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Weekly Volokh Conspiracy Archive 2018 November 1-31

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Three Steps Forward for Marijuana Legalization

Democratic control of the House, the passage of marijuana legalization referenda in three states, and the removal of Jeff Sessions presage a brighter future for legalized pot.

A cannabis plant.A cannabis plant.

Over the last twenty-four hours, three events have brightened the prospects for marijuana legalization. First, three states passed pro-marijuana referendum initiatives. The crucial purple state of Michigan became the tenth state to legalize recreational marijuana. Socially conservative red states Missouri and Utah became the latest of 33 states to legalize medical marijuana - the latter despite the strong opposition of the LDS Church. The defeat of a legalization initiative in the relatively small state of North Dakota is a minor setback compared to the three victories. Second, the Democratic takeover of the House of Representatives ensures that there is now a strong House majority in favor of abolishing the federal law banning marijuana. The overwhelming majority of congressional Democrats favor such a move, as do a substantial number of Republicans. Finally, President Trump's abrupt dismissal of Attorney General Jeff Sessions - although unrelated to his championing of the War on Drugs and his many other awful policies - removes the most important opponent of marijuana legalization within the executive branch. It was Sessions who sought to escalate the federal war on marijuana earlier this year, when he terminated an Obama-era policy discouraging prosecution of marijuana producers in states that had legalized pot under state law.

The combination of these three developments significantly increase the chance that Congress might finally abolish or at least severely curtail federal marijuana prohibition in the relatively near future. Earlier this year, Colorado GOP Senator Cory Gardner cut a deal with Trump under which the latter would potentially back the elimination of federal prohibition in states that had legalized marijuana under their own laws. In June, Gardner and Democratic Senator Elizabeth Warren proposed the STATES Act, which would do exactly that. So far, the bill has made little progress. But it or something like it would have a better chance next year. A Democratic-controlled House could pass it without having to worry about the Hastert Rule or potential opposition from socially conservative Republicans who still favor federal prohibition.

The GOP's net gain of two or three seats in the Senate (at this point it is not clear who will prevail in the close race in Arizona) could potentially make passage harder in that chamber. But Gardner would only need a handful of GOP votes (in addition to his own) to get a bill like the STATES Act over the top. And there is a good chance that several other GOP senators might support it on some combination of federalist and libertarian grounds. Eliminating federal prohibition would be an important success for constitutional federalism as well as legalization. Senate Majority Leader Mitch McConnell is unlikely to go to the mat to oppose such a bill, especially given his own enthusiasm for hemp.

Federal marijuana legalization is not yet a done deal. Various factors could still derail it. Even if it does happen, there is still a long way to go on curbing the broader War on Drugs, which inflicts far greater harm than marijuana prohibition alone. Still, prospects for legalization are definitely looking up.

UPDATE: Jacob Sullum makes some related points in this piece, including noting the significance of the defeat of GOP Rep. Pete Sessions (no relation to Jeff, but a fellow influential drug warrior nonetheless).

Is Accurately Repeating a Defamatory Allegation Itself Defamatory?

It's complicated.

Say that Don writes, "Teresa alleges Paul committed armed robbery." Don's statement is literally true: Teresa did allege that. But the statement Don is reporting on (Teresa's statement) is false. Can Paul sue Don for defamation and win?

[1.] The republication rule: Often, yes. American defamation law has long adopted the "republication rule," under which Don is potentially liable for defamation—if Teresa's allegation actually proves to be false—even if he expressly attributes the statement to Teresa. See Restatement (Second) of Torts § 578. (You could tell that Don was destined to be a defendant just from the first letter of his name.)

The principle is that "Tale bearers are as bad as the tale makers." And this is true even if Don distances himself from the allegation, for instance by saying that Paul has denied the statement, or that Teresa has reason to lie. (See, e.g., Martin v. Wilson Pub. Co. (R.I. 1985), which held that reporting a rumor that a local developer had been guilty of arson could be defamatory even though the newspaper expressly said that "[s]ome residents stretch available facts when they imagine Mr. Martin is connected with [the fires]," and that "[l]ocal fire officials feel that certain local kids did it for kicks.")

[2.] The "absence of malice" / absence of negligence defense: Of course, Don (like Teresa) would still have the benefit of the First Amendment defamation defenses that the Supreme Court has crafted. For instance, if Paul is a public official or a public figure, Don is immune from liability unless he spoke knowing that the statement was false, or at least having "serious doubts as to the truth of" the allegation. That's the famous "actual malice" standard, though that term is confusing, because it doesn't actually mean "malice."

If Paul is a private figure, Don would generally be immune from liability if he reasonably (i.e., nonnegligently) believed the allegations. (In a few states, if Paul is a private figure and the accusation is seen as a matter of purely private concern, e.g., an accusation of adultery rather than a serious crime, Don might be "strict liable," even if he reasonably investigated the matter; but most states require at least negligence in all cases.)

But often enough, a jury could determine that Don was negligent, or even that he was aware that the statement might well be false and thus entertained serious doubt as to its truth. Does that mean that Don is liable?

Well, it often means that, but it can't always mean that, right? The theory behind the First Amendment exception for defamation is that "there is no constitutional value in false statements of fact," because such statements do not "materially advance[] society's interest in 'uninhibited, robust, and wide-open' debate on public issues." But sometimes the very existence of an allegation or a rumor is indeed of importance to public issues.

Thus, consider the following two exceptions.

[3.] The fair report (of government proceedings) privilege: Say a reporter is covering a trial, in which witnesses are making assertions that the reporter knows are false, or knows are likely false; or say a reporter is reporting on some official government report. The law has long recognized that such coverage must be immune from liability, under the so-called "fair report privilege," at least when the coverage is substantially accurate and evenhandedly summarizes the testimony. In many states, this is an absolute privilege, applicable even when the reporter knows that the statements within those proceedings are likely to be false.

The fair report privilege also generally extends beyond reports of court proceedings, to include reports of public meetings of government bodies, including legislative and executive bodies. In all of these cases, the very fact that something has been said—even if there's reason to believe it's false—is important for the public to understand what the government body is doing.

[4.] The possible neutral reportage privilege: But what if the statement is outside a government proceeding? Consider this incident, from Norton v. Glenn, a 2004 Pennsylvania Supreme Court case: William T. Glenn Sr., a city councilman, claimed that council president James B. Norton III and mayor Don M. Wolfe were gay, implied that they were child molesters and claimed "that Norton had made homosexual advances toward Glenn which escalated to Norton grabbing Glenn's penis." A newspaper published an article accurately describing the charges and quoting Norton's unequivocal denial; the newspaper didn't endorse Glenn's statements. Norton and Wolfe sued both the newspaper and Glenn, and the jury found that the statements were false.

Some courts would hold that the newspaper would be protected in such a case under a First Amendment "neutral reportage" privilege, because the charges themselves were newsworthy even if they were false. (Among other things, for instance, Glenn's charges against Norton and Wolfe could be important to the public because they reflected on Glenn's fitness for office.) Some courts have held that, "when a responsible, prominent organization … makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges," even when the reporter has serious doubts about the accuracy of the charges. (That's from Edwards v. National Audubon Society (2d Cir. 1977).) And some other courts have extended this to certain charges on matters of public concern against private figures, and to statements made not just by responsible, prominent organizations but by any public figure, or even by any non-anonymous source.

There's much to be said, I think, for the neutral reportage doctrine. As I noted above, sometimes the very existence of an allegation may be important, for instance because it could affect the behavior of public officials. And it seems bad in a democracy when elite insiders know what rumors are swirling around, but ordinary voters are denied access to those rumors

Nonetheless, a majority (though not an overwhelming majority) of courts that have considered the matter have rejected the neutral reportage privilege, because of the harm that false allegations—including ones passed along, rather than created in the first place, by the defendant—can cause to people's reputations. In Norton v. Glenn, for instance, the Pennsylvania Supreme Court held that Norton's and Wolfe's lawsuit against the paper could go forward, and the paper could be held liable if it published Glenn's statements knowing that they were likely false; the case eventually settled for an undisclosed amount. The New York high court has also rejected the neutral reportage privilege, as have several others.

And there are other exceptions as well.

[5.] The privilege for private communications of rumors, described as such:

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"Forget the Blue Wave and Behold the Purple Puddle"

An apt summary, from Prof. Glenn Reynolds (InstaPundit).

From his USA Today column tonight.

NRA's Free Speech Claims Against N.Y. Officials May Proceed

The NRA alleges that New York officials are trying to pressure banks and insurance companies not to deal with the NRA, because of the NRA's political activities.

In October 2017, the New York Department of Financial Services began to investigate NRA's Carry Guard insurance program, offered through two insurance companies, Chubb and Lockton. The program apparently violated New York law, by providing "(1) liability insurance to gun owners for acts of intentional wrongdoing, and (2) legal services insurance for any costs and expenses incurred in connection with a criminal proceeding resulting from acts of self-defense with a legally possessed firearm." (States have broad authority to decide what risks people can insure against.) DFS also learned that the NRA marketed the Carry Guard program in New York without having the proper insurance marketing license.

The NRA claims, though, that state officials did more than just enforce insurance law, or punish the NRA and the insurers for violations of the insurance law. Rather, the NRA argues, the officials tried to pressure banks and insurers who were subject to New York law (which many major banks and insurers are, since they do business in New York) to stop dealing with the NRA altogether—and that the reason for this was the NRA's politics. Today, U.S. District Court Judge Thomas A. McAvoy allowed the NRA's free speech claims to go forward (though not their other claims). Here's an excerpt from the opinion, NRA v. Cuomo, which I think is quite correct on this point:

"'First Amendment rights may be violated by the chilling effect of governmental action that falls short of a direct prohibition against speech.' As applicable to the allegations in Counts One and Two, "the First Amendment prohibits government officials from encouraging the suppression of speech in a manner which 'can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official's request.'" In determining whether government statements impede upon First Amendment rights, "what matters is the 'distinction between attempts to convince and attempts to coerce.'"

The NRA's First Amendment freedom-of-speech claims turn on the allegations that Defendants issued threats to financial institutions and insurers "that DFS ... will exercise its extensive regulatory power against those entities that fail to sever ties with the NRA." The First Amendment "require[s] courts to draw fine lines between permissible expressions of personal opinion [by public officials] and implied threats to employ coercive state power to stifle protected speech." On the one hand, public officials are free to promote their views about public welfare, including by using their bully pulpits to "cajole[] and exhort" others to repudiate positions or groups the officials view as pernicious. On the other hand, "oral or written statements made by public officials' could give rise to a valid First Amendment claim where comments of a government official can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official's request." Thus, the critical question here is whether Defendants' statements, including the Guidance Letters and Cuomo Press Release, threatened adverse action against banks and insurers that did not disassociate with the NRA.

When a question exists whether government speech contains a threat of future enforcement action, the First Amendment requires the Court to "look through forms to the substance." "While the precise language" of the Cuomo Press Release and Guidance Letters "is certainly important," the Second Circuit has "never held that it is the only relevant factor in determining whether a public official has crossed the line 'between attempts to convince and attempts to coerce.'" Rather, the First Amendment requires the Court to consider all the circumstances, including "the entirety of the defendants' [alleged] words and actions," to determine "whether they could reasonably be interpreted as an implied threat."

In making this determination, the Court examines a number of factors, including: (1) the Defendants' regulatory or other decisionmaking authority over the targeted entities, (2) whether the government actors actually exercised regulatory authority over targeted entities, (3) whether the language of the allegedly threatening statements could reasonably be perceived as a threat, and (4) whether any of the targeted entities reacted in a manner evincing the perception of an implicit threat.

When Defendants' statements and alleged conduct is examined in its totality, there are sufficient allegations to state plausible freedom-of-speech claims.

[DFS Superintendent Maria] Vullo and DFS clearly have regulatory authority over the targeted entities. Supt. Vullo is charged by the New York Financial Services Law with taking all actions that she "believes necessary to … ensure the continued solvency, safety, soundness and prudent conduct of the providers of financial products and services" in the State of New York to "encourage high standards of honesty, transparency, fair business practices and public responsibility." "Reputational risk – the risk that negative publicity regarding an institution's business practices will lead to a loss of revenue or litigation – is just one of the threats to a bank or insurer's safety and soundness on which the Superintendent has previously issued guidance." While it is within Supt. Vullo's province to issue the Guidance Letters, she also has the authority to initiate investigations and civil enforcement actions against regulated entities, as well as the power to refer matters to the attorney general for criminal enforcement. The authority to institute enforcement proceedings is one factor supporting a plausible contention that the Guidance Letters are part of an attempt to convey implied threats of coercive action against regulated entities doing business with the NRA.

