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[World] [Eugene Volokh] Court Rejects "Case Shows Up Online" Sealing Request

A sound order from White v. Chenenko, No. 1:18-cv-12108 (D. Mass. Jan. 2, 2019) (Magistrate Judge M. Page Kelley):

The motion to seal 8 is DENIED. The common law presumes a right of access to judicial records, see Nixon v. Warner Commcns, Inc., 435 U.S. 589, 597 (1978), and "[o]nly the most compelling reasons can justify non-disclosure of judicial records," In re Gitto Global Corp., 422 F.3d. 1, 6 (1st Cir. 2005) (alteration in original) (quoting FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987)). Here, in his two-sentence motion, the plaintiff asks that this action be sealed because it "shows up online" and he wants "to avoid backlash and maintain as much privacy for all parties involved since the case never reached court." These bare assertions of harm do not justify sealing the case.

Published:2/21/2019 10:51:24 PM
[World] Jussie Smollett never grasped that he was really attacking his own credibility

Justin, Justin, Justin.

Justin Smollett is a talented millennial.

He's quite handsome, has the status of a rising star and has been in the business long enough to have rubbed shoulders with or professionally intersected with the likes of estimable Brat Packer Emilio Estevez, and filmmakers Reginald Hudlin and Lee ... Published:2/21/2019 9:20:14 PM

[World] Robert Mueller's report may be just the beginning

Robert Mueller is said to be hitting his old textbooks from law school, perhaps an early chapter on how to keep the clock running on a rich client. Lawyers charge by the hour and a clever Blackstone can keep the meter running until the 12th of Never.

A lot of ... Published:2/21/2019 8:20:59 PM

[World] America: ‘Indispensable Nation’ No More Rather than seeing 'far into the future,' American elites have struggled to discern what might happen next week. Published:2/21/2019 7:49:03 PM
[World] Trump says it would be ‘wonderful’ if India and Pakistan got along. Here’s why they don’t. As tensions rise following an unprecedented attack in Kashmir, here's what you need to know about the grudges between the two nuclear-armed neighbors. Published:2/21/2019 6:18:36 PM
[World] Dershowitz: Covington Student Nick Sandmann's Lawyers Made Mistake in WaPo Lawsuit

Nick Sandmann's lawyers made a "serious tactical blunder" in their lawsuit against the Washington Post, according to Alan Dershowitz.

Published:2/21/2019 3:50:14 PM
[World] Trump urged Europe to take back its ISIS fighters. He appears less keen on taking back those from the U.S. The president announced Wednesday that 24-year-old Hoda Muthana will not be allowed back into the United States. Published:2/21/2019 3:50:14 PM
[World] Selective amnesia: Mainstream media chooses to forget Virginia Democrat debacle

A furious 14-day whirlwind saw every statewide elected Democrat serving in Virginia's executive branch facing an existential threat to his political career, and now these scandals are treated like ancient history. Why?

As a reminder (because the producers and executives at our nation's top news networks seem to have forgotten) ... Published:2/21/2019 3:17:44 PM

[World] Jussie Smollett Alleged Hate Crime Hoax: Experts Break Down Case, Possible Jail Time

Criminal defense attorney Eric Guster and retired NYPD detective Pat Brosnan broke down where Jussie Smollett went wrong with his alleged hate crime hoax.

Published:2/21/2019 2:47:37 PM
[World] Economic Report: Existing-home sales fall for third-straight month, hit a 3-year low Sales of previously-owned homes declined for the third month in a row, price growth is tepid, and properties aren’t flying off the market the way they used to - all signs of a cooling housing market. The question now is, will it perk up in the spring?
Published:2/21/2019 2:17:04 PM
[World] 'The Shocking Story of Susan Smith': Fox Nation Examines 1994 Murder of Kids by Mother

In a riveting, in-depth presentation, Fox Nation examines a crime that paralyzed a rural South Carolina town and captivated the country's attention.

Published:2/21/2019 1:49:23 PM
[World] Trump Today: Trump Today: President rips Jussie Smollett after ‘Empire’ actor charged, presses for 5G adoption President Donald Trump on Thursday blasted actor Jussie Smollett after he was charged with making a false police report, and said he wanted U.S. companies to move faster in developing next-generation wireless technology.
Published:2/21/2019 1:49:18 PM
[World] Plant-based tuna aims to be the future of fish — without the smell Good Catch’s fish-free version of tuna was designed to be a less fragrant work lunch.
Published:2/21/2019 1:17:37 PM
[World] Tomi Lahren 'Final Thoughts' on Fox Nation on Bernie Sanders' Progressive, Socialist Policies

In her "Final Thoughts" commentary on Fox Nation, Tomi Lahren slammed Sen. Bernie Sanders' "free everything" policies, warning they are a "socialist trap" for voters.

Published:2/21/2019 12:48:48 PM
[World] Why Poland is So Eager for a Fort Trump Acting in America's national interest is a good thing. But sometimes our allies are in more precarious positions than we appreciate. Published:2/21/2019 12:48:47 PM
[World] [Eugene Volokh] "The American Legion Briefing: Four Characters in Search of an Establishment Clause Standard"

An analysis of the amicus briefs in the Establishment Clause / cross monument case, from Eric Rassbach at the Becket Fund.

I've been backlogged on various projects recently, so I haven't blogged as much as I'd have liked about many things, including the Court's latest Establishment Clause case. But I thought that I'd pass along this analysis of the briefs in the case from Eric Rassbach of the Becket Fund; unsurprisingly, it track some of the analysis in the Becket Fund's own brief, but I still found to be an interesting, if opinionated, guide.

My own view is that both the Lemon v. Kurtzman test and the endorsement test have ultimately failed to deliver workable legal rules; and I think they have exacerbated religious tensions in American life, even though they have often been advocated as means of supposedly reducing such tensions. I'm also generally inclined towards Becket's history-based approach; though it can yield its own uncertainties, I think it's likely to be better than the current mess. (I have no firm views on the standing argument that Becket makes in Part II of its brief.) In any event, though, here's Eric's analysis; I'd also be glad to post other interesting perspectives from people who have been closely following the case, if anyone wants to pass them along.

The American Legion Briefing: Four Characters in Search of an Establishment Clause Standard [by Eric Rassbach]

The Maryland Peace Cross case, American Legion v. American Humanist Association, will be argued on February 27. The briefs are now in, and the arguments are shaping up much as my colleague Luke Goodrich predicted they would: some people still want the Supreme Court to save the notorious Lemon test from a well-deserved death, some want the Court to punt, some want the Court to adopt a coercion standard, and some want the Court to focus on the historical elements of an establishment of religion. There are thus four main groups of characters searching for an Establishment Clause standard:

The Diehards

First, the plaintiffs American Humanist Association and some of their amici want to save the Lemon test, arguing at times fantastically that Lemon "has brought clarity and consistency to religious-display cases." But there is an air of defeat surrounding this position; it feels like a last stand. Typical in this regard is the amicus brief of Professor Douglas Laycock, which dwells at length (pp. 31-37) on how the Court might uphold the Peace Cross without changing much else in Establishment Clause doctrine. Professors Walter Dellinger and Marty Lederman even filed in support of neither party, saying that this particular Peace Cross ought not be a problem, but other ones they can imagine probably would be. If they think an Establishment Clause case is a loser, it's a loser.

More fundamentally, the Diehards' position is doctrinally adrift. Because Lemon doesn't provide a coherent rule, but the Diehards can't let Lemon go, their briefing often devolves into "here's a bunch of facts about why we should win." These repeat church-state litigants would be better served by renouncing Lemon and starting anew with a more intellectually coherent foundation for their position. In any case, they haven't offered one to the Court here.

The Punters

Another possible outcome for American Legion is a punt. That is, the Court could again avoid dealing with Lemon and apply a totality-of-the-circumstances test. As with previous decisions in this genre (e.g., Van Orden, Buono), such a decision would be valid for one journey only, and would provide no meaningful guidance to the lower courts.

Nevertheless, the Maryland-National Capital Park and Planning Commission defendants ask the Court to do just that—arguing that "the Court should not revisit [its] precedents here," but should instead uphold the cross "under existing law," which "would provide substantial clarity for lower courts" and would avoid "generat[ing] deep religious divisions."

Whatever the motive behind this position, it is willfully blind to the reality of Establishment Clause litigation nationwide. As multiple Justices and lower court judges have lamented, the Court's precedents already "generate deep religious divisions." And far from providing "clarity," using existing law (read: Lemon) to decide American Legion would keep lower courts and local governments in the state of Establishment Clause purgatory they've been lamenting for decades.

The Abstract Expressionists

By contrast, the American Legion defendant-intervenors offer a rule, but it is still not quite right. They say that history—and specifically Town of Greece's "historical practices and understandings"—ought to be the Court's guiding principle. So far, so good. But then they take a second step, attempting to reduce all of that history to a single principle: no coercion. There are three problems with this approach.

The first is that as a matter of history it simply isn't true. Professor McConnell's scholarship identifies six characteristics of a religious establishment during the founding era, and in their opening brief the American Legion defendants dwelled at length on those characteristics and Professor McConnell's scholarship. But not every one of the six characteristics of historical establishments is in fact rooted in coercion.

For example, a formal government proclamation of an official state church, with nothing more, is not coercive, though it would certainly have been a problem for the founding generation. The American Legion defendants say in their reply brief that such actions, though "arguably non-coercive," should nevertheless be treated as coercive. But relying on "arguably non-coercive" actions to be deemed coercion simply demonstrates the standard's unworkability. Similarly, government funding—particularly from non-tax revenue streams like park fees or rental income—is not always coercive, even though from a historical perspective the source of the funding would be largely irrelevant.

Second, even where coercion could be alleged, a coercion test does not provide a clear rule of decision. For example, all taxes can in some sense be viewed as coercive, but not all tax-supported funding of religious organizations is unconstitutional. Some funding is problematic—like when the government gives aid exclusively to religious groups for religious purposes. But other funding is permissible—like when government broadly funds both religious and nonreligious groups. The "coercion" test can't distinguish among these types of funding.

Third, like abstract art, abstract legal terms like "coercion" can mean different things to different people. That makes them poor rules of judicial decision. Take the idea of government "endorsement"—the Jackson Pollock of legal ideas. Different courts have taken radically different views about whether a particular government practice "endorses" religious belief or practice. To a certain degree, endorsement is in the eye of the beholder, which is why the endorsement test vexes lower courts and local governments alike.

But the American Legion defendants would replace one Rorschach test with another, because "coercion" is almost as abstract an idea as "endorsement." It is not too hard to imagine scenarios where almost any challenged practice—the Pledge of Allegiance, "In God We Trust" on the currency, or Moses in the courtroom frieze—would be seen as coercive by some (very sincere) litigants. Indeed, in this very case the plaintiffs argue that the Peace Cross is coercive. The upshot is that adopting a coercion standard would put the Court back into the "heaven of legal concepts" it is trying to escape.

The Historians

A simpler rule is the one we offered in our amicus brief: a government practice violates the Establishment Clause only if it shares the characteristics of a historical establishment—as determined by objectively known "historical practices and understandings" at the time of the Founding. And as Professor McConnell has demonstrated, history discloses six main characteristics of a historical establishment: (1) government control over doctrine and personnel of the established church; (2) mandatory attendance in the established church; (3) government financial support of the established church; (4) restrictions on worship in dissenting churches; (5) restrictions on political participation by dissenters; and (6) use of the established church to carry out civil functions.

The historical approach gets the balance between church and state correct. It forbids the state from controlling religious doctrine, compelling religious observance, or providing exclusive funding for religious institutions. But it also avoids needlessly hostility toward religion in the public square.

Several of the briefs criticize our proposed approach. The American Legion defendants say their "general coercion standard" is superior to a historical test for three reasons: (1) "because coercion is the common denominator underlying" the six hallmarks of a religious establishment; (2) because a general coercion test "would likely be more manageable to apply, and (3) because a general coercion test "has already been adopted in this Court's cases[.]" None of these distinctions has merit.

First, as noted above, coercion is not a common denominator of the six characteristics of a historical establishment. Coercion offers no basis for distinguishing between permissible and impermissible types of government funding of religion. It also fails to address non-coercive actions like the use of non-tax government revenues or a government proclamation that "Zeus is Lord of America." Since coercion and history are not coextensive, and the coercion principle is based on history, coercion cannot be a common denominator because it is underinclusive.

Similarly, in practice coercion will also be overinclusive, because the abstract nature of the coercion inquiry will mean that many practices—including passive displays like the Peace Cross—will, for some judges in some locations, be considered coercive. In short, the American Legion defendants are incorrect when they state that "either formulation will lead to the same results."

Second, for the reasons stated above, a coercion test will not be more manageable because its abstract nature would divorce the judicial inquiry from concrete historical fact.

Third, a historical approach has been used by the Supreme Court both in deciding cases like Everson and more recently in cases like Town of Greece. The problem is not that the test has never been used—it is that it has been used inconsistently.

There a few other criticisms of the historical approach. At one point, Doug Laycock claims it is an "anything goes" standard. But this is also not true. As we have pointed out, the historical approach aligns with the outcomes in this Court's Establishment Clause cases since 1947.

Similarly, one of the amicus briefs decries the idea that "eighteenth century apples" can be compared to "twenty-first century oranges". But this is a silly attack on the judicial use of history altogether and belies the general trend in Bill of Rights jurisprudence towards a historical approach, not to mention Town of Greece. If one cannot look at eighteenth century apples, then much of the Supreme Court's jurisprudence in many other areas of the law must go.

In short, there are good reasons to adopt the historical approach, and no plausible reason not to adopt it.

The End, or A Beginning?

As the briefing shows, there are four main paths the Court can follow with respect to the governing Establishment Clause standard. Those paths lead in very different directions. Lemon is a dead end. Punting would leave the courts stuck in the Lemon dead end. A reductio ad coercion would mean decades of wandering in a different wilderness of abstraction.

Only the historical approach offers a method of deciding Establishment Clause cases that can be built out over the long term. Future cases can investigate how the founders thought about funding, or government proclamations, or displays on coinage, and the like. But for now it is enough to undertake a new beginning for Establishment Clause jurisprudence by grounding it in history.

