Historians are storytellers. And cultural historians often tell stories about stories. That's why writing for this project appealed to me so much.
We're a country with a lot of stories, of course. They're the product of our diverse origins and our large, geographically varied land. We're going to be a brilliant mess forever, I expect.
And what story should I tell in this cacophony? As I thought about the project I'd been invited to write for, I imagined would probably be a lot of familiar and compelling stories that various people would champion for one reason or another—but which one would be mine? And whose story would be the truest?
Well. It wouldn't mine, anyway. I didn't even try to tell a true story. My chapter is about a certain type of false story, but one that we love to tell anyway. It's called the declension narrative. It's a familiar story, and it's always letting us down.
The declension narrative is simple to describe: There was a golden age, but we don't live there anymore. We live in a time of decay and decline, and the process of decline can at best be slowed. It cannot be stopped. The best we can hope for is to hold to the past, no matter what, even as it slips from our grasp. In every way that matters, progress is illusory, at least for us.
Humans have been repeating the declension narrative in one form or another since Hesiod and Homer, with help from Confucius, Plato, and the Buddha. Stories patterned on the declension narrative are everywhere once you start looking for them.
That might be the first clue that something's amiss: Suppose that human beings have innate cognitive biases. What would that look like? We wouldn't be able to recognize that they're wrong, because they're our cognitive biases. They look good to us, that's what makes them effective. Viewed from the inside, our cognitive biases probably look like stories that repeat themselves a lot, stories that turn up everywhere you look for them.
The truth does that too, of course, at least for some kinds of truth. Sorting the one from the other is perhaps for philosophers or psychologists, not historians. Can it really be the case, though, that the whole world has been going to hell since Hesiod? Some have thought so, including everyone from Jean-Jacques Rousseau and the Unabomber.
If you've been thinking that the declension narrative only belongs to the other guys, I'm afraid I have some bad news for you. It's all over American culture too. Oddly enough, it's on the political left as well as the political right. I'm a libertarian, and even we've told it more often than we probably should. My chapter is about a familiar story, and it's about why and how to stop telling it.
According to a story in the Artificial Lawyer [here], France has enacted a new law that will criminalize the "reuse" ("reutilisation") of the "identity data of magistrates and members of the judiciary"("Les données d'identité des magistrats et des membres du greffe") for the purpose of "evaluating, analysing, comparing or predicting their actual or alleged professional practices" ("pour objet ou pour effet d'évaluer, d'analyser, de comparer ou de prédire leurs pratiques professionnelles réelles ou supposées"). [The French version can be found here]
The target, apparently, are companies offering legal analytics and modeling services designed to find patterns in the decisions of particular magistrates and to predict their future decision-making performance, which have sprung up in the wake of the French government's (laudable) efforts to make all case law publicly-accessible online. [A good example of the Doctrine of Unanticipated Consequences]
I have no idea whether this law will be challenged, nor what the grounds for such a challenge might be under French law (though it is I think quite clear that such a law would be very difficult to sustain against a First Amendment challenge here in the U.S.).
What can we do to counter Russian "hack and dox" interference with US election campaigns and candidates? A lot more than we think, as long as we're willing to open the first amendment Overton window. I posted my modest proposal on the topic over at Lawfare. Here's the gist:
Of course, stopping the dissemination of such information raises real First Amendment questions, but the Supreme Court's pronouncements on this topic have been surprisingly qualified and leave plenty of room for legislation that would drain much of the fun out of Russian cyber-kompromat. In the leading case, Bartnicki v. Vopper, the court refused to enforce a statutory prohibition on disseminating the contents of illegally wiretapped conversations. The conversation in question was a cell phone call in which a member of a teachers' union said to the union's negotiator that if the school district didn't improve its offer to end a strike, "we're gonna have to go to their, their homes … to blow off their front porches, we'll have to do some work on some of those guys." The Supreme Court's opinion considered two principal justifications for a ban on dissemination of tapped conversations—deterring wiretapping and preserving privacy. The court dismissed the first because it thought deterrence could be achieved by prosecuting those who conducted the illegal tap. It was troubled by the second, recognizing that failing to punish the disclosure of private conversations was itself likely to restrain private speech. Nonetheless, in an expressly narrow decision, the court concluded that the conversation being disclosed was a matter of public concern, so that prohibiting dissemination would trench too far on freedom of speech. Two justices who were necessary to the majority wrote separately, narrowing the decision further by declaring that only a communication threatening physical harm or the like was of sufficient public concern to justify overriding the dissemination ban.
To my mind, this decision leaves plenty of room for imposing restraints on the distribution of private emails stolen by a foreign government. The government's interest in protecting private speech remains strong in the case of foreign government hacking, and it is bolstered by a deep national security concern that was quite lacking in Bartnicki. What's more, the Bartnicki court's notion that such thefts can be deterred by criminal prosecution is demonstrably wrong where government hackers are concerned. We've indicted Russian, Chinese and Iranian government hackers; it hasn't deterred any of them for long. Even taken at face value, the decision protects only dissemination that addresses a matter of public concern. That by itself would seem to allow Congress to restrict massive dumps of private communications that do not touch on significant public issues, let alone make threats of violence.