Further, the government actor need not have direct power to take adverse action over a targeted entity for comments to constitute a threat, provided the government actor has the power to direct or encourage others to take such action. Based on Gov. Cuomo's press release wherein he indicates he is directing DFS to issue the Guidance Letters, it is a reasonable inference that he has the power to direct DFS take other official action, including the commencement of enforcement investigations against regulated institutions. Thus, there is a reasonable basis to conclude that he has the power to effectuate regulatory action against entities doing business with the NRA.

DFS actually exercised regulatory authority over Chubb and Lockton, two regulated entities that fall within the same scope of DFS's authority as the entities addressed in the Guidance Letters and Cuomo Press Release. But this fact, by itself, does not help Plaintiff's claims because Chubb and Lockton admitted violations of New York insurance laws. There are also no allegations that DFS exercised regulatory authority over entities other than Chubb and Lockton.

Nevertheless, the Amended Complaint asserts that, during the course of the DFS investigations into Chubb and Lockton, "DFS communicated to banks and insurers ... that they would face regulatory action if they failed to terminate their relationships with the NRA, ... indicating that any business relationship whatsoever with the NRA would invite adverse action." This is a powerful factual allegation linking the recommendations in the Guidance Letters and Cuomo Press Release that regulated entities consider (and possibly end) their associations with the NRA, and the enforcement actions carried out by DFS against Chubb and Lockton. At this stage of the litigation, the Court must accept this factual allegation as true.

Further, the NRA notes that the Chubb and Lockton Consent Orders, which imposed several million dollars in monetary penalties and permanently prohibited those entities from participating in any NRA-endorsed insurance program in New York State, were announced just two weeks after the Cuomo Press Release and Guidance Letters were issued. Viewing the allegations in the light most favorable to the NRA, and drawing reasonable inferences in its favor, the temporal proximity between the Cuomo Press Release, the Guidance Letters, and the Consent Orders plausibly suggests that the timing was intended to reinforce the message that insurers and financial institutions that do not sever ties with the NRA will be subject to retaliatory action by the state. The backroom exhortations combined with the timing of the publically announced Consent Orders provides strong support for Plaintiff's claims.

The Court must also assess whether the language of the Cuomo Press Release and the Guidance Letters could reasonably be perceived as a threat. In the Cuomo Press Release, insurance companies and financial institutions are "urged" to "consider reputational risk that may arise from their dealings with the NRA or similar gun promotion organizations," "take prompt actions to manag[e] these risks," and "join the companies that have already discontinued their arrangements with the NRA." The Guidance Letters contain similar language, "encourag[ing] regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety."

While neither the Guidance Letters nor the Cuomo Press Release specifically directs or even requests that insurance companies and financial institutions sever ties with the NRA, a plausible inference exists that a veiled threat is being conveyed. Viewed in the light most favorable to the NRA, and given DFS's mandate—"effective state regulation of the insurance industry" and the "elimination of fraud, criminal abuse and unethical conduct by, and with respect to, banking, insurance and other financial services institutions"—the Cuomo Press Release and the Guidance Letters, when read objectively and in the context of DFS's regulatory enforcement actions against Chubb and Lockton and the backroom exhortations, could reasonably be interpreted as threats of retaliatory enforcement against regulated institutions that do not sever ties with the NRA.

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The Russians Are at It Again

What language, other than English, is visibly ALL UPPERCASE in this "I voted" sticker I just got here in L.A.?

Bwahahahaha.

UPDATE: Wait, I missed the most important part!

The Russian "играл" means "played," and "проиграл" means "lost." (True fact.) The Russian "голосовал" means "voted," so "проголосовал" means ....

A secret message?

Is a Privacy Violation an "Injury"?

The Supreme Court's call for supplemental briefing in Frank v. Gaos will lead it to a difficult question.

Last week, the Supreme Court heard oral argument in an interesting and important class action case, Frank v. Gaos, about when lawyers can agree to settle a case on behalf of a class action by giving all of the money to a charity instead of the class. Today, however, the Supreme Court called for supplemental briefing on a different question -- whether the named plaintiffs have suffered an "injury" sufficient to create standing under the Court's doctrine. That question may prove to be even trickier.

The plaintiffs in Gaos complain that Google has unlawfully turned over information about their search histories. Before the Supreme Court's decision in Spokeo v. Robins, some circuits, including the Ninth Circuit, had concluded that any violation of an individual statutory right was enough for standing. As the cases said, "Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute." In Spokeo, the Court concluded that that formulation was incomplete, and that the right must also be "concrete" though it could nonetheless be "intangible."

During the Frank oral argument, some justices became concerned that the plaintiffs in Gaos might not have standing, because they may have alleged little more than the illegal disclosure of their private search histories. While the justices batted around the possibility of a remand, the request for supplemental briefing suggests that the Court will decide the standing issue on its own.

Doing so, however, will require the Court to decide a somewhat tricky question about the nature of standing in privacy cases. Is the disclosure of previously private information itself a concrete injury? Or must the plaintiff allege that somebody else used that information against them in a particular way? Indeed, this is one of the tricky things about the Spokeo decision itself. Margot Kaminski and Matthew DeLuca have articles about standing for privacy claims after Spokeo. And as I wrote in an article last year about Spokeo:

For instance, last summer the D.C. Circuit confronted a lawsuit by two D.C. shoppers who complained that local clothing stores had demanded their zip codes in violation of local law. Without disputing that the information was illegally demanded, D.C. Circuit dismissed the case for lack of standing. The forced disclosure of one's zip code, it held, was not a concrete injury after Spokeo. In Spokeo the Court had offered a coincidentally similar example, writing: "not all inaccuracies cause harm or present any material risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm."

The D.C. Circuit found the dictum apt, writing, "If, as the Supreme Court advised, disclosure of an incorrect zip code is not a concrete Article III injury, then even less so is [the plaintiffs'] naked assertion that a zip code was requested and recorded without any concrete consequence. [The plaintiffs] do not allege, for example, any invasion of privacy, increased risk of fraud or identity theft, or pecuniary or emotional injury."

This is probably the correct conclusion to draw from Spokeo's somewhat gratuitous discussion of zip codes, but at a more fundamental level it again suggests that something is wrong with Spokeo. Why must the plaintiffs show something like a risk of identity theft or emotional injury to demonstrate a concrete injury? Why can't an illegal disclosure itself be a concrete injury? As to a zip code, this may seem strange. But imagine that the illegal disclosure was something else--an unflattering photograph or email, perhaps. Surely this ought to be actionable without showing a subsequent consequence, like the loss of one's job or social standing. Or, more modestly, imagine somebody who is embarrassed by their middle name and does not wish to see it disclosed. If that person has a legal right against disclosure, why should they need anything more?

There are two possible ways to resolve the scope of privacy laws in light of the courts' position on zip codes. One possibility, the more aggressive one, is to conclude that illegal disclosure of facts about oneself is never itself a concrete injury. To sue over the disclosure of one's address, photos, name, or anything else, one would have to demonstrate some sort of downstream consequences from these disclosures. In other words, privacy itself would not be a protectable interest under Article HI. This position has a certain logical purity, but one hopes that it is too implausible even for today's courts to adopt. It would mean that even injuries recognized under long-standing common law principles would not be enough to satisfy the "injury in fact" requirement.

The alternative possibility, a more modest one, is that some illegal disclosures are injurious in themselves, and others are not. For instance, perhaps the disclosure of photographs is different in kind from the disclosure of zip codes, even if both are protected by legal right. (The D.C. Circuit's attempt to distinguish "invasion of privacy" as an actionable "concrete consequence" might point to this possibility.) There is some common sense intuition behind this approach, but it is not entirely principled. If the legislature has made the judgment to protect both kinds of information, it is not at all clear why judges may decide that one is "concrete," that is, "real," and the other is not. This saves some of privacy law from Spokeo only by creating a constitutional common law of privacy interests.

What is more, the question of when the illegal disclosure of information is a concrete injury is one that appears to have divided lower courts in the short time since Spokeo. So, in order to deny standing (and perhaps in order to grant it) the Court may have to resolve another circuit split beyond the one that it originally granted the case to resolve.

This makes me a little nervous, since I do not think the Court does its best work on tricky federal courts questions when they are noticed at the last minute in the middle of another merits case. The posture also means that the issue may not get as much public attention (and I am not even sure whether amicus briefs are permitted on this issue -- though surely there would have been many if the issue were granted in another case).

Still, having concluded that there was a real jurisdictional question, the justices do have an obligation to do their best to resolve it. And asking for supplemental briefing may be the most responsible thing they can do at this point.

"The [11-Year-Old] Child 'Has to Get Herself Ready for School and on the Bus with No Supervision by Mother'"

Is that an allegation of abuse?

Under Tennessee law, allegations in family law cases that are "tantamount to alleging dependency and neglect" have to be handled through particular procedures; in Friday's Cox v. Lucas (Tenn. Ct. App.), the question was whether certain allegations by an ex-husband did indeed qualify as that. No, said the court as to the getting ready for school / getting on the school bus allegations:

We are not persuaded that all statements in father's petition are tantamount to allegations of dependency and neglect under the portions of the statutory definition quoted above. For instance, the petition alleged that "Mother is living in conditions that are not healthy for the minor child's upbringing." That allegation was supported by an attached exhibit depicting mother's home in a general state of disarray. According to the petition, "[t]he child is uncomfortable having friends over, due to the living conditions." We cannot say that this constitutes an allegation that the child is "in such condition of want or suffering ... as to injure or endanger the morals or health of such child ...." ...

Other allegations in the petition are more serious. For example, the petition alleged that

[t]he minor child is often alone without any adult supervision, and Mother is unavailable to tend to the minor child's needs. The minor child is left alone at night with Mother returning in the early morning hours. Mother routinely will tell the minor child that she is going to the store and does not return for hours at a time.

The petition also claimed that the child "has to get herself ready for school and on the bus with no supervision by Mother." According to the website of the Juvenile and Family Courts:

There is no legal age for children to stay at home alone. Parents are advised to use their bestjudgment, keeping the child's maturity level and safety issues in mind. Younger children have a greater need for supervision and care than older children. Obviously, young children under age 10 should not be left without supervision at any time. In most cases, older teenage children may be left alone for short periods of time.

Tennessee Administrative Office of the Courts, Juvenile & Family Courts, FAQS, http://www.tncourts.gov/courts/juvenile-family-courts/faqs. The child in the present case was eleven years old at the time of father's petition. It is probably unfair to say that an eleven-year-old child cannot be left home alone at any time or that such a child cannot be trusted to get on the school bus without supervision. However, father's petition alleged that the child was "often" left home alone, even in the middle of the night. If these allegations do not fit squarely within section (C) of the statutory definition [defining "dependent and neglect" children to include those who are under "improper care"], they are very close.

Why Voting Based on Values Can't Overcome the Problem of Political Ignorance

Values are important. But so is factual knowledge about public policy. In some ways, the significance of values actually makes the problem of voter ignorance more pressing, not less so.

In a recent New York Times op ed, former FBI director James Comey urges that "Every American should be speaking about our nation's values. Every American should be voting those values, which are far more important than even the most passionate policy differences." I agree with much of what Comey says in this piece. He's right that values are an important component of making good voting decisions, and I think he's also right to argue that many of the Trump Administration's policies are a menace to fundamental American values. Some of Comey's opponents on the political right also believe that values are the key to good voting decisions. Consider, for instance, the social conservative "Values Voter Summit."

Many take this kind of reasoning a step further and suggest that good values are really all you need to be a responsible voter. If so, perhaps I and other critics are wrong to worry about the problem of widespread voter ignorance. Even if voters don't know much about government and public policy, that does not matter much, so long as they have good values. They can then vote for candidates who espouse the same laudable principles and leave the policy decisions to them. Political philosopher Thomas Christiano even argues for a system under which values and policy decisions are separated, and voters only decide the former.

While values do matter, they are not a substitute for voter knowledge. In some respects, their importance actually implies the need for more knowledge, not less. I addressed these issues in some detail in a post I wrote last year, which I think remains relevant today:

[M]eans and ends in government are often closely entangled. Many issues – health care, environmental policy, welfare policy, education, and others – involve complicated combinations of facts and values. It isn't easy to see how the two can be disaggregated.....[T]he the size and complexity of government makes things more difficult. Among other things, the policy choices at stake involve tradeoffs between many different aims – such as those between increasing economic growth and raising environmental standards, for example.

The above points also apply to oft-made claims that voters can use "values" as an effective information shortcut.... Instead of comparing opposing policy platforms, the voters can just support whichever party or candidate seems to care more about their values, and leave the details of policy to the experts. The fly in the ointment here is that many of the issues at stake in most elections involve competing views about how we can best achieve widely shared values. Both Democrats and Republicans claim that they will grow the economy, create better opportunities for the poor and middle class, improve the quality of health care, protect us against terrorism, and so on. On these and many other issues, the big question facing the electorate is whether the parties' policies are likely to actually achieve these goals, and at what cost. Evaluating that requires factual knowledge, not just values.

