Here's a song I much liked; Dayana Kulbida, who seems to have written and performed it, doesn't appear to be a professional singer, but I thought it was very well executed, and I even liked the very simple video (I rarely like videos). You can read an English translation of the lyrics below (thanks to my mother, Anne Volokh), though as usual it can't capture the true effect of the original.
Where is my body?
I fall into the abyss
The darkness envelops
and asks me no questions;
What is your name?
Whose eyes do you have?
Did you like cobblestones?
Did you have a cat?
How to sleep in the bathroom?
And how in the hallway?
How to rescue not things, but a dog?
Was February cold?
So cold that on the skin
It left a note,
24/02.
Is negligently providing information to a dangerous person comparable to negligently entrusting a gun to a dangerous person (assuming a reasonable person would have realized the person was dangerous)?
From Tuesday's Abdulaziz v. McKinsey & Co., Inc. (opinion by Chief Judge Debra Ann Livingston and Judges José Cabranes and Michael Park):
Abdulaziz describes himself as "a political dissident from the Kingdom of Saudi Arabia … who now resides in Montreal, Quebec." He sued [McKinsey] …, alleging that McKinsey created a PowerPoint report for the government of Saudi Arabia, identifying Abdulaziz as one of three influential dissidents using Twitter to criticize certain policies of the Saudi government, Saudi royal family, and Saudi crown prince Mohammad Bin Salman ("MBS"). Abdulaziz pled that, after receiving the report, the Saudi government responded by targeting him with assassination attempts and arrested, tortured, and harassed his family members and friends currently living in Saudi Arabia.
No liability, said the court:
Other than the foreseeability of risk, Abdulaziz provides no reason why sharing the report was itself a breach of a cognizable duty of care running from McKinsey to Abdulaziz, and he fails to distinguish such a putative duty from similar ones rejected by New York courts. See Valeriano v. Rome Sentinel Co., 842 N.Y.S.2d 805, 806 (4th Dep't 2007) (no duty not to publish another's personal information absent a "statutory, contractual or fiduciary duty to protect the confidentiality of plaintiff's personal information"). Thus, even if McKinsey knew or should have known that the Saudi government would target Abdulaziz after learning of his dissident activity from the report, Abdulaziz has not plausibly alleged a breach of a duty of care cognizable under New York law.
From Doe 1 v. Madison Metro. School Dist., decided Thursday by the Wisconsin Supreme Court, in an opinion by Justice Brian Hagedorn joined by Justices Ann Walsh Bradley, Rebecca Frank Dallet, and Jill Karofsky:
This case involves a constitutional challenge by parents to a school district policy. The substantive issues, however, remain pending before the circuit court and are not properly before us. This is an appeal contesting the circuit court's decision to seal and protect the parents' identities from the public and the school district, but not from the attorneys defending the school district's policy…. Applying Wisconsin law, we determine the circuit court did not erroneously exercise its discretion by requiring disclosure of the parents' identities to opposing attorneys, while allowing the parents to keep their names sealed and confidential as to the public and the district….
In April 2018, the Madison Metropolitan School District (the District) adopted a document entitled, "Guidance & Policies to Support Transgender, Non-binary & Gender Expansive Students" (the Policy). The Policy contains multiple provisions that animate the parents' claims in this case. We highlight several for context.
"Students will be called by their affirmed name and pronouns regardless of parent/guardian permission to change their name and gender in [District] systems." …
"School staff shall not disclose any information that may reveal a student's gender identity to others, including parents or guardians and other school staff, unless legally required to do so or unless the student has authorized such disclosure."
"All staff correspondence and communication to families in regard to students shall reflect the name and gender documented in [the District system] unless the student has specifically given permission to do otherwise. (This might involve using the student's affirmed name and pronouns in the school setting and their legal name and pronouns with family)." …
In February 2020, a group of parents sued the District alleging the Policy violated their right to parent their children, citing Article I, Section 1 of the Wisconsin Constitution, and their right to exercise their religious beliefs under Article I, Section 18 of the Wisconsin Constitution. Contemporaneous with filing their complaint, the parents moved to proceed using pseudonyms….
The "waiver" opens the door for Bannon to testify before the congressional January 6 Committee. But former presidents are not entitled to executive privilege, and especially not when it comes to testimony by private citizens.
Former Trump adviser Steve Bannon has agreed to testify before the congressional committee investigating the January 6, 2021 attack on the Capitol, and Trump's efforts to overturn the 2020 election. Bannon previously cited executive privilege as a reason to refuse the Committee's subpoena. But he has changed that position after Trump sent a letter agreeing to waive the privilege if Bannon reaches an agreement with the Committee.
Inspired by Trump's generous waiver, I hereby officially proclaim and declare that I am waiving the share of the spice revenue of Arrakis due to me as Sublime Padishah Emperor of the Known Universe! Are you not impressed by my generosity? If not, it might be because I'm not actually an Emperor, and do not actually have any spice revenue.
Much the same points apply to Trump's "waiver." Executive privilege is a power of the office of the presidency. Trump has not been president since January 20, 2021. Since that date, he is no more the President of the United States than I am an Emperor. Therefore, he is no longer entitled to assert executive privilege.
The DC Circuit said exactly that when it rejected Trump's efforts to use executive privilege to shield White House documents from the January 6 Committee. In a January decision refusing to block the release of the documents, the Supreme Court did not rule on the issue of former presidents' privilege, but did conclude that Trump wasn't entitled to assert executive privilege here, because he could not do so even if he were still in office. If that's true of official White House records, it's surely even more true of the testimony of a private citizen.