Published:2/21/2019 12:18:12 PM
[World] Economic Report: Jobless claims sink 23,000 to 216,000, as recent spike appears to be false alarm The number of people who applied for jobless benefits in mid-February fell sharply and returned near recent post-recession lows, suggesting the U.S. labor market is still going strong and keeping the economy on a firm footing. Jobless claims fell by 23,000 to 216,000.
Published:2/21/2019 11:17:11 AM
[World] Jussie Smollett Arrest: Judge Andrew Napolitano on Charges, Police News Conference

Judge Andrew Napolitano said "Empire" actor Jussie Smollett faces serious exposure to prison time for his alleged hate crime hoax.

Published:2/21/2019 10:46:44 AM
[World] [Eugene Volokh] Jury Duty

Just finished jury duty, which in my case consisted of two days plus an hour or so of voir dire—quite long by L.A. standards, I'm told, even for a felony trial—followed by being the very first person struck on a peremptory challenge by the defense.

It was in some ways interesting: We rarely get to be in the same room as something like a cross-section of our city (minus noncitizens, felons, and some other categories), hearing about their professions, their experiences (as victims and as the accused) with the justice system, and the like. I also got the sense that the other jurors were taking the process seriously, and trying to answer questions candidly and reflectively. Still, it's a reminder that resources that are undervalued are overconsumed, and few resources are as undervalued as juror time.

Published:2/21/2019 10:46:43 AM
[World] Soldier Surprises Wife at Kansas Hospital After Birth of Twin Girls in Viral Video

A heartwarming video shows a U.S. Army soldier surprising his wife at the hospital after she gave birth to twin girls.

Published:2/21/2019 10:17:01 AM
[World] Leading U.K. stock picker stung by Purplebricks share crash Neil Woodford, sometimes referred to as Britain’s answer to Warren Buffett, sees almost £40m wiped off his holding in the online real estate agent
Published:2/21/2019 10:17:00 AM
[World] Dana Loesch Slams Alexandria Ocasio-Cortez After AOC Celebrates Amazon NYC Pullout

Dana Loesch said Rep. Alexandria Ocasio-Cortez has an "egregious financial illiteracy problem."

Published:2/21/2019 9:16:48 AM
[World] Paul Brandus: Medicare for All isn’t ‘radical,’ it’s popular Republicans are fond of saying that ideas such as a Green New Deal, or Medicare for All, are “radical” policies, but many voters support them, writes Paul Brandus.
Published:2/21/2019 8:46:27 AM
[World] Economic Report: Philly Fed manufacturing index slumps into negative territory in February for the first time in nearly three years The Philadelphia Fed manufacturing index dropped sharply into negative territory. The index fell to a seasonally adjusted reading of -4.1 from 17 in the prior month. This is the first negative reading since May 2016.
Published:2/21/2019 7:52:27 AM
[World] More Americans are taking at least 2 years to pay off their credit-card debt For many Americans, carrying a balance on their credit cards is the norm — and they’re paying for it.
Published:2/21/2019 6:15:49 AM
[World] Live Blog Here is your live blog for the day. Published:2/21/2019 5:45:34 AM
[World] The hopes and fears surrounding the second Trump-Kim summit Last year’s meeting, while certainly historic, produced a communique that was light on details. The second summit will need to flesh out the core of what denuclearization will look like — and chart a road map for relations. Published:2/21/2019 5:15:23 AM
[World] The folly of focusing on 'Socialism' with a capital 'S'

Raise the red flags on socialism in the United States — warn about the rising youthful acceptance of socialism as based on polls and surveys — and soon enough, on some news channel or other, a media pundit or scholarly spokesperson will point out to a worried American public that ... Published:2/21/2019 4:15:42 AM

[World] Brexit Brief: May and Juncker still seeking breakthrough after ‘constructive’ talks Time is running out for the two sides to agree a withdrawal agreement and avoid a no-deal Brexit
Published:2/21/2019 4:15:41 AM
[World] The female ascent to the top, on screen and stump

"Ah, women," doesn't quite have the resonance or ancient history of "amen," but if women had been as dominant in Biblical times as they are today, that might be how we would close our prayers today, though the word is derived from the ancient Greek meaning "truth" and has nothing ... Published:2/20/2019 9:13:00 PM

[World] BOOK REVIEW: 'Theater of the World' by Thomas Reinertsen Berg


By Thomas Reinertsen Berg

Little, Brown, $35, 384 pages


Thomas Reinertsen Berg's "Theater of the World: The Maps that Made History" needs a roadmap, so to speak. This book is a meandering stroll through the history of mapmaking, always keeping ... Published:2/20/2019 8:14:25 PM

[World] Trump Treats Iraq Like a Conquered Province He recognizes the folly of staying in Syria and Afghanistan forever. So why is Baghdad the exception? Published:2/20/2019 8:14:25 PM
[World] The Sad Decline of the House Freedom Caucus Once a powerful voice against executive overreach, they're perfectly fine with big deficits and ends justifying the means. Published:2/20/2019 7:43:34 PM
[World] Tomi Lahren on Fox Nation Speaks With Chief Border Patrol Agent About Border Wall

Fox Nation host Tomi Lahren visited the border in San Diego, California, where she spoke with Chief Border Patrol Agent Rodney Scott about the effectiveness of border walls.

Published:2/20/2019 6:12:45 PM
[World] Lara Logan on Hannity to Discuss Comments About Liberal Media Bias

Former CBS News foreign correspondent Lara Logan will appear Wednesday on "Hannity" to discuss her recent comments about the media that she said may mean "professional suicide" for her.

Published:2/20/2019 5:43:54 PM
[World] Minnesota Governor Proposes New Tax Increases Published:2/20/2019 5:14:44 PM
[World] Harris Faulkner: To Beat Donald Trump in 2020, Democrats Need to Figure Out How to Break History

Harris Faulkner said Wednesday on "Outnumbered" that in order to defeat President Trump in the 2020 election, Democrats will need to learn "how to break history."

Published:2/20/2019 4:13:58 PM
[World] Jussie Smollett: Police say actor met with prosecutors and detectives Wednesday Chicago Police Department spokesman Anthony Guglielmi says "Empire" actor Jussie Smollett – or at least his legal team – met with prosecutors and detectives Wednesday.
Published:2/20/2019 4:13:57 PM
[World] Indian government wants prominent anti-Modi intellectual behind bars Anand Teltumbde, one of India’s preeminent scholars on caste, has been swept up in a crackdown on lawyers and advocates for the country’s most disadvantaged communities. Published:2/20/2019 3:45:30 PM
[World] [Ilya Somin] Trump Administration Loses Yet Another Sanctuary City Case - this time in the US Court of Appeals for the Third Circuit

In a case brought by the City of Philadelphia, the court struck down a Justice Department policy conditioning federal law enforcement grants on assisting federal immigration enforcement policy.

Because of the press of other exciting legal news, the case has attracted relatively little attention. But, on Friday, the Trump administration suffered another in a long line of courtroom defeats in its war against sanctuary cities. In City of Philadephia v. Attorney General, the US Court of Appeals for the Third Circuit struck down a Justice Department policy imposing three conditions on states and localities that receive federal Edward Byrne Memorial Justice Assistance grants for law enforcement agencies. The conditions are intended to force "sanctuary cities" to assist the federal government's efforts to deport undocumented immigrants.

In 2017, then-Attorney General Jeff Sessions sought to cut Byrne Memorial Justice Assistance Grant funds to state and local governments that fail to meet three conditions:

1. Prove compliance with 8 USC Section 1373, a federal law that bars cities or states from restricting communications by their employees with the Department of Homeland Security and Immigration and Customs Enforcement (ICE) about the immigration or citizenship status of individuals targeted by these federal agencies.

2. Allow DHS officials access into any detention facility to determine the immigration status of any aliens being held.

3. Give DHS 48 hours' notice before a jail or prison releases a person when DHS has sent over a detention request, so the feds can arrange to take custody of the alien after he or she is released.

Writing for a unanimous three-judge panel, Judge Midge Rendell ruled that these conditions are unconstitutional, because they were never properly authorized by Congress. The executive is not permitted to add its own conditions to federal grants to state and local governments:

The City attacked the government's ability to impose the Challenged Conditions on several statutory and constitutional fronts. But we need only reach the threshold statutory question. Where, as here, the Executive Branch claims authority not granted to it in the Constitution, it "literally has no power to act … unless and until Congress confers power upon it." La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986). Therefore, our inquiry is straightforward: did Congress empower the Attorney General to impose the Challenged Conditions?....

Concluding that Congress did not grant the Attorney Gen-eral this authority, we hold that the Challenged Conditions were unlawfully imposed. Therefore, we will affirm the Dis-trict Court's order to the extent that it enjoins enforcement of the Challenged Conditions against the City of Philadelphia.

The decision largely mirrors a long line of other federal court rulings striking down the Trump administration's Byrne grant conditions on much the same basis. It upholds a very thorough decision in the same case by US District Judge Michael Baylson, which I analyzed here.

Unlike Judge Baylson, and a number of other decisions in recent sanctuary cities cases, the Third Circuit ruling did not address the question of whether Section 1373 is independently unconstitutional, because it violates the Tenth Amendment ban on federal "commandeering" of state and local governments. The Third Circuit panel concluded they need not reach this issue, because they ruled that compliance with Section 1373 cannot be required as a condition of receiving Byrne Grant funds, even if 1373 does not violate the anti-commandeering rule. Those federal courts that have addressed the issue have all ruled against Section 1373, at least since the Supreme Court's May 2018 ruling in Murphy v. NCAA undercut the standard defense of it. I explained how Murphy undermines Section 1373 and otherwise helps sanctuary cities here, here, and here.

While the Byrne Grant program is not all that significant in and of itself, the sanctuary cases have important broader implications for federalism and separation of powers. If Trump prevails, the executive would have the power to circumvent congressional control over federal funds and use grant conditions to pressure state and local on a wide range of issues. Conservatives who may support the current administration's attacks on sanctuary cities are unlikely to be happy if a future Democratic administration use the same type of leverage to force red state and local governments to adopt liberal policies on issues such as education, gun control, health care, and transgender bathroom access.

So far, however, the courts have held firm against this particular executive power grab. Notably, both Democratic and Republican-appointed judges have almost uniformly ruled against the administration in the sanctuary cases. The Third Circuit ruling continues that trend. While Judge Rendell and one of the the other two members of the panel are Democratic Bill Clinton appointees, the third member - Judge Anthony Scirica - is a Republican appointed by Ronald Reagan.

The Byrne Grant cases are just one of three lines of sanctuary cases currently being litigated in the federal courts. All raise important federalism questions that have broader implications going beyond the specific area of immigration policy. I provided an overview of all three here. In this July 2018 post, I assessed the initial district court decision in the Trump administration's lawsuit against California's "sanctuary state" policies.

Published:2/20/2019 3:45:30 PM
[World] Andrew McCarthy Blasts New York Times Report on Michael Cohen Investigation Lead

Fox News contributor Andrew McCarthy said Wednesday that a report claiming President Trump asked if a U.S. attorney could lead the probe into Michael Cohen despite his recusal is "all wind and no rain."

Published:2/20/2019 3:11:53 PM
[World] Howard Kurtz: Reporters Who Accused Covington HS Students Need to Soul Search

"MediaBuzz" host Howard Kurtz said Wednesday that the "serious errors" made by The Washington Post in their coverage of the Covington High School controversy don't add up to the $250 million lawsuit against them.

Published:2/20/2019 1:42:44 PM
[World] [Ilya Somin] Supreme Court Rules that Excessive Fines Clause Applies to States and Constrains Civil Asset Forfeiture

The decision in Timbs v. Indiana is a significant step forward for property rights and civil liberties, though a key issue remains to be resolved by lower courts.

Earlier today, the Supreme Court issued its ruling in Timbs v. Indiana. The decision is potentially a major victory for property rights and civil liberties. The key questions before the Court are whether the Excessive Fines Clause of the Eighth Amendment is "incorporated" against state governments and, if so, whether at least some state civil asset forfeitures violate the Clause. The justices answered both questions with a unanimous and emphatic "yes." As a result, the ruling could help curb abusive asset forfeitures, which enable law enforcement agencies to seize property that they suspect might have been used in a crime - including in many cases where the owner has never been convicted of anything, or even charged. Abusive forfeitures are a a widespread problem that often victimizes innocent people and particularly harms the poor.

It would have been a major anomaly for the Court to conclude that the Excessive Fines Clause does not apply to state governments, after it has previously ruled that the Fourteenth Amendment incorporates nearly all of the rest of the Bill of Rights against the states, including the Excessive Bail and Cruel and Unusual Punishment Clauses of the very same amendment. Justice Ruth Bader Ginsburg's majority opinion offers a good explanation of why incorporation of the Clause is easily justified under the Court's precedents, which require "incorporation" of those provision of the Bill of Rights that protect rights understood to be "fundamental" to our legal tradition:

A Bill of Rights protection is incorporated, we have explained, if it is "fundamental to our scheme of ordered liberty,"or "deeply rooted in this Nation's history and tradition..."

The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that "[a] Free-man shall not be amerced for a small fault, butafter the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement . . . ."

Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those unable to pay....

When James II was overthrown in the Glorious Revolution, the attendant English Bill of Rights reaffirmed Magna Carta's guarantee by providing that "excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted...."

Across the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia Declaration of Rights, then in the Eighth Amendment, which states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Adoption of the Excessive Fines Clause was in tune not only with English law; the Clause resonated as well with similar colonial-era provisions...

An even broader consensus obtained in 1868 upon ratification of the Fourteenth Amendment. By then, the constitutions of 35 of the 37 States—accounting for over 90% of the U. S. population—expressly prohibited excessive fines.....

Today, acknowledgment of the right's fundamental nature remains widespread. As Indiana itself reports, all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality....

For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts' critics learned several centuries ago.... Even absent a political motive, fines may be employed "in a measure out of accord with the penal goals of retribution and deterrence," for "fines are a source of revenue," while other forms of punishment "cost a State money." Harmelin v. Michigan, 501 U. S. 957, 979, n. 9 (1991) (opinion of Scalia, J.)...

In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection againstexcessive punitive economic sanctions secured by the Clause is, to repeat, both "fundamental to our scheme of ordered liberty" and "deeply rooted in this Nation's history and tradition."