When I was thirteen years old I won an essay contest, "What the United Nations Means to Me," with Eleanor Roosevelt serving as a judge. She noted the similarity in our names. I was Eleanor Roeloffs, and getting singled out in that way by a former First Lady lauded for her human rights work made a big impression on me. I didn't know much about politics then, but I knew enough to understand that she was a driving force behind what the United Nations stood for and that I wanted to be on her side.
I learned to define my politics and values by identifying heroes to look up to and follow. I think a country does the same thing. The people we choose to elevate and remember over time signify the American narrative. In my own life, the social justice movements that shaped me individually and America as a country, which despite our problems remains the envy of the world, are the civil rights movement, the fight for women's liberation, and the mobilization against the Vietnam War.
These social movements are America's story, and they're my story as a woman born in the middle of the last century whose life was made measurably better amid these broad strokes of history.
Young people coming of age today are shaped by Black Lives Matter, the Me Too and Time's Up movements, and the advocacy for LGBTQ rights, which led to the Supreme Court legalizing same-sex marriage in a landmark ruling on 26 June 2015. The progress in this area has been remarkably swift in sweeping away political opposition once thought intractable.
For those who despair about our current state of extreme partisanship, I would urge them to turn away from partisan politics and celebrate the progress of the disability rights movement as an analogue of the gay rights and civil rights movements in freeing people to be fully productive citizens. I am also watching with enormous pride the emergence of the next generation of activists, born out of horror at mass shootings and determined to assert their right to be safe from military-style weapons.
Set in motion by Parkland, Florida, high school students who survived a school shooting that killed seventeen of their classmates, people of all ages rallied on 24 March 2018 in Washington and cities all over the country, and indeed the world, in solidarity against a permissive gun culture that sanctions military-grade weaponry in the hands of civilians claiming the protection of the Second Amendment.
Social movements take a long time. They don't make change overnight. If you ask people who waited sometimes for decades to marry the person they love whether the Supreme Court ruling in 2015 legalizing same-sex marriage happened quickly, they would likely say no, it was a long time coming. They're right, of course, but when we consider how fast things moved once the groundwork was laid, and the courts got involved, and constitutional protections were put in place, it's possible the same shift in thinking could happen around gun safety and commonsense gun laws.
I always thought that if I weren't a reporter covering Hillary Clinton that we would be friends. I admired her intelligence and her fortitude in the face of personal challenges and stinging political defeats, and I hope she finds some comfort in the fact that she has inspired more people, especially women, to get involved in politics because she lost a race she was supposed to win than if she had actually won. They say history is written by the winners, and the record hundreds of thousands of people who participated in the Women's March the day after President Trump's inauguration are winners too, and they will be writing the next chapters in the American narrative.
The women's movement popularized the phrase that the personal is political, and thanks to the internet and social media, more people have the tools to tell their stories and guide the history yet to be lived.
Sarah Lawsky's valuable report about this year's entry-level law professor hires is out. And I was interested to see a trend: Both this year and last year, about half of the entry-level law professor hires have doctorate degrees. The shift toward candidates with doctorates is not new, of course. And it has been written about before, most memorably in Lynn LoPuck's article Dawn of the Discipline-Based Law Faculty.
Reading over Sarah's report, it occurred to me that someone should study a question that I don't think has yet been answered: Is the scholarly trajectory of U.S. law professors with doctorates different from that of U.S. law professors without doctorates? And if so, how?
Here's my thinking. In the current entry-level market, having a doctorate gives candidates a significant advantage. Among the reasons for this, I think, is that law schools tend to have high tenure rates. This makes hiring committees relatively risk-averse. When hiring an entry-level candidate, schools want clear and objective evidence that the candidate is going to become and stay a productive scholar. They want evidence that a candidate has scholarly discipline, an interest in ideas, and a methodology that seems likely to bear scholarly fruit.
A doctorate degree can help make that case. Imagine you're an appointments committee chair going through a large pile of entry-level resumes. You see a lot of smart and accomplished junior lawyers. But who is going to be a committed scholar? A candidate with a doctorate will seem more likely to have the qualities you're looking for than one without. Getting the degree shows scholarly discipline. The subject-matter training teaches a methodology. And the candidate's dissertation shows the interest in ideas and (hopefully) produces the fruit. If you're looking for a proxy that plausibly tracks future scholarly productivity and impact, a doctorate degree can seem like a decent bet. And I think that's a significant part of the reason why the entry-level market favors candidates with doctorates.
The particularly interesting part of this, in my view, is that I think we now have enough professors both with and without doctorates to test whether our intuitions are correct. The question is, has the market accurately assessed the value of doctorates? Does having a doctorate signal what we think it signals about future productivity and impact? And more broadly, is the scholarly trajectory of U.S. law professors with doctorates different from that of U.S. law professors without doctorates?
There would be various ways to try to measure this, of course. Perhaps you could try to measure scholarly impact, such as by counting citations on Westlaw or on HeinOnline. Or maybe instead you could compare scholarly output, such as by counting publications of various kinds. I don't have any particular ideas about what approach (or combination of approaches) is the least flawed. But it seems like something that could be a really interesting empirical study that could also shed light on a very important trend in legal academia.
This Article discusses why administrative agencies charged with enforcing antidiscrimination legislation while implicitly undertaking administrative constitutionalism tend to be inconsiderate of constitutional limitations on government authority in general, and especially of the limitations imposed by the First Amendment's protection of freedom of expression.