Even if he were still president, executive privilege would not give Trump the power to to restrict the testimony of private citizens. Executive privilege cannot extend to controlling people who aren't part of the executive branch. If President Biden calls me up to discuss some issue (which he should do more often!), he can't then use executive privilege to keep me from telling Congress about it.
Bannon was a White House employee back in 2017, until his acrimonious departure from the Trump administration. But he was a private citizen throughout the period covered by January 6 Committee investigation (late 2020 and early 2021).
It's good that Trump lost the case over the release of the records, and that Bannon will have to testify. But it is unfortunate that the issue of former presidents' supposed claims of executive privilege has not yet been fully resolved. The idea that such a privilege exists is a fallacious one, for reasons I summarized in my January post about the January 6 documents case:
If it exists at all (some scholars argue it does not), executive privilege is a power of the office of the presidency, and can only be wielded by the person who occupies the office at the time in question. Once he leaves office, he loses all the power and privileges associated with it, except perhaps those specifically extended by laws enacted by Congress (e.g. - pension rights and continuing security provided by the Secret Service). As the Court of Appeals opinion in this case explains, "the privilege, like all other Article II powers, resides with the sitting President."
No one claims that a former president can continue to issue executive orders, receive ambassadors, or act as commander-in-chief of the armed forces. He cannot keep on wielding any of those powers, even if he feels he needs to do so to prevent a successor from embarrassing him. The same logic applies to executive privilege. These are all powers of the office that expire as soon as the president's term in office at ends. At that point, he has no more executive authority than any other private citizen.
I also addressed the standard rationale for allowing ex-presidents to wield the privilege - fear that otherwise their successors could authorize embarrassing revelations for political reasons, which in turn could in inhibit discussions with presidential advisers:
It's true, as [Justice] Kavanaugh and others have pointed out, that this approach allows current presidents to release predecessors' documents in ways that might embarrass the latter. Fear of such an eventuality might indeed inhibit current presidents' deliberations with their advisers. But there are many things incumbent presidents can do that might embarrass predecessors, including reversing the latter's policies in ways that make them look bad, blaming them for various problems, and so on. The possibility that such things might happen can potentially inhibit presidents from adopting various policies, as well as inhibit advisers from recommending a given course of action.
But the Constitution does not give former presidents any general power to block successors' actions that might embarrass them. And, while fear of future embarrassment might sometimes inhibit good policies, it also can prevent bad ones. If future revelation of your activities in office might prove embarrassing, that may be because you're doing something wrong!
Regardless, the Constitution does not grant executive privilege - or any other official power - to former presidents. Absent specific laws to the contrary, they should be treated as private citizens, on par with everyone else.
If potential embarrassment is enough to justify letting former presidents retain the power of executive privilege, why not other presidential powers, as well? To really protect himself against embarrassment after leaving office, perhaps a former president needs to retain control of the FBI and the CIA, so he can use those agencies to forestall unflattering revelations.
Down that road lies a pretty obvious slippery slope, one that would make a hash of the time-limited nature of presidential terms. That limitation is, of course, a key constitutional safeguard against the accumulation of power in a single person.
In Kennedy v. Bremerton School District, the Supreme Court swept aside the fifty-year-old Lemon test (from Lemon v. Kurtzman) for evaluating Establishment Clause claims under the First Amendment on the grounds that the Court has "long ago abandoned Lemon and its endorsement test offshoot." Though never formally overruled, the Court has now recognized Lemon's abnegation. Could this also be what is in store for Chevron?
Several justices have made no secret of their distaste for the Chevron doctrine, and the Court has not deferred to an agency interpretation of a statute under Chevron in several years, but (unlike with Lemon) it has not been evaluating claims under some other analysis.
Like Chevron, the Lemon test had not been relied upon by the Supreme Court to decide a case in years, and it had been thoroughly criticized in prior opinions (such as American Legion v. American Humanist Association), and some lower court judges had taken notice. Yet unlike Chevron, the Lemon test had never really become a fixture of the relevant Supreme Court jurisprudence. Lower courts cited and applied Lemon, but the Supreme Court rarely ever did, citing it favorably in no more than a handful of cases since it was decided in 1971.
Chevron, on the other hand, is one of the most cited and relied upon Supreme Court decisions on any subject. Further, even when not relied upon, courts can be said to following Chevron's strictures, particularly its admonition that if the statute answers the question at hand--a question to be answered by applying the traditional tools of statutory interpretation--the statute controls and no deference to the agency is due. In addition, as the Supreme Court has made clear repeatedly, not just any ambiguity will do. Rather, the ambiguity must concern a matter delegated to the agency to resolve.
The Supreme Court does not seem to be abandoning Chevron, so much as narrowing the range of cases in which Chevron deference is appropriate. It has been doing this, first and foremost, by applying Chevron's first step with more rigor, thereby disposing of more cases at step one. It is has also refused to confer Chevron deference when the federal government did not ask for it, and reaffirmed that Chevron deference does not apply when the question concerns a "major question" (as in King v. Burwell) or another matter beyond the agency's reach (such as the scope of judicial review, as in Smith v. Berryhill).
Thus the Court has not been "abandoning" Chevron so much as it has been shoring up the boundaries of Chevron's domain. The message to lower courts is not to question whether Chevron should apply, but rather to do the hard work of interpreting statutes and ensuring agencies do not receive Chevron deference on questions beyond the scope of their delegated authority and expertise.
None of this means the Court will not eventually overturn Chevron (though I have my doubts), but I do think it suggests Chevron will not simply go the way of Lemon.