Justice Ginsburg also rejected the State of Indiana's argument that the Excessive Fines Clause does not apply to in rem civil asset forfeitures, where the government - in theory - files a claim against the property itself, rather than against the owner, as such. She did so in large part because the Supreme Court had already ruled that the Clause applies to at least some civil forfeitures in its decision in Austin v. United States (1993), and Indiana had not asked for Austin to be overruled. In theory, therefore, the Court could decide to overrule that precedent in a future case, where the issue was properly raised. But it seems unlikely that the justices have any desire to do that.

It is also significant that the Court rejected the argument that the Excessive Fines Clause should be incorporated because its application to in rem civil forfeitures is not "deeply rooted" in American history, even if application to other kinds of forfeitures is:

As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree. In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana's suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated.

For example, in Packingham v. North Carolina, 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain commonplace social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment's Free Speech Clause was "applicable to the States under the Due Process Clause of the Fourteenth Amendment...." We did not, however, inquire whether the Free Speech Clause's application specifically to social media websites was fundamental or deeply rooted.

In sum, the Court unanimously agrees that the Excessive Fines Clause applies to state governments and that it covers civil asset forfeitures. That is a potentially significant victory for property rights and civil liberties, because it could help curb widespread asset forfeiture abuse. While virtually all states have similar clauses in their state constitutions, many are not aggressively enforced by state courts in asset forfeiture cases.

The Court did leave one crucial issue for future consideration by lower courts: the question of what exactly counts as an "excessive" in the civil forfeiture context. That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today's decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal. But, hopefully, that will not prove to be the case.

In my view, the Timbs case itself should be fairly easy to decide on remand. In United States v. Bajakijian, the Court ruled that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." The same approach could be applied to civil forfeitures. It is hardly a precise standard, and it may often be hard to tell whether a forfeiture is "grossly disproportionate" or not. But Timbs seems clearly on the "gross" side of the line. The state of Indiana seized the defendant's brand new Land Rover LR2, a vehicle worth about $42,000, even though the maximum fine for his actual offense was only $10,000 - a very large disparity. But there are likely to be cases where things are much less clear.

Ginsburg's majority opinion was joined by a total of eight justices. In separate concurring opinions, Justices Clarence Thomas and Neil Gorsuch argue that "incorporation" should proceed under the Privileges or Immunities Clause of the Fourteenth Amendment, rather than under the Due Process Clause (the vehicle used by the Court for the last century or more). Thomas' opinion reprises many of the arguments he made for this theory in his insightful concurring opinion in McDonald v. City of Chicago (2010), the case that incorporated the Second Amendment against the states.

The idea of reviving the largely moribund Privileges or Immunities Clause enjoys widespread (though not universal) support from legal scholars across the political spectrum. Supreme Court justices have been much more wary. It is notable that Thomas' quest to bring it back now has a supporter in Gorsuch, whereas previously he was largely alone. But, as he is still three votes short, it seems unlikely that Thomas will succeed in his effort anytime soon.

In the meantime, it is clear that both Thomas and Gorsuch (like the other justices) agree that the Excessive Fines Clause should apply to the states, and that the Clause constrains civil asset forfeitures. Thomas is in fact a longtime advocate of stronger judicial review of forfeiture cases.

NOTE: Timbs was represented by the Institute for Justice, a prominent public interest law firm, with which I have longstanding connections, and for which I have done pro bono work on other property rights cases. I did not, however, have any involvement in this case.

Published:2/20/2019 1:42:43 PM
[World] How bad is Disney's 'Aladdin' blue Genie problem after the Will Smith reveal tanked? Disney unveiled Will Smith's very blue Genie from 'Aladdin' at the Grammy Awards. Now that the howling has subsided, how bad is the situation?
Published:2/20/2019 1:11:19 PM
[World] Dr. Drew on Fox Nation with Greg Gutfeld on California Homelessness, Hypothermia

Dr. Drew Pinsky joined Greg Gutfeld on Fox Nation's "One Smart Person" Wednesday to discuss the homelessness epidemic in New York and California.

Published:2/20/2019 12:42:12 PM
[World] Can you believe these A-list movie stars have never won an Oscar? You may be surprised to hear that these movie stars don’t already have an Academy Award. Six of them get another shot at it Sunday at the Oscars.
Published:2/20/2019 12:42:10 PM
[World] The Inexpert Experts of Technocratic America In our everyone-gets-a-trophy society, people are quick to claim authority where they don't have it. Published:2/20/2019 12:10:42 PM
[World] Futures Movers: U.S. oil benchmark on track for 6-day win streak U.S. oil futures shake off earlier weakness Wednesday to move higher, putting prices on track to extend their streak of gains to a sixth consecutive session as signs of tighter global crude supplies outweigh pressure from a continued rise in U.S. production.
Published:2/20/2019 12:10:41 PM
[World] Lara Logan Blasts Liberal Media Bias; Tucker Carlson, Brit Hume React

Brit Hume said Tuesday on "Tucker Carlson Tonight" that displaying fairness in news coverage is a "skill" that seems to be lacking among many modern-day journalists.

Published:2/20/2019 11:11:06 AM
[World] Key Words: Elon Musk: Bitcoin is brilliant but it’s not for Tesla Not one to shy away from controversy, Elon Musk has weighed in on one of, if not the most, divisive topics in finance today: Bitcoin.
Published:2/20/2019 11:11:03 AM
[World] MarketWatch First Take: How Warren’s child-care plan could spark pay raises for all school teachers Sen. Elizabeth Warren’s child care program is, on the surface, a plan to substantially boost the availability of quality, affordable child care. But a look at the details, even before it’s turned into an actual bill, show that it would also have a massive impact on teacher pay across the country, and impact state and local government finances.
Published:2/20/2019 10:40:42 AM
[World] Sean Spicer Blasts Andrew McCabe Media Tour, Trump Russia Agent Claims

Sean Spicer ripped former FBI Deputy Director Andrew McCabe for "salacious" claims about President Trump during his whirlwind media tour.

Published:2/20/2019 10:13:49 AM
[World] Pink soars on big-voiced, foot-stomping new single 'Walk Me Home' Released Wednesday, "Walk Me Home" is a big-voiced, foot-stomping anthem from the 39-year-old singer.
Published:2/20/2019 10:13:47 AM
[World] Mississippi Heartbeat Bill Against Abortion: Phil Bryant on Fox and Friends

Mississippi Gov. Phil Bryant told Steve Doocy on Wednesday on "Fox & Friends" that he is prepared to sign a "heartbeat bill" that would ban abortions from the moment a physician detects the heartbeat of a baby.

Published:2/20/2019 9:41:16 AM
[World] [Irina Manta] Nick Sandmann Sues Washington Post for $250 Million

As multiple sources report, Nick Sandmann--the Kentucky student known as the "MAGA hat teen" whose recent confrontation with Native American activist Nathan Phillips on the National Mall made headlines--is suing the Washington Post for its coverage of the event, to the tune of $250 million. Sandmann's attorneys reproduce their complaint here. While the complaint is quite the mix of non-legal accusations and legal claims, the main legal basis at this time is alleged defamation. Some of the claims are as follows:

The Post published its False and Defamatory Accusations negligently and with actual knowledge of falsity or a reckless disregard for the truth.

As one of the world's leading news outlets, the Post knew but ignored the importance of verifying damaging, and in this case, incendiary accusations against a minor child prior to publication.

The negligence and actual malice of the Post is demonstrated by its utter and knowing disregard for the truth available in the complete video of the January 18 incident which was available contemporaneously with the edited clip the Post chose because it appeared to support its biased narrative.

Instead of investigation and publishing the true story, the Post recklessly rushed to publish its False and Defamatory Accusations in order to advance its own political agenda against President Trump.

In doing so, the Post lifted the incident from social media and placed it in the mainstream media, giving its False and Defamatory Accusations credibility and permanence.

Other claims involve failure to investigate and use of biased sources, among others. Some expert practitioners are skeptical of the lawsuit's merits. They emphasize, for example, that who got in whose face between Sandmann and Phillips is a matter of opinion rather than a verifiable fact.

What happened during the encounter is a story that developed over several days, with more video footage and testimony surfacing along the way, and I would be surprised if the court held the Washington Post to the standard of knowledge and investigation that Sandmann's lawyers seem to expect. It is also not too clear who the "unbiased" witnesses (is there such a thing?) are that the Post should have interrogated before printing any story. To this day, the Internet debates what exactly happened on that day. It is doubtful that a newspaper will be held liable for essentially failing to take the plaintiff's side in the controversy.

Published:2/20/2019 9:41:15 AM
[World] New on Netflix in March 2019: More Amy Schumer, 'Queer Eye' and 'Arrested Development' Netflix's March offerings include fresh episodes of "Queer Eye" and "Arrested Development," along with titles starring Idris Elba and Ben Affleck.
Published:2/20/2019 9:10:16 AM
[World] Patrick Warburton Reprises David Puddy Role at New Jersey Devils Hockey Game

New Jersey-native actor and longtime Devils hockey fan Patrick Warburton revved up the crowd at the Prudential Center in Newark on Tuesday as he reprised his role from the iconic sitcom "Seinfeld."

Published:2/20/2019 8:43:14 AM
[World] Waitress Gets 100 Dollar Tip from Police Officer in New Jersey, Reacts on Fox And Friends

A South Jersey waitress was shocked when a police officer gave her a $100 tip on an $8 meal, along with a note congratulating her on her baby.

Published:2/20/2019 7:46:04 AM
[World] [Eugene Volokh] "Free Speech Rules," My New YouTube Video Series -- Episode 2 (Hate Speech) Now Out

Please share it widely -- there will be at least nine more in the upcoming months.

Thanks to a generous grant from the Stanton Foundation, and to the video production work of Meredith Bragg and Austin Bragg at, I'm putting together a series of short, graphical YouTube videos -- 10 episodes to start with -- explaining free speech law. We posted the first video, "7 Things You Should Know About Free Speech in Schools," several weeks ago, and have now released the second, "The Three Rules of Hate Speech and the First Amendment."

We'd love it if you

  1. Watched this.
  2. Shared this widely.
  3. Suggested people or organizations whom we might be willing to help spread it far and wide (obviously, the more detail on the potential contacts, the better).
  4. Gave us feedback on the style of the presentation, since we're always willing to change the style as we learn more.

Please post your suggestions in the comments, or e-mail me at volokh at

Our next video, which we hope to get out in three or four weeks, will be on Fake News; future videos in the series will likely include most of these, plus maybe some others:

  • Alexander Hamilton: free press pioneer.
  • Free speech at college.
  • Free speech on the Internet.
  • Money and speech / corporations and speech.
  • Speech and privacy.
  • Who owns your life story?
Published:2/20/2019 7:46:03 AM
[World] Eight years after Fukushima’s meltdown, the land is recovering, but public trust has not Exports from the Japanese prefecture are booming as stringent tests show the produce and fish are safe. But deeper issues gnaw at the local community.  Published:2/20/2019 7:10:42 AM
[World] The Wall Street Journal: Tesla replaces top lawyer after just two months in the role Veteran trial lawyer Dane Butswinkas returns to a law firm, while company insider Jonathan Chang takes his place
Published:2/20/2019 7:10:42 AM
[World] Live Blog Here is your live blog for the day. Published:2/20/2019 6:10:00 AM
[World] Upgrade: This is how much 8 different emergencies may cost you — and you probably can’t afford them It’s a good idea to sock away far more than most of us do, and more than many experts recommend
Published:2/20/2019 4:43:21 AM
[World] Why returning ISIS brides are not welcome

An Alabama woman, who willingly left her family to join the Islamic State, also known as ISIS, is now begging to return home to the United States. The simple answer to that? No.

As the Sun reported, "An American ISIS bride who once called for Muslims to 'spill American blood' ... Published:2/20/2019 4:19:01 AM

[World] The Republicans’ Millennial Problem It's going to take more than policy gimmicks to compete with the growing allure of victimology. Published:2/19/2019 9:07:23 PM
[World] An Arab-Israeli talk-fest for peace

In Warsaw last week, the Trump administration convened a conference on peace and security in the Middle East. The two-day ministerial did not change the world. But it did highlight significant ways in which the world has changed.

Envoys arrived from more than 60 countries, including 10 Arab nations. The ... Published:2/19/2019 8:07:53 PM

[World] Greg Gutfeld on Sanders Ripping Schultz on Billionaire Status for 2020 Run

Greg Gutfeld and the panel on "The Five" reacted to Sen. Bernie Sanders (I-Vt.) announcing his run for the Democratic presidential nomination in 2020, and his pointed criticism of potential independent candidate Howard Schultz.

Published:2/19/2019 7:07:19 PM
[World] BOOK REVIEW: 'Unexampled Courage' by Richard Gergel


By Richard Gergel

Sarah Crichton Books/ Farrar, Straus and Giroux, $17, 324 pages

"When Sergeant Isaac Woodard stepped onto the Greyhound bus in Augusta, Georgia on the evening of ... Published:2/19/2019 7:07:18 PM

[World] Here’s what Tesla is promising for 2019 Tesla Inc. has filed its annual report, committing to paper its promises and expectations for the year and putting an initial price tag on its going-private saga and restructuring.
Published:2/19/2019 7:07:17 PM
[World] Angel Moms Talk to David Webb About Jim Acosta at Trump Border Wall Press Conference

Two mothers of young men murdered by illegal immigrants -- or "Angel Moms" -- blasted a CNN reporter for what they perceived as weak sympathy after President Trump recognized their loss during a White House press conference.

Published:2/19/2019 6:36:45 PM
[World] As French anti-Semitism rises, Macron’s government struggles to respond A rise in attacks on French Jews has coincided with yellow-vest demonstrations, raising fears about the real motivations of a protest movement that regularly decries high finance, the media and French President Emmanuel Macron, who once worked at the Rothschild bank. Published:2/19/2019 6:36:44 PM
[World] [Stewart Baker] How to draft an Executive Order on alien abductions

Episode 251 of the Cyberlaw Podcast

The backlash against Big Tech dominates this episode, as we cover new regulatory initiatives in the US, EU, Israel, Russia, and China. The misbegotten link tax and upload filter provisions of the EU copyright directive have survived the convoluted EU legislative gantlet. My prediction: the link tax will fail because Google wants it to fail, but the upload filter will succeed because Google wants YouTube's competitors to fail.

Rumors are flying that the FTC and Facebook will agree on a billion-dollar-plus fine on the company for failure to adhere to its consent decree. My guess? This is not so much about law as about the climate of hostility around the company since it took the blame for Trump's election.