To establish the existence and contours of the problem, Part I of this Article provides context by recounting several detailed examples of how federal, state, and local civil rights agencies have favored broad antidiscrimination enforcement over countervailing constitutional doctrines that impose limits on regulatory authority. These examples include the U.S. Department of Education's Office of Civil Rights' Obama-era attempts to use Title IX to strip university students accused of sexual assault of due process protection and to impose broad speech codes on universities, the U.S. Department of Housing and Urban Development's ("HUD") efforts in the 1990s to penalize neighborhood activists for lobbying against projects HUD deemed protected by the Fair Housing Act, local human rights commissions' threats to punish individuals for otherwise protected speech deemed to cause a hostile environment, and state and local agencies' willingness to prosecute individuals who discriminate in their choice of roommate.
Part II of this Article discusses the reasons why agencies that enforce antidiscrimination laws tend to be oblivious or hostile to constitutionally protected liberties in general and freedom of speech in particular. Part II begins with a discussion of institutional factors common to administrative agencies that tend to lead agencies to expand their power and neglect countervailing constitutional considerations. First, agencies increase their budget and authority by expanding, not contracting, the scope of the laws they enforce. Second, "purposivism," or the notion that ambiguities in statutes should be resolved to further the laws' underlying purposes, encourages agencies to resolve statutory interpretation disputes in favor of broad interpretations of agency authority. Third, antidiscrimination agencies attract employees ideologically committed to their agencies' missions. Fourth, and concomitantly, agency staff (unlike generalist courts) generally do not see enforcing constitutional limitations on government power, or protecting freedom of speech specifically, as their job. Part II concludes with a discussion of political and ideological factors specific to agencies charged with enforcing antidiscrimination laws that make them especially prone to neglect constitutional restraints on their authority.
Part III of this Article suggests solutions that may at least mitigate administrative neglect of civil liberties in the context of antidiscrimination law. Most of these solutions involve broad reforms that would have ramifications well beyond mitigating the problem addressed in this Article. A more limited and therefore practical reform would be for agencies that enforce antidiscrimination legislation to establish an internal watchdog office charged with advocating within the agencies for compliance with the First Amendment and other constitutional constraints.
You can see the arrest warrant, which lays out the government's theory. Because Peterson "was assigned the duty and responsibility of protecting [the high school] and its occupants," the theory goes, he was obligated "to promptly address the active shooter" (rather than "retreating to a position of increased personal safety"). In particular, the arrest warrant alleges, he was criminally culpable in "refusing to seek out, confront, or engage the shooter." (There's also a separate perjury charge, but I'll set that aside here.
1. Now generally speaking, it's not a crime to decline to rescue or protect people in peril. That's true even when one could have rescued them with no risk or real cost to oneself.
2. It is a crime to fail to rescue or protect people when you have a special relationship with them, whether that comes from status (spouse, parent) or contract (lifeguard, doctor). But even when you do have such a duty, you aren't obligated to seriously risk death or serious injury; for instance, to quote the California jury instruction applicable when a parent is prosecuted for failing to protect a child (usually, when a mother is prosecuted for failing to stop her husband's or boyfriend's abuse of her child),
A parent has a legal duty to take every step reasonably possible under the then existing circumstances to protect [his] [or] [her] child from harm including physical attack. The parent however need not risk death or great bodily harm in doing so ….
My quick research has revealed precedents supporting this in Alabama, California, Michigan, Montana, and North Carolina, and no precedents imposing a more categorical protect-even-at-risk-of-death duty. Likewise, the few states that purport to impose a more general duty to help even strangers generally limit that duty to safe rescues.
3. Peterson, though, is being prosecuted for failing to confront an armed murderer, a confrontation that certainly would "risk death or great bodily harm" to Peterson. The question in this case, I think, is whether the legal duty is more stringent for police officers, firefighters, armed security guards, and the like than it is for others (like parents) who owe such a duty.
If the answer is "yes," I take it, the rationale would be that a duty to risk one's life is part of the job, and that this duty is enforceable through the threat of criminal punishment and not just the threat of being fired. (Plus if you aren't willing to run the risk, you should leave the job to someone who is willing.) If the answer is "no," the rationale might be the same used by a court discussing the parent's duty:
[W]e believe that to require a parent as a matter of law to take affirmative action to prevent harm to his or her child or be held criminally liable imposes a reasonable duty upon the parent. Further, we believe this duty is and has always been inherent in the duty of parents to provide for the safety and welfare of their children, which duty has long been recognized by the common law and by statute. This is not to say that parents have the legal duty to place themselves in danger of death or great bodily harm in coming to the aid of their children. To require such, would require every parent to exhibit courage and heroism which, although commendable in the extreme, cannot realistically be expected or required of all people.
But I don't know of any caselaw on the limits of the duty owed by police officers, firefighters, guards, and the like; indeed, I couldn't find any cases at all in which they were prosecuted for failing to confront criminals (of any degree of dangerousness). If any of you know of such cases, please do pass them along.
[UPDATE: Some readers brought up the cases holding that the police can't be sued by people whom they failed to protect for failing to protect them; that is indeed well-settled, but that simply reflects that the police don't have such a privately enforceable obligation to the public. This case raises a different question: whether the government, as the representative of the public, can prosecute police officers for failing to perform their duties to the public.