After four years of contested litigation, the D.C. Circuit cursorily resolves the meaning of the Emoluments Clauses without any acknowledgment of contrary positions.
I won't regale you with the history of the Emoluments Clauses litigation. (You can see all the briefs that Seth Barrett Tillman and I filed here.) Needless to say, there were extensive debates about the meaning of the Domestic Emoluments Clause and the Foreign Emoluments Clause. And, because the litigation stretched beyond Trump's four-year term, the Supreme Court was never called upon to decide any of these issues. To the contrary, the Supreme Court vacated the judgment of the Fourth Circuit. And, in turn, the Fourth Circuit vacated the leading district court decision that interpreted the Emoluments Clause. The D.C. Circuit never resolved the merits of the Foreign Emoluments Clause, because a panel found that Senator Blumenthal and other members of the Congress lacked standing. And that case did not raise any claims based on the Domestic Emoluments Clause.
Fast-forward to July 8, 2020. Two judges on the D.C. Circuit-Chief Judge Srinivasan and Judge Rogers--decided Trump v. Mazars. (The third member of the panel, then-Circuit Judge Ketanji Brown Jackson, heard oral argument in December 2021, but did not participate in the case.) This case may sound familiar. After the Supreme Court decided Trump v. Mazars in June 2020, the case went back to the District Court, and that dispute was appealed to the D.C. Circuit. Here, the panel allowed the Committee to "subpoena certain of President Trump's financial records in furtherance of the Committee's enumerated legislative purposes." But other requests were deemed too broad.
In passing on the Committee's "legislative purpose," Srinivasan's opinion made two claims about the Foreign and Domestic Emoluments Clause. These statements are problematic.
First, Srinivasan writes, without any citation but the Constitution:
The Domestic Emoluments Clause applies solely to the President and prohibits the acceptance of gifts or other payments from state governments or federal agencies. U.S. Const. art. I, § 1, cl. 7.
There were four years of litigation about whether the phrase "emolument" in the Domestic Emoluments Clause equates to "payments from state governments or federal agencies." Srnivasan states that conclusion without any authority. And here, he cannot rely on circuit precedent, as the Blumenthal litigation did not even involve the Domestic Emoluments Clause. He also did not cite the District Court opinion from Maryland, which has since been vacated.
Second, Srinivasan writes, without any citation but the Constitution:
The Constitution's Foreign Emoluments Clause bars federal officials (including the President) from accepting gifts or other payments from foreign governments. U.S. Const. art. I, § 9, cl. 8.
Again, there was extensive litigation over the meaning of the phrase "emolument" in the Foreign Emoluments Clause. But Srinivasan simply adopts the same meaning he ascribes to the Domestic Emoluments Clause. He does not even acknowledge that the language in the Foreign Emoluments Clause may be broader, as it refers to "Emolument . . . of any kind whatever." (Conversely, he does not acknowledge that the meaning of "Emolument" in the Domestic Emoluments Clause may be narrower.) For that matter, Srinivasan doesn't even quote the Constitution. Finally, the issue of whether the President is subject to the Foreign Emoluments Clause was contested, and discussed in briefs and opinions. There is ample authority to cite on both sides. But Srinivasan simply accepts this proposition, without acknowledging the debate.
From these two postulates, Srinivasan concludes:
We thus conclude that the Committee has explained in adequate detail how President Trump's papers will inform its legislative aims under the emoluments track.
If and when this case goes upstairs, the Supreme Court will have to pass on these difficult questions about the Emoluments Clause. Hopefully, Justice Jackson can give these issues more attention than did Chief Judge Srinivasan. Ilya may have been wrong.
The New York Times opinion page published an essay titled, "If Only John Roberts Would Retire." No, I didn't write it. But columnist Pamela Paula made many arguments I've made before:
In retiring at age 67, Roberts could make a statement about the perils of a gerontocracy and the possibility of Supreme Court term limits, even if only self-imposed. He could help forestall constitutional changes to the court that might be welcome by those on the left while they remain in power and abused by the right when they are not. In retiring, he could help restore public confidence in the court and ensure its future. . . .
Consider what happens if he stays. He's already sullied his reputation on the right, having been bludgeoned by his critics, notably Trump, for years. He's utterly failed liberals and moderates. His legacy would be one of ongoing ineffectiveness for all parties.
Retirement would make Roberts a hero for many. He could stand up for his principles, as articulated in his opening statement during his confirmation process. ("If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court.") He could enable President Biden to appoint a new chief justice, someone who could restore a smidgen of balance to an institution ideologically out of whack.
In retiring, Roberts could help the court move toward positions that more broadly reflect the opinions of most Americans, rather than those of an extremist faction.
Pamela Paul cites several people who floated the idea long after I did so. Indeed, I made this point shortly after Justice Ginsburg died, before Justice Barrett was confirmed. But, alas, no credit.
I'm not the first to suggest that Roberts show himself the door. A Politico columnist, John F. Harris, floated the idea in February, quoting Roberts from his confirmation hearings: "Umpires don't make the rules, they apply them … They make sure everybody plays by the rules, but it is a limited role." Earlier in his career, Roberts famously said that he believed in "the cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more." Clearly, the insurgents on the court don't play by the same rules as the incrementalist Roberts or care a whit for his inclination toward restraint.