And, in yet another attack on Big Tech, the EU is targeting Google and Amazon for unfair practices as sales platforms. Uncharacteristically, I refuse to criticize the EU over this policy.

Artificial intelligence is so overworked a tech theme that it has even attracted the attention of the White House and DOD. We ask a new contributor, Jessica "Zhanna" Malekos Smith, to walk us through the President's Executive Order on AI. I complain that it's a cookie-cutter order that could as easily apply to alien abductions. DOD's AI strategy, in contrast, is somewhat more substantive.

If you can't beat 'em, ban 'em. Instead of regulating Big Tech, Russia is looking to take its own Internet offline in an emergency. The real question is whether Russia is planning to cause the emergency it's protecting itself against. If so, the West is profoundly unready.

CFIUS is contagious! Brian Egan tells us that under US pressure Israel is considering restrictions on Chinese investment as the world keeps choosing sides in the new cold war.

China's Ministry of Public Security is now authorized to conduct no-notice penetration testing of Internet businesses operating in China. I must say, it was nice of them to offer the service in beta to OPM, Anthem, and Equifax. Speaking of which, this mayspell (more) trouble for Western firms doing business in China.

Brian touches on Treasury's new sanctions against Iranian organizations for supporting intelligence and cyber operations targeting US persons. It turns out that the hackers had help – and that there is no ideology so loathsome it can't win converts among Americans.

Nate Jones describes the EU's plan to use "cyber sanctions" to fend off hackers during upcoming elections.

This Week in Old Guys You Shouldn't Mess With: Nate reveals how 94-year-old William H. Webster helped take down a Jamaican scam artist. Of course, if he was any younger, he probably wouldn't have picked up when the landline rang.

Our colleagues Nate Jones and David Kris have launched the Culper Partners Rule of Law Series. Be sure to listen as episodes are released through Lawfare.

Do you have policy ideas for how to improve cybercrime enforcement? Our friends at Third Way and the Journal of National Security Law & Policy are accepting proposals for their upcoming Cyber Enforcement Symposium. You can find the call for papers here.

Download the 251st Episode (mp3).

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

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 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.

Published:2/19/2019 6:06:24 PM
[World] The Wall Street Journal: Trump administration to cancel nearly $1 billion in funding for California high-speed rail The Trump administration said Tuesday it would cancel almost $1 billion in funding for the California high-speed rail network, casting doubt on whether the state will be able to complete even the first phase of the troubled project.
Published:2/19/2019 5:37:20 PM
[World] Lady Gaga and Christian Carino call off their engagement ahead of the Academy Awards Lady Gaga has been turning heads on the red carpet, but her ringless finger at the Grammys made fans wonder: Is she still with fiance Christian Carino?
Published:2/19/2019 5:07:19 PM
[World] Ben Shapiro on Jussie Smollett Reported Hoax Coverage Versus Jewish Hate Crime

Ben Shapiro said Tuesday that the discrepancy in press coverage between the reported attack on actor Jussie Smollett and the alleged hate crime assault of a Jewish man in New York occurred because "there was a narrative to be promoted."

Published:2/19/2019 4:36:08 PM
[World] Mattel forecasts a year of flat sales despite growth in Barbie and Hot Wheels Mattel talked up its big names during a recent analyst meeting, but is guiding for a flat year in sales.
Published:2/19/2019 4:07:34 PM
[World] Judge Napolitano, Shepard Smith on Report Trump Asked Whitaker to Intervene in Cohen Case

Judge Andrew Napolitano reacted to a New York Times report alleging that President Trump called then-Acting Attorney General Matthew Whitaker and asked him to install a new prosecutor on the case involving alleged hush payments to women during the 2016 election.

Published:2/19/2019 3:06:24 PM
[World] :@WilliamBaude: Justice Thomas's Skepticism of New York Times v. Sullivan

First Amendment limitations on libel and other torts are complicated

In a separate opinion today, Justice Clarence Thomas argued that the Supreme Court should reconsider one of its most famous First Amendment precedents, New York Times v. Sullivan (which holds that the First Amendment requires defamation claims against public figures to demonstrate "'actual malice'—that is ... knowledge that [the statement] was false or ... reckless disregard of whether it was false or not").

I've seen some unduly dismissive reactions already, so a few thoughts:

1. Beware the reductio ad Trump. It's true that candidate/President Trump has called for "open[ing] up our libel laws," and it's true that reconsidering New York Times v. Sullivan could lead to opening up our libel laws but it doesn't follow that it's a bad and wrong thing to do.

2. Overturning or modifying the New York Times v. Sullivan standard doesn't have to mean imposing no First Amendment scrutiny whatsoever on private law tort claims involving speech. For instance, co-blogger Eugene Volokh has documented the widespread presence of free speech principles in private law claims shortly after the founding. Justice Thomas might be open to recovering and articulating these principles even if they fall short of the rule adopted in Sullivan.

3. The question of how exactly to apply the First Amendment to private law claims is genuninely hard. Across property law, libel law, and other torts, I don't think the Court has yet found a consistent approach. (You can find the start of such a theory in this recent lecture by Richard Epstein, which, yes, also critiizes New York Times v. Sullivan as a "constitutional mistake.")

4. If one is results-oriented about these things, there were other paths to the result in New York Times v. Sullivan. For instance, around the same time, the Fifth Circuit had limited the ability of southern states to take jurisdiction over libel claims against the New York Times. I am not saying that was right, but if we are reconsidering things, there is a lot to reconsider.

5. I don't think it's that likely to happen, but this isn't a crazy position.

Published:2/19/2019 3:06:22 PM
[World] ATR Urges Executive Order on Scientific Transparency Published:2/19/2019 3:06:22 PM
[World] This Is Us Is Taking On Beth's Backstory in One Of Its Best Episodes Ever This Is UsTonight, This Is Us is taking a bit of a break from the Pearson family. The show is taking a moment to follow Beth (Susan Kelechi Watson) and her cousin Zoe (Melanie Liburd) home to...
Published:2/19/2019 3:06:22 PM
[World] : New York City just banned discrimination based on hairstyles Now employers, schools and clubs that discriminate against natural hair and styles like afros, cornrows and dreadlocks can get a $250,000 fine.
Published:2/19/2019 3:06:21 PM
[World] This is the secret all pet parents need No matter the weather, you want to keep your pup's paws protected. Hot or cold, this secret product will save your pet from the elements!
Published:2/19/2019 2:37:00 PM
[World] ‘Yellow vest’ protests in France have pushed company meetings to U.K., says CEO of hotel giant IHG France’s “yellow vest” movement is making itself heard from Paris to Provence, but its rallying cry may be reverberating in an unexpected place: Britain. That’s
Published:2/19/2019 2:36:59 PM
[World] Kylie Jenner says she's always wanted to be a young mom: 'This I what I want to do' The 21-year-old makeup mogul gave birth to daughter Stormi Webster a year ago.
Published:2/19/2019 1:37:17 PM
[World] Timothy Carney to Judge Nap on Liberty File: Left's Erosion of Religion Crisis of Middle Class

Timothy Carney joined Judge Napolitano on "Liberty File" on Fox Nation and discussed how the "erosion" of institutions like religion has added to the plight of the middle class.

Published:2/19/2019 1:05:34 PM
[World] Bond Report: Treasury yields decline as investors keep eye on U.S.-China talks Treasurys gain ground, pulling down yields as U.S. investors return from a three-day weekend and continue to eye U.S.-China negotiations and other trade rumblings.
Published:2/19/2019 1:05:32 PM
[World] Gwyneth Paltrow on working with Harvey Weinstein after he harassed her: 'He was a bully' “He was a very difficult boss,” Paltrow said of of her many fights with Harvey Weinstein. She says had to talk the producer out of casting Ben Affleck as William Shakespeare in the 1998 film that made her career.
Published:2/19/2019 12:34:09 PM
[World] [Jonathan H. Adler] Let the WOTUS Wars Commence

The EPA and Supreme Court set the stage for important legal decisions on the scope of the Clean Water Act.

Last week, the Environmental Protection Agency (EPA) published its proposed rule to redefine the meaning of "waters of the United States" (WOTUS) under the Clean Water Act in the Federal Register.

The WOTUS rule is important because it determines the scope of the federal government's regulatory jurisdiction over waters and wetlands under the CWA. The new definition was initially proposed in December, but was not published until now. There is always some delay between the release of a proposal and its publication, but this delay was longer than usual, likely due to a combination of factors, including the holidays and government shutdown.

With publication of the proposed rule, the 60-day comment period has begun. Expect there to be lots of comments, as many environmentalist organizations object to the proposed definition, while many industries and land rights groups support the effort. Both sides will be seeking to seed the comments with arguments for and against revising the WOTUS definition in anticipation of eventual litigation over the final rule. The comment period ends on April 15.

While the Trump Administration's WOTUS rewrite won't reach the courts for awhile, other WOTUS-related litigation continues, including legal challenges to the Obama Administation's WOTUS rule and the Trump Administration's attempt to suspend the Obama WOTUS rule pending the rewrite. Both the Obama definition and the Trump suspension have faced some trouble in court, and litigation is ongoing.

This morning, another front in the WOTUS wars opened as the Supreme Court accepted a petition for certiorari in County of Maui v. Hawaii Wildlife Fund, which presents the question whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. The Maui case is one of several cases raising the broader issue of whether the CWA may reach pollution that travels through groundwater - effectively treating the groundwater as a "conduit" for covered point-source pollution. (Another, still pending at the Court, is Kinder Morgan Energy Partners v. Upstate Forever.)

Maui will have important implications for the scope of federal regulatory authority as well. Indeed, how the Supreme Court resolves the Maui case may preview how the justices will approach the eventual litigation over WOTUS. But we'll have to wait a little for that, as the Court will not hear arguments in this case until the fall.

Published:2/19/2019 12:05:42 PM
[World] The Double-Edged Sword of Polarized Journalism As Northam-gate showed, when reporters are driven by Twitter-fueled partisanship, the results can be good and bad. Published:2/19/2019 12:05:42 PM
[World] Lindsey Graham on McCabe-Rosenstein 25th Amendment Talk: 'One of Most Significant Moments in History If True'

Sen. Lindsey Graham (R-S.C.) said on "Hannity" that if Andrew McCabe and Rod Rosenstein discussed using the 25th Amendment it would be "one of the most significant moments in American history."

Published:2/19/2019 11:35:03 AM
[World] California Teen's Excuse to Teacher Goes Viral: Homework Is Not a Real Thing

"Fox & Friends" caught up Tuesday with a California teenager whose hilarious excuse for not doing his homework went viral.

Published:2/19/2019 10:06:37 AM
[World] [Jim Lindgren] Jussie Smollett’s Largely Overlooked Tweet on Fraud Two Days Before the “Attack.”

On Jan. 27, two days before the alleged attack, Smollett posted that “Frauds are everywhere.”

On Jan. 27, two days before the alleged attack on Jussie Smollett early on Jan. 29, Smollett posted a tweet on fraud, beginning with the warning: "Frauds are everywhere y'all." I guess he should know (if current police leaks are true).

Frauds are everywhere y'all. Protect the mind, heart and spirit of you and your people at all costs. Just remember... Salt, cocaine and anthrax can all appear to be sugar...(the "refined" kind of course) just be careful out here fam. Happy Sunday. Love you. Real talk. Love on. Jussie Smollett (@JussieSmollett)

By the way, many online comments falsely claim or imply that the supposed attack happened on one of the coldest nights in Chicago history. At 2am on Jan. 29, the official Chicago temperature (at O'Hare Airport) was +8 or +9 degrees (data no longer readily available online without registration).

Published:2/19/2019 10:06:36 AM
[World] Capitol Report: Walmart CFO on the U.S. consumer: ‘Still looks pretty good to us’ The December retail sales numbers from the government may have panicked financial markets, but the largest U.S. retailer isn’t sweating things.
Published:2/19/2019 10:06:36 AM
[World] Tucker Carlson on Jussie Smollett Hoax: 'Perfect Vehicle' for Left, Media

Tucker Carlson weighed in Monday night on the Jussie Smollett case, arguing the media and the left  wanted to believe the "Empire" actor had been attacked by racist, bigoted Trump supporters.

Published:2/19/2019 9:36:13 AM
[World] The Wall Street Journal: Mike Pence has inserted religious considerations into setting of foreign-policy priorities In the first two years of the Trump presidency, Vice President Mike Pence has worked to put religion at the heart of key diplomatic efforts, steering hundreds of millions in U.S. aid toward Christians and other minorities who were victimized by Islamic State.
Published:2/19/2019 9:36:11 AM
[World] Tomi Lahren Reacts to Colin Kaepernick's Collusion Settlement With NFL

On Fox Nation Tuesday, Tomi Lahren weighed in on the resolution of former 49ers quarterback Colin Kaepernick's grievance against the National Football League.

Published:2/19/2019 8:35:14 AM
[World] Food shortages, airstrikes, fratricide: Chaos and desperation rule the final corner of ISIS’s rotting ‘caliphate’ As U.S.-backed forces surround the last square mile of Islamic State territory, people who have escaped described a miserable scrabble for survival in the last days of the statelet. Published:2/19/2019 8:35:14 AM
[World] Key Words: Trump says ‘stock market would be down 10,000 points by now’ had ‘the opposition’ done this President Donald Trump on Tuesday implied that the stock market would effectively have crashed had he lost the 2016 race for the White House.
Published:2/19/2019 8:08:32 AM
[World] Live Blog Here is your live blog for the day. Published:2/19/2019 6:03:00 AM
[World] Europe Markets: European markets struggle as investors respond to HSBC and BHP earnings European stocks were down on Tuesday, as investors responded to disappointing earnings from HSBC and BHP Group while trade negotiations between the U.S. and China continue
Published:2/19/2019 5:31:59 AM
[World] China's duplicitous call for 'arms race' controls on A.I.

China, according to a report from the Center for a New American Security, is warning that global controls and international agreements on artificial intelligence are needed, or else a technological "arms race" will soon enough lead to world war.

America shouldn't be fooled.

This is the same China that Published:2/19/2019 5:03:06 AM

[World] Livability: 6 beautiful islands you can actually afford to live on You can live year-round on these lesser-known islands for a surprisingly affordable price.
Published:2/19/2019 4:01:49 AM
[World] Jussie Smollett's story unravelling like a badly written TV crime drama

Life sometimes imitates art, often bad art. Actors live and work in a make-believe world, and when they step outside that world they're naturally confused about which world they're in.