In a sense, this is similar to the issue raised in the title of the post (though I realize that the analogy between police officers and soldiers is necessarily highly imperfect): Though surely cowardly soldiers can't be sued by fellow soldiers or members of the public, the military can prosecute for this. The question is whether a criminal law obligation would apply to the police officers, not whether the police officers can be sued by particular individuals for breaching any such obligation.]
The United States today is a sprawling country that contains around 325 million individuals of decidedly different views on large numbers of social and political issues. One challenge that faces our nation, like any other, is how to forge some national identity that will allow us to move forward together in ways that allow for disagreements at home and protect us against our enemies abroad. The common attitude toward this problem is to try to reconcile the irreconcilable by reaching agreement on the many, many issues that divide us as a nation. In my view that effort to create a top-down consensus by force is far more likely to result in an exacerbation of the very tensions we are trying to ease.
The more people argue about points that really matter to them, the clearer they come to understand the depth of their differences. An evangelical Christian will not agree to the proposition that religion is the opiate of the people, or that it is immoral to deviate from the Biblical commandments, including those that define marriage as a union between one man and one woman. A supporter of Black Lives Matter will not rest easily so long as he or she thinks that institutional sexism or racism disfigures the face of the nation, and that much of that is attributable to a form of white supremacy that needs to be suppressed by the relentless enforcement of the civil rights laws. And persons who are determined to eliminate poverty within our midst will have little patience with innovators and entrepreneurs who think that they can only thrive in a low tax, weak regulation environment.
My greatest fear for the future is that a constant insistence that all of these issues admit to some collective solution will drive the nation even further apart than it already is. To see why, it is important to return to fundamentals about the basic function of government. I start from the premise that government works best only on those issues on which consensus across different social and economic groups is highest. The first issue that meets that test is in my view the need to preserve order against the use or threat of force by private individuals against each other. There is no one who can prosper knowing that lives may be shattered and property taken at the whim of others. Even if most people in the world are law-abiding, it only takes on individual to wreak havoc, which is why the traditional preoccupation of Thomas Hobbes or a John Locke to constrain the use of force lies at the heart of proper government function. On that issue at least, we should be able to maintain a needed consensus. A similar approach explains why it is dangerous to put the monopoly power over essential facilities in the hands of a single person, to admit or exclude others at will. The origins of the nondiscrimination principle in our law does not begin with the modern civil rights movement. It begins with the notion that the owners of common carriers and public utilities had a duty to serve all persons equally on fair and nondiscriminatory terms. The mechanics way be difficult to execute, but the basic principle remains a sound today as when it was announced by Sir Matthew Hale in England in the late seventeenth century.
The modern civil rights law also put this nondiscrimination principle front and center but with this critical difference. No longer are the antidiscrimination rules used as an antidote to the public or private use of monopoly power. Now they are asserted to apply in competitive markets as well, notwithstanding this huge difference. Under competition, there are legions of other individuals who are prepared to render service if any given firm or individual is not. To force individuals to serve those whom they do not wish to do has little gain in this context, regardless of the reasons offered for that decision. Even straight racism, sexism or anti-Semitism has little social consequence if and only if the champions of those attitude cannot call on the power of the state to legislate their preferences into law. The worst forms of discrimination will have strong negative reputational effects on the businesses that practices. But they will not have that consequence if a substantial portion of the population is willing to continue to do business with those who hold those disfavored views.
A long time ago, Justice Harlan Fiske Stone announced that courts had to be especially zealous in the protection of "discrete and insular minorities" that could not protect themselves in the legislative process. American blacks tortured by systematic state segregation—an abuse of government monopoly power—was a group in desperate need of protection from state power. But the victory of the civil rights movement should not blind us to the dangers that remain. Individuals like Jack Phillips, the practicing Christian who refused out of religious convention to design a wedding case for a same-sex couple is as much in need of that protection from the modern "civil rights laws" as black Americans decades ago. It is wholly improper for the state to force him to engage in that conduct against conscience. The disappointed gay couple can obtain a wedding case from dozens of nearby merchants. Yet today Jack Phillips must face the intolerable choice to either abandon his religion or his business. The constant drumbeat against him creates an atmosphere of abuse and resentment—not to mention overt threats of physical violence—that no decent society can accept. The long-term principle of religious toleration is put at risk by the modern civil rights movement, precisely because it fails to recognize any fundamental limitations on state power. Remember state monopoly power can be a danger whether used by our enemies or our friends.
I'm putting together a series of panels for 1Ls on what options they'll have for real-world practice, and I'd love to have some good (and, preferably, short) readings on various kinds of lawyering—some on big-firm practice, some on medium-firm, some on solo practice, some on government work, some on nonprofit, some on in-house, and so on.
I'm not looking either for puff pieces or for jeremiads (or for that matter satires, however funny); nor am I looking for practice tips or substantive legal analysis. Rather, I want something that will honestly and thoughtfully discuss for would-be lawyers the pluses and minuses—financial, intellectual, emotional, spiritual—of a particular kind of job. Any suggestions? Many thanks!
My reward for ten years of blogging is a guest post here. In all seriousness, I'm very grateful to Eugene and his co-conspirators for giving me the opportunity to write about my contribution to Our American Story.