If the Chief was going to retire in some act of magnanimous balance, he would have already done so. What could be better than stepping down with a 50/50 Senate? King Solomon and Cincinnatus couldn't have created a better setup. But, no retirement is on the horizon. Roberts will likely try to break Chief Justice Marshall's thirty-four year tenure in office. If the super-duper-long game goes to plan--really the game of life--Roberts would still be in office in the year 2039, at the age of 84. Justice Thomas would be 91. (Justice Stevens retired a month shy of his 90th birthday.)
Paul also says the quiet part out-loud. Progressives place pressure on conservative jurists in hopes of moderating or "evolving" them:
But it's hard not to hope. After all, liberals have a long, idealistic history of hoping Roberts would be better than our worst fears. We hoped he might prove a wild card, another David Souter. We hoped he might evolve, another Harry Blackmun. We even hoped he might become a crucial swing vote, another Anthony Kennedy. (In fact, he has swung infrequently and rarely on pivotal cases.) And we hoped he might be a force of persuasion with his fellow Republican appointees. (For seven months, he tried to move the deciding justices on Dobbs v. Jackson Women's Health Organization; nobody budged.)
Liberal hopes for Roberts date back to his nomination. He seems like he could be a decent guy, we said at the time. So earnest. He smiled. There was none of the preening smugness of Antonin Scalia. This was no glaring Clarence Thomas, who famously said to his clerks, "I ain't evolving."
Dobbs is so significant because the Court's most recent appointees said "no thank you" to this pressure campaign. The Souter-notion of "legitimacy," like Roe itself, is buried. Paul and her colleagues can continue writing the same op-ed over and over again, and it will make no difference.
The Canadian Press (Jacob Serebrin) reported June 30; Université Laval is a prominent Canadian public research university, and apparently "the oldest centre of higher education in Canada":
Patrick Provost, a professor at Université Laval who studies micro RNA — small molecules that help regulate genes — was suspended for eight weeks without pay on June 14 for comments he made last December at a conference.
Provost said he believes the risks of COVID-19 vaccination in children outweigh the benefits because of the potential side-effects from mRNA vaccines, which use messenger RNA created in a lab to teach cells how to make a protein.
"I was just doing what I was hired to do," he said in an interview Wednesday. "I had some concerns about something, I searched the literature and I prepared a speech, delivered it to the public. Being censored for doing what I've been trained to do — and hired to do — well, it's hard to believe." …
A university committee consisting of a lawyer and two experts concluded that his comments were biased and that he didn't analyze his data rigorously or present his information objectively, Provost said….
According to local news reports, Provost is one of two professors suspended by Université Laval for anti-vaccine comments. The university declined to comment on either suspension, while the union said it is not aware of the second case.
Topically relevant, but not actually involved in this case; for more on this sticker, see here.
From a Justice Department press release in U.S. v. LIU, though you can also read the Indictment, which explains in more detail just which federal crimes the government says were committed:
Yesterday, a grand jury returned an indictment in federal court in Brooklyn charging five defendants with various crimes pertaining to a transnational repression scheme orchestrated on behalf of the government of the People's Republic of China (PRC)….
Three of the defendants—Fan "Frank" Liu, Matthew Ziburis, and Qiang "Jason" Sun—allegedly perpetrated in the transnational repression scheme to target U.S. residents whose political views and actions are disfavored by the PRC government, such as advocating for democracy in the PRC. Among other items, the defendants plotted to destroy the artwork of a PRC national residing in Los Angeles, California that was critical of the PRC government, and planted surveillance equipment in the artist's workplace and car to spy on him from the PRC. Liu and Ziburis were arrested pursuant to a criminal complaint in March 2022, while Sun remains at large.
There are two new defendants charged in the scheme, Craig Miller and Derrick Taylor. Miller is a 15-year employee of the Department of Homeland Security (DHS), currently assigned as a Deportation Officer to DHS's Enforcement and Removal Operations in Minneapolis, Minnesota; and Taylor is a retired DHS law enforcement agent who presently works as a private investigator in Irvine, California. The charges against Miller and Taylor pertain to their alleged obstruction of justice, including by destroying evidence, after they were approached by agents with the Federal Bureau of Investigation (FBI) and asked about their procurement and dissemination of sensitive and confidential information from a restricted federal law enforcement database regarding U.S.-based dissidents from the PRC. This information was used by Liu and Sun in the transnational repression scheme. Both Miller and Taylor were arrested pursuant to a criminal complaint in June 2022….
"We will defend the rights of people in the United States to engage in free speech and political expression, including views the PRC government wants to silence" said Assistant Attorney General for National Security Olsen. "As charged, these individuals aided agents of a foreign government in seeking to suppress dissenting voices who have taken refuge here. The defendants include two sworn law enforcement officers who choose to forsake their oaths and violate the law. This indictment is the next step in holding all of these defendants responsible for their crimes." …
Kibbutzim are Israeli farming communities originally established as socialist institutions with little or no private property, equal pay, centralized assignment of work duties, and communal child-raising. Over the last several decades, however, most have introduced a variety of market reforms, in order to curb resident dissatisfaction and stave off economic disaster.
Economist Alex Tabarrok comments on a recent study by Ran Abramitzky and several coauthors which finds that such market-based reforms have proven popular and increased appreciation for markets and property rights among kibbutzniks:
The Israeli kibbutz have long been moving away from utopian socialism towards "renewing kibbutz"; a kind of cooperative in which member wages differ, consumption is unequal, many resources are privately owned but there is some mutual aid–a "safety net"–and some common ownership typically of land. Abramitzky et al. look at how kibbutz members vote and their expressed preferences after a kibbutz moves from a traditional model to a reformed or renewed model. The answer is that preferences for the market economy increased the more kibbutz members were exposed to the market economy but support for some redistribution to the poor (which was now less costly as the society was wealthier) did not decrease.
