Eugene Volokh's Blog, page 151

[Josh Blackman] Article III Inverted: The Supreme Court Surrenders to Inferior Court Supremacy.

[Chief Justice Roberts and Justice Barrett are engaging in alternative dispute resolution, rather than constitutional adjudication.]

We often think of the Supreme Court as the apex institution. The Constitution called for the creation of the Supreme Court, but inferior courts were left to Congress's discretion. From early on in the Republic, it was understood that the Supreme Court, and not the lower courts, would have the final say on matters of national importance. Justice Jackson remarked "We are not final because we are infallible, but we are infallible only because we are final."

Yet, in recent weeks, there has been a change: District Court judges are in charge. In case after case, federal district court judges have issued a series of non-appealable orders, whether styled as "administrative stays" or temporary restraining orders. Courts of appeals have then declined to disturb those rulings, finding that TROs can only be challenged through mandamus, and administrative stays are unappealable altogether. At that point, the federal government is forced to run to the Supreme Court seeking emergency relief. And what has the Supreme Court done? They have kicked the issue back down to the lower court, hoping that someone else makes the tough decisions. Who is running the show here?

Jack Goldsmith calls these tactics "temporizing." That is, the Supreme Court is simply trying to bide its time to find other ways of resolving the issues. That may be right in the short run, but I think we are witnessing an inversion of Article III. The Supreme Court is no longer Supreme. Rather, the federal government is now subject to inferior court supremacy. Lower court judges are now confident they can issue any order they wish against the executive branch, and the Supreme Court will not stop them. This is the judiciary run amok.

At this point, Chief Justice Roberts and Justice Barrett are engaging in alternative dispute resolution. They are crafting these compromises to settle conflicts between the executive branch and the lower courts. They are avoiding important and foundational constitutional questions. Perhaps these delays can be chalked up to avoiding a "merits peek" on the emergency docket, but these are urgent constitutional issues that will not benefit from percolation. The Chief and Justice Barrett have been reduced to mere mediators. They are so focused on avoiding "red" or "blue" rulings and making them "purple," that they are not actually deciding the cases before them. Indeed, I am now more convinced the USAID case was an advisory opinion.

When I write that Justices should resign, I am not being a polemicist. I think they have lost their way as judges: decide the cases and let the political chips fall where they may.

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[Josh Blackman] Today in Supreme Court History: March 6, 1857

3/6/1857: Dred Scott v. Sandford decided.

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[Josh Blackman] Neutral Principles for the Emergency Docket

[The lower court, which are issuing unappealing rulings, are inverting the Article III hierarchy. This Inferior Court Supremacy cannot stand.]

In recent terms, several Justices have attempted to sketch standards for granting relief on the shadow docket. In Does v. Mills (2021), Justice Barrett and Kavanaugh focused on cert-worthiness as an important factor. But in Labrador v. Poe (2024), Justices Kavanaugh and Barrett focused on likelihood of success on the merits. These two tests are very much in tension. Department of States v. AIDS Vaccine Advocacy Coalition illustrates this tension.

In this dispute, the Trump Administration attempted to block the payment of certain foreign development assistance funds. The procedural posture of the case is complex. A federal district court issued a Temporary Restraining Order, which was in effect a mandatory injunction: the State Department had to pay out approximately $2 billion. On February 25, the district court ordered the government to pay funds for work that was already completed by February 26 at 11:59 p.m. Shortly before that deadline, Circuit Justice Roberts entered an administrative stay of the February 25 order. Roberts then referred the government's application to the full Court.

The application sat pending for seven days. On March 5, the Court vacated the Chief Justice's administrative stay. In other words, the Court denied the government's request for an administrative stay. The vote was 5-4. Chief Justice Roberts, and Justices Sotomayor, Kagan, Barrett and Jackson, were in the majority. Justice Alito dissented, joined by Justices Thomas, Gorsuch and Kavanaugh.

The Court offered only one sentence of reasoning to explain its actions:

Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.

This order took me some time to sort through.

First, as a general matter, if the Court vacates an administrative stay, the lower court order goes into effect immediately. The District Court order required the payment of these funds by February 26. That order went into effect as soon as the stay was vacated. The Court says that the "the deadline in the challenged order has now passed." That might be true, but it is irrelevant. If a court orders you to do something on Monday, and it is now Wednesday, it is true that the deadline has passed, but it also means that you are now in violation of a court order and can be held in contempt. An order doesn't cease to be in effect when the deadline passes. The order remains in effect unless an appellate court says otherwise. And the Supreme Court ultimately let the order go into effect. Sort of. The Court's one sentence of reasoning makes little sense.