A few controversial political issues, most notably abortion, may primarily come down to differences over ultimate values. But many others involve disagreements over facts and policies.

Knowledge is also essential for those issues where values really are at the heart of our disagreement. An electorate that knows little about factual matters will often do a poor job of evaluating values, too:

[I]f voters do a poor job of evaluating means, it is not clear that they are likely to do a much better job of evaluating ends. For the same entirely understandable reasons that few voters spend much time thinking about how public policy works, most also do little or no rigorous thinking about values. For example, how many people think seriously about the relative merits of utilitarian consequentialism as opposed to rights-based theories of morality? For most people, ultimate values are almost like religion: they accept those prevalent in their family or community without giving the matter much systematic thought – in part because there is little incentive to do so.

In my view, the values of the average voter in most Western democracies are not so bad. If the voters had a better understanding of how to achieve them, the quality of public policy would be vastly better. But many political theorists would argue otherwise. If you're a hard-core utilitarian like Peter Singer, a Rawlsian egalitarian, or a Catholic natural law theorist, your view of the average American voter's values is likely to be far more negative than mine. And even I think much of the electorate has significant moral blind spots, such as the assumption that it is morally permissible to make immigration policy with little or no consideration of the rights of potential immigrants themselves.

Some reject criticism of the voters' values by arguing that we can't really know which values are best. Who can say what's right? We have no reason to believe that one person's values are any better than another's. So why not let each citizen's preferences weigh equally, as "one person, one vote" democracy is supposed to do? This sort of relativist argument can be broadened into a critique of concern about voter ignorance generally. Who's to say what kind of knowledge matters and what kind doesn't?

The problem with this kind of argument is that its attempt to rescue democracy from its critics ultimately destroys any basis for preferring democracy in the first place. If we have no idea which values are best, how can we know that the values promoted by democracy are any better than those advanced by dictatorships or oligarchies? The true moral relativist has no reason to believe that the governments of the US or Canada are preferable to those of North Korea or Saudi Arabia......

The "one person, one vote" principle underlying democracy is not a morally neutral standpoint. It is based on certain assumptions about who should be allowed to participate in government and why – assumptions that can lead to multiple different interpretations of the idea.

If we think we know enough about values to conclude that democracy is superior to to dictatorship, then we should also be able to use the same principles to evaluate how good the voters' values are, and whether it might be desirable to limit their power over at least some issues. You can't logically be a moral absolutist about the comparison between democracy and dictatorship, and a relativist about competing values within a democracy. If, for example, Western democracies are superior to North Korea because they provide greater freedom and happiness to their people, then those same values can be used to evaluate the performance of both voters and other participants within the democratic political process.

Ultimately, there are good reasons to question voters' judgments about both factual issues and values. That doesn't mean we should do away with democracy entirely. Dictatorship is likely to be much worse on both fronts. But it does indicate we should be open to proposals for restructuring democracy to reduce the harm caused by public ignorance. In some cases, that may mean making fewer decisions at the ballot box, and more in other settings where people have better incentives to become informed.

I would add that, at this point, I probably take at least a modestly more negative view of the values of the average voter than I did when I wrote the above-quoted post last year. There are, I now believe, some issues on which we badly need a significant improvement in values, perhaps greater than I was previously inclined to think.

In another part of my 2017 post, I offered some additional criticisms of Christiano's proposal. See also this post on the same subject by Jason Brennan.

We Have An Opinion (from SCOTUS)

The Supreme Court issues its first OT2018 decision in an argued case.

This morning, while most reporters were focused on the midterm election, a hearty cadre of Supreme Court reporters made their way through the rain to the Supreme Court for the first "decision day" of the term.

The Court issued one decision today, a unanimous opinion in Mount Lemmon Fire District v. Guido, in which the Court rejected the fire district's attempt to get out from under the requirements of the Age Discrimination in Empliyment Act (ADEA). The opinion, by Justice Ruth Bader Ginsburg, is short and to the point, concluding that the ADEA provides political subdivisions no relief. Under the plain text of the act, the ADEA applies to "employers," defined to include those with 20 or more employees, their agents, and States and their political subdivisions. While one might think Congress would want to exempt at least some political subdivisions, such as those with fewer than 20 employees, that's not what Congress did in the ADEA.

As Bloomberg Law's Kimberly Robinson notes, this is the third year in a row that Justice Ginsburg has authored the first opinion of the term in an argued case. Chief Justice Roberts and Justice Thomas earned that distinction in OT2015 and OT2014 respectively.

As this case was argued on the first day of the term, Justice Kavanaugh did not participate.

Exciting Free Speech Event at the Scalia Law School Next Wednesday, Nov. 14

Join us to see Eugene Volokh, Nadine Strossen, and moderator Brad Smith discuss the Emerging Issues in Free Speech

Volokh Conspiracy readers are invited to a conversation with two renowned First Amendment experts, the VC's own Eugene Volokh and Nadine Strossen (former president of the ACLU). They will discuss the future of free speech in the United States. The conversation will be moderated by Bradley A. Smith, founder and Chairman of the Institute for Free Speech, and former Chairman of the Federal Elections Committee. The conversation will be immediately followed by a reception to celebrate the launch of Scalia Law's Free Speech Clinic, a project of our Liberty & Law Center.

The event will be held on Wednesday, November 14 at 4 pm. Note that the Federalist Society annual conference starts the next day in DC, and that Scalia Law is only three miles or so from the conference hotel. So if you plan to or are thinking about getting to town early, you now have an additional incentive to do so.

If you'd like to attend, please register here.

Foreign governments will not hack this election

The bold predictions episode (No. 238) of the Cyberlaw Podcast

This episode puts our experts on the spot with an election-eve question: Will foreign governments attack US electoral rolls or vote-counting machinery in 2018? Remarkably, no one on our panel (Matthew Heiman, Nick Weaver, David Kris, and I) thinks they will. So if you want cybersecurity news, you can stop listening to election coverage and tune in to Episode 238 of The Cyberlaw Podcast.

Our interview features Steve Rice (Deputy CIO for DHS) and Max Everett (CIO for the Department of Energy) and was originally taped at a session of the Homeland Security Week conference.

In the news, Nick evaluates the report that China hijacked the Border Gateway Protocol; he thinks we need more data. David agrees with me that one way to get the data would be a Justice Department subpoena.

Matthew Heiman explains why SCOTUS is skeptical of Google's cy pres settlement that treated 129 million class members like bystanders at someone else's party – and why that skepticism may not appear in US Reports any time soon.

Nick and David lay out the painful story of how failures in CIA communications with their assets may have severely compromised HUMINT operations in Iran and China.

Matthew and I talk about the string of right-wing killers in the past few weeks and the tech implications, including the defenestration of Gab and a lot of throat-clearing about amending Section 230 of the Communications Decency Act.

Matthew also explains, then casts doubt on, a Florida Appeals Court decision that rejects the "foregone conclusion" doctrine for compelled passcode disclosure.

After all the Internet-enabled vibrator stories we've covered on the podcast, I think we're obliged by gender equity to cover this effort to use artificial intelligence to improve male sex toys. For those who may face confirmation before the Senate Judiciary Committee any time in the next decade, Nick explains that Markov chain techniques have nothing to do with the Devil's Triangle.

More hostilities in the US-China Cool War: DOJ has indicted a Chinese-state owned company as well as UMC and three individuals for stealing trade secrets from US companies; and in a coordinated move, the Department of Commerce has placed limits on US businesses interacting with the Chinese company. I wonder whether the Cool War between China and the US is increasingly forcing big foreign tech companies to choose between the two as they develop new technology.

Download the 238th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Pocket Casts, Google Play, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Why are American Jews Increasingly Concerned about Domestic Anti-Semitism?

The percentage of Americans with anti-Semitic attitudes has been stable, but anti-Semites are more active, more visible, and more willing to express their views than in the past.

I've been hearing from Jewish friends I respect, even before the Pittsburgh shooting, that they perceive that anti-Semitism is on the rise in the U.S. These friends have disparate ideological views; some are on the left, some on the right politically.

As I've noted before, the data don't (yet?) support a significant increase in American anti-Semitism. The ADL regularly polls American attitudes toward Jews. The most recent survey was conducted in late October 2016, at the heart of a bitter election campaign that some argue was infected with anti-Semitism. The rate of anti-Semitism found was 14%, within the same 12 to 15% bound it's been in ADL studies since 2004. (I've debunked the notion that there has been a 60% rise in anti-Semitic incidents elsewhere, but it's possible that there has been some increase in incidents.)

Let's assume in the absence of contrary data that there has not been a significant, or perhaps any, increase in anti-Semitic attitudes among Americans. Why might Jewish Americans still fell under increased threat from anti-Semitism?

I can't rule out moral panic, but I think there is a better explanation. Let's begin with some background, starting with the fact that many Jews reasonably see themselves as vulnerable population; the Holocaust is always in the back of our minds, and we notice, even if most Americans don't, that Jews are by far the religious group most targeted by hate crimes. The security guards and truck bomb barriers at Jewish institutions are a constant reminder of the threat of anti-Semitic violence.

Let's add that American Jews notice very negative trends in Europe. The Jewish right sees what's going on in places like Sweden, France, and Great Britain (where the formerly mainstream center-left Labour Party has been taken over by leftist anti-Semites) and fears that nascent anti-Semitism on the anti-Israel left will eventually lead to a similar situation in the U.S The Jewish left sees the rise of anti-Semitic neo-fascist parties in Europe and worries about the U.S. heading in that direction. Less ideologically driven Jews are justifiably concerned about both phenomena.

It doesn't help that neither the mainstream American right or left exhibits much sensitivity to Jewish concerns about anti-Semitism. On the right, the common response is that "we're pro-Israel, what do you want from us?" Meanwhile, the Jewish sense of vulnerability is positively disparaged on the left, which considers being Jewish in the U.S. to at best a subset of "white privilege." (Lefist Jews themselves are not immune from the latter; consider this sermon by a Reform rabbi about his white privilege, in which he conclude that being "both Jewish and white puts us in the perfect place be make a positive difference, by being allies with those who experience discrimination." Note that he seems to assume that Jews themselves never experience discrimination.)

That background, while important, doesn't explain Jews' sense of increased anti-Semitism in the U.S. I think the best explanation for that sense is that even if the percentage of anti-Semites in the American public hasn't increased, they are more active, more visible, and more willing to express their views publicly.

  1. More Active

On the right, the internet has given anti-Semites a way of much more easily coordinating than they had in the days of handprinted newsletters and secretive meetings in Days Inn conference rooms. On the left, the rise of hostility to Israel as a major issue for the left has given anti-Semites an opportunity to spread anti-Semitism in the guise of "anti-Zionism".

  1. More Visible

Not too long ago, expression of anti-Semitic sentiments was suppressed by media gatekeepers; mainstream news organizations wouldn't publish anti-Semites, nor would respectable journals of opinion. But now the gatekeepers are in a free-for-all market, and they can't control what is said on blogs, websites, etc., and their own editorial standards have declined. Twitter gives an easy public forum for anti-Semites. And the comments sections of most sites are unmoderated, providing a forum for anti-Semites regardless of the editorial perspective of the site. You won't find a site with more philo-Semitic site than Instapundit, for example, but you will still see some anti-Semitism in the comments. Even this blog, written mostly by Jews, attracts its share of anti-Semitic commentators, more so when it was hosted by the Washington Post.

  1. More Willing to Express their Views Publicly

In our polarized times, the left and right are much less willing to police their "own," focusing instead only on the sins of the other side. The result, for example, is that Harvard and University Chicago professors can publish an entire book that is essentially a long anti-Semitic conspiracy theory, without any damage to their careers or reputation, because the book served the purposes of the political left. Donald Trump can retweet anti-Semitic imagery, not apologize for doing so, and not have any political consequences. Another factor is immigration from the Middle East. Middle Eastern immigrants are arriving from societies in which anti-Semitism is widely accepted, so it's not surprising that Middle Eastern university students who, for example, join Students for Justice in Palestine, are sometimes not embarrassed to engage in openly anti-Semitic rhetoric.

Making matters worse, there is no longer any widely respected anti-Semitism watchdog in the United States. The ADL is disparaged by the right for its drastically increased partisanship since a Democratic operative took over its leadership. The left rejects the ADL because it advocates for Israel, and refuses to adhere to the increasingly common claim that anti-Zionism is essentially never anti-Semitic. The ADL's upstart competitors, such as the Southern Poverty Law Center and the Anne Frank Center, are even more relentlessly ideological and partisan.

Political Ignorance and the Midterm Elections

It is not yet clear who will win. But widespread political ignorance already ensures many of us will be losers.