Abramitzky is a leading academic expert on the economics of the kibbutz, and author of an important book on the subject.
The results of the study are notable because kibbutz residents are mostly either people who were raised on the institution's socialist values or moved there out of ideological commitment. Thus, they are far more likely to be hostile to markets and property rights than the average Israeli, or for that matter the average person in almost any liberal democratic society. And social science research shows that most people are highly averse to evidence that cuts against their preexisting political views. Nonetheless, the superiority of market institutions over socialism is so striking that people who have direct first-hand experience of both tend to prefer the former, even in a case like this one, where they started off as strongly committed socialists.
This is not the only evidence that life on a kibbutz can lead to skepticism about socialism. As I recounted in a post last year, economist Meir Kohn has written a compelling memoir of how life on a kibbutz led him to a new appreciation of the virtues of markets and private property. Margaret Thatcher's daughter Carol had a similar experience when she spent a summer as a volunteer at a kibbutz.
But the Abramitzky study is an advance over such anecdotal accounts because it is is far more systematic, and includes people who were committed enough to kibbutz life that they did not choose to leave. On average, such people likely had more attachment to socialist values than those who departed, as Kohn did, or only ever intended to stay for a short period, like Carol Thatcher.
As Abramitzky and his coauthors emphasize, most of these kibbutzniks did not become thoroughgoing enthusiasts for laissez-faire, and they continue to support welfare-state redistribution, sometimes even more than before. But the shift in their attitudes is nonetheless striking.
It is notable not just because kibbutzniks are predisposed to be hostile to market institutions, but also because the kibbutz setting was an unusually favorable one for socialism, as discussed in my earlier post on this issue:
Over time, the flaws of the socialist kibbutz model became sufficiently glaring that most kibbutzim gradually abandoned key parts of the socialist model, such as equal pay, rejection of private property, and communal child-raising. See also this 2007 discussion by Nobel Prize-winning economist Gary Becker, who himself spent some time on a kibbutz during its pre-reform heyday….
For reasons mentioned by [Meir] Kohn and Becker, kibbutzim present the best-case scenario for socialism. At least initially, most participants were self-selected, highly motivated volunteers. Abuses of power and information problems typical of large-scale socialism were mitigated by the right of exit and the relatively modest scale of the community. Strong support from Israeli government and civil society helped alleviate financial and resource problems. Nonetheless, kibbutzim eventually had to adopt market incentives, expanded property rights, private child-raising, and other "capitalist" institutions in order to survive.
By contrast, "moshavim," Israeli agricultural settlements that reserve a much greater role for markets and private property rights, have proven far more durable and successful, even though, as one moshavnik lamented when I visited her community in 2016, "the kibbutz has better PR" than moshavim do. The kibbutz has become famous around the world. But few people outside of Israel know what a moshav is, other than a few experts on property rights.
The lessons of the kibbutz and moshav are worth considering at a time when socialist ides are enjoying an undeserved revival in many parts of the world.
Can plaintiffs challenging Maine's vaccine mandate for healthcare workers proceed pseudonymously? The First Circuit says no; they have failed to show they will suffer severe harm sufficient to outweigh the public's (and media intervenors') interest in open litigation.
The Maine Constitution provides for a "people's veto," under which Mainers can have a state law temporarily suspended and put to a popular vote by submitting a petition signed by at least 10% the number of voters in the last gubernatorial election. But those signatures may only be collected by state residents who are registered to vote. A First Amendment violation? First Circuit: Sure looks like one. Preliminary injunction affirmed.
Whole Foods has a dress code policy forbidding staff from wearing clothing with visible slogans or ads. But it's not exactly enforced. Until . . . a bunch of employees start wearing "Black Lives Matter" masks in June 2020. Is there a claim for racial discrimination under Title VII? First Circuit: There could be a claim, but there's an "obvious alternative explanation": the sudden mass expression of a controversial message. Concurrence: You're overthinking this, majority. The employees simply weren't targeted because of their race.
Saudi man, whose story and friendship with Jamal Khashoggi is documented in The Dissident (a movie your humble editor unequivocally recommends), now lives in Montreal. Allegation: Management-consulting giant McKinsey prepared a report identifying the man to the Saudi gov't as an influential dissident using Twitter to criticize the gov't. With this information, the Saudi gov't targeted the man for assassination and his family and friends for torture. Second Circuit: Alas, McKinsey owed the man no duty, so his case is toast.
In which the Second Circuit soberly weighs whether a reasonable member of the public could have believed that the "pedophile-detecting 'device'" that beeped when waved over former Judge Roy Moore was, in fact, a scientific marvel capable of detecting pedophiles. Click the link for the shocking answer! (NB: The answer is the one you think.)
Feud among Philadelphia-based bank's board of directors deepens following the death of one director; accusatory press releases are released; and it all culminates in a lawsuit by one group of directors against the other. District court: You people clearly can't handle this, so I'm appointing a custodian to oversee replacing the deceased director and adding a ninth director. Third Circuit: First, we have appellate jurisdiction (there's no difference between a receiver and a custodian for 28 U.S.C. § 1292 purposes) and the district court had subject matter jurisdiction (the federal claims were not pretextual). Second, this situation was "dramatic," but it wasn't extreme, so the district court shouldn't have appointed a custodian. Reversed and remanded.
Allegation: Tyson chicken ignored COVID-19 guidance, causing employee deaths. Tyson: But the federal government told us to stay open, so we should be able to defend ourselves in federal court. Fifth Circuit: Encouragement is not a requirement. Go back to state court.