Jussie Smollett was an obscure actor in a troubled Fox television series called "Empire." Ratings are down, and sinking, and ... Published:2/18/2019 10:01:58 PM

[World] BOOK REVIEW: 'Palace of State' edited by Thomas E. Luebke


Edited by Thomas E. Luebke with a preface by John F.W. Rogers

U.S. Commission of Fine Arts/University of Massachusetts Press, $45, 245 pages

Recently, I was puzzled to receive a weighty FedEx package from Goldman Sachs, a Wall Street mammoth with which ... Published:2/18/2019 9:01:56 PM

[World] Trump’s Alarming Abuse of Executive Power The only 'national emergency' is a president who violates the Constitution to get his way. Published:2/18/2019 9:01:56 PM
[World] European leaders angered by Trump’s demands that they take back ex-ISIS citizens from Syria The president’s tactics drew a sharp response at a gathering of E.U. foreign ministers, where leaders said that they would make no plans under threat from Washington and that counterterrorism policy shouldn’t be made by tweet. Published:2/18/2019 8:03:36 PM
[World] Pat Caddell Dead at Age 68 Fox News Contributor, Jimmy Carter Pollster Called Trump Election

Fox News contributor, eminent pollster and political theorist Pat Caddell died Saturday in Charleston, S.C. at the age of 68.

Published:2/18/2019 6:32:49 PM
[World] Todd Starnes on Washington State Bakery Build the Wall Cookie Outcry

A Washington state baker got into some trouble with his town after making Valentine's Day cookies emblazoned with the words "Build the Wall," Todd Starnes said Monday on Fox Nation's "Starnes Country."

Published:2/18/2019 5:32:37 PM
[World] Rush Limbaugh Rips Democrats in 2020 Race as very entertaining and extreme

Legendary radio host Rush Limbaugh said Sunday that the 2020 Democratic presidential primary will be "entertaining" to watch, as the expected plethora of candidates will try to "out-extreme each other."

Published:2/18/2019 4:32:15 PM
[World] NewsWatch: Why the stock market might soon careen down a dangerous ‘slope of hope’ The prevailing mood has shifted from extreme pessimism to extreme optimism, says Mark Hulbert.
Published:2/18/2019 4:03:55 PM
[World] Alan Dershowitz: 25th Amendment Would Have Been Unconstitutional Coup by McCabe, Rosenstein

Harvard Law Professor Emeritus Alan Dershowitz said Monday on "America's Newsroom" that he believes Andrew McCabe and Rod Rosenstein were searching for a way to remove President Trump from office.

Published:2/18/2019 3:02:50 PM
[World] Seven lawmakers quit Britain’s Labour Party over handling of Brexit, anti-Semitism claims The defections come as Britain’s political parties remain bitterly split over how to move forward on the country’s split from the European Union. Published:2/18/2019 2:34:56 PM
[World] China Stealing from United States Technology, Expert Says on Fox Nation with Maria Bartiromo

Hudson Institute Director of Chinese Strategy Michael Pillsbury told Maria Bartiromo on Fox Nation that China is "basically stealing us blind" with their maneuvers against American technology and innovation.

Published:2/18/2019 1:04:43 PM
[World] [David E. Bernstein] Everything You Wanted to Know about Anti-BDS Laws, Part II

My second and final post debunking various misconceptions and bad legal arguments about anti-BDS laws

PART I can be found here.

State laws regulating contractors' dealings with foreign entities and associated companies are not novel. Many opponents suggest that states have no interest in foreign policy or what foreign governments to, so anti-BDS laws are an unprecedented gambit for state governments explicable only by the nefarious power of the Israel lobby. False. During the 1980s, many states passed laws banning state contractors from dealings with South Africa. No one at the time suggested that contractors had a First Amendment right to deal with South Africa, even if they wanted to do so for ideological reasons (either to show support for South Africa, or because they thought that a boycott would hurt the average South African black, or because they thought that commercial relations would help undermine South Arica, or whatever). While those laws had the opposite intent-- ban commercial contact with a country, rather than ban boycotting a company--there is longstanding precedent that states may condition contracts on how and whether contractors react to boycott movements.

Laws banning boycotts of Israel aren't unprecedented. Federal law has banned U.S. entities from participating in or complying with the Arab League boycott of Israel since the late 1970s. Note that this includes U.S. entities that might want to comply with the boycott because they agree with it. This law has been around for forty-plus years, and has never been subject to a successful First Amendment challenge. This should give you some idea of how legally farfetched the challenges to state anti-BDS laws are.

Traditional antidiscrimination laws aren't special because they apply to "constitutionally protected classes": As is clear from the FAIR case, one reason that the Supreme Court has been unwilling to give boycotts First Amendment protection is that doing so would threaten the constitutional viability of "classic" antidiscrimination laws, because there is no clear analytical distinction between refusing to deal with members of a group (clearly discrimination) and a boycott.

In writing about this issue, I've consistently come across the weird claim that one can't draw an analogy between antidiscrimination laws and anti-BDS laws because antidiscrimination laws protect members of minority groups protected by the Constitution, whereas anti-BDS laws do not. Boys and girls, let's pull out our pocket Constitutions. There are no special "protected classes" under the constitution. There is no plausible textual or precedent-based argument that laws banning discrimination based on race, sex, etc. are exempt from First Amendment scrutiny but anti-BDS laws are not because of the category protected.

In the unlikely event the Supreme Court chose to declare that economic boycotts are protected speech unless the boycotts involve certain protected categories such as race, ethnicity, sex, etc., that still would not likely help anti-BDS campaigners. I can imagine one route the Supreme Court could (but won't) take that might seem useful to those who oppose anti-BDS laws. The Court could, in theory, reverse current precedent and say that economic boycotts are speech protected by the First Amendment, but that laws prohibiting discrimination against "suspect classes" serve a compelling interest and therefore are constitutional. In other words, boycotting black people can be banned, but boycotting, say, Caterpillar for its dealings with Israel cannot.

First, I don't think the Court is inclined to hold that economic boycotts are speech. Second, the Court, after flirting in the 1980s with the notion that antidiscrimination laws should not be limited by First Amendment concerns because of the government's compelling interest in eradicating discrimination, unanimously rejected that notion in both the Hurley case and Boy Scouts v. Dale case (Dale was 5-4, but not on that issue).

Third, let's assume the Court did go down that route. Are laws prohibiting contractors from boycotting Israel a compelling interest? No? Says who? Oh, because they aren't based on traditionally-protected categories? Various state courts have held that laws banning discrimination based on sexual orientation ban discrimination against same-sex weddings, because same-sex weddings are closely associated with homosexuals. I think that reasoning is bogus, but it's widely accepted in the same circles that oppose anti-BDS laws, such as the ACLU. By the same token, Israel, as the only Jewish-majority country in the world, is closely associated with Jews. And boycotting people who do business with Israel will have a wildly disproportionate effect on Jews. So under modern antidiscrimination principles, if a state argued that it was banning Israel-related boycotts to protect Jews from anti-Semitism a court would have a hard time gainsaying the notion that this is also a "compelling interest." This is espcecially true because it's well-documented that the BDS movement originated at an explicitly antisemitic international conference in Durban, South Africa in 2001.

States have a non-ideological interest in prohibiting the contractors from engaging in Israel-related boycotts. Imagine a state government contracts with a company for cybersecurity. The company boycotts Israeli software. By far the best software for the job is Israeli-owned Checkpoint, which will cost $50 million. The company, however, boycotts Israel, so it goes with inferior McAfee software, which costs $75 million. The state winds up with worse software and a bill for an extra $25 million. Why would any state agree to contract with someone who might do this?

Published:2/18/2019 1:04:42 PM
[World] We Can’t Afford the Green New Deal But that doesn't mean fighting climate change and promoting green energy is impossible. Published:2/18/2019 12:04:13 PM
[World] Marc Thiessen: Trump Blew His Chance at a Border Wall in 2018

Fox News contributor Marc Thiessen said Monday that President Trump has made all the wrong decisions in his attempts to fund border security and a border wall.

Published:2/18/2019 11:34:16 AM
[World] [David E. Bernstein] Everything You Wanted to Know about Anti-BDS Laws, Part I

Correcting various misperceptions about the scope and constitutionality of laws barring state contractors from boycotting Israel-related people and companies.

I've perhaps never seen as much misinformation and bad legal analysis regarding a given issue than about state laws that require state contractors to certify that they do not boycott Israel or those who do business with Israel, otherwise known as "anti-BDS laws." This has been a product of two factors: first, a thoroughly dishonest campaign against the laws by the American Civil Liberties Union, exaggerated further by anti-Israel bloggers such as Glenn Greenwald, and second, the near-absence of those who support the laws from the debate.

I have not been involved in promoting anti-BDS laws, I am not sure they are a good idea as currently written, and I think the Supreme Court's key relevant decision, Rumsfeld v. FAIR, should have come out the other way, philosophically-speaking if not based on precedent. And from my personal political interest, I'm in a heads-I-win, tails-you-lose position: either boycotts of Israel get treated the same as other discriminatory acts, or the ACLU succeeds in undermining antidiscrimination laws that grate on my libertarian sensibilities by establishing that refusals to deal are subject to First Amendment scrutiny.

So I don't have a strong dog in the fight, but given that I've been appalled at the misinformation campaign launched by the ACLU, I thought I'd correct the record:

Anti-BDS laws do not require anyone to "pledge loyalty to the state of Israel." This is any easy one. They simply don't. This is a lie (not the first one) that originates with Glenn Greenwald, who claimed, in a headline no less, that a Texas anti-BDS laws required a contractor to sign a "pro-Israel oath." Contractors must simply certify that they are not participating in anti-Israel boycotts. They not only don't have to take a pro-Israel oath but are free to criticize Israel as much as they like, donate to anti-Israel campaigns or candidates, and so on.

Anti-BDS laws do not prohibit individuals in their private capacity from boycotting Israel, even if their company has business with a state that has an anti-BDS law. Anti-BDS laws only apply to companies, not to individuals. This gets a bit confusing when it comes to sole proprietorships, but I think it's clear that, say, a computer technician who signs a contract with the state can't refuse to use Israeli-made software for his contract work, but he can refuse to buy Sabra humus for his family dinner.

Anti-BDS laws do not just protect the State of Israel, as such. Many commentators have stated that they don't understand why a foreign government should be given statutory protection from boycotts. The representative Texas law defines a boycott of Israel as "refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes." First, and importantly, the leading Israeli universities are all public, so banning boycotts of Israel prevent state contractors from boycotting students and faculty of Hebrew University, Tel Aviv University, and so on. Secondly, the laws prohibit state contractors from boycotting organizations that merely do business in or with Israel. This is a much broader category, and would include, for example, the 60% or so of American Jews who have visited Israel.

Pending federal legislation only makes the federal government neutral on state anti-BDS laws. The Senate recently passed a bill that has been widely described by opponents as trampling on freedom of speech. In fact, the Senate bill is a response to the possibility that courts will hold state anti-BDS laws as implicitly preempted by federal policy. By explicitly stating that the federal government does not wish to preempt such state laws, the danger of implied preemption goes away. But the bill doesn't impose any restrictions on anybody, so it can't be threatening anyone's free speech rights. If there is a threat to free speech, it comes from state laws. However:

Boycotts are, according to the Suprme Court, economic action, not speech protected by the First Amendment.

(1) The Supreme Court has several times upheld federal labor law's ban on secondary boycotts, ie a boycott of an employer with which a union does not have a dispute that is intended to induce the employer to cease doing business with another employer with which the union does have a dispute. In those cases, the Court has stated that boycotting a business is not protected by the First Amendment.

(2) There is no analytical distinction between a "boycott" and "refusal to deal." Refusal to deal is obviously a form of discrimination. Imagine, for example, that a state government asked its contractors to sign a pledge that they will not refuse to contract with subcontractors owned by members of protected minority groups. This is obviously constitutionally permissible under current doctrine. If a contractor responded, "but I am exercising my freedom of association" to refuse to deal with, say, contractors owned by African Americans, or "I am boycotting contractors owned by homosexuals to protest same-sex marriage" they would be laughed out of court.

(3) NAACP v. Claiborne Hardware is being misinterpreted. Contrary to at least one district court decision on BDS, the Claiborne Hardware case does not state that engaging in a boycott is constitutionally protected speech; rather, it says that urging others to boycott is constitutionally protected speech. So, a state could not ban individuals or groups from urging people to boycott Israel, and probably could not make such a ban a condition of a state contract. However, it can ask a contractor to certify that it is not boycotting Israel.

The closest Supreme Court case on point, Rumsfeld v. FAIR is a unanimous decision rejecting an analogous free speech/compelled speech argument.

Various law schools refused to allow military recruiters to recruit their law students on the same terms as other employers. In other words, the law schools were discriminating against, refusing to deal with, or boycotting military recruiters. In response, Congress passed the Solomon Amendment. This amendment specified that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose federal funds. Just like those challenging the anti-BDS laws argue that their free speech rights are violated by anti-BDS laws, the law schools in FAIR argued that their free speech rights are violated by the anti-boycott-the-military Solomon Amendment.

The Supreme Court's made short shrift of its argument, in language that is equally applicable to the anti-BDS laws. "Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds. The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds. ... As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say."

As for the claim that requiring the law schools to assist with military recruiting constituted compelled speech, "In this case, accommodating the military's message does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer's choice of parade contingents, a law school's decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school's recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter's message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school."

As Eugene has reminded us, while the FAIR case dealt with the disposition of federal funds, the Court's opinion suggested that boycotts/refusals to deal are not protected by the First Amendment, period.

Published:2/18/2019 11:00:47 AM
[World] 'AGT: Champions' host Terry Crews on a finale combo: 'It will blow people's minds' 'America's Got Talent: The Champions' host Terry Crews will announce the show's winner Monday before taking over hosting duties for the summer series.
Published:2/18/2019 10:33:49 AM
[World] Rep. King: 'Absolutely Disgraceful' That Rosenstein Wanted to Wear Wire to Record Trump

Rep. Peter King (R-N.Y.) said Monday that former FBI Deputy Director Andrew McCabe should have sought the removal of Deputy Attorney General Rod Rosenstein, who proposed wearing a wire to record President Trump.