Tomorrow, the United States will have an important election. The results may well turn out to be unusual in various ways. But one unfortunate element of continuity is that, whoever wins, the outcome is likely to be heavily influenced by widespread political ignorance. Public ignorance is a longstanding problem, as polls have long found that most of the public has very little understanding of government and public policy. The available data suggests that things have not changed much this time around. For example, recent surveys find bipartisan voter ignorance about numerous basic facts about government policy, evidence that only 36 percent of Americans could pass the relatively simple civics test administered to immigrants who want to become citizens, and that 52% of Americans cannot name even one Supreme Court justice (despite extensive recent public controversy about the Court's decisions, and the political battle over the nomination of Brett Kavanaugh). The public also continues to be ignorant about the distribution of federal spending.

Not all the information tested on these surveys (and others like them) is truly necessary to be a well-informed voter. But, collectively, the data paints a picture of an electorate with very low levels of political knowledge. Such ignorance reduces the quality of government policy, and creates opportunities for politicians and interest groups to exploit public ignorance for their own benefit. Those voters with relatively higher levels of political knowledge, are often highly biased in their evaluation of information, acting more like "political fans" cheering on Team Red or Team Blue than truth-seekers.

Most of this ignorance is not the result of stupidity on the part of voters, or lack of available information. It is, to a great extent, entirely rational behavior driven by the fact that there is so little chance that any one vote will change the outcome of an election. If your only reason to become informed about politics is to be a better voter, that's barely any incentive at all. As a result, most voters tend to be "rationally ignorant" about politics, and the minority who follow it relatively closely tend to be highly biased in their evaluation of information, because getting at the truth is not the main reason why they seek it out in the first place. This kind of bias has been exacerbated by the growing polarization and partisan hatred that afflicts American politics.

While political ignorance is far from a new problem, it is particularly noteworthy in an election that is - like most midterms - in significant part a referendum on the performance of the incumbent president. While Trump is not formally on the ballot, the GOP has (with few exceptions) endorsed his tactics and agenda. A Republican victory would, first and foremost, be a triumph for the president. And that president rose to power in large part by exploiting ignorance about issues like immigration and trade. This year, he has doubled down on the same strategy, by such tactics as making numerous bogus claims about the supposed threat posed by the Central American refugee "caravan."

But, while Trump is a particularly egregious exploiter of political ignorance, many of his tactics are just more extreme versions of those used by more conventional politicians. For example, it is likely that none of Trump's deceptions - so far - has been as successful as that which President Obama used to promote his signature legislation: "If you like your health care plan, you can keep it" - a deserving winner of the Politifact lie of the year award (which Trump went on to win himself last year). Like Trump's deceptions, Obama's line succeeded in large part because most voters did not take the time to learn the truth, even though it was readily available online and elsewhere.

Similarly, like Trump himself, many of his Democratic opponents exploit public ignorance about government spending by claiming that we can maintain or even massively expand current levels of entitlement and defense spending without raising taxes on anyone but the wealthy. The growing "democratic socialist" wing of the party has taken this canard to even more egregious heights.

Especially when it comes to this year's election, some may dismiss concerns about political ignorance on the ground that all voters really need to know is which of the two major parties is less bad than the alternative. Democrats may contend (with some justice) that the Trump-era GOP is so obviously awful that there is no need for any more detailed examination of its policies or those of the opposition.

There is some truth to this position. But it ultimately underrates the dangers of ignorance.

I'm a believer in the logic of voting for the lesser evil. And in this election, I tend to agree that a Democratic victory would indeed be preferable on that basis, in large part for the reasons outlined by Reason's Shikha Dalmia (though I don't necessarily agree this is election is the most important of our lives). In addition, historical evidence suggests that divided government leads to relatively lower levels of federal spending and budget deficits, a point well made by no less a figure than Kevin Hassett, now chair of Trump's Council of Economic Advisers. At the very least, I think there's a strong case that a Democratic victory is preferable when it comes to control of the House of Representatives; the Senate and various state and local races are more complicated, because the significance of judicial nominations when it comes to the former, and the presence of many issues distinct from national ones with respect to the latter. As that last qualification implies, using simple heuristics to identify the lesser evil is often a more difficult task than it seems, especially when there are numerous different offices and referendum initiatives on the ballot, which address widely divergent issues.

But even if voters are able to successfully identify the lesser evil on election day, most of the harm caused by political ignorance has already been done by that point. I summarized the key reason why here:

[Many focus] on the ways in which ignorance and bias might lead voters to make poor choices between the available alternatives. But public ignorance also has a big effect in determining what those choices will be in the first place. Candidates and parties know they face a largely ignorant electorate, and they structure their platforms accordingly. For example, [Marcus] Gee alludes to the fact that all three... parties [in the recent Ontario election] are largely acting as if the province's very serious fiscal problems can be finessed through a combination of smoke and mirrors and pretending they don't exist. If the voters were better-informed about fiscal issues, the parties could not get away with that, and quite likely would not even try to do so. Similarly, voter ignorance played a major role in ensuring that American voters faced such terrible options in the 2016 general election.... By the time we we get to the polls on election day, much of the harm caused by voter ignorance has already been inflicted, by ensuring that we really do face a choice of evils.

Whoever wins tomorrow's elections, widespead political ignorance has already ensured that most Americans will be losers, at least relative to a world where that problem was less severe.

In principle, there is much that voters can do to improve their performance - both by learning more about the issues and by trying to curb their biases. I discussed several such steps here, and see also this useful article in Scientific American and Georgetown Prof. Jason Brennan's recommendations in his excellent The Ethics of Voting. If you are unable or unwilling to become a reasonably competent voter, there is nothing wrong with simply abstaining from ignorant voting. Given our limited time and energy, it isn't wrong to be ignorant about various candidates and issues. But, with some exceptions, it is generally wrong to inflict that ignorance on the rest of society. And, despite oft-heard claims to the contrary, staying home on election day does not mean you have no right to complain. You still have every right to condemn harmful and unjust government policies. For what it is worth, I practice what I preach, and abstain from voting myself, when it comes to races and referendum initiatives that I know little or nothing about.

Sadly, however, I am not optimistic that more than a small fraction of voters will indeed improve their performance, or seriously consider their own ignorance as a reason for abstention in cases where they would otherwise be inclined to vote. Ironically, the kinds of people who carefully consider these questions are probably already much more knowledgeable and less biased than most of the electorate.

In the long run, the best ways to mitigate the dangers of political ignorance require structural change. I believe we can best alleviate the danger limiting and decentralizing the power of government, and enabling people to make more decisions by "voting with their feet" rather than at the ballot box. Foot voters deciding where they want to live or making choices in the private sector have much stronger incentives to become well-informed than ballot box voters do. But I recognize that there is a range of other possible ways to reduce the harm caused by public ignorance, and am open to considering them. It may be that no one strategy will be sufficient by itself.

In the meantime, we should at least recognize the seriousness of the problem, and that it cannot be fixed merely by defeating any one particularly egregious candidate or party.

NOTE: A few parts of this post have been adapted from previous posts on related issues, here and here.

Dilatory Tactics in a Death Penalty Case?

My co-authored amicus brief urges the Supreme Court to bring an end to decades-long abusive litigation by convicted murderer Russell Bucklew.

In 1996, Russell Bucklew murdered Michael Sanders as his two young sons—only four and six years old—watched their father bleed to death in front of them. Then, as the young daughters of Bucklew's other victim, Stephanie Ray, cried and wailed for their mother, Bucklew handcuffed and dragged her away to endure hours of rape and torture. Bucklew's reign of terror continued when he broke out of jail, forced victims to go into hiding, and ambushed one victim's mother in her own home. He was tried, convicted, and sentenced to death over 20 years ago.

Tomorrow the Supreme Court will hear oral arguments in Bucklew v. Precythe, in which Bucklew is raising an "as applied" challenge to Missouri's method of executing him (lethal injection). Counsel of record Allyson Ho, several of her colleagues at Gibson, Dunn & Crutcher, and I have filed an amicus brief in support of Missouri. We filed the brief on behalf of the sister of Michael Sanders and Arizona Voice for Crime Victims. Our amicus brief urges the Court to reject Bucklew's challenge and end more than two decades of litigation.

Bucklew's latest challenge argues that, as applied to him, Missouri's method of carrying out the capital sentence constitutes cruel and unusual punishment because of his unique medical condition (benign oral tumors). This challenge could have been raised more than decade ago. In June 2008, Bucklew filed a pleading asking to hire a medical expert to support a clemency application—and supported his request by claiming that, because of his condition, "execution by lethal injection may pose a substantial and intolerable risk of inflicting serious harm and excruciating pain." His 2008 filing included extensive argument that he would "suffer the risk of serious harm amounting to cruel and unusual punishment during the administration of Missouri's lethal injection protocol in light of his affliction with cavernous hemangioma." It even stated that Bucklew sought to demonstrate that Missouri's procedure was unconstitutional "as applied uniquely" to him.

Yet despite his obvious awareness of a possible as-applied challenge based on his condition, Bucklew refused for years to bring such a challenge. Instead, he brought or joined a series of facial challenges—always ensuring that his as-applied challenge was at the ready for later use. After years of litigation on facial challenges, in May, 2014, less than two weeks before his scheduled execution, Bucklew finally brought his as-applied challenge. Having held that challenge in reserve for years, Bucklew was able to secure a stay of execution from the Supreme Court while Missouri's other capital defendants could not, and he staved off dismissal of his new as-applied claims despite the dismissal of the other defendants' facial challenges.

In proceedings below, the district court and the court of appeals saw through Bucklew's strategy and held that, even after extensive discovery, he had not made any real effort to discern what procedures would actually be used at his execution—and thus could not show that any such procedures would be more painful than his lethal gas alternative. As the Eighth Circuit noted, Bucklew successfully prolonged his as-applied challenge in 2015 by arguing for the necessity of further fact-finding—and then showed no interest in that fact-finding once his challenge was revived. Specifically, three years before, Bucklew argued that the Eighth Circuit should reverse the dismissal of his complaint to allow him to take further discovery regarding what changes the State could make to its protocol to accommodate his condition—because without knowing the exact parameters of the protocol, Bucklew could not effectively argue against them. But once Bucklew secured reversal and remand, he stopped caring about what changes Missouri would make to its procedures, and did nothing to determine what, exactly, the effects of those procedures would be with respect to his condition. The district court ruled for the State and the Eighth Circuit affirmed.

As a result of these manipulative litigation tactics, Michael Sanders' family has been harmed. The first part of our amicus brief reviews the academic and other literature on the effect of such delays on victims' families. The literature confirms that long after the immediate loss and physical trauma are over, victims' families continue to suffer from psychological trauma, which courts frequently overlook. A victim's experience with the criminal justice system—particularly when the process is long-delayed, convoluted, and seemingly never-ending—compounds the initial effect of the violent crime. In capital cases in particular, years of delay exact an enormous physical, emotional, and financial toll on victims' families. The delays also keep family members from experiencing a sense of "closure"—the hope that they will be able to put the murder behind them.

In this particular case, the Eighth Circuit properly sought to put an end to Bucklew's abusive litigation and dilatory tactics, rejecting his "as applied" challenge to Missouri's use of lethal injection to carry out the execution. Now that the case is before the Supreme Court, Missouri has responded in detail to Bucklew's as-applied claims in its brief. Seventeen States have supported Missouri's analysis on the lack of merit to Bucklew's claims in an amicus brief.

Our amicus brief takes a different tack and focuses on victim-related issues. We urge the Court to reject Bucklew's arguments because of his deliberate dilatory tactics. Here is how our brief concludes:

For as long as this Court has recognized § 1983 method-of-execution claims, it has also recognized the potential for their abuse. See, e.g., Gomez v. U.S. Dist. Court for N. Dist. of California, 503 U.S. 653, 654 (1992) (per curiam) (rejecting method-of-execution challenge and explaining that "[e]quity must take into consideration the State's strong interest in proceeding with its judgment and Harris' obvious attempt at manipulation"). And this Court has held that "[b]oth the State and the victims of crime have an important interest in the timely enforcement of a sentence" that should be protected by dismissing abusive § 1983 suits. Hill v. McDonough, 547 U.S. 573, 584 (2006) (citing Gomez).

In Hill, this Court held that capital defendants could sometimes step outside the habeas framework and use § 1983 to challenge the method of their planned execution. Id. at 583. At the same time, the Court recognized the obvious potential for abuse in using § 1983 as a procedural vehicle given that, among other things, such suits are not subject to the bar on successive habeas petitions—and warned that repetitive, dilatory, and strategic § 1983 suits should not be allowed to trump the interest of victims. Id. at 584. The Court explained that its decisions upholding § 1983 method-of-execution suits "do not diminish that interest, nor do they deprive federal courts of the means to protect it." Ibid. This is so, in part, because "the 'last-minute nature of an application' or an applicant's 'attempt at manipulation' of the judicial process may be grounds for denial of a stay" or other relief. Ibid. (quoting Gomez, 503 U.S. at 654).