Some of the essays in the book preach the faith that what makes our national experience special are the universal ideals of liberty and equality expressed in the Declaration of Independence and made concrete by the Constitution. My essay takes the opposite view. What made the United States distinctive was its political pragmatism. The emblem of that approach is Benjamin Franklin, the Founder who is rarely invoked by the Supreme Court. (Though, as Randy would surely point out, the Chief Justice did cite Franklin's line about "death and taxes" in his opinion upholding the Affordable Care Act.) Franklin famously said at the close of the Constitutional Convention that he supported the proposal in spite of its many flaws. And his literary alter ego in Poor Richard's Almanack once explained: "In the affairs of this world men are saved, not by faith, but by the want of it."
Why do I say that our true national creed is pragmatism? Part of the answer is that this was the conclusion of the leading European commentators on the United States well into the twentieth century. Let me give you three examples. In Democracy in America, Alexis de Tocqueville remarked: "Nothing has made me admire the good sense and the practical intelligence of the Americans," he wrote, "more than the way they avoid the innumerable difficulties deriving from their Federal Constitution." Walter Bagehot, the founding editor of The Economist and author of a classic book on The English Constitution, wrote in the 1860s: "Americans now extol their institutions and so defraud themselves of their due praise . . . If they had not a genius for politics, if they had not a moderation in action singularly curious where superficial speech is so violent . . . the multiplicity of authorities in the American Constitution would long ago have brought it to a bad end. Sensible shareholders, I have heard a shrewd attorney say, can work any deed of settlement; and so the men of Massachusetts could, I believe, work any constitution." And James Bryce, who served as Britain's Ambassador to the United States from 1907-13, said that he was dubious of what he called the "tools" provided by the Constitution, but "[t]he defects of the tools are the glory of the workman." What he meant was that "the American people have a practical aptitude for politics, a clearness of vision and capacity for self-government never equaled in any other nation." "Such a people," Bryce concluded, "can work any Constitution."
I doubt that any foreign observers would say the same thing about the United States now. Political practice today more closely resembles Jefferson's uncompromising ideals rather than Franklin's common sense. Indeed, we are approaching the point where Barry Goldwater's adage: "Extremism in the defense of liberty is no vice. And moderation in the pursuit of justice is no virtue" will be a description and not a slogan. The problem with even the best ideals is that they become dangerous fictions when taken literally. (Jefferson himself said many crazy things but almost always acted cautiously.)
Since a shared identity probably must be rooted in the nation's Founding, my modest suggestion is that we elevate the Founder who was not a lawyer or a theorist. Franklin's experience came from the most practical of pursuits–first as a publisher, then as a scientist, and finally as a diplomat. He was the pioneer of what we now call civic society in his adopted hometown of Philadelphia. As Franklin said in his proposal for what became the University of Pennsylvania, education should cultivate "an inclination joined with an ability to serve mankind, one's country, friends and family." So should politics.
Earlier today, federal district Judge Trevor McFadden issued a ruling dismissing a lawsuit filed by the Democratic-controlled House of Representatives challenging President Donald Trump's attempt to divert defense funds to build his border wall. The decision does not reach the merits of the dispute, and therefore does not even attempt to resolve the issue of whether Trump's actions are legal. Instead, Judge McFadden concluded that the House lacked "standing" to bring the case in the first place. While the ruling addresses an important legal issue, I believe it will not have much effect on the ultimate fate of the litigation over Trump's wall spending. Even if the House is knocked out of the game on procedural grounds, other lawsuits against the administration can still proceed.
Supreme Court precedent holds that a plaintiff must have standing to bring a case in federal court. In order to meet that burden, it must prove that it has 1) suffered an "injury in fact" that is "concrete" and "particularized, 2) that there is a causal link between the injury and the defendant's supposedly illegal conduct, and 3) that the injury can be redressed by a judicial ruling. Judge McFadden concludes that the House suit failed on the first criterion: the House did not suffer an injury in fact.
The House claimed that Trump's illegal divergence of federal funds to the border wall inflicts an "institutional injury" on Congress by undermining its control over federal spending through the power of the purse. Judge McFadden concludes that "an alleged injury to the Appropriations power" is not enough to confer standing. Otherwise, Congress could bring lawsuits in a wide range of cases where presidents spend money in ways congressional leaders claim were not properly authorized. Moreover, he contends that judicial resolution of disputes between the different branches of government should be a "last resort." Here, the House has many other ways to assert its interests against the president:
[T]the House retains the institutional tools necessary to remedy any harm caused to this power by the Administration's actions. Its Members can, with a two-thirds majority, override the President's veto of the resolution voiding the National Emergency Declaration. They did not. It can amend appropriations laws to expressly restrict the transfer or spending of funds for a border wall under Sections 284 and 2808. Indeed, it appears to be doing so…. And Congress "may always exercise its power to expand recoveries" for any private parties harmed by the Administration's actions.…
More still, the House can hold hearings on the Administration's spending decisions. As it has recently shown, the House is more than capable of investigating conduct by the Executive…
The availability of these institutional remedies shows that there is no "complete nullification" of the House's power.
I think Judge McFadden is right to consider this issue a "close question." As he explains, Supreme Court precedent issue of congressional standing—like many parts of standing doctrine—is far from a model of clarity. But I still think he got the question wrong.
A diminution of congressional power over spending strikes me as a compelling example of a "concrete" and "particularized" injury. It is concrete because it literally infringes on Congress' control over material resources (in this case billions of dollars in federal spending). It is particularized because the power in question is unique to Congress. No other organization can claim similar authority over the federal budget.
