domestic violence case stemming from a consensual adulterous relationship.[1]

To begin with, a judge would have to determine not just whether the plaintiffs would be stigmatized within that community, but whether they would be unusually stigmatized compared to ordinary litigants. The risk of some such stigma, after all, isn't by itself generally enough to justify pseudonymity in litigation or as to public licenses or records. [2] And even the particular attributes in these three examples—having been sexually assaulted, being a stripper, or being an adulterer—are often stigmatized even outside particular religious communities.

Many within the religious communities might think the stigma is not materially greater in those communities than elsewhere, and might resent the implication that it is. Our religion calls us on to be loving and forgiving, they might say. Certainly it doesn't condemn women who were attacked. It might condemn stripping and adultery, but it acknowledges that everyone is a sinner, and that all we can do is repent and strive to change, and to encourage our friends and families to do the same.

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Guns

Third Circuit Sends Down to District Court the Second Amendment Challenge to N.J.'s Ban on >10-Round Magazines

The appellate court would leave the matter for the district court to decide in the first instance, subject to appellate review; Judge Matey dissented, arguing that the appellate court should have considered the issue directly.

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From Ass'n of N.J. Rifle & Pistol Clubs Inc. v. Attorney General (3d Cir.), decided today by the Third Circuit (Judges Kent Jordan and Jane Roth):

This matter having been remanded for further consideration in light of the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen (2022), and upon consideration of the parties' positions on whether it should in turn be remanded to the District Court for decision in the first instance under the standard announced in Bruen, it is hereby ORDERED that the matter is so remanded.

{We recognize that there are good arguments to be made for resolving this case now, on the record before us, and our dissenting colleague has ably articulated them. Even so, we are mindful that "we are a court of review, not of first view[.]" Cutter v. Wilkinson (2005). The Dissent rightly notes that, even prior to the Supreme Court's latest Second Amendment decision, we have regularly "trace[d] the [Second Amendment's] reach by studying the historical record"—the same approach recently endorsed and "made … more explicit" by the Court, N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen (2022). But the Court's decision in Bruen also provided lower courts with new and significant guidance on the scope of the Second Amendment and the particular historical inquiry that courts must undertake when deciding Second Amendment claims.

In light of that guidance, the State has requested a remand for further record development, targeted at the legal and historical analysis required under Bruen. Given the additional guidance provided in Bruen—and given that our last decision in this case turned on law-of-the-case considerations that are no longer in play—it is appropriate to afford the State that opportunity, consistent with our prior practice.

Judge Paul Matey dissented:

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Law & Government

No Name Change for You, Princess

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From In re Perez, decided yesterday by the Texas Court of Appeals (Corpus Christi-Edinburg), in an opinion by Justice Clarissa Silva, joined by Justices Gina Benavides and Leticia Hinojosa:

Perez sought to change her name to this symbol:

{In Perez's brief, she notes that the symbol may be represented through text by typing "O(+>". Perez acknowledges that the symbol depicted was first adopted by recording artist Prince Rogers Nelson (Prince). In 1993, Prince issued a press release regarding the adoption of the name wherein he described it as "a symbol with no pronunciation."}

Perez stated that requested the change because "[t]he new name has a very spiritual meaning to [her]." Perez further noted that "[she] now identif[ies] as this person."

Nope, said the court:

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"DAD Standing Order"

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I came across this docket notation in a case I'm following, and was puzzled about what it meant. A few searches made clear that it was exclusively a U.S. District Court for the Eastern District of California thing, but why? And the orders don't themselves explain it, just saying things like,

If the court does direct the filing of a proposed order, the party should submit
it as required by Local Rule 137(b) and email it in Microsoft Word to dadorders@caed.uscourts.gov.

But on reflection it's obvious; they're all from Judge Dale A. Drozd. Nothing worth framing as a present for Father's Day, unfortunately ….

Free Speech

Latest Order Regarding Unsealing of Mar-A-Lago Search Warrant Affidavit

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From Magistrate Judge Bruce Reinhart (S.D. Fla.) today in U.S. v. Sealed Search Warrant:

I have reviewed the Government's memorandum of law and proposed redactions to the search warrant Affidavit. ECF No. 89. I am fully advised in the entire record, including the contents of the Affidavit.

1. I find that the Government has met its burden of showing a compelling reason/good cause to seal portions of the Affidavit because disclosure would reveal (1) the identities of witnesses, law enforcement agents, and uncharged parties, (2) the investigation's strategy, direction, scope, sources, and methods, and (3) grand jury information protected by Federal Rule of Criminal Procedure 6(e). As further explanation for this finding, I incorporate by reference my Order on Motions to Unseal. ECF No. 80; see also United States v. Kooistra, 796 F.2d 1390, 1391 (11th Cir. 1986) (findings must be "sufficient for a reviewing court to be able to determine, in conjunction with a review of the sealed documents themselves, what important interest or interests the district court found sufficiently compelling to justify the denial of public access.").

2. Based on my independent review of the Affidavit, I further find that the Government has met its burden of showing that its proposed redactions are narrowly tailored to serve the Government's legitimate interest in the integrity of the ongoing investigation and are the least onerous alternative to sealing the entire Affidavit.

WHEREFORE, it is ORDERED that:

1. The Intervenors' Motion to Unseal [ECF No. 4] is GRANTED IN PART.

2. On or before noon Eastern time on Friday, August 26, 2022, the Government shall file in the public docket a version of the Affidavit containing the redactions proposed in ECF No. 89-1.

What exactly this means (i.e., just how much will be redacted and how much will be disclosed), we'll learn tomorrow, since for now ECF Nos. 89 & 89-1 themselves remain sealed.

Back In The Studio

Another round of videos for the Second Edition of An Introduction to Constitutional Law

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In 2017 and 2018, Randy Barnett and I spent nearly eighty hours in the studio to create the thirteen-hour video library for An Introduction to Constitutional Law. Four years later, we were back in the studio to record videos for the Second Edition of the book. The new collection will include some new recent cases like Dobbs, Bruen, and American Legion. We also recorded several classic cases that should have made the cut in the First Edition, including Gideon, Engel, Baker, Mirada, and a few other gems. Stay tuned for more information. The book be published in November.

(Pro tip: we only use footage above the waist, so wear comfortable shoes.)

 

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