Although Hill was most directly concerned with stay applications, it approvingly cited cases that applied the same reasoning to dismiss outright "[r]epetitive or piecemeal" § 1983 claims. Id. at 584–85 (noting courts' use of their equitable authority "to dismiss suits they saw as speculative or filed too late in the day" as an example of how "dilatory or speculative suits" could be addressed); id. at 584 (citing White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005), which dismissed a § 1983 action because the claimant "has been on death row for more than six years, and only now, with his execution imminent, has decided to challenge a procedure for lethal injection that the State has been using for his entire stay on death row").

It is difficult to imagine a more appropriate case for exercising equitable authority to protect crime victims against repeated manipulation of the judicial process than this one. Bucklew refused to make his as-applied challenge until the last moment—a mere 12 days before his execution—despite his awareness of the availability of such a challenge at least 6 years earlier. See White, 429 F.3d at 574 (dismissing § 1983 method-of-execution challenge where the claimant was aware of its availability "for more than six years" and only brought it "with his execution imminent"). Despite virtually unlimited opportunities to bring (and have resolved) any as-applied claims during that six-year period, Bucklew chose not to do so. Even after he was finally forced to bring his claim, he has been careful to avoid any real merits determination—arguing that a lethal gas procedure Missouri has not used for 50 years could possibly be constitutional, while offering the testimony of an expert who claims that no procedure whatsoever, gas or otherwise, could be satisfactory.

Unless the judgment below is affirmed, Bucklew will continue to bring suit after suit for no purpose other than drawing out these proceedings and dragging his victims through as many years of litigation as he possibly can. The "important interest" of crime victims that this Court recognized in Hill should be vindicated here by holding that the equities lie with the victims who have been denied peace and closure for over two decades—and affirming the judgment below on that ground.

I hope that the Supreme Court will affirm the judgment of the Eighth Circuit.

Libel Case Can't Be Litigated with the Alleged Libel Sealed, Says Federal Court

"Once a matter is brought before a court for resolution, it is no longer solely the parties' case, but also the public's case."

From Friday's opinion in Parson v. Farley, 2018 WL 5779570 (N.D. Okla.), the background:

Sometime prior to April 16, 2016, Plaintiff Carl Parson ... served as administrator of the estate of Defendant Don Farley's ... brother and sued Farley to recover property allegedly taken by Farley from his brother's estate. On April 16, 2016, Farley allegedly sent a letter containing false and defamatory statements about Parson to the Inola Chamber of Commerce .... When the Letter was sent, Parson was a candidate for the Oklahoma House of Representatives. [He lost, but then ran and lost again in 2018.-EV] On May 23, 2016, Parson filed a Petition in Rogers County, Oklahoma, asserting claims against Farley for libel and false light invasion of privacy, seeking money damages, along with temporary and permanent injunctive relief. Parson alleges that Farley published the Letter to the Inola Chamber of Commerce out of "hatred, ill will, malice, and only with the desire to intentionally injury [Parson] as a business owner."

When filing the Petition, Plaintiff moved to file the Letter under seal pursuant to Oklahoma law governing sealed court records. On May 23, 2016, the state court entered an Order to Seal a Portion of the Record with Findings of Fact and Conclusions of Law .... The court found in relevant part: (1) the Letter contains words that "without hearing on the merits tend to be actionable by themselves or are opprobrious and that the Letter clearly refers to the Plaintiff"; (2) "additional publication by filing in the public record of the Letter ... would only serve to further harm the Plaintiff's right to privacy"; and (3) "an order can be narrowly tailored ... to keep that portion of the record sealed and prevent irreparable harm to the Plaintiff ... until such time as the matter can be heard on its merits or further order of this Court." ...

When I learned about the case, I moved to intervene and unseal, arguing that the public had a First Amendment and common-law right to see the allegedly defamatory letter and some related documents, so as to better understand what the case was all about. Friday, Magistrate Judge Jodi F. Jayne (to whom the district judge referred the case) agreed, applying the common-law right of access; she held that there was no need to decided whether there was also a First Amendment right of access. The letter and the documents were presumptively public documents:

The Letter ... is at the center of the controversy and forms the basis of both legal claims; the public cannot understand this litigation without access to the Letter.... The Letter is also now attached to a dispositive motion, which renders it highly relevant to the adjudicative process.... The other requested documents—the 7/28/16 Motion to Dismiss, the 1/12/18 Dispositive Motion, and Parson's affidavit—are dispositive motions or an attachment to a dispositive motion. Without question, these records are relevant to adjudicating the parties' rights; are relevant to the performance of judicial functions; and will assist Volokh and the public in understanding the reasons for the Court's substantive decisions. Therefore, the requested documents are judicial documents to which a presumption of public access attaches....

[T]he sealed Letter, and the sealed dispositive briefs and their attached exhibits, are central to adjudication of the controversy. By asking to maintain the Letter under seal throughout the lawsuit, Parson is essentially asking the Court to shield the entire litigation from the public. Without the Letter and dispositive motions discussing the Letter's contents, the public lacks any meaningful access to the proceedings. Therefore, although the district court has yet to expressly rule on dispositive motions, the Court finds the sealed materials are the type of "judicial documents" entitled to a "strong presumption" of public access....

And Parson's interest in preventing the allegations in the letter from being learned by the public wasn't enough to rebut this presumption of openness:

The common-law right of access to judicial records recognized by the Tenth Circuit "is not absolute." The presumption can be rebutted when "countervailing interests heavily outweigh the public interests in access." To satisfy this standard, the party seeking to maintain documents under seal "must articulate a real and substantial interest that justifies depriving the public of access to the records that inform [the] decision-making process." ...

Parson argues that the Letter should remain sealed because it is false, libelous, injures his business reputation, and contains private information that will subject him to "suffering and embarrassment." Parson argues his privacy interests are substantial due to the "outrageousness" of the allegations and his strong likelihood of success....

Upon weighing Parson's interests in maintaining the privacy of the disputed judicial documents against the public's interest in access to the adjudicative process, the Court concludes public access must prevail. The Letter accuses Parson of scurrilous behavior, calls him names, and essentially seeks to dissuade others from supporting Parson in his candidacy for state representative. It is less than one page long and written in the form of a bulletin or flyer. If believed, the Letter could potentially damage Parson's reputation, business, and political ambitions.

However, the Letter does not reference Parson's sensitive or private information, such as bank account records, social security numbers, or family members' names. Nor does it reference or name any third parties or their sensitive information.

This is a garden-variety libel case involving a few allegedly false statements about an individual running for office that are embarrassing and potentially injurious to his reputation and business dealings. Parson has failed to articulate any privacy interests that "heavily outweigh" public access and warrant the drastic remedy of preventing the public from understanding the nature of his lawsuit. Courts have held that injury to one's reputation and potential embarrassment generally do not outweigh the strong presumption of public access attaching to judicial documents. See Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (embarrassment flowing to plaintiff based on allegations in her own complaint regarding ongoing feud with family and disclosure of Alzheimer's diagnosis was not "sufficiently critical" to outweigh strong presumption in favor of public access); In re Se. Milk Antitrust Litig., 666 F. Supp. 2d 908, 915 (E.D. Tenn. 2009) (noting that "harm to reputation" is generally not sufficient to overcome presumption in favor of public access); Hillsboro Feed Co. v. Biro, No. 2:13-cv-405- PJK-LAM, 2013 WL 12329129, at *1 (D.N.M. Sept. 17, 2013) (declining to seal judicial records that included "highly-personal, unflattering details" about personal relationships and allegations about a party's mental health); cf. Giuffre v. Maxwell, 325 F. Supp. 3d 428, 446 (S.D.N.Y. 2018) (finding strong presumption of public access to summary judgment records was outweighed by privacy interests of "dozens of non-parties who provided highly confidential information relating to their own stories ... in reliance" on a protective order, and where pleadings contained sensitive information about sexual abuse of minors).

Further, the Court finds Parson's privacy interests in the Letter particularly uncompelling, because Parson was running for public office when the Letter was written and the Letter expressly references his candidacy.

Parson seems to assert that the Court should test Farley's defenses and, presumably, deny the motion to unseal if Parson is likely to succeed on the merits of his libel or false light invasion of privacy claims. This argument misses the point. If Parson succeeds at summary judgment or trial, the Letter's contents will be the focal point of that adjudicatory process. If the Letter and its contents remain sealed, future court proceedings would need to remain sealed, and the public would be excluded from the process.

The public would be unable to determine whether and to what extent a candidate for public office successfully prosecuted a libel claim and obtained compensatory and/or injunctive relief. Volokh, the proposed intervenor, wants to review, understand, and comment on these legal proceedings both due to his interest in First Amendment jurisprudence and to assist the public in checking the integrity of the judicial branch. These are proper and laudable purposes.

Although Parson appears to believe his lawsuit is a private matter, he is mistaken. By seeking money damages and injunctive relief in a court of law, he subjected himself to public court proceedings, including any consequences of further public disclosure of the Letter.... "Once a matter is brought before a court for resolution, it is no longer solely the parties' case, but also the public's case." ....

Parson has until Nov. 16 to decide whether to appeal; if he doesn't, the documents will be unsealed.

On "Shadowy Billionaires," Conspiracy Theories, and Lies

Conservatives' over-the-top attacks on George Soros Mirror Progressives' attacks on the Koch Brothers During the Obama Administration

A lot of attention has been paid recently to the role George Soros plays as a bogeyman for conservatives. Soros is seen as a malevolent force with massive influence on progressive politics, and gets blamed for things, like the migrant caravan, that there is little to no evidence he has anything to do with. President Trump hasn't exactly discouraged conspiracy theories about Soros, and Soros has been the subject of wild distortions and out-and-out lies about his past in Nazi-occupied Hungary.

Soros is Jewish, and many have argued that his status as the center of right-wing conspiracy theories is largely a result of anti-Semitism. I certainly can't rule out anti-Semitism as a factor, though it's worth noting that of the top six Democratic/liberal donors these days five including are Jews, and the sixth, Tom Steyer, is an Episcopalean with a Jewish father. So if you're going to demonize "big money" on the left, your non-Jewish options are limited. (The largest Republican donor, Sheldon Adelson, is also Jewish, as are many other major Republican donors, though not to the same extent as for the Democrats.)

The point I want to make here though is that regardless of wheher and to what extent anti-Semitism is a factor in "right-wing" criticism of Soros, ant-Semitism s hardly necessary for conspiracy theories and fabrications about major political donors. In fact, progressive attacks on the Koch Brothers during the Obama Adminsitration also involved lies, conspiracy theories, and the even-more-direct involvement of the White House. If the Koch Brothers were Jewish, the attacks on them (just for example, alleging that their dad was a stooge of the USSR in the 1930s, or that they are "unAmerican" as Harry Reid stated) would sound awfully anti-Semitic.

I think conservatives should stop the exaggerated attacks on Soros even if they are not anti-Semitic, not because they are somehow unique, but because they are "fake news" that just adds to the general current low tone of American politics, just like I objected to and continue to criticize crazy attacks on the Kochs.

My progressive friends consistently deny that the attacks on the Kochs even remotely resemble the vitriol and prevarication about Soros. I discussed the attack on the Kochs in my book Lawless, and reprint the relevant section so you can draw your own conclusions (with some emphasis added):

While denouncing Citizens United in August 2010, President Obama libeled Americans for Prosperity, a pro–free market organization founded by the billionaire libertarian Koch (pronounced "Coke") brothers, Charles and David, owners of Koch Industries, the second-largest privately held company in the United States. Obama said, "Right now all around this country there are groups with harmless-sounding names like Americans for Prosperity, who are running millions of dollars of ads . . . And they don't have to say who exactly the Americans for Prosperity are. You don't know if it's a foreign-controlled corpo-ration." As President Obama well knew, Americans for Prosperity is not a foreign-controlled corporation.

In September, Obama senior advisor David Axelrod declared outright, and in an outright lie, that the "benign-sounding Americans for Prosperity, the American Crossroads fund" are "front groups for foreign-controlled companies." That tactic never got any traction. Even liberal-leaning news organizations pointed out both that Citizens United did not involve foreign corporations, and that it was absurd to allege that American conservative groups were fronts for such corporations.

The Democratic establishment decided that if they were unable to stifle conservative donors through campaign finance legislation, they would do it through other means. Leading Democrats, including the president himself, embarked on an extraordinary, wide-ranging campaign to demonize the Koch brothers. ….

They figured mysterious (because generally adverse to publicity), ominous-sounding (billionaires! involved in the oil industry!) villains on whom to blame their troubles and rouse the passions of their partisans would be useful. Ironically, the Kochs, rightly feeling they had been unfairly attacked, increased their political spending dramatically.