It is true that the House has other potential tools to use in its conflict with the president. But they all involve passing additional legislation, which is subject to presidential veto. Part of the point of giving Congress control over spending is that the burden of inertia supports them. If they choose not to allocate money for purposes the White House wants, that decision cannot be reversed unless and until they change their minds. Congress can protect its power simply by doing nothing. By contrast, once the president uses funds for unauthorized purposes, Congress cannot prevent it other than by passing new legislation—legislation that the president has enormous leverage over.
I am also skeptical about Judge McFadden's attempt to distinguish this case from his own court's 2015 ruling in House of Representatives v. Burwell, where the court ruled that the then-GOP controlled House had standing to sue the Obama administration for illegally spending federal funds on Affordable Care Act health insurance subsidies. Judge McFadden claims that Burwell is too much of a "slender reed" to justify granting the House standing in this case. But the two seem very similar to me. Burwell claimed that standing is permissible in cases that involved "constitutional" violation (the money in question had never been appropriated at all), as opposed to a statutory violation (the statutes at issue do not authorize the spending in question). But, as McFadden himself recognizes the distinction between statutory and constitutional issues here is far from clear. If the wall spending is not authorized by any statute, then Trump's diversion of the money violates the Constitution by infringing on Congress' power of the purse.
Because Burwell was a district court decision, it is not a binding precedent that future courts must follow (the same goes for Judge McFadden's ruling). But if Burwell was correctly decided (as I believe it was), than Judge McFadden is wrong.
There is some irony in the fact that a Democratic House is today relying on the same sort of argument to oppose a GOP administration that the Republican House in 2015 used to sue a Democratic one. On this, as on many other legal issues, where the parties stand depends more on political convenience than principle. Along with "fair weather federalism," we also have "fair weather separation of powers"
In my view, the right way to deal with the vagaries of standing doctrine is to get rid of it entirely (at least as a constitutional rule), because it is nowhere actually mandated by the Constitution. Unless and until the Supreme Court does that, we are going to have dubious hair-splitting decisions like Judge McFadden's ruling.
Be that as it may, his decision is unlikely to have much effect on the litigation over Trump's wall spending. As McFadden notes, there are numerous other ongoing lawsuits challenging the legality of Trump's wall spending. Many of them have been brought by local governments, charitable organizations, and landowners that have property and other interests in the area where the wall would be built. They clearly are likely to suffer "injury" from the wall project (even in the narrow sense of the word), and many of them are likely to get their cases decided on the merits, even if Judge McFadden's ruling stands.
Indeed, there has already been one such ruling, issued by a district court in California just a few days ago. It went against the administration. There will likely be more such decisions soon enough.
If this decision survives on appeal, its real significance will not be in the effect it has on the wall litigation, but in the precedent it sets for future congressional suits against the president for undermining the separation of powers. Some of them may involve issues where there are no private parties available to take up the slack. Republicans who applaud this ruling may not be happy when a Democratic president exploits it in the future.
[Constitutional g]uarantees that are "purely personal" or "limited to the protection of individuals" will not apply to corporations. The established personal guarantees include the Fifth Amendment privilege against self-incrimination and the right to privacy.
On the other hand, when a guarantee is against certain government overreach, and is a "constitutional immunit[y] appropriate to [a corporate] body," this constitutional limitation on government power can apply to protect a corporation just as it may protect a natural person. Thus, corporations have been recognized to have First Amendment rights to free speech and Fourteenth Amendment rights to due process and equal protection of the law. Similarly, corporations are protected from unreasonable searches and seizures, cannot have their property taken without just compensation, and cannot be tried twice for the same offense.
With these cases as guideposts, in considering whether the Excessive Fines Clause applies to corporations we must evaluate both the purpose of the clause and the appropriateness of applying it to corporations.
If you've lost the Germans on privacy, you've lost Europe, and maybe the world. That's the lesson that emerges from my conversation with David Kris and Paul Rosenzweig about the latest declaration that the German interior minister wants to force messaging apps to decrypt chats. This comes at the same time that industry and civil society groups are claiming that GCHQ's "ghost proposal" for breaking end-to-end encryption should be rejected. The paper, signed by all the social media giants, says that GCHQ's proposal will erode the trust that users place in Silicon Valley. I suggest that maybe that particular argument is well past its sell-by date.
Speaking of trust, Paul outlines the latest tit-for-tat in the Silicon Curtain coming down between the US and China, as that country announces plans to publish an "unreliable entities" list of US companies. I note that the same spirit seems to be animating the announcement that China and Russia are transitioning their militaries from Microsoft Windows to other operating systems. Talk about a bonanza for the NSA: Just the coding errors alone will sustain its hackers for a generation – even in the unlikely event that the Chinese and Russians resist the temptation to seed the system with backdoors aimed at their erstwhile partners.
Maury Shenk highlights the latest German effort to regulate "broadcasting" of content on the Internet, which the German authority says will mandate transparency and diversity. I think it's transparently about shoring up the German establishment, a view hardly contradicted by the ham-handed way CDU leader Annegret Kramp-Karrenbauer responded to the CDU's drubbing in the EU elections. The losses were widely attributed to YouTube influencers who urged young voters to reject the main parties. The solution, AKK suggested, was more regulation of YouTube influencers. Ja, natürlich.