Published:2/18/2019 9:31:26 AM
[World] :@WilliamBaude: Constitutional Liquidation

My latest article on James Madison and constitutional practice, with some criticisms and related links

Earlier this month, the Stanford Law Review published my latest article, Constitutional Liquidation. I've blogged about some of the ideas here over the years, and also discussed them with what feels like nearly everybody I've encountered in the past few years, but the final abstract is below:

James Madison wrote that the Constitution's meaning could be "liquidated" and settled by practice. But the term "liquidation" is not widely known, and its precise meaning is not understood. This Article attempts to rediscover the concept of constitutional liquidation, and thereby provide a way to ground and understand the role of historical practice in constitutional law.

Constitutional liquidation had three key elements. First, there had to be a textual indeterminacy. Clear provisions could not be liquidated, because practice could "expound" the Constitution but could not "alter" it. Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and "the public sanction"—a real or imputed popular ratification.

While this Article does not provide a full account of liquidation's legal status at or after the Founding, liquidation is deeply connected to shared constitutional values. It provides a structured way for understanding the practice of departmentalism. It is analogous to Founding-era precedent, and could provide a salutary improvement over the modern doctrine of stare decisis. It is consistent with the core arguments for adhering to tradition. And it is less susceptible to some of the key criticisms against the more capacious use of historical practice.

Apart from the article, I wanted to share links to a few related things.

1. Last fall, I presented the article in an especially lively discussion at Harvey Mansfield's Program on Constitutional Government. You can watch a video of the proceedings, which include discussions of judicial review, judicial supremacy, the Affordable Care Act, and much more.

2. Curt Bradley and Niel Siegel already have a critique up on SSRN. In Historical Gloss, Madisonian Liquidation, and the Originalism Debate, they defend the rival concept of "historical gloss" and argue:

We argue that a narrow account of liquidation, offered by Professor Caleb Nelson, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We further argue that a broader account of liquidation, recently offered by Professor William Baude, responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. Finally, we question whether either scholar's account of liquidation is properly attributed to Madison.

3. Finally, one lynchpin of Madison's theory of liquidation was the difference between clear text, which could not be liquidated, and unclear or ambiguous questions, which could. This puts a lot of pressure on how we decide when text is "clear," which was until recently a woefully underexained problem in legal interpretation. But there are two great new articles on this, one by Ryan Doerfler and one by Richard Re.

Here's Doerfler, Going 'Clear':

This Article proposes a new framework for evaluating doctrines that assign significance to whether a statutory text is "clear." As previous scholarship has failed to recognize, such doctrines come in two distinct types. The first, which this Article call evidence-management doctrines, instruct a court to "start with the text," and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court's search for what a statute means, the question with each of these doctrines is whether adhering to it aids or impairs that search — the character of the evaluation is, in other words, mostly epistemic. The second type, which this Article call uncertainty-management doctrines, instead tell a court to decide a statutory case on some ground other than statutory meaning if, after considering all the available sources, what the statute means remains opaque. The idea underlying these doctrines is that if statutory meaning is uncertain, erring in some direction constitutes "playing it safe." With each such doctrine, the question is thus whether erring in the identified direction really is "safer" than the alternative(s) — put differently, evaluation of these doctrines is fundamentally practical.

This Article goes on to address increasingly popular categorical objections to "clarity" doctrines. As this Article explains, the objection that nobody knows how clear a text has to be to count as "clear" rests partly on a misunderstanding of how "clarity" determinations work — such determinations are sensitive to context, including legal context, in ways critics of these doctrines fail to account for. In addition, the objection that "clarity" doctrines are vulnerable to willfulness or motivated reasoning is fair but, as this Article shows, applies with equal force to any plausible alternative.

And here's Re, Clarity Doctrines:

Clarity doctrines are a pervasive feature of legal practice. But there is a fundamental lack of clarity regarding the meaning of legal clarity itself, as critics have pointed out. This article explores the nature of legal clarity as well as its proper form. In short, the meaning of legal clarity in any given doctrinal context should turn on the purposes of the relevant doctrine. And the reasons for caring about clarity generally have to do with either (i) the deciding court's certainty about the right answer or (ii) the predictability that other interpreters (apart from the deciding court) would converge on a given answer. In general, debates about what type and degree of clarity to require often reflect implicit disagreements about the relevant clarity doctrine's goals. So by challenging a doctrine's accepted purposes, reformers can justify changes in clarity doctrines. To show as much, this article discusses a series of clarity doctrines and illuminates several underappreciated avenues for reform, particularly as to federal habeas corpus, Chevron, qualified immunity, constitutional avoidance, and the rule of lenity. Finally, this article acknowledges, but also discusses ways of mitigating, several anxieties about clarity doctrines, including worries that major clarity doctrines are too pluralistic, malleable, or awkward.

I'm excited and heartened by these pieces.

Published:2/18/2019 9:02:55 AM
[World] Mark Penn: Andrew McCabe, Rod Rosenstein Initiated Trump Probe After Being Triggered By James Comey Firing

Former Clinton adviser Mark Penn said Monday that former FBI Director James Comey's firing "triggered" Andrew McCabe, prompting the agency's former deputy director help launch an "out of touch" probe into President Trump.

Published:2/18/2019 8:37:08 AM
[World] After DNC and France’s Macron, Australia becomes latest target of ‘state actor’ cyberattack The United States, Germany and France are among the countries hit by foreign cyberattacks since 2016. Published:2/18/2019 6:59:46 AM
[World] Live Blog Here is your live blog for the day. Published:2/18/2019 5:29:25 AM
[World] Asia Markets: Asian markets kick higher on renewed U.S.-China trade hopes Asian markets were broadly higher on Monday as traders looked forward to the continuation of trade talks between Chinese and American officials in Washington this week.
Published:2/17/2019 10:26:56 PM
[World] George Washington’s Commitment to Human Dignity He never wavered from his belief in the intrinsic value of all people. Published:2/17/2019 9:27:36 PM
[World] The Wall Street Journal: U.K. lawmakers scold Facebook, call for increased social-media regulation A U.K. parliamentary committee rebuked Facebook Inc. in a new report that calls for regulation and intensified scrutiny of social-media companies.
Published:2/17/2019 6:26:05 PM
[World] Pakistan welcomes Saudi crown prince with hoopla and high security Officials hope Mohammed bin Salman will deliver a generous package of loans and investment deals, including a major share in an oil refinery, which will help revive Pakistan’s struggling economy. Published:2/17/2019 5:54:45 PM
[World] Misreading the Covington teens in MAGA hats

News reporting is the first draft of history. It needs to be revised when details emerge that give an entirely different picture.

By now, most folks know that a viral video that appeared to show Catholic students mocking an older Native American man after the March for Life on Jan. ... Published:2/17/2019 2:55:31 PM

[World] BOOK REVIEW: 'Midnight in Chernobyl' by Adam Higginbotham


By Adam Higginbotham

Simon & Schuster $29.95, 538 pages

Although not recognized as such at the time, the deadly explosion that wrecked the Soviet Union's showcase nuclear plant in Chernobyl in 1986 was an advance obituary both for ... Published:2/17/2019 1:53:52 PM

[World] Nigerians — from the president to the pepper farmer — shocked by last-minute election postponement With just five hours till polls opened, an official announcement delayed voting by at least a week. Published:2/17/2019 12:27:57 PM
[World] Democrats offer European allies the promise of a post-Trump future, but can they deliver?  Even if Democrats beat President Trump when he vies for reelection next year, U.S. allies worry that the damage already done to transatlantic relations is irreparable. Published:2/17/2019 10:23:38 AM
[World] Greg Gutfeld Show Parodies 2020 Democrats Who Will Say Anything to Get Elected

The crew on Saturday night's "Greg Gutfeld Show" mocked the pandering nature of Democrats who have announced their candidacies for the 2020 presidential election.

Published:2/17/2019 7:24:00 AM
[World] McCarthy-McConnell Republicans betrayed Trump, killed the wall

Forget the sunny-side propaganda put out by all sides on the Great Border Security Compromise Act of 2019.

Its intentionally fatal flaw lets southern-border municipalities nix wall construction on their turf for any reason they choose.

These local jurisdictions tend to be as blue as this monstrosity of an act ... Published:2/17/2019 5:52:06 AM

[World] Heather Nauert, Trump’s pick for U.S. ambassador to the United Nations, withdraws from consideration The State Department spokeswoman said the past two months had been “grueling.” Published:2/16/2019 8:49:45 PM
[World] Donald Trump builds; Beto O'Rourke destroys

President Donald Trump said yes to the budget bill to keep open government, but then bypassed Congress and declared a national emergency to free up funding to build his long-promised border wall.

And on the other side of town, Beto O'Rourke — Robert Francis "Beto" O'Rourke — says let's go ... Published:2/16/2019 3:48:31 PM

[World] Dan Bongino Says Donald Trump Owned Democrats in Border Wall Funding

President Trump "outfoxed" Democrats by signing the bipartisan border security compromise, Dan Bongino said Saturday on "Fox & Friends."

Published:2/16/2019 1:19:14 PM
[World] [Ilya Somin] New Jersey Court Strikes Down Use of Eminent Domain to Take Property to "Bank" it for Possible Future Use

The court concluded that property may only be condemned for projects that will proceed in "the reasonably foreseeable future."

In CRDA v. Birnbaum, an important decision issued yesterday, a New Jersey appellate court ruled that the state's Casino Reinvestment Development Authority (CRDA) could not use eminent domain for the purpose of seizing private property in order to "bank" it for a possible future use. Under the New Jersey state constitution (like the federal constitution), land may not be taken by the government unless it is for a "public use." The Appellate Division of the Superior Court of New Jersey upheld the trial court's 2016 decision concluding that there cannot be a public use unless CRDA can provide "evidence-based assurances that" it will use the land for a project that "would proceed in the reasonably foreseeable future."

In this case, CRDA sought to condemn Charlie Birnbaum's house even though "[a]t the time of the [trial court] decision under review, the CRDA had no specific redevelopment plans under consideration for the Project; it had not issued a request for proposals (RFP) to prospective developers, and no developer had committed to redeveloping within the Project area." CRDA claimed that "it is statutorily entitled to bank land for future public use, without any temporal limitation."

Particularly since the US Supreme Court's controversial 2005 decision in Kelo v. City of New London, which ruled that private economic development projects are a permissible "public use," there has been a longstanding debate over exactly what qualifies as a public use under federal and state constitutions. Proponents of the "narrow view" of public use argue that it only covers publicly owned projects or private ones that the general public has a legal right to use. Advocates of the broad view (endorsed by the Kelo decision), contend that virtually anything that might potentially benefit the public in some way qualifies as a public use. I believe the narrow view is correct, for reasons outlined in detail in my book on the Kelo case. But even those who otherwise favor a broad view of public use should recognize that unlimited "banking" of property for a potential, as yet unspecified, future use doesn't qualify. In such a situation, there is no assurance that the government will ever use the condemned property at all, much less for a purpose that somehow benefits the public.

The trial court decision in the Birnbaum case (which I analyzed here), puts the point well:

In this Court's view, the CRDA is not empowered to condemn a property only to have it sit idly, for years on end, as they wait for the right project to present itself. This has already happened in many of the surrounding properties that sit vacant waiting for a project to come forward …..[T]o meet constitutional and statutory muster, to justify the taking of the Birnbaum property, there must be some reasonable assurance that the Birnbaums' property will be put to a public use within the next year or the next ten years.

Those who follow eminent domain and property rights issues may recall that CRDA is the same state government agency that in 1998 sought to condemn private homes in order to build a limo parking lot for one of Donald Trump's casinoes. That taking, too, was struck down by a state court as a violation of the New Jersey constitution, because it was not for a legitimate public use. The Birnbaum taking is arguably even more egregious than that in the Trump case. In the latter situation, at least Trump and the CRDA had a clear plan for what they were going to build on the condemned property. Both cases were litigated by the Institute for Justice, a prominent libertarian public interest law firm that has long been the nation's premier advocate of tightly enforcing constitutional constraints on eminent domain. For IJ's analysis of the Birnbaum ruling, see here.

In the aftermath of the Kelo decision, many states enacted legislation to try to limit the use of eminent domain for the benefit of influential private interests. While some states enacted valuable reforms that really do constrain eminent domain abuse, others enacted largely ineffective ones that only pretended to address the problem. New Jersey was the last of the 45 states that reformed their laws after Kelo, and its reform is one of the weakest, in some ways making things worse rather than better. But New Jersey courts have, under their state constitution, nonetheless imposed tighter limitations on the use of eminent domain than is the case in some other states, such as neighboring New York.

In the aftermath of yesterday's ruling, CRDA says that it will "respect" the court's decision. Hopefully, this will finally put an end to Charlie Birnbaum's prolonged struggle to save his family home. The agency is also said to have "largely shifted its focus from land acquisition and has sought to auction off some of its tax-exempt holdings." If so, it's about time for it to end its longstanding pattern of abusive condemnations.

NOTE: I have done pro bono work for the Institute for Justice in other eminent domain cases. However, I had no involvement in the Birnbaum litigation.

Published:2/16/2019 1:19:13 PM
[World] Women filmmakers have record showing at Berlin Film Festival The voice of the female filmmaker was louder than ever at this year's Berlin International Film Festival, with 63 percent of the films presented across the festival's 15 different sections helmed by women. (Feb. 16)
Published:2/16/2019 12:47:32 PM
[World] [Eugene Volokh] Community College Reportedly Bans Pro-Second-Amendment Banner with Picture of Rifles

A clear violation of the First Amendment -- and not even justified under the College's own reportedly stated reasons.

Townhall (Beth Baumann) reports that the Orange Coast College chapter of the Young Americans for Freedom was barred from displaying this banner at a campus student recruitment fair. The careful reader will doubtless say, "Ah, it must be because the college is deeply committed to historical precision, and officials insist that the Amendment has only existed as an Amendment, rather than just as a proposed Amendment, since 1791 rather than 1789." Well, no: According to the Townhall report, the College objected to the banner's depicting the sillouettes of two rifles—which, college officials said, were forbidden by a college policy that bars not just firearms but any "facsimile of a firearm."

But such a decision (if accurately reported) violates the First Amendment. Once a university opens up a space where students may display banners, it then may not restrict such displays unless the restriction is viewpoint-neutral and reasonable. It's hard to see a viewpoint-neutral rationale for banning even sillhouette displays of guns, which no-one would confuse for real guns.