The war on the Kochs started with a hit piece in the New Yorker in August 2010 by Jane Mayer.This was not a purely spontaneous journalistic endeavor by Mayer, but one in part plotted and supported by the very sort of big money politicos Mayer was supposedly exposing. A substantial amount of her research was provided by Lee Fang of ThinkProgress, a Beltway institution with very close ties to the Obama White House and the Democratic establishment. While accusing the Kochs of hiding their activism by "creating slippery organizations with generic-sounding names," Mayer favorably cited slippery left-wing organizations with generic-sounding names that were out to get the Kochs for political reasons, including the Center for Public Integrity, Media Matters, and the National Committee for Responsive Philanthropy….

A few weeks after Mayer's article appeared, Austan Goolsbee, the president's economic advisor, told conference-call participants that "in this country we have partnerships, we have S corps, we have LLCs, we have a series of entities that do not pay corporate income tax. Some of which are really giant firms, you know Koch Industries is a multibillion dollar businesses . . ." Goolsbee said that he thought that Koch Industries was a "pass-through entity," information that he could only have received from the Internal Revenue Service.

IRS disclosure of such information is illegal. The Obama administration, after first falsely suggesting that Goolsbee was relying on publicly available information, later claimed that he had misspoken, and had merely used the Kochs as an inaccurate example of a broader problem. Several years later, Goolsbee claimed that he mistakenly relied on a seven-year-old article about the Kochs' third brother, who has no stake in Koch Indus-tries. Making matters worse, according to Koch Industries' attorney the company does in fact pay income taxes, so whatever information Goolsbee thought he was relying on was false or incomplete. Under congressional pressure, the administration ultimately agreed to conduct an internal investigation into Goolsbee's comment, but it refused to release the results.

The Goolsbee incident taught the Obama administration that it was too risky for it to go after the Kochs directly and have the administration involved in false or exaggerated mudslinging against private citizens. Other parts of the Democratic machine instead took the lead. In September 2010, the Democratic Congressional Campaign Committee claimed on its website that the Kochs have "funneled their money into right-wing shadow groups." A week later, Representative Chris Van Hollen, chairman of the Democratic Congressional Campaign Committee, falsely accused Koch Industries of "outsourcing" and claimed that "they actually got an award for 'outsourcing' to China."

Meanwhile, the Obama administration was quietly encouraging a media blitz against the Kochs. The Huffington Post reported that a senior administration official, speaking to a gathering of reporters, urged them to attack the Kochs….

The Kochs have become the Emmanuel Goldsteins of the Obama administration. Since Mayer's piece came out, they've been blamed for everything from global warming to public school segregation to the proposed Keystone pipeline to Trayvon Martin's death at the hands of George Zimmerman to voter ID laws to the battles between the state government and municipal unions in Wisconsin. The underlying accusations were at best exaggerated, and more often were completely false.

The Obama administration was sometimes directly complicit in the attacks on the Kochs. For example, in early 2011 the White House sent Obama for America political operatives to Wisconsin to try to insert the Kochs into media coverage of state political battles. The president's reelection campaign several times mailed fundraising letters attacking the Kochs, in one case depicting them as "plotting oil men" who are bent on "misleading people" with "disinformation" to "smear the President's record." On April 13, 2011, Lee Fang published an article at ThinkProgress falsely accusing the Kochs of illegally manipulating oil and gas prices. By remarkable coincidence (not!), the Obama administration was forming a task force on fraud and manipulation in the gas market at exactly the same time; the task force was formally announced on April 21. Less directly, President Obama, as the head of the Democratic Party, could have ordered the party apparatus to call off its attack dogs. Instead, throughout the 2012 election campaign various Democratic fundraising committees used the Kochs as fundraising bait.

The most egregious and persistent attacks on the Koch brothers came from then–Senate Majority Leader Harry Reid, a Nevada Democrat. Beginning in early 2014, he launched almost daily (and often factually inaccurate) verbal assaults on the Kochs, and also established a website dedicated to the Kochs' purported misdeeds. To get an idea of the tenor of the site, a page headlined "meet the Kochs" introduces them as "producers of toxic chemicals, harmful pollutants, carcinogens, greenhouse gases." Among other insults, Reid called the brothers "un-American" and "power-hungry tycoons." He mentioned them in Senate speeches well over one hundred times. When Texas Republican Ted Cruz accused Reid of launching "an unprecedented slander campaign against two private citizens," Reid spokesman Alan Jentleson retorted that Cruz was "rushing to the defense of shadowy billionaires who are rigging our democracy to benefit the wealthy and powerful."

Canada Apparently Banned Adoptions from Muslim Countries, Based on Its Own Interpretation of Sharia

And this included adoptions that the relevant Muslim country's courts had specifically authorized.

So reports the Canadian Broadcasting Corporation (Shanifa Nasser):

Adopting from Pakistan isn't straightforward. Like Canada, the country's laws are based on the British system. But they also draw from Islamic tradition, which generally holds that a child's biological ties must never be severed....

Pakistan has no official adoption law. But to provide a chance at a new life for the tens of thousands of orphaned or abandoned children there, the courts can grant permission to a guardian to take a child abroad for adoption — as they did for Imran [the child discussed in the CBC story].

It was the same for Canadian parents until 2013, when the federal government abruptly closed the door, leaving the lives of more than 50 families on hold.

According to the federal government at the time, continuing with adoptions from Pakistan violated Canada's commitment to the Hague Convention on international adoption. Under the convention, it argued, it could only process adoptions where a parent-child relationship was created in the child's home country — something it argued was impossible under Shariah law.

That's a view not shared by the United States and United Kingdom, which are also Hague Convention members. Both countries allow citizens who have been approved for adoptions to bring their child home through a Pakistan court order. Back at home, the adoption process is finalized under domestic laws....

Pakistan's [embassy] in Ottawa ... said Canada's claim that Pakistan doesn't allow for adoptions is simply false.

"We believe that the ban from the Canadian government is unjustified," commission press minister Nadeem Kiani said in an interview. "Citizens of Canada should be allowed to adopt children from Pakistan."

If you're interested, read the whole story, which offers many more details, including that "Canada quietly extended the same restriction to virtually all Muslim countries." My tentative sense (recognizing of course that I'm an American who specializes in American law, not a Canadian who specializes in Canadian law): It seems quite reasonable for a country to insist that international adoptions are consistent with both its own law and the other country's law. But the story describes a situation where the Canadian government relied on its own understanding of Sharia, rather than on what the Pakistani legal system actually provides; that strikes me as hard to justify. (Thanks to InstaPundit for the pointer.)

Why it's Wrong to Demand Immigrants Stay Home and "Fix Their Own Country"

This common argument has multiple flaws - including implying that the ancestors of most Americans were wrong to immigrate here.

In debates over immigration policy, we often hear the argument that migrants should just stay home and "fix their own countries." If their government is unjust, corrupt, or oppressive, perhaps the migrants have a duty to try to improve it rather than seek greener pastures elsewhere. In a related vein, Donald Trump suggested in a speech at the United Nations that would-be migrants should "build more hopeful futures in their home countries" and "make their countries great again" (though he, at least, did not claim that they have a moral duty to stay).

Unfortunately, the "fix their own countries" trope has serious flaws. Consider the following paraphrase of an exchange I had with a questioner who came up to me after I participated in a public debate on immigration last year:

Questioner: Why do Middle Eastern refugees have to come here? They should fix their own governments instead.

Me: Do you happen to know where your ancestors came from?

Questioner: They were Jews who emigrated from czarist Russia.

Me: Do you think they should have stayed in Russia and worked to fix the czar?

I don't blame the questioner for failing to come up with a good answer on the fly. Anyone can fall short when put on the spot (it's certainly happened to me). Still, the fact remains that the "fix your own country" argument implies that the ancestors of most Americans (and also many Canadians, Australians, and others) were wrong to emigrate. The Russians should have tried to fix the czar and (later) the communists; the Irish should have stayed home and worked to fix the British Empire. Donald Trump's grandfather should have stayed in Bavaria and worked to fix imperial Germany. And so on.

The fact that the "fix your own country" argument implies that the ancestors of most Americans were wrong to come here does not by itself disprove it. We should not automatically assume that every longstanding American practice was necessarily right. Past generations of Americans erred in committing such injustices as slavery and segregation. Perhaps they were also wrong to come to the US in first place. I suspect, however, that most people are not willing to bite this particular bullet. And they would be right not to.

The claim that immigrants fleeing poverty or oppression have a duty to stay home and "fix" their countries is wrong for several reasons. In most cases, these people have little or no responsibility for the injustice and poverty they are fleeing. Russian Jews like the questioner's ancestors were not responsible for the Pale of Settlement and pogroms. Likewise, today's refuges from Venezuela, Syria, and other unjust and corrupt governments generally had no meaningful role in creating the awful conditions there. It is therefore wrong to claim they must risk lifelong privation in order to "fix" the unjust regimes in their home countries. That point applies with extra force in cases where efforts to "fix" the regime are likely to result in imprisonment or death at the hands of the state. We rightly honor brave dissidents who risk life and limb to oppose injustice. But such sacrifices are not morally obligatory, and no blame attaches to those who forego them - especially if they have family members to protect, as well as themselves.

In addition, most migrants have little if any chance of succeeding in "fixing" their home governments, even if they did stay to try to do so. In most such societies, the injustice and oppression is deeply embedded in the political system, and most would-be migrants lack the clout to fix it. Had the questioner's ancestors stayed in Russia, it is nearly certain they would not have succeeded in reforming the czarist regime, no matter how hard they tried. The same goes for most migrants and refugees today. At least as a general rule, there is no moral duty to take great risks to attempt the impossible.

This point is especially strong when it comes to authoritarian states, where ordinary people have little or no influence on government policy. But constraint also applies, though with lesser force, to many dysfunctional countries that are democratic. Even in advanced democracies such as the US and Western Europe, many harmful and unjust government policies persist because of widespread voter ignorance and bias. The same is true (often to a much greater extent) in the corrupt and dysfunctional democratic governments migrants flee from. In most cases, potential migrants have little or no chance of reversing this dynamic anytime soon.

Occasionally, an unjust political system comes to a turning point where change is more feasible than is usually the case. But such situations are difficult to foresee, and it is wrong to demand that people (often literally) bet their lives on the hope that such an opportunity is going to come up soon. And even when it does happen, it is still far from clear that the average would-be migrant could make a real difference to the outcome. Not to mention the very real possibility that a revolution could result in a worse government rather than a better one. Had the questioner's ancestors stayed in Russia long enough to see the czarist regime fall, they would have seen exactly that sort of scenario play itself out, when the communists won the resulting civil war and proceeded to engage in oppression mass murder on a vastly greater scale than the czars ever did.

In sum, at least in the vast majority of cases, would-be migrants have no moral obligation to stay and fix their own countries. Are there exceptions to that generalization? Perhaps a few. Consider the case of the Shah of Iran, who fled his country after his regime was overthrown in 1979. The corruption and repression of the Shah's government played an important role in stimulating the rise of the even more oppressive regime that replaced him. Quite possibly, the Shah had an obligation to stay in Iran and work to fix the horrible mess he himself had played a major role in creating. Maybe he even had an obligation to do so despite the fact that staying in Iran could well have led to his execution by the new government. Similar reasoning arguably applies to other powerful government officials in unjust regimes.

More controversially, this theory could be extended to cover people who have no responsibility for creating the injustices in their societies, but nonetheless have the ability to substantially alleviate them if they stay. In my view, such people still do not have an obligation to stay in their home countries. Their nations do not own their labor. But the argument that they are obliged to do so is at least somewhat plausible.

The vast majority of potential migrants, however, are neither morally responsible for the injustices in their homelands nor in a position to do much about them. In many cases, they can actually do more to help their compatriots by leaving, earning higher wages abroad, and sending remittances to relatives who remain at home (a major source of income for some poor nations). It is therefore wrong to claim they have a duty to stay.

Rejecting the "fix your own country" argument doesn't resolve all debates over immigration. Far from it. Immigration restrictionists have plenty of other arrows in their quiver, such as the claim that governments have the right to bar migrants for almost any reason they want, much as the owner of a private house can exclude unwanted guests (I address that common argument here). But we can still make incremental progress in this debate by eliminating bad arguments, so we can focus on better ones instead.

Why We Need Ideology

Niskanen Center President Jerry Taylor argues that we should reject libertarianism and other ideologies in favor of "moderation." But, in truth, we cannot and should not abjure ideology. Trying to do so is likely to increase bias, not curb it.

Many political commentators and others argue that we should eschew ideology in favor of facts. Just before assuming the presidency in 2009, Barack Obama declared that we need "a new declaration of independence not just in our nation but in our own lives, from ideology and small thinking." That imperative may seem even more urgent at a time when partisan and ideological hostility is greater than it has been for years. But the idea that we can avoid ideology is wrong, and embracing it can sometimes lead to even more serious errors than the ones critics of ideology seek to avoid.