Alicia Loh parses a DC Circuit ruling that all the White House has to do to comply with laws on keeping records of official communications is send out a memo. That obligation was satisfied, the court ruled, by a memo telling White House staff who use "vanishing" messaging apps to take screenshots of any official communications and preserve the messages. Alicia is practically the only member of our panel who even knows how to take a screenshot on a phone, which suggests that White House staff compliance might be, well, underwhelming.
Maury gives us a quick update on US states imitating GDPR. Short version: Watch California and then New York.
And in a lightning round, I am struck by the sight of an FTC commissioner begging the Ninth Circuit not to uphold the FTC's position in the Qualcomm case on appeal. Maury and I note the growing demand in Silicon Valley companies for mass contract labor spurred by the need to train AI. And Paul and I speculate on the probability of antitrust cases against Google and Amazon. It's been a long cold Chicago winter for antitrust plaintiffs, but a change in the climate may be coming.
As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!
The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.
What caused the conversion? Writing in the Bulwark, Taylor explains why one does not have to be a climate alarmist to think that climate change is a serious problem that merits a serious policy response. Writes Taylor:
The big debate in climate science right now isn't whether or not climate change is occurring—or whether human activity is the main cause. The big debate is about scale: How much change will there be, over how long a time frame, and how large (or small) will be the follow-on effects.
As a consequence, we have to think about climate change as a risk-management problem, and take seriously that our "best guess" about prospective climate changes might be wrong, and account for potential downside risks, including the possibility that some risks are greater than others. This leads Taylor to the following conclusion:
If we think about climate risks in the same fashion we think about risks in other contexts, we should most certainly hedge—and hedge aggressively—by removing fossil fuels from the economy as quickly as possible. . . .
As Taylor explains, this is a consequence of taking risk and uncertainty seriously, and need not be based upon the assumption that particularly apocalyptic scenarios are certain or even likely. Cost-effective mitigation measures make sense insofar as they provide protection against downside risks. This approach doesn't justify every potential climate policy proposal, but it is more than sufficient to overcome the "do nothing" approach favored by most Republican officeholders and conservative policy mavens.
I've recently started looking into anonymous "John Doe" (or "Jane Doe") litigation; generally speaking, people are presumptively required to sue in their own names, but sometimes courts allow them to sue anonymously. Thus, from the tellingly named Sealed Plaintiff v. Sealed Defendant #1 (2d Cir. 2008):
Pursuant to Rule 10(a) of the Federal Rules of Civil Procedure, "[t]he title of [a] complaint must name all the parties." This requirement, though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly. Certainly, "[i]dentifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts."
Courts have nevertheless "carved out a limited number of exceptions to the general requirement of disclosure [of the names of parties], which permit plaintiffs to proceed anonymously." Indeed, we have approved of litigating under a pseudonym in certain circumstances [such as] "… the privacy of plaintiff's child …." …
The courts that have considered this issue have framed the relevant inquiry as a balancing test that weighs the plaintiff's need for anonymity against countervailing interests in full disclosure…. "[A] party may preserve his or her anonymity in judicial proceedings in special circumstances when the party's need for anonymity outweighs [1] prejudice to the opposing party and [2] the public's interest in knowing the party's identity."…
This balancing of interests entails the consideration of several factors that have been identified by our sister Circuits and the district courts in this Circuit. We note with approval the following factors, with the caution that this list is non-exhaustive and district courts should take into account other factors relevant to the particular case under consideration:
whether the litigation involves matters that are "highly sensitive and [of a] personal nature,"
"whether identification poses a risk of retaliatory physical or mental harm to the … party [seeking to proceed anonymously] or even more critically, to innocent non-parties,"
whether identification presents other harms and the likely severity of those harms, including whether "the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity,"
whether the plaintiff is particularly vulnerable to the possible harms of disclosure, particularly in light of his age,
whether the suit is challenging the actions of the government or that of private parties,
whether the defendant is prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court,
whether the plaintiff's identity has thus far been kept confidential,
whether the public's interest in the litigation is furthered by requiring the plaintiff to disclose his identity,
"whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants' identities," and
whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff.
From what I've seen, courts are especially likely to allow anonymous litigation where the plaintiff is alleging that the defendant raped her, as item 1 above suggests; one of the women suing Harvey Weinstein, for instance, is apparently litigating under the pseudonym "Emma Loman." (The defendant would of course have to know the plaintiff's name to be able to properly put on a defense, but the question is whether the name is disclosed to the public.) But what if the plaintiff is alleging that the defendant had falsely accused him of rape (or other sexual misconduct)? Some cases seem to say that there too the plaintiff can sometimes proceed anonymously (depending on the circumstances), e.g.,
There can be no doubt that the litigation here focuses on "a matter of sensitive and highly personal nature." Plaintiff has been accused of sexual misconduct, the mere accusation of which, if disclosed, can invite harassment and ridicule. "[C]ommon sense suffices to understand that an adjudication of responsibility for sexual misconduct carries a much more powerful stigma than an adjudication of run-of-the-mill assault or vandalism." Moreover, it is possible that plaintiff could be targeted for "retaliatory physical or mental harm" based on the accusations alone.