Allegation: Nursing home ignored COVID-19 guidance, causing resident deaths. Nursing home: But the federal government manages public-health emergencies, so we should be able to defend ourselves in federal court. Fifth Circuit: This is a normal negligence suit. Go back to state court.
Last fall, the Biden Administration, like many previous administrations, issued a guidance to ICE agents that individuals who are a threat to "national security, public safety, and border security" should be prioritized for deportation. But several states sued and obtained a nationwide preliminary injunction from the district court. Sixth Circuit: Reversed. It's a memo, how do you even enjoin one of those? And the states probably don't even have standing. Meanwhile, the Fifth Circuit, reviewing a challenge to the same guidance by a different set of states, sees things very, very differently.
Yes, yes, says the Sixth Circuit, a member of Butler County, Ohio's zoning board voted to grant a variance to a piece of property he secretly had an ownership interest in, but whoever said life was fair? Not us federal courts, that's for darn sure.
Seventh Circuit: Chicago-based preservation group sues the Secretary of Transportation over plans to build the Obama Presidential Center in historic Jackson Park on the South Side of Chicago. There's just one problem: The feds have no control over what Chicago does with its public parks.
Generally, prosecutors are not allowed to introduce evidence of previous crimes to prove a criminal defendant's propensity to commit the crime with which he is charged—the theory being that the law punishes bad acts, not bad people. Eighth Circuit: But in this case—in which a shooting suspect claimed he "never" had a gun when in fact he had been convicted of assault with a firearm over 20 years ago—the evidence was used to show that he's a big ol' liar.
Allegation: Scott County, Mo. officer rapes the 15-year-old son of a fellow officer. After the fellow officer demands redress from county officials, a child-welfare worker instead opens an investigation into the fellow officer and his wife, finding them to be neglectful parents. (Had the finding not been overturned on appeal, it would have cost both parents their livelihoods.) Eighth Circuit: As a general matter, gov't officials are prohibited from retaliating against people for their constitutionally protected speech, but whether that means gov't officials can be held liable for trying to take away people's kids in retaliation for their speech is an open question. (And will remain so.) Qualified immunity for the child-welfare worker.
Allegation: Victim tells 911 and then responding officers that he was shot by a Black male; a witness reports the same. But a St. Louis detective gets warrants for two white brothers, who spend nearly two years incarcerated or on house arrest. Eighth Circuit (over a dissent): The detective didn't know the victim said the perp was Black, so qualified immunity even if his own failure to do basic investigating was the reason he didn't know.
Allegation: St. Louis SWAT officers raid home, shoot man dead, and place an AK-47 next to his body. Officers: He fired at us! Family's ballistics expert: In fact, all 93 rounds were fired by police. Eighth Circuit: Which is the kind of factual dispute that must be resolved at trial. No qualified immunity on the excessive force claim.
Allegation: Oil companies ignored global warming, causing extreme weather and rising sea levels. Oil companies: But the federal government has all sorts of ties to oil and gas production, so we should be to defend ourselves in federal court. Ninth Circuit: This is not a federal issue. Go back to state court.
Ninth Circuit to DOJ: If you want immigration cases to linger forever, we can't stop you from doing it on the BIA's docket, but we're not going to let you do it on ours.
Septuagenarian former Montana state senator and his retired buddy maintain a website that grades politicians on how often they vote with the rest of the Republican Party. They also traverse the state, on their own dime, giving PowerPoint presentations to local Republican groups. The state campaign finance watchdog goes after them, accusing the duo of being an unregistered political committee. Ninth Circuit: As applied to these fellas, the law is unconstitutionally vague. Dissent: These are sophisticated guys; they could have figured it out.
Tenth Circuit: Officials in suburban Denver school district violated the First Amendment when they disciplined student who, while off campus, posted a picture of friends in thrift-store military garb to his private Snapchat story and captioned it, "Me and the boys bout [sic] to exterminate the Jews." On remand, the district court should address whether the school officials are entitled to qualified immunity.
Allegation: Responding to hoax 911 call about a hostage situation, Wichita, Kan. officer shoots unarmed, unthreatening man dead on his front porch 10 seconds after he came outside and without identifying as police. It was the 21st police shooting in Wichita in six years, none of which resulted in any meaningful investigation or discipline. Tenth Circuit: No qualified immunity for the officer, but the claims against the city are dismissed. (The hoaxer is serving 20 years in prison. The officer was promoted last month.)
New Mexico child-welfare workers approve foster placements at home of woman they know to have substance abuse issues and a history of violence, among other red flags. After 4-month-old dies in her care, on night when temperatures fell below zero, investigators note that the house has holes in the walls and ceiling and lacks heating. It is strewn with rotten food, soiled clothes and diapers, trash, and dog urine and feces. Tenth Circuit: The child-welfare workers violated the child's and her surviving siblings' substantive due process rights. But the case is remanded back to the district court to see if those rights were clearly established.
And in amicus brief news, IJ is asking the Supreme Court to take up a case about the seizure of guns from a home without a warrant or exigent circumstances. The case threatens to undermine Caniglia v. Strom, in which the Supreme Court ruled, just last year, that officers who seized guns from a home without a warrant or exigent circumstances violated the Fourth Amendment. (The Second Circuit distinguished the case in a footnote.) And it also gives the Court an opportunity to repudiate the "special needs" exception to the warrant requirement, which gives the gov't a free pass into people's homes so long as it can come up with a loosey-goosey health and safety justification.