Jerry Taylor, president of the initially libertarian Niskanen Center, is the latest prominent intellectual to repudiate ideology. In an interesting recent essay, he describes his own rejection of both libertarianism and political ideology more generally:

When we launched the Niskanen Center in January 2015, we happily identified ourselves as libertarians. Sure, we were heterodox libertarians, but there are many schools of libertarianism beyond those promoted by Charles Koch's political operations. The school we identified with was a left-libertarianism concerned with social justice...

I have abandoned that libertarian project, however, because I have come to abandon ideology. This essay is an invitation for you to do likewise — to walk out of the "clean and well-lit prison of one idea." Ideology encourages dodgy reasoning due to what psychologists call "motivated cognition," which is the act of deciding what you want to believe and using your reasoning power, with all its might, to get you there. Worse, it encourages fanaticism, disregard for social outcomes, and invites irresolvable philosophical disputes. It also threatens social pluralism — which is to say, it threatens freedom.

Taylor's rejection of libertaranism has not led him to embrace a different ideology, such as liberalism, conservatism, or socialism. Instead, he argues that we should reject all ideology in favor of "moderation":

The better alternative is not moral relativism. The better alternative is moderation, a commodity that is rapidly disappearing in political life, with dangerous consequences for the American republic....

To embrace nonideological politics... is to embrace moderation, which requires humility, prudence, pragmatism, and a conservative temperament. No matter what principles we bring to the political table, remaking society in some ideologically-driven image is off the table given the need to respect pluralism. A sober appreciation of the limitations of knowledge (and the irresolvable problem of unintended consequences) further cautions against over-ambitious policy agendas.

This leaves us with modest ambitions, which will undoubtedly leave the idealist cold. But those ambitions need not be trivial or rudderless. We are not cyborgs. Our ambitions will be driven by our principles, which are idiosyncratic and weighted differently by each of us.

Abandoning "ideology" is surely good advice if we define the word in a pejorative sense, as many people seem to do when they describe their opponents' views as "ideological," but never their own. But it is far more problematic if we define it in a more neutral sense as any systematic political vision based on an integrated view of facts and values. Taylor seems to advocate rejecting ideology in the latter sense, not just the former.

There is some validity to Taylor's (and others') critiques of ideology, even when the latter is defined in a nonpejorative way. For example, Taylor is right to worry that committed adherents of ideologies (including libertarian ones) often evaluate evidence in a highly biased way, overvaluing anything that reinforces their preexisting views, and downplaying, ignoring, or misinterpreting that which cuts the other way. Studies show that this problem is common among intellectuals, ordinary voters, and politicians. He is also right that we should respect the limitations of our knowledge, and not allow ideological commitments to lead us to make strong claims about factual matters that we actually know little about.

In such situations, it often makes sense to defer to expert knowledge rather than assume that the facts must be whatever is convenient for our ideological commitments. At the same time, however, we should also be careful to recognize the limits of the experts' expertise, and not give them deference on issues that are actually outside their professional competence. For example, as Taylor suggests, libertarians would do well to defer to climate scientists' views on the question of the extent to which industrial emissions cause global warming. But we should not defer to them on the issue of what policies should be enacted to address the problem, as that question involves issues of morality and political economy, not just technical scientific expertise.

Though ideology carries real risks, it does not follow that we would be better off without it. The world is complex and there is an almost infinite variety of facts out there. We cannot consider them all. As Taylor recognizes, "[w]ithout some means of sorting through the reams of information coming at us every day, we would be overwhelmed and incapable of considered thought or action." Thus, we need rules for determining which facts are relevant, and what normative goals we should use our knowledge to pursue. Ideology of one kind or another, is essential to organizing our thinking about the facts of the political world, and systematizing our reasoning about political values. Taylor argues that we should abjure theories that privilege one value over all others and instead embrace "pluralism." He may be right about that. But even a pluralist has to make choices between different values when they conflict. And the pluralist also needs a way of determining what kinds of policies are likely to best achieve whatever values she considers important. Once again, some sort of ideology is necessary to help us make these kinds of choices. It is important to consider the strengths and weaknesses of competing ideologies, through the use of logic and evidence. But we cannot abandon ideology entirely.

Taylor's "moderation" is not a true alternative to ideology. Indeed, it is a kind of ideological commitment of its own. The idea of moderation implies sticking relatively close to the middle of the political spectrum (at least on most issues), making compromises, and abjuring "over-ambitious" radical agendas. But for reasons I outlined in a 2016 exchange with Taylor's Niskanen Center colleague Will Wilkinson, there is no good justification for believing that moderate views are necessarily closer to the truth than more extreme ones. Among other things, the moderate views popular with majority public opinion are often heavily influenced by ignorance, bias, and unreflective acceptance of the status quo.

History shows that "extreme" positions (relative to the standards of the time) are often correct. Extremist critics of slavery (who advocated swift and complete abolition) were closer to the truth than moderates (who advocated abolishing the slave trade and limiting the spread of slavery, but maintaining the "peculiar institution" where it existed). Similarly, radical reforms are sometimes more effective than more moderate and gradualistic ones. To assume that moderation and gradualism are always (or even usually) preferable to the available alternatives is itself an ideological commitment, not a self-evident truth.

None of this suggests that moderate views are always wrong, or that more extreme positions are always correct. But it does indicate that we should not have any general preference for the former over the latter.

To his credit, Taylor is not fully comfortable with the moderation he himself advocates. His advocacy of moderation is itself, in a sense, moderate:

Compromise.... has limits. Compromise with theft, murder, slavery, or gross infringements on human dignity is indefensible. As Martin Luther King wrote in his famous Letter from Birmingham Jail, we do not want to adopt the position of the white moderate of the 1960s, "who is more devoted to order than to justice; who prefers a negative peace, which is the absence of tension, to a positive peace, which is the presence of justice." Nor should we compromise with lying, the use of dubious means to achieve commendable ends, or over matters of scientific truth, or what is universally acknowledged to be beyond dispute. Firm positions and tough stances are sometimes required.

I agree with much of what Taylor says in this passage. But, depending on how they are interpreted, these exceptions could easily swallow the rule. For example, much depends on how broadly we define such concepts as "theft" and "gross infringements on human dignity." It could turn out that a great many current policies are actually egregious violations of these principles. If so, by Taylor's analysis, we should not be moderate in our opposition to them.

Notice, also, that the scope of the principles Taylor describes here is itself subject to dispute. For example, many libertarians argue that taxation is theft, while adherents of most other ideologies disagree. Many people argue that lying (including even some types of lying to voters) is sometimes justified. Similarly, it may sometimes be justifiable to use "dubious means to achieve commendable ends," especially if the gain is large and the sacrifice necessary to achieve it relatively small. We cannot logically resolve such disagreements without reference to ideological principles of one kind or another. It turns out that even avowed opponents of ideology have to rely on it, even if only implicitly. Taylor himself does so in his essay condemning ideology!

Implicit reliance on unarticulated ideology by those who think of themselves as nonideological pragmatists is often actually more dangerous than more conventional ideological thinking. A self-conscious advocate of some ideology at least knows he has certain commitments and, therefore, can potentially take account of possible biases associated with them (even though many actual ideologues fail to do so). By contrast, the person who believes he is above ideology may think of his political commitments as just obvious truths - perhaps the result of simple common sense. He cannot even begin to curb potential ideological bias on his part, because he believes himself to be above such things, by definition.

In sum, we cannot and should not abjure ideology. On the other hand, Taylor is right to warn of the dangers of ideological bias. There is no easy way to solve that problem. But self-awareness about your commitments is a good place to start. If you know you have certain commitments, you can also predict the types of biases you are likely to have in evaluating new information. That awareness can help reduce the extent to which you succumb to temptation. In addition, understanding your commitments can help determine what kinds of logic and evidence should be sufficient to persuade you to abandon or revise some of them.

For example, like the pre-2018 Jerry Taylor, I see myself as a libertarian. But I have also tried to consider the limits of libertarian principles. That consideration has led me to endorse some constraints on them (e.g. here and here), and to think about what sort of evidence would be enough to compel me to reject libertarian positions more completely. My understanding of the shortcomings of my own ideas is surely far from complete. But it is likely better than it would have been if I thought of myself as a "moderate" or pragmatist free of ideological commitments.

Short Circuit: A Roundup of Recent Federal Court Decisions

A barbaric sentence, unpurged voters, and a porcine gag order.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

The fine folks at ReasonTV have produced a resplendent video on IJ's class action against Coachella and Indio, Calif., which hired a private law firm to prosecute people for minor code infractions (like long grass or broken windows) and then surprised them with bills of $10,000 or more—many months after legal proceedings had concluded. The video features our own Jeffrey Redfern, who, unrelatedly, WON THE BALTIMORE MARATHON a couple weeks ago.

  • In June, the Second Circuit vacated a 25-year sentence for a sex offender because the district judge failed to consider his "nightmarish" childhood and overestimated the danger he poses to the community. But wait! In July, the panel withdraws the order. This week, and over a dissent, the Second Circuit affirms the 25-year sentence, which it deems "barbaric without being all that unusual."
  • Hundreds of neighbors of North Carolina hog farms file a series of lawsuits claiming that the farms are nuisances. Much publicity and debate ensues, exposing potential jurors to the issues before trial. District court enters a gag order prohibiting all involved from talking publicly about the case. Fourth Circuit: "Gag orders should be a last resort, not a first impulse," and this one violates the First Amendment while harming everyone involved in the case.
  • Texas man is civilly committed in 2011 for an indefinite period of time. He absconds from residential facility, is convicted in 2013 of failing to comply with sex offender registration requirements. He seeks federal habeas review of civil commitment order. District court: Ah, but you're not "in custody" under the 2011 order; you're in prison for the 2013 conviction. We can't review the 2011 order. Fifth Circuit: Nope. He's serving both sentences at the same time; back to the district court to address the merits.
  • In next week's election, must Ohio elections officials count provisional ballots cast by voters purged from the voter rolls between 2011 and 2015? Indeed they must, says the Sixth Circuit. Judge Siler, dissenting in part: We're too close to the election to grant this kind of request.
  • Motorist runs red light, flees from Coshocton County, Ohio police. He bumps a police car into a concrete barrier before being run off the road himself. Video: An officer leaves a place of safety, runs in front of the motorist's truck as he begins to pull forward. The officer shoots at the motorist through the windshield and again through the passenger window as the truck passes. The motorist dies. Sixth Circuit: Qualified immunity.
  • Chicago police officer obtains warrant based on sketchy tip from confidential informant, leading to lengthy search of family home that turns up nothing. (Officers now say the informant alerted them to the wrong home.) Can the family sue? Seventh Circuit: Surely not. The informant's tip was detailed enough to provide probable cause; there was no need for the police to independently corroborate it. Besides, even if they lacked probable cause, qualified immunity is a thing. Judge Hamilton, dissenting: The officer and the confidential informant both have "significant credibility problems." The officer may not have knowingly made false statements to obtain the warrant, but that is a factual determination and this is summary judgment. Court should remand for trial.
  • Law enforcement officer asks for a woman's help. She invites him in, and they discuss the identity theft ring he's investigating. Gentle reader, it was a ruse! The officer was investigating the woman herself. He videotaped her in her home for an hour to gather evidence of benefits fraud. Which violates the Fourth Amendment, holds the Ninth Circuit. But not clearly enough to do anything about it. Qualified immunity!
  • Father of triplets strikes one on the back with a wooden spoon. San Diego County officials take custody of triplets and a fourth sibling. Kids are later returned, but not before county personnel perform intrusive medical exams without getting court or parental sign-off (and without notifying the parents). That's unconstitutional, says Ninth Circuit, violating the rights of parents and children alike. The county is liable.
  • Au pairs sue au pair sponsoring company claiming, among many other things, that they were underpaid; company moves to compel arbitration. District court: But these are young, inexperienced foreigners reading English as a second language. Arbitration would be unconscionable. Tenth Circuit: Well, the company doesn't get to pick the arbitration provider. But the agreement was six pages long, and the au pairs got translated versions. They're going to arbitration. [Editor's note: Au pair is French for "arbitration always wins."]
  • Officer overhears altercation at Augusta, Ga. cookout, approaches to investigate, allegedly hears shouting that man has gun. Man flees by car; officer pursues; man abandons car but continues to flee on foot. Allegation: Officer intentionally runs into man with his patrol car at 60 mph. (Medical report says more like 20 mph.) No gun found. Excessive force? Eleventh Circuit: Qualified immunity. (More on the ruling from the police4aqi blog.)
  • Allegation: Montgomery, Ala. officials arrest people who are too poor to pay fines and court fees, force them to work to pay off their debt (for example, cleaning cells, police cars and court rooms; watching over suicidal inmates). Illegal peonage? False imprisonment? District court: Could be. The claims against the mayor, police chiefs, and two municipal judges can proceed. Eleventh Circuit: Reversed. Plaintiffs' complaint doesn't adequately show how defendants directly furthered the alleged misconduct.
  • The state bar of Georgia hires Company A to provide a database of Georgia regulations to bar members. But the state of Georgia hires Company B to provide the regulations to the public. Company A constantly downloads the newest regs from Company B, possibly cutting into B's revenue. Does this dispute belong in federal court? Eleventh Circuit: Sure. Even though Company B doesn't have the regs copyrighted, the case concerns copyright, which is a federal issue. (Bonus holding: There's enough money involved for diversity jurisdiction, too.)