But even if the rationale is viewpoint-neutral, it's not reasonable: To be reasonable, a restriction on speech within a government-created forum must be "consistent with the [government's] legitimate interest in 'preserv[ing] the property ... for the use to which it is lawfully dedicated.'" Nothing about the display of rifle sillhouettes interferes with the government's legitimate interest in preserving campus property for its normal uses, except insofar as such a display conveys a pro-gun viewpoint to which some people object.

Indeed, Burnham v. Ianni (8th Cir. 1997) (en banc), rejected an attempt to exclude pictures of guns from a government-created forum (there, a display of professors' research interests), because such an exclusion was both unreasonable and viewpoint-based. The Eighth Circuit en banc majority reasoned,

The display case was designated for precisely the type of activity for which the Kohns and Professors Burnham and Marchese were using it. It was intended to inform students, faculty and community members of events in and interests of the history department. The University was not obligated to create the display case, nor did it have to open the case for use by history department faculty and students. However, once it chose to open the case, it was prevented from unreasonably distinguishing among the types of speech it would allow within the forum. Since the purpose of the case was the dissemination of information about the history department, the suppression of exactly that type of information was simply not reasonable.

The same reasoning would apply here: The recruitment fair was designated for precisely the type of activity for which YAF was using it. It was intended to inform students of events put on by and interests of student groups. The University was not obligated to create the fair, nor did it have to open it for student groups. However, once it chose to open the fair, it was prevented from unreasonably distinguishing among the types of speech it would allow within the forum. Since the purpose of the fair was the dissemination of information about student groups, the suppression of exactly that type of information was simply not reasonable.

But beyond this, it doesn't even make sense to read the college policy as banning the banner. The policy, titled "WEAPONS PROHIBITED ON DISTRICT PROPERTY," says,

Firearms, knives, explosives or other dangerous objects, including, but not limited to any facsimile of a firearm, knife, or explosive, are prohibited on District property, at the colleges, or any college satellite location.

A sillhouette of a rifle isn't a "facsimile of a firearm" as that term is normally used, in legal contexts or others. A facsimile would be something that, in the words of one state statute (from Wisconsin), "means any replica, toy, starter pistol or other object that bears a reasonable resemblance to or that reasonably can be perceived to be an actual firearm."

Facsimiles are potentially dangerous (whether or not you think they should be banned) because they might be mistaken for real guns, and thus be perceived as threats, whether deliberately (for instance, if someone uses a facsimile gun to rob someone) or accidentally (for instance, if police officers think a facsimile gun that someone is playing with is a real gun). An image on a banner lacks those qualities; it can't "reasonably ... be perceived to be an actual firearm," and it doesn't bear a resemblance to a gun in the sense of looking like a gun (rather than like a picture of a gun). And that's especially clear because the policy bans "dangerous objects, including ... any facsimile of a firearm"; that is most recently read as barring facsimiles that are actually dangerous (i.e., ones that can be mistaken for a gun) rather than pictures that are not at all dangerous.

So I think the policy itself doesn't violate the First Amendment, precisely because it is properly read as not extending to pictures such as this. But if the policy is read as covering such pictures on banners, then it does violate the First Amendment. And in any event, the college's actions, if accurately reported by Townhall, violate the First Amendment.

Townhall reports that "Orange Coast College did not immediately respond to Townhall's request for comment"; I likewise reached out to the College media relations after-hours phone number and e-mail address this (Saturday) morning, and haven't yet heard back from them. If I do hear back, I will of course update the post accordingly.

For cases that uphold even K-12 students' right to display images of firearms (there, on T-shirts), see Schoenecker v. Koopman (E.D. Wis. 2018) and Newsom ex rel. Newsom v. Albemarle County School Board (4th Cir. 2003).

Published:2/16/2019 12:19:43 PM
[World] Dr. Drew on Fox Nation: Jonah Hill Wants to Challenge of Bro Masculinity

Dr. Drew Pinsky urged actor Jonah Hill to "double-down" on his traditional form of comedy on Fox Nation's "UN-PC" after Hill said in a recent interview that he wants to "challenge traditional masculinity" in his films.

Published:2/16/2019 11:51:07 AM
[World] Lara Trump Rips Andrew McCabe for Ordering Obstruction of Justice Probe Against Donald Trump

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Published:2/16/2019 10:48:14 AM
[World] Jason Chaffetz Rips Congress for Past Border Security Measures

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Published:2/16/2019 9:46:44 AM
[World] Lipstick in kindergarten? South Korea’s K-beauty industry now aims for the super young. It’s a cultural debate: How young is too young for South Korea’s huge cosmetics and skin care market? Published:2/16/2019 8:47:09 AM
[World] Trump Declares National Emergency at Border: Tom Homan Reacts on Fox and Friends

President Trump made the right decision by declaring a national emergency on the southern border, Fox News contributor Tom Homan said Saturday.

Published:2/16/2019 8:17:28 AM
[World] Cannabis Watch: Cannabis stocks climb after Canopy posts revenue jump and Aphria uncovers conflicts Cannabis stocks were mostly higher Friday, as investors digested earnings from Canopy Growth Corp. and the news that Aphria Inc.’s probe of acquisitions in Latin America found certain board members had conflicts.
Published:2/16/2019 8:17:27 AM
[World] Why President Trump should be concerned about America’s obesity epidemic Donald Trump weighs 243 pounds and is 6 feet, 3 inches tall, according to his latest medical exam.
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[World] How to host an epic Oscar party your friends will remember Hosting an Oscars party is a serious responsibility, after all its Hollywood’s biggest night and if you’ve taken on the challenge but are still scrambling for a couple ways to make your party POP!
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[World] Entire families of asylum seekers are being returned to Mexico, leaving them in limbo For the first time, parents with children must wait in border cities while their asylum claims are processed. Published:2/15/2019 8:14:17 PM
[World] Goodbye My Friend, Walter Jones Of all the people I worked with on Capitol Hill and off, he was one of the best. Published:2/15/2019 7:13:20 PM
[World] Stuart Varney Rips Alexandria Ocasio-Cortez: Amazon Leaves Socialist New York City

In his latest "My Take" commentary for Fox Nation, Stuart Varney said Democrats are "learning the downside of A.O.C." after Amazon announced it would not move to Long Island City, N.Y. as planned.

Published:2/15/2019 6:42:54 PM
[World] :@WilliamBaude: The Invalidation of the PROMESA Appointments

A few thoughts on the First Circuit's separation of powers ruling on the Puerto Rico bankruptcy board

This afternoon the First Circuit issued a very important opinion holding unconstitutional the appointments to the Financial Oversight Management Board created by the PROMESA statute, which exercises authority over Puerto Rico's bankruptcy. If this were a case of ordinary federal authority, it seems quite likely that the board members would have to be appointed by the President and subject to Senate confirmation. But the board members were not confirmed by the Senate, and subject to other appointments restrictions, so the question is whether something about Puerto Rico's legal status changes the constitutional analysis.

The First Circuit frames this in several ways I find quite confusing (such as whether the Article IV Territories Clause trumps or displaces the Article II Appointments Clause), but in my view the question comes down to this: are the board members "Officers of the United States" or are they "Officers of the Commonwealth of Puerto Rico"? If they are "Officers of the United States," then the Appointments Clause applies in terms. But, as I've written in this draft article, the reason territorial courts have traditionally been held constitutional is that they exercise the "judicial power of" their respective territories or commonwealths. (This is also why elected territorial legislatures are constitutional: they exercise the legislative powers of their respective territories, not the executive or legislative power of the United States.) So the question is whether the board members have an analogous status as territorial officers.

As I understand it, the First Circuit's reason for thinking that they are officers "of the United States" is that:

The Board Members trace their authority directly and exclusively to a federal law, PROMESA. That federal law provides both their authority and their duties. Essentially everything they do is pursuant to federal law under which the adequacy of their performance is judged by their federal master. And this federal master serves in the seat of federal power, not San Juan. The Board Members are, in short, more like Roman proconsuls picked in Rome to enforce Roman law and oversee territorial leaders than they are like the locally selected leaders that Rome allowed to continue exercising some authority.

By contrast, as to territorial legislatures and officers it says:

The elected officials to which the Board and the United States point -- even at the highest levels -- are not federal officers. They do not "exercise significant authority pursuant to the laws of the United States." Rather, they exercise authority pursuant to the laws of the territory. Thus, in Puerto Rico for example, the Governor is elected by the citizens of Puerto Rico, his position and power are products of the Commonwealth's Constitution, see Puerto Rico Const. art. IV, and he takes an oath similar to that taken by the governor of a state.

I'm not sure whether this is the right answer, but it seems to me that this is at least roughly the right question to be asking.

Finally, the First Circuit's opinion takes a strange turn at the end when it employs the "de facto officer doctrine" to uphold everything that the board has done so far. I'm no expert on the doctrine, but at a glance this seems in tension with Supreme Court cases like Ryder and Nguyen which reversed decisions made by invalidly-appointed officers notwithstanding the doctrine. So I might expect both sides of the litigation to seek Supreme Court review, and at least one of them to get it.

Published:2/15/2019 5:43:17 PM
[World] Daytona 500 NASCAR Champion Darrell Waltrip: Motorsports at a Crossroads, Previews Great American Race

Three-time NASCAR Winston Cup series champion Darrell Waltrip joined Dagen McDowell on Fox Business Network to preview the 2019 Daytona 500 and discuss the future of the sport which has seen its ups and downs over the last decade.

Published:2/15/2019 5:13:28 PM
[World] Sarah Sanders Says Big Difference Between Donald Trump National Emergency, Obama Daca Order

White House Press Secretary Sarah Sanders contrasted President Trump's national emergency executive action with President Obama's executive order implementing the DACA program for children of illegal immigrants.

Published:2/15/2019 3:13:46 PM
[World] Boothe: Dems 'Embraced Lawlessness' in National Debate Over Border Wall

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Published:2/15/2019 2:43:40 PM
[World] Kicking yourself for missing the recent rally? Here are 5 reasons you shouldn’t It’s not as big a deal as some Wall Street analysts might lead you to believe.
Published:2/15/2019 2:43:38 PM
[World] Jack Keane on Life Liberty Levin: Russia Struggling, Fixated on US and NATO

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Published:2/15/2019 2:12:33 PM
[World] Barron's: Drug company makes rap video to get people addicted to fentanyl Insys Therapeutics Inc. has also been accused of bribing doctors.
Published:2/15/2019 2:12:31 PM
[World] UK researchers are launching a trial looking at a cannabis-based therapy for Alzheimer’s A research team at King’s College London is launching a Phase 2 trial of a cannabis-based therapy for the treatment of certain dementia symptoms, according to a Friday announcement by Alzheimer’s Research UK, which will be funding the study.
Published:2/15/2019 1:42:06 PM
[World] Love & Money: Does your future husband or wife have financial problems? Here’s how to find out Financial issues are one of the main reasons why couples divorce, so find out if there’s a problem before you get married.
Published:2/15/2019 1:15:48 PM
[World] Nicole Malliotakis Slams Alexandria Ocasio-Cortez for Cheering Amazon HQ Withdrawal

Republican New York State Assembly member Nicole Malliotakis slammed the Democrats who are taking a victory lap after Amazon’s decision to drop plans for a New York City headquarters.

Published:2/15/2019 12:42:06 PM
[World] Ben Affleck explains why he's done with Batman: 'I couldn't crack it' Appearing on "Jimmy Kimmel," the 46-year-old actor explained why he was hanging up his superhero suit after playing Bruce Wayne in several films.
Published:2/15/2019 12:42:04 PM
[World] BookWatch: Early Facebook investor turned critic describes how government should approach tech giants, and how we should use their services Roger McNamee, a longtime tech investor and one of the early backers of Facebook Inc., was a very early voice warning about privacy and data collection problems on the world’s largest social network that eventually erupted in the public eye. Now, he is trying to help carve out some solutions.
Published:2/15/2019 12:42:04 PM
[World] Jesse Watters Mom Texts: Stop Yelling at Juan, I Miss Dana

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Published:2/15/2019 12:14:08 PM
[World] Jussie Smollett case: Police address hoax rumors, are interrogating 2 'potential suspects' "The alleged victim (Jussie Smollett) is being cooperative at this time and continues to be treated as a victim, not a suspect," Chicago P.D. said.
Published:2/15/2019 12:14:07 PM
[World] Do You Believe in the Deep State Now? The revelation that top Justice officials considered deposing Trump should answer that question for good. Published:2/15/2019 12:14:07 PM
[World] FCC Chair Ajit Pai: Americans 'Bombarded' by Robocalls, Wireless Carriers Must Take Action

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Published:2/15/2019 11:44:30 AM
[World] Beyonce lost 20 pounds with a juice cleanse. Here are the pros and cons of the crash detox A juice cleanse is when people drink nothing but fresh vegetable and fruit juice medleys in an effort to detox their body and lose weight.
Published:2/15/2019 11:44:29 AM
[World] Lorena Bobbitt OK'd filmmakers' request to interview her ex, John: 'I know who he is' "Lorena," a four-episode docu-series hits Amazon Friday, and takes a deep dive into why Lorena Bobbitt infamously sliced off her husband’s member in 1993.
Published:2/15/2019 11:13:19 AM
[World] President Trump Salutes Angel Moms During Border Security-National Emergency Speech

Several Angel Moms -- parents who lost their children to illegal immigrant crime -- attended President Trump's address at the White House Rose Garden on Friday.

Published:2/15/2019 10:41:00 AM
[World] Wallace: Trump's Declaration of a National Emergency Will 'Play Well' With His Base

"Fox News Sunday" anchor Chris Wallace said President Trump's declaration of a national emergency at the southern border will "play well" with the president's base.

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[World] India promises retaliation after worst attack in Kashmir in three decades kills dozens Tensions are rising between nuclear-armed rivals India and Pakistan in the wake of the attack. Published:2/15/2019 10:10:54 AM
[World] The Wall Street Journal: Shopping with a credit card could soon get more expensive Visa and Mastercard are preparing to increase the feeds they charge merchants.
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[World] Abby Hornacek, Fox Nation, 5 Things You Didn’t Know

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Published:2/15/2019 9:41:14 AM
[World] Market Extra: Everything you need to know about market closures on Washington’s Birthday — the holiday you may know as Presidents Day U.S. financial markets will take a break on Monday in observance of Presidents Day.
Published:2/15/2019 9:41:13 AM
[World] Sean Hannity Fox Nation Monologue on Border Wall Construction, Trump National Emergency

On Fox Nation's "Hannity On Air," Sean Hannity predicted what will happen after President Trump declares a national emergency in order to fund his long-promised border wall.