Villainy! Last week, the Pennsylvania Game Commission disclosed that its officers have been spying on IJ's client, the Punxsutawney Hunting Club, by putting a surveillance camera on the club's private property without any warrant or notice. The disclosure comes as part of litigation filed by the club last year after wildlife officers repeatedly trespassed on its land, harassing members and guests for any reason or no reason. "We never had a clue it would be as obscene as having game cameras spying on us," says Frank Stockdale, president of the club's board. "It's outrageous to think someone's taking pictures of you on your own private property," he added. "It's not very becoming of our government that we have this stuff going on in our state." Click here to learn more.
Sandra Starr, vice chairwoman of the Princeton Regional Health Commission …, said there is no "slippery slope" toward a total ban on smoking in public places. "The commission's overriding concern," she said, "is access to the machines by minors."
—New York Times, Sept. 5, 1993, § 1, at 52.
Last month, the Princeton Regional Health Commission took a bold step to protect its citizens by enacting a ban on smoking in all public places of accommodation, including restaurants and taverns…. In doing so, Princeton has paved the way for other municipalities to institute similar bans ….
—The Record (Bergen County), July 12, 2000, at L7.
[* * *]
Let me return to the question with which this article began: When should you oppose one decision A, which you don't much mind on its own, because of a concern that it might later lead others to enact another decision B, which you strongly oppose?
Video of presentations by the leaders of the Conservative, Libertarian, and Progressive Teams. Plus, my thoughts on a comparison of the three reports by Progressive Team leader Ned Foley.
Earlier this week, National Constitution Center published its "Restoring the Guardrails of Democracy" project. I am a coauthor of the Team Libertarian report, along with team leader Clark Neily of the Cato Institute, and Walter Olson (also of Cato). There is also a Team Conservative report (written by team leader Sarah Isgur, David French, and Jonah Goldberg, all of The Dispatch), and a Team Progressive report (coauthored by prominent election law scholars Edward "Ned" Foley and Franita Tolson). I offered some thoughts on the similarities and differences between the three reports here.
Since then the NCC has posted a video of an online event where the three team leaders discussed their respective reports with each other and NCC President Jeffrey Rosen.
It includes a lot of interesting material on points of agreement and disagreement. Most notably, it turns out that all three groups agree on the need to fix the Electoral Count Act, in ways outlined most fully in the Progressive report, but also discussed in ours. The conservative report did not cover this topic, but team leader Sarah Isgur notes their agreement in response to questions in the video event. On this issue, there is fairly broad cross-ideological agreement among experts that goes far beyond the authors of the three reports. This may be the one flaw of American democracy that has a simple and obvious legislative fix that can be implemented swiftly.
In a post at the Election Law blog, Team Progressive leader Ned Foley has some additional thoughts on similarities and differences between the reports:
The three reports produced separately by these teams had some significant overlap. As was noted at the town hall discussion of these reports, the recording of which is available, all three teams embraced the urgent necessity of Electoral Count Act reform.
More broadly, the reports collectively diagnosed three distinct threats to democracy: election subversion, polarization, and disinformation. There was consensus on the need for structural reforms to ameliorate the problem of polarization, although less consensus on what specific structural reforms would be best for this purpose. By contrast, there was definite disagreement on how to handle the problem of disinformation, with one report willing to consider the possibility of carefully crafted criminal prohibitions against deliberately orchestrated falsehoods designed to negate valid electoral outcomes, while another report specifically rejected anything along those lines….
One additional point of agreement was the need for improved civics education.
I agree with Foley's excellent summary above, except for one point. The libertarian report doesn't cover the issue of civics education, unlike the other two which both suggest reforms they hope will improve it. Speaking purely for myself (not the entire libertarian team), I doubt that much progress can be achieved on this front, for reasons discussed in detail in Chapter 7 of my book Democracy and Political Ignorance. Instead, Part II of the Libertarian report suggests we can more effectively mitigate the dangers of political ignorance and misinformation by expanding opportunities for people to "vote with their feet." Foot voting creates better incentives than ballot box voting for people to seek out relevant information and use it wisely. I suppose you can probably guess who was the primary author of Part II.
Foley's post includes some skepticism about the foot voting section of our report:
Even more broadly, some of the reports addressed potential reforms beyond those relating to the conduct of elections. The relationship of Congress to the presidency was a matter for consideration, and also the idea that in a federalist system changes might be made to make it easier for citizens to vote with their feet, so to speak, if they didn't like the laws or policies in the state where they currently reside. (I confess personally to some skepticism about the practical realism of this "foot voting" idea for many citizens: it's not so easy to switch jobs for some citizens, and spouses will live together even if one of them would prefer to relocate elsewhere.)
This problem of moving costs is a real one. But, as the Libertarian Report points out, it is greatly reduced if people are empowered to vote with their feet in the private sector (as with school vouchers), and between local governments, as well as between states. The former two types of foot voting often don't require switching jobs, or - in the case of private-sector options - even changing residences. In addition, as we also note in our report, seeking better job opportunities is itself often a form of foot voting, as variations in public policy often have an impact on the quantity and quality of jobs available in a given area. Moreover, moving costs have to be weighed against the extreme difficulty of having an impact on the policies you live under through ballot-box voting or other forms of political "voice," which for most people amounts to only a infinitesimally small likelihood of success. I cover moving costs and their significance for foot voting in greater detail in my book Free to Move: Foot Voting, Migration and Political Freedom.