Second, if the February 25 order is now in effect, why does the government not have to make the payments immediately? Because the Court said "the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order . . . ." In other words, the Supreme Court gave the District Court an assignment: the lower court should issue some sort of clarifying order about what funds are due. This order, if I can even call it an order, is perplexing. The Court denied the government's application. How can the Court grant any relief if it denied the government's application? The Supreme Court lacks any sort of free-floating, supervisory power over the lower courts. If it grants an application, under the All Writs Act, the Court can give instructions of how the lower court should proceed. But by denying the application, the Court has no power to act. This order is in keeping with Justice Barrett's opinion in San Francisco v. EPA, where she purported to dissent in part, but in fact dissented outright. The Court is engaging in shenanigans with how it describes its appellate jurisdiction.

Third, given that the Court denied the application, any discussion of the merits would be an advisory opinion. Yet the Court strongly hints that the lower court was wrong on the merits. "Clarifying" the obligations of the government is a nice way of saying the prior ruling was not quite clear enough. If the order against the government was insufficiently clear, the remedy would be to vacate the lower court opinion with instructions to clarify. (Then again, the Supreme Court "clarified" Bruen in Rahimi by partially overruling it, so words really have no meaning on the Roberts Court.) But the Supreme Court asked the District Court to clarify its ruling, without ordering it to do so. The Supreme Court cannot make suggestions. It can only issue orders. Again, these are shenanigans, designed to direct the lower court without actually granting the government's application.

I struggle with this ruling because there is no attempt, whatsoever, at a neutral principle. At this point, Chief Justice Roberts and Justice Barrett are just bailing out a sinking ship, trying to stay afloat long enough to avoid the next iceberg.

Justice Alito's dissent is one for the ages. When the current emergency docket madness is over--and it will come to an end sooner or later--we will look at Justice Alito's opinion as a turning point.

Justice Alito carefully walks through the standards for granting a stay--and those standards are amply satisfied.

First, there are very strong arguments that the Government will prevail on sovereign immunity grounds. Plaintiffs cannot simply sue the United States in federal court to seek payment of a contract. The Court of Federal Claims has specialized jurisdiction for these sorts of claims. Moreover, the District Court's order was palpably over-broad. The majority acknowledged that the lower court's edict should be "clarified." Again, an order that is valid does not need to be "clarified." All of the Justices, therefore, agreed that the District Court issued a ruling that likely would not be upheld on the merits. The "likelihood of success" prong is satisfied. So we do get a merits peek, even if the majority is playing peek-a-boo.

Second, the government has squarely shown that is likely to suffer irreparable harm. If the plaintiffs ultimately prevail, the government can always pay out the amounts owed, perhaps with interest. But once the government pays out the $2 billion, recovering that full amount will be nearly impossible. The equities here scream for a temporary stay.

Third, in a footnote, Justice Alito discussed Justice Barrett's Does v. Mills concurrence:

To the extent that likelihood of certiorari is a relevant factor, John Does 1–3 v. Mills, 595 U. S ___, ___ (2021) (BARRETT, J., concurring in the denial of application for injunctive relief) (slip op., at 1), it is met here.

Do you know why this standard is met? Because four justices would grant that stay. It takes four votes to grant cert. By definition, this case is cert-worthy. In Does v. Mills, there were three votes to grant the injunction. Justice Barrett could say the case was not cert-worthy because she did not vote to grant cert. But it was not hard to predict a 5-4 case on the emergency docket. Barrett's standard was always circular. In the USAID Case, where there are four votes to review, the problems with Barrett's standard becomes apparent.

From my perspective, the Court denied the stay only because Justice Barrett was willing to go along with the Chief Justice. Justice Barrett has signaled her discomfort with administrative stays before. But, she has not articulated any reason why relief was not appropriate here. Thus, there is an asymmetry. District Courts are issuing administrative stays of executive actions, appellate courts refuse to grant administrative stays of lower court rulings, and the Supreme Court simply sits on the sidelines.

The lower court, which are issuing unappealing rulings, are inverting the Article III hierarchy. This Inferior Court Supremacy, as I call it, cannot stand. More on that topic in another post.

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[Jonathan H. Adler] DC Circuit Allows Removal of Special Counsel Dellinger Pending Appeal

[For now, President Trump has removed Hampton Dellinger as head of the Office of Special Counsel.]

The U.S. Court of Appeals for the District of Columbia Circuit has granted the Trump Administration's emergency motion for a stay pending appeal in Dellinger v. Bessent, the case challenging President Trump's removal of Hampton Dellinger as the Special Counsel of the Office of Special Counsel. As the order notes:

This order gives effect to the removal of appellee from his position as Special Counsel of the U.S. Office of Special Counsel. Appellants have satisfied the stringent requirements for a stay pending appeal.