And in en banc news:

  • Lawyer defends client by insisting that murder victim was already dead before client shot him. Gov't's expert testifies that victim was probably alive. Lawyer calls no witnesses, accuses expert of "unmitigated gall." Which is some "manifestly ineffective" lawyering, says the Third Circuit (in September); release him or give him a new trial. But wait! The Third Circuit original panel will reconsider en banc.
  • Allegation: Man who feels he's being wrongly arrested threatens "to make lawful complaints" about Tangipahoa Parish, La. officers. He's charged with threatening, intimidating the officers. Charges dismissed before trial. Fifth Circuit: A state law that criminalizes threatening public employees—including threats to take lawful actions like calling the media or suing an officer—is unconstitutionally overbroad. Five judges, dissenting from denial of en banc review: The charges were dismissed; he doesn't have standing to challenge the law.
  • Nurses allege Corona, Calif. hospital underpaid them, rounding down their time to the nearest quarter hour. Ninth Circuit: This can proceed as a class action. Five judges, dissenting from denial of en banc review: The only evidence in support of the nurses' claim is a declaration from plaintiffs' lawyers' paralegal, which is plainly not admissible. "This doesn't pass the straight-face test."

Are you a uniquely passionate, persuasive, inspiring, and entrepreneurial attorney with a deep understanding of judicial engagement? The Institute for Justice is looking for a new director for the Center for Judicial Engagement. The ideal candidate will be an excellent writer and public speaker with a demonstrated commitment to individual liberty and limited government. Apply today.

No Preliminary Injunction Against Alleged Political Campaign Libel, Rules Federal Judge

Arkansas Supreme Court Justice Courtney Goodson was trying to block ads that criticized her and allegedly defamed her.

The background, from Judge Brian S. Miller's opinion yesterday in Goodson v. Republican State Leadership Committee–Judicial Fairness Initiative:

Plaintiff Courtney Goodson, an Associate Justice of the Arkansas Supreme Court, is seeking reelection. David Sterling is challenging her, and the election is on November 6, 2018. Defendant Republican State Leadership Committee–Judicial Fairness Initiative ("RSLC–JFI") is an independent expenditure committee that opposes Goodson and supports Sterling. Goodson complains that RSLC–JFI is disseminating defamatory campaign advertisements.

Specifically, Goodson takes issue with a television advertisement and a campaign mailer created by RSLC–JFI....

Broadly speaking, there are two types of allegedly defamatory statements in these campaign advertisements. The first is RSLC–JFI's assertion that Goodson accepted various gifts, including a $50,000 trip to Italy and large campaign contributions from plaintiffs' law firms. Based on the complaint and Goodson's testimony at the hearing, it is undisputed that she accepted a trip to Italy, which was a gift to Goodson and her husband from Goodson's personal friend and lawyer, W.H. Taylor. The record indicates that Goodson complied with the judicial ethics rules by timely disclosing the gift and by recusing from cases involving her husband and Taylor.

For these reasons, the Arkansas Judicial Discipline and Disability Commission, the commission tasked with investigating judicial misconduct, found that her acceptance of the trip was not improper. Additionally, the hearing testimony confirmed that Goodson's campaign accepted contributions from plaintiffs' law firms. Nevertheless, judicial candidates are not permitted to personally solicit campaign contributions or even to know who has contributed to their campaigns, and Goodson testified that she followed these rules.

Although neither the television advertisement nor the mailer points to a specific ruling from Goodson that was influenced by a gift, this type of statement questions her impartiality and suggests that she is sympathetic to plaintiffs' lawyers. Goodson argues that this type of statement is false by implication or omission because she has recused from all cases involving her husband, Taylor, and from any law firm that has contributed to her campaign.

The second type of allegedly defamatory statement is RSLC–JFI's assertion that Goodson asked for an $18,000 pay raise. In her complaint, Goodson alleges this statement is false because she did not personally request a raise—rather, Chief Justice Dan Kemp requested the raise on behalf of every member of the Arkansas Supreme Court after being authorized to do so by a vote of the Court. At the hearing, Goodson initially resisted answering whether she voted in favor of the pay raise. She testified that the Supreme Court's conferences are sacrosanct and that she did not want to violate the trust of the Court. Upon the request of defense counsel, Goodson was directed to answer, and she testified that she voted against the raise. This is the first time that she has publicly disclosed her vote.

The First Amendment analysis, which I think is quite right:

Federal and state courts are divided as to whether prior restraints [here, just referring to injunctions generally -EV] on defamatory statements violate the First Amendment. Some take the position that, following a full trial on the merits, a narrowly-tailored permanent injunction is constitutionally permissible. See, e.g., Lothschuetz v. Carpenter, 898 F.2d 1200, 1208–09 (6th Cir. 1990) (Wellford, J., for the court in part); Balboa Island Village Inn, Inc. v. Lemen, 156 P.3d 339, 349 (Cal. 2007). Others are skeptical that it can ever be constitutional to prohibit defamatory speech that has not yet occurred. See McCarthy v. Fuller, 810 F.3d 456, 464–66 (7th Cir. 2015) (Sykes, J., concurring); Kinney v. Barnes, 443 S.W.3d 87, 93–94 (Tex. 2014); see also Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L. Rev. 157 (2007).

It appears wholly unprecedented, however, for a federal court to enter a preliminary injunction in a defamation case. In those defamation cases upholding the constitutionality of restraints on future speech, the injunctions were entered after the claims were adjudicated on the merits, and the injunctions were limited to the speech that was actually found to be defamatory by the fact-finder. See, e.g., Lothschuetz, 898 F.2d at 1208–09 (Wellford, J., for the court in part); see also McCarthy, 810 F.3d at 462–63 (majority opinion), 464–65 (Sykes, J., concurring). Only then can a court be satisfied that the restrained speech remains unprotected by the First Amendment. See Hill v. Petrotech Res. Corp., 325 S.W.3d 302, 311 (Ky. 2010).

In the absence of such a finding or judgment, Goodson wants to enjoin what could be protected speech, and this would be improper. Without a judgment in Goodson's favor on the defamation claim, enjoining RSLC–JFI's speech would violate the First Amendment because it would impermissibly restrain RSLC–JFI's ability to engage in free speech. Therefore, her request for a preliminary injunction is denied. See ("[W]hile the rule may temporarily delay relief for those ultimately found to be innocent victims of slander and libel, it prevents the unwarranted suppression of speech of those who are ultimately shown to have committed no defamation, and thereby protects important constitutional values.").

The court also suggested that Goodson was unlikely to ultimately win her defamation case based on the past statements—though maybe she might win if the statements are repeated, now that she had said (assumingly she said it accurately and credibly) that she voted against her pay raise:

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Funny Criminal Law Halloween Present

For those of us who remember State v. Reeves, the Tennessee attempted-poisoning case discussed in the very popular Dressler Criminal Law casebook.

I had taught that case when I taught criminal law for several years, so I was much amused by this photo of a gift that Prof. David Ball at Santa Clara got from his criminal law students.

Recall the facts of Reeves, if they aren't seared into your memory: Two 12-year-old junior high school girls "decided to kill their homeroom teacher" by putting rat poison in the teacher's coffee; naturally, they told various classmates, who rightly told the authorities.

When Geiger [the teacher] entered her classroom that morning she observed Reeves and Coffman leaning over her desk; and when the girls noticed her, they giggled and ran back to their seats. At that time Geiger saw a purse lying next to her coffee cup on top of the desk. Shortly thereafter Argo [the principal] called Coffman to the principal's office. Rat poison was found in Coffman's purse and it was turned over to a Sheriff's Department investigator. Both Reeves and Coffman gave written statements to the investigator concerning their plan to poison Geiger and steal her car.

The legal question was whether this qualified as an attempt, given that the girls didn't go as far as to put the rat poison in the coffee; the court said yes, because under Tennessee law a "substantial step" coupled with the intent to commit a crime is enough to make a person guilty of the crime. (In other states, closer proximity to the actual completed crime is required.)

The authors of the note were students Alana Wilson, Sarina Jwo, Jess Miers, Phil Fox, Alli Montonye, Kyle Lee, Eber Terceros-Barrera, Angel Martinez, and Michelle Zhou. Nice.

How often are innocent persons convicted?

In a new law review article, I try to provide a realistic estimate of the rate. I come up with tentative range of somewhere between 0.016% and 0.062% -- well below the figure of 1% to 4% that is often cited as the conventional wisdom.

The Arizona Law Review has just published a mini-symposium on the issue of how often innocent persons are convicted in the criminal justice system. A number of scholars have suggested that this error rate might be at least 1% -- and perhaps as high as 2%, 4%, or even more. Professor George Thomas and I challenge such estimates in our three articles -- my opening article, his response, and my reply. We both suggest the error rate is lower than 1%, and by my calculations, the error rate is probably substantially lower.

In my opening article, I explain that a growing body of academic literature discusses the problem of wrongful convictions—i.e., convictions of factually innocent defendants for crimes they did not commit. But how often do such miscarriages of justice actually occur? Justice Scalia cited a figure of 0.027% as a possible error rate. But the conventional view in the literature is that, for violent crimes, the error rate is much higher—at least 1%, and perhaps as high as 4% or even more.

My article suggests a much lower estimate is appropriate. Based on a careful review of the available empirical literature, it is possible to assemble the component parts of a wrongful conviction rate calculation by looking at error rates at trial, the ratio of wrongful convictions obtained through trials versus plea bargains, and the percentage of cases resolved through pleas. Combining empirically based estimates for each of these three factors, a reasonable (and possibly overstated) calculation of the wrongful conviction rate appears, tentatively, to be somewhere in the range of 0.016%–0.062%—a range that comfortably embraces Justice Scalia's often-criticized figure.

If my article's tentative error-rate range is correct, it means that previous scholarship has significantly overstated the risk of wrongful conviction. Moreover, it is possible to compare the lifetime risk of being wrongfully convicted to the risk of being a victim of a violent crime. The relative risk ratio appears to be about 30,000 to 1. This decidedly skewed ratio suggests that reform measures for protecting the innocent may need to be cautiously assessed to ensure that they do not interfere with the important goal of prosecuting the guilty.

Professor Thomas' article then advances a slightly different view, partially in response to mine. Thomas argues that the DNA revolution has revealed that the conviction of an innocent defendant by the vaunted American criminal justice system is far from a freakish event. The National Registry of Exonerations now lists more than 2,200 cases of wrongful convictions. Thomas notes that 2,200 cases is a minuscule number compared to the roughly 1.5 million felons in state and federal prisons at any given moment. But the last quarter century has seen a vigorous debate about the error rate that leads to the conviction of innocent defendants. Estimates have ranged from 0.027% to 15%. Thomas finds most estimates are in the 0.5% to 2% range.

Professor Thomas then makes the first effort to draw on an existing data set of actual claims of innocence to estimate the overall error rate in the criminal justice system. The data come from the North Carolina Innocence Inquiry Commission (NCIC), a unique program that allows applications for exoneration from convicted felons. Conservative assumptions about the North Carolina data set produce a likely error rate of 0.125% to 0.5%. Though his estimates of the wrongful conviction rate are limited to North Carolina, Thomas finds no reason to think that the error rate is materially different in other states. His article is, in part, a response to my opening article (discussed above). Though Thomas' findings as to the estimated error rate are higher than mine, he agree that previous estimates tend to be generally too high.

In the last of the three articles, I briefly reply to Professor Thomas. I agree with him that determining an error rate for wrongful convictions remains among the most pressing problems in criminal justice research. And his use of the NCIC data provides an intriguing way to make that determination. My reply article reassesses Thomas's North Carolina estimate rate, concluding it to be somewhat too high. It then looks at another state—my home state of Utah—to find another possible jurisdiction-specific error rate. Properly calculated, the wrongful conviction rates for North Carolina and Utah support my earlier-offered suggestion of a wrongful conviction rate in this country much lower than the rates commonly suggested in other wrongful conviction literature. My reply concludes by underscoring the important point of convergence between Thomas's estimate and my estimates: both are much lower than the conventional wisdom on the subject suggests.