The issue of spouses and other family members constraining each others' foot voting options is another topic I cover in the book. As I point out there, family members have much more chance of influencing each other's decisions than they do of using voting or lobbying to effectively change government policy. Moreover, people tend to marry those with similar values and preferences, which makes reaching agreement easier. Given a wide range of foot-voting options, there's a good chance that a married couple can find one that fits both their needs relatively well. Success is by no means certain, and disagreements about where to live sometimes even lead to divorce. But, on the whole, family decisions on foot voting offer most people far better odds of a happy outcome over which they have real leverage than ballot-box voting does. And, in a worst-case scenario, divorcing an incompatible spouse is usually more feasible than ridding yourself of an incompatible government - unless you can divorce the latter through foot voting!
Earlier this week, a panel of the Sixth Circuit Court of Appeals decided Arizona v. Biden. The context of the case is immigration law: three states (Arizona, Montana, and Ohio) had sued to obtain an injunction blocking the Department of Homeland Security from implementing a memorandum about enforcement priorities. The district court issued a preliminary national injunction; the panel of the Sixth Circuit reversed.
The opinion of the court was delivered by Chief Judge Sutton and joined by Judges Moore and Cole. Chief Judge Sutton also wrote a separate concurrence for himself, and he returned to the question of the propriety of national injunctions and "universal" relief under the Administrative Procedure Act. It's on pages 23-28 here.
This is the second time in this case that Chief Judge Sutton has written a separate concurrence that highlights the legal infirmities of the national injunction (or "nationwide injunction," "universal injunction," etc.). In April, the same panel issued a stay of the district court's preliminary national injunction (Chief Judge Sutton's opinion concurring in the grant of the stay begins on page 18 here).
This new concurring opinion adds a section on the provision limiting injunctions about certain immigration laws (8 U.S.C. § 1252(f)(1)), a provision that was recently at issue in Biden v. Texas at the Supreme Court. The concurring opinion then reiterates Chief Judge Sutton's critique of national injunctions, adding two new points.
First, in critiquing the idea that "set aside" in the APA authorizes universal relief, Chief Judge Sutton adds this point:
Observe as well that the statute does not say against whom an unlawful agency action must be "set aside." In the context of a law authorizing identifiable "person[s]" "aggrieved by agency action" to seek judicial review, 5 U.S.C. § 702, we should not lightly conclude that a court is entitled to "set aside" agency action against persons not privy to the case before it.
Second, there is a new critique by Chief Judge Sutton of any attempt to legitimate the national injunction by appealing to the English bill of peace:
What of the English courts' use of a "bill of peace" at the founding? Does that permit a contrary, and historically grounded, justification for nationwide injunctions? At common law, this device allowed courts to resolve multiple suits involving common claims, say with several tenants suing one [land]lord. Bray, supra, at 426. In one sense, it is true, bills of peace allowed English courts to adjudicate the rights of members of dispersed groups without formally joining them to a lawsuit through the usual procedures. See id.; Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065, 1080–81 (2018). But this observation tees up the question rather than answering it. Question: Does the bill of peace have a modern analog? Answer: Yes, class actions under Civil Rule 23. Bray, supra, at 426. Nationwide injunctions depart from, they do not embrace, traditional equity practices incorporated into the Federal Rules of Civil Procedure. The domesticated animal known as a bill of peace looks nothing like thedragon of nationwide injunctions. A bill of peace applied to small, cohesive groups. And because it was representative in nature, any decision, win or lose, bound any nonparty members of the group to the judgment. Id.; Michael T. Morley, Disaggregating Nationwide Injunctions, 71 Ala. L. Rev. 1, 36–37 (2019). Not so for today's asymmetric, applicable-against-the-world injunctions. Use of the common law bill of peace to justify today's nationwide injunction gives analogy—and history—a bad name.
This concurrence will now be a standard source on what's wrong with the brave new world of national injunctions. The national injunction is not going away; it continues to drive and distort our judicial system. But there have now been trenchant judicial critiques of the national injunction by Justices Thomas and Gorsuch and Judges Bress, Bybee, Manion, Stras, Sutton, and Wilkinson. It's time for this weed to be pulled up from the garden of the law.
The October 2021 Term of FantasySCOTUS has come to a close. This term was one for the ages. And FantasySCOTUS did quite well. In the aggregate, our crowd predicted 81% of the cases accurately.
This year, the Chief Justice of the league was Bill Corteal. Players receive ten points for each correct prediction of a Justice's vote. We recorded 59 merits cases (DIGs do not count). A perfect score would have been 5,900 points. Bill, who has scored 4760 points. The runners-up scored 4750 and 4740 points.
Bill Corteal
Bill received a B.A. from Cal State Fullerton and a J.D. from Chapman University School of Law. He developed his interest in the Supreme Court in a freshman political science class. He read The Brethren by Woodward and Armstrong and "has been hooked on the Court ever since." He has played FantasySCOTUS since 2014.
I asked Bill how he predicts cases. He listens to the recordings on Oyez, and written commentary about the arguments. Bill explained, "As each wing of the court is not monolithic, and understanding the jurisprudence of each justice helps in predicting independent decisions." Bill did say that intellectual property cases were the most difficult to the predict. (It is always a safe bet that the Federal Circuit will be reversed.)
I also asked Bill if the recent changes to the Court's composition affected his ability to predict cases. He replied no. "There is a little unpredictability when a new justice comes on to the court." Bill added, " Justice Barrett has been a little easier to predict, but there is a new justice on the court next term."
Congratulations to Bill. He stands in a long tradition of champions, including Jacob Berlove, who was profiled in FiveThirtyEight.
The next term of FantasySCOTUS will begin its fourteenth season on the first Monday in October, 2022.