This threat is all the more serious given that this case has drawn significant media attention, which means many people across the country are aware of Roe's accusations against plaintiff. Indeed, some responses to the media's reporting on this case have been vitriolic, which is not particularly surprising given the highly-charged nature of the accusations. Moreover, it bears reiteration that the fact that accusations of this sort inspire passionate responses and have severe ramifications is reflected in the anonymity afforded to the accusers and the accused when participating in GMU's disciplinary proceedings. It makes little sense to lift the veil of pseudonymity that—for good reason—would otherwise cover these proceedings simply because the university erred and left the accused with no redress other than a resort to federal litigation….
On the other hand, at least one case takes the opposite view:
[T]hose courts allowing plaintiffs to proceed pseudonymously when the cases involved sexual assault did so because the plaintiff allegedly was the victim of such conduct, not because the plaintiff alleges that he was falsely accused of such conduct.
Anonymity, by the way, may sometimes be allowed only for pretrial proceedings; the jury may well be told who the plaintiff is, and then the media would learn the information and be able to publicly report it. But since over 99% of all filed civil cases don't go to jury trial, many plaintiffs would find anonymity valuable even if they know that it would be lost if a jury trial takes place.
What do you folks think? Should it be easier for plaintiffs (and defendants) to litigate anonymously? Harder? How should this play out in sexual misconduct cases, in libel cases where the libel consisted of allegations of sexual misconduct, and in other cases? Should it matter whether the case has drawn a good deal of publicity, and which way should that cut?
Over the past two decades in America, the enduring, complicated divides of ideology, geography, party, class, religion, and race have created deep fractures in the United States, each side fighting to advance its own mythology and political interests. Of course, we all belong to groups, some as trivial as fans of the same music, some as significant as adherents to the same political party. Sectarianism helped early human beings survive by identifying outsiders and potential enemies, and it remains part of our core instinct. However, allegiance to country has in modern America transcended other loyalties to unite us around shared national narratives, events, and rituals. Although healthy nations may harbor substantial sectarianism, when loyalty to another faction outweighs loyalty to the national sect and national narrative, the political system has the potential to buckle and break.
We've seen these factional clusters deepen, harden, and separate, leading in turn to anger, misunderstanding, and hostility. Meanwhile, trust in institutions—government, business, the media, and higher education—continues to erode. Cultural warfare further splits our society, exposing fundamental differences about our views of justice and human nature. Unable to agree on first principles, we cannot agree on what it means to be American. As a result, we share few of the touchstones that, in the past, contributed to our national mythology. For instance, talk of the Thanksgiving holiday or Puritans now spawns debate over genocide of Native Americans. Talk of the Founding Fathers spurs reminders of the slave system they protected. Even the national anthem causes division in sports. As we disregard or dismantle these symbols and pastimes, thereby altering our national narrative, can we replace them with stories and rites to unite our various groups and maintain meaning in our American experiment?
Should loss of our former narratives concern us? Moving forward, can we recover or create a unifying national narrative? If so, what elements should that narrative comprise? And how should our story influence the wider world? Do the changes underway suggest an existing, common, national narrative as yet unarticulated? These questions prompted me to ask some of America's leading thinkers for essays addressing our central issue—the unifying American story.
The contributors featured inOur American Story—leaders in their fields of history, law, politics, and public policy—approach the question from different angles. Even if searching for a common narrative risks neglecting some current or future group, we acknowledge that danger and still recognize the value of exploring whether a unifying story can be achieved and, if so, what that story may be.
This project, begun with an open-ended question, invites dramatically different takes. Contributions here range from skeptical to certain, from liberal to conservative, from abstract to personal. In a civic society immersed in echo chambers, one may be tempted to read only those contributions that affirm existing views. Avoid that temptation; instead, absorb and engage each approach. The diverse responses expand our possible narratives and remind us that, if a unifying story can be achieved at all, then more than one may be feasible or even necessary. If you insist on common threads or conclusions, then we leave them to you to discover, and we hope you find these contributions important and illuminating. Ultimately, I aim for this project to prompt much-needed conversation and reflection.
Today the Supreme Court decided four cases, one of which featured a particularly unusual—indeed unprecedented—line up of justices.
In Mont v. United States, the Court decided, 5-4, that if a criminal defendant's pretrial detention is later credited as time served for a new conviction, that detention counts as "imprison[ment] in connection with a conviction" and thus tolls the supervised-release term under federal law, even if the court must make the tolling calculation after learning whether the time will be credited.
One reason the Mont decision may be of interest beyond those with an interest in federal criminal sentencing is the 5-4 line up it produced: Justice Thomas wrote the majority opinion, joined by the Chief Justice, and Justices Alito, Kavanaugh, and Ginsburg. Justice Sotomayor wrote the dissenting opinion, joined by Justices Breyer, Kagan, and Gorsuch.
This line up is interested on multiple levels. At first the decision appears to have produced a traditional 5-4, conservative-liberal split, until one notices that Justice Ginsburg joined with the conservatives and Justice Gorsuch joined the liberals. The resulting division is thus neither one we expect to see ideologically, nor is it readily explained on the basis of other common jurisprudential divisions, such as the formalist-pragmatist split we've often seen in other criminal justice contexts. Further, while we've seen Justice Gorsuch cross over to vote with the liberal justices in other cases, we have not seen this in a case in which one of the more liberal justices also "switched sides."