Published:2/15/2019 9:11:36 AM
[World] Daniel Levy's first crush was ironically this 'Friends' star More than just good friends? "Schitt's Creek" star Dan Levy admits to a TV infatuation, while his dad, Eugene Levy, also had the hots for a small-screen star. (Feb. 15)
Published:2/15/2019 8:43:23 AM
[World] Project Syndicate: The global economy can make almost everything except enough good jobs Around the world today, the central challenge for achieving inclusive economic prosperity is the creation of sufficient numbers of “good jobs,” writes Dani Rodrik.
Published:2/15/2019 8:43:23 AM
[World] [David E. Bernstein] The Dangers of Government by Executive

The more a president governs unilaterally, the greater the stakes of every election, and that's a bad thing.

There are lots of things one could say about Trump's invocation of an emergency statute to "build the wall." Other commentators, including Ilya, have said most of them, so I'll refrain, but in short it's a terrible idea, and I hope the courts stop it.

I did want to add one additional consideration that goes beyond the issue of the wall and goes to the general issue of presidents acting unilaterally on significant, controversial issues, regardless of whether they have the technical legal authority under broad, vague, statutes.

During the Obama administration, defenders of presidential unilateralism argued vociferously that (a) the president was elected to get things accomplished; (b) Congress, via Republican majorities in the House, and later the House and Senate, was being obstructionist; and (c) therefore, the president was within his rights to use his full authority to govern unilaterally, even in the face of longstanding contrary norms. For example, Obama, like Trump, was stymied by Congress on his preferred immigration policy, so he used his broad statutory authority under the immigration laws to resolve the "Dreamer" issue indefinitely, using that authority far more broadly, more consequentially, and in more direct defiance of Congress than any president had previously.

As a constitutional matter, I think this argument and analogous arguments made (less coherently) by Trump administration defenders have things backwards. Congress and not the president is given the legislative power, so outside of certain military and foreign affairs matters it's Congress, not the president, that is elected to get things accomplished. So in any showdown between the president and Congress, if one party can be deemed obstructionist it's presumptively the president.

But my objections to presidential unilateralism go beyond the constitutional. In my view, historically one of the great advantages of living in the United States is that most people did not care about national politics nearly as much as in other countries. This had the advantages of not wasting people's time thinking about politics, allowing people of differing ideologies to get along, and just in general making life more pleasant by limiting the practical importance of elections.

Of course, a major reason people did not care about national politics that much, even if they had strong feelings about particular issues, is that the national government historically had relatively limited powers. But another reason, one that transcended the scope of federal power, was that it our Constitution makes radical change, or really any significant change, very difficult. You need to get a piece of legislation through each house of Congress (each of which has various internal rules that make it hard to do so) and then get the president to agree.

This obviously has its downsides, as it creates a huge status quo bias, and the status quo is often far from ideal. On the other hand, voters could be assured that whomever got elected, Republican or Democrat, major changes were unlikely. This was especially true because until recently, the parties were divided more on geography and the cultural background of their voters than on ideology.

Over the last forty years or so, however, the parties have become strongly divided ideologically, which by itself raises the stakes of national elections; electing a Republican will bring into government a very different group ideologically than electing a Democrat. Moreover, delegation of authority by Congress to agencies gives the president a fair amount of discretion to change policy through his appointments of executive officials.

Nevertheless, the stakes remain relatively limited so long as the president adheres to traditional norms and refrains from major policy innovations without going through Congress. Once the president instead chooses to in effect "legislate" on important matters unilaterally, the stakes get raised substantially, and the U.S. becomes more like parliamentary systems where every election seems like life or death to partisans, inevitably increasing societal tension over ideological and other differences.

So, constitutional structure aside, why is presidential unilateralism bad? Because our system was designed to make major shifts in government policy difficult, and that's a good thing because it lowers the stakes of politics. We had experience in 1861 with what happens when a significant part of the country believes that the national government has become arrayed against it, and it's not an experience we should want to repeat on any scale.

Published:2/15/2019 8:11:12 AM
[World] The Wall Street Journal: Spain to hold snap elections in April as Socialist PM can’t get support for budget Spanish Prime Minister Pedro Sánchez called snap general elections for late April, bringing the curtain down early on a short-lived government.
Published:2/15/2019 8:11:12 AM
[World] Rachel Campos-Duffy Hosts Revealing Sit-Down With Angel Families, Border Patrol Wives

On the new episode of "Moms" on Fox Nation, Carrie Utz told the tragic story of how her mother and godmother were killed by a hit-and-run driver who was in Arizona illegally.

Published:2/15/2019 7:45:59 AM
[World] Economic Report: Cost of imported goods fall 0.5% in January The cost of imported goods fell in January for the third month in a row, reflecting a broad easing of inflation in the U.S. that’s persuaded the Federal Reserve to stop raising interest rates.
Published:2/15/2019 7:45:57 AM
[World] The junk bond market has good things to say about the stock market Junk bonds, which tend to be a predictor for stocks, are at 52-week highs.
Published:2/15/2019 7:24:16 AM
[World] Currencies: Dollar index strengthens ahead of data, set for weekly rise The U.S. dollar edges higher Friday, ahead of economic data, and Congressional moves that appear set to avoid a partial government shutdown, with President Trump expected to declare a national emergency on border security.
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[World] Are Katy Perry and Orlando Bloom engaged? See her massive ring and Instagram post "full bloom," Katy Perry captioned an Instagram post in which she showed off a sparkly bauble. "Lifetimes" Orlando Bloom captioned the same pic.
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[World] Need to Know: Get used to wild swings for this stock market, and thank the Fed for that, says analyst Our call of the day, from Seema Shah, global investment strategist at Principal Global Investors, says get used data-driven volatility for stocks as the Fed leaves the market and investors hanging.
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[World] Live Blog Here is your live blog for the day. Published:2/15/2019 5:40:49 AM
[World] 'Hail no' and 'Hail yes' to the Redskins

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What the average taxpayer is likely to find out afterward is that building containment walls (on and off our southern border), designing plumbing and planning traffic patterns, and paying ... Published:2/14/2019 10:09:16 PM

[World] Parkland School Shooting Anniversary Andrew Pollack Speaks Out One Year Later

Andrew Pollack, father of Meadow Pollack, reflected on the year that has transpired since she was murdered in the mass shooting at Marjorie Stoneman Douglas High School in Parkland, Fla.

Published:2/14/2019 9:38:14 PM
[World] 30 years after the Soviets were driven from Afghanistan, Russia is selling it as a patriotic victory In 1989, Soviet leaders called the war ‘a political mistake.’ Now, Moscow is conducting a makeover.  Published:2/14/2019 9:38:14 PM
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[World] [Irina Manta] Libertarianism vs. Utilitarianism in Encouragement of Suicide

Guyora Binder and Luis Chiesa break it down, and some quibbles.

Following up on my post about the case of Michelle Carter who texted her boyfriend to kill himself, my colleague Brenner Fissell pointed me to to a new article by Guyora Binder and Luis Chiesa that deals with the issue of encouragement of suicide. In "The Puzzle of Inciting Suicide", they view the question of criminal liability in such situations as demonstrating a conflict between libertarian and utilitarian intuitions. Under a libertarian understanding, suicide is generally seen as an autonomous act whose encouragement should not be criminalized. Under utilitarianism, however, "inciting suicide seems well worthy of criminalization" because "[s]uicide is a serious public health problem."

They view the trial court decision in Commonwealth v. Carter as struggling with that tension and splitting the difference between not finding any liability (as per libertarianism) and finding Carter guilty of murder (under a utilitarian foreseeability theory) by declaring her guilty of involuntary manslaughter. Their account strikes me as plausible overall, and I recommend their article for its excellent overview of the history and case law in this area. Having recognized their significant contribution, I would like to point out two quibbles.

First, I am not sure I agree with their conclusion that the trial court

embraced the utilitarian foreseeability standard that now prevails in most American jurisdictions. In doing so, it rejected the more libertarian standard of causation that imposes responsibility for results of a wrongful act not followed by intervening voluntary action.

The trial court, as quoted by the Massachusetts Supreme Judicial Court, emphasized that the victim "breaks that chain of self-causation by exiting the vehicle". The SJC (whose opinion I understand was not out yet at the time of the publication of Binder and Chiesa's article) interpreted the trial court as follows:

[The trial court judge's] finding of causation in this context, at that precise moment in time, includes the concept of coercion, in the sense of overpowering the victim's will.

This actually strikes me as an attempt on the part of the trial court to explain the guilty finding in terms that Binder and Chiesa would deem libertarian rather than utilitarian as such. Indeed, an important part of my criticism of the trial court's conviction and SJC's upholding thereof is based on my questioning whether there truly was no intervening voluntary action on the part of the victim.

The SJC seems almost completely focused on causation rather than foreseeability, but causation played an important role for the trial court as well. These decisions suggest that the courts wanted to convince those with a more libertarian conception of suicide as well (despite my belief that this did not succeed in the end). Perhaps Binder and Chiesa will elucidate their understanding of the case further now that the SJC decision is out.

Second, I query whether the all-or-nothing hypothesis, whereby we must let Carter go free vs. convict her of a serious criminal offense, is quite so binary in reality. There are several tools both inside and outside the law at our disposal to punish Carter, potentially provide some recovery for the victim's family, and express societal disapproval of her conduct.

For one, this is the kind of scenario that may call for a tort remedy. For another, the story of this encouraged suicide will likely follow Carter on the Internet until the end of her days, creating negative repercussions for her professional and personal life. It therefore hardly seems the case that if the criminal law did not intervene here (as I suggested it indeed should not have), she would get away scot-free. I would have liked to see more discussion of these themes in Binder and Chiesa's otherwise excellent work.

Published:2/14/2019 9:38:13 PM
[World] If there's no movement on denuclearization in North Korea there would be far-reaching consequences

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[World] Ignoring America’s Abyss of Debt Congress has stared into it and realized it doesn't care. This latest budget is a travesty. Published:2/14/2019 9:38:12 PM
[World] Tomi Lahren Warns Trump Not to Sign Border Wall Compromise Bill

Tomi Lahren offered her "Final Thoughts" on Fox Nation in regard to the bipartisan border security compromise expected to hit President Trump's desk later this week.

Published:2/14/2019 2:27:21 AM
[World] Trump used an Iranian photographer’s work in an anti-Iran meme. She told him off. “But having president Trump use it without my permission in a tweet in Persian even is a great shame for me and causes me deep sorrow,” she wrote and said she took the photo in circumstances that were “very difficult.” Published:2/14/2019 2:27:20 AM
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[World] [Eugene Volokh] Los Angeles Demanding That City Contractors Disclose Ties to the NRA

But the new ordinance violates the First Amendment, because it tends to deter (and deliberately so) association with an advocacy group.

The ordinance, enacted yesterday, states:

Each [contract] Awarding Authority shall require that a Person fully disclose prior to entering into a Contract, all of its and its Subsidiaries' contracts with or Sponsorships of the NRA.

The disclosure required under this section shall continue throughout the term of the Contract, thereby obligating a Person to update its disclosure each time the Person or its Subsidiary contracts with or enters into a Sponsorship with the NRA.

And it makes clear that it is motivated by the NRA's political advocacy, as you can see from the recitals at the start of the ordinance (e.g., "the NRA leadership, with the financial support of its dues paying members, continues to lobby against gun safety regulations").

But the Supreme Court has made clear that the First Amendment generally bans (see O'Hare Truck Service, Inc. v. City of Northlake (1997)) the government from "retaliat[ing] against a contractor, or a regular provider of services, for the exercise of rights of political association"—precisely what the ordinance implicitly threatens.

And the Court has also made clear that compulsory disclosures of political association is also presumptively unconstitutional, precisely because they deter such association, see Shelton v. Tucker (1960), a case requiring such disclosures of schoolteachers:

Even if there were no disclosure to the general public, the pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy. Public exposure, bringing with it the possibility of public pressures upon school boards to discharge teachers who belong to unpopular or minority organizations, would simply operate to widen and aggravate the impairment of constitutional liberty.

That case involved government employees, but the logic of O'Hare, which applied government employee First Amendment precedents to government contractors, makes clear that it applies to government contractors, too.

So the ordinance violates the First Amendment just because of its disclosure requirement alone. And it also invites First Amendment discrimination lawsuits by individual contractors who are denied contracts after they disclose that they deal with the NRA, just as an employer's asking applicants to disclose their religion would invite religious discrimination lawsuits by applicants who aren't hired (and even in the absence of specific regulations barring such question).

Naturally, the same would be true if a city asked companies whether they do business with or sponsor the NAACP, the ACLU, or any other group because of the group's political advocacy. But note that this principle applies only when the disfavored groups are selected because of what they say or what laws they support; the analysis would be different if an ordinance focuses on nonspeech actions. Asking companies where they have any contracts for building a border wall, for instance, would not violate the First Amendment, because such building isn't protected by the First Amendment. (Some such queries might in some situations violate other rules, such as those related to federal preemption, but that's a separate matter.)

Published:2/14/2019 2:27:20 AM
[World] Unusual allies join to oppose the Equality Act that would redefine sex

Radical feminists and conservative intellectuals make odd bedfellows, and you wouldn't expect to find them in bed at The Heritage Foundation. But these are odd times. They're united in support of the untrendy idea that biology, not "cultural identity," defines sex.

"When Sally Became Harry" is a witty title for ... Published:2/14/2019 2:27:20 AM

[World] Where ‘Religious Freedom’ Means Avoiding a Bloodbath From Africa to India, persecution of the faithful is becoming common and our wars have only made it worse. Published:2/14/2019 2:27:19 AM
[World] This Is Us' Uncle Nicky Speaks: Griffin Dunne on That Intense Mandy Moore Scene and What's Next This Is UsThis Is Us added a new chapter to the already complicated saga of the Pearson family when they revealed exactly what happened with Uncle Nicky (younger version played by Michael Angarano) in...
Published:2/12/2019 9:26:16 PM
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