Earlier this month, a district court held that Dellinger's removal was unlawful, and the statutory provisions limiting removal were constitutional. I discussed that ruling here. This order suggests the D.C. Circuit may be skeptical of the lower court's conclusions (or perhaps just that the D.C. Circuit believes the justices will be).

The D.C. Circuit order was unanimous. The judges participating were Henderson, Millett, and Walker. The panel also ordered the case expedited, with briefing to conclude by April 11 and oral argument to be held "on the first appropriate date following the completion of briefing."

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[Jonathan H. Adler] Bagley and Bray on SCOTUS Denial of Stay in Department of State v. AIDS Vaccine Advocacy Coalition

[An exploration of some of the thorny issues that divided the Court.]

Over at the Divided Argument substack, Nicholas Bagley and Samuel Bray have a post, "Sovereign Immunity, Equity, and the USAID Temporary Restraining Order," exploring some of the procedural and doctrinal wrinkles that divided the justices in this morning's order in Department of State v. AIDS Vaccine Advocacy Coalition (which I discussed here). It is very worth the read.

Their first observation highlights why it is perilous to make sweeping conclusions about today's order and what it signifies about the court, the justices, or how pending and prospective litigation involving the Trump Administration will unfold.

The Chief Justice's administrative stay and the Court's denial of the application had the salutary effect of avoiding the Court being forced to decide—or to tip its hand about a decision regarding—some major legal questions. It would not be good, for example, for the Court to determine the interplay between sovereign immunity, equity, and the disbursement of federal funds on an application for a stay of an order enforcing a temporary restraining order. That emergency posture is not conducive to deliberate decisionmaking.

This does not mean that the dissenting justices did not have a point. To the contrary, Bagley and Bray note that many of Justice Alito's points are well taken, or at the very least raise significant concerns. Part of the problem is that it is not clear how courts should handle some of these questions in the context of requests for emergency relief. As they conclude the post: "The difficulty of these questions confirms the wisdom of not trying to resolve them on an emergency stay of an order enforcing a temporary restraining order."

A few other points from Bagley and Bray I thought worth highlighting:

One issue at the heart of these various requests for emergency orders is what their purpose is. Is it primarily to preserve the efficacy of the court's ultimate remedial options, or is to accelerate the decision of the case? That matters for how central the merits should be in the analysis at each stage of the case.

And:

The jurisdictional fight at the heart of the case—is this a routine APA suit or is it a claim for "money damages" under the Tucker Act?—will likely prove quite consequential. If it's an APA suit, an order setting aside the funding freeze as to the parties may well be appropriate, perhaps backed up by an injunction if the Trump administration is recalcitrant. The courts have made a practice of entering preliminary injunctive relief in anticipation of such an outcome (though we doubt that practice is sound). If it's a Tucker Act suit, in contrast, the relief will be money damages down the line, and immediate injunctive relief is probably off the table. The eventual resolution of the jurisdictional question may, indirectly, supply a gauge of the Supreme Court's willingness to police President Trump's assertion of authority to impound appropriated funds.

There's more where this came from, so if this is an issue that interests you, as they say, "read the whole thing."

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[Eugene Volokh] School District Can't "Prohibit All [Parents'] Speech on School Property That It Finds 'Offensive or Inappropriate'"

An excerpt from the 11,000-word opinion in Hartzell v. Marana Unified School Dist., decided today by Ninth Circuit Judge Milan Smith, joined by Judges Wallace Tashima and Bridget Bade:

Following an incident on February 7, 2020, at Dove Mountain K-CSTEM school (Dove Mountain), Plaintiff-Appellant Rebecca Hartzell was banned from the school premises. Hartzell claims that she was banned from the school in retaliation for her protected speech. Defendants-Appellees, the Marana Unified School District (the District) and Andrea Divijak, the principal at Dove Mountain, assert that Hartzell was banned because of her conduct; specifically, they allege that Hartzell assaulted Divijak….

Hartzell is the parent of eight school-aged children, five of whom attended Dove Mountain during the 2019–20 school year. Divijak was serving as the principal of Dove Mountain at that time. In August 2019, the District opened Dove Mountain, a new kindergarten through eighth grade school. Dove Mountain is a part of and run by the District….

Hartzell has a master's degree in special education and a doctorate focusing on applied behavioral analysis and autism. She also became an associate professor of practice at the University of Arizona, and a director of the master's program in applied behavioral analysis at that institution….

On February 7, 2020, Dove Mountain hosted an event where students presented projects they had been working on for a few months. Two of Hartzell's children were scheduled to present in different rooms simultaneously. While attending the event, Hartzell saw Divijak in a classroom and approached her. Hartzell was accompanied by one of her children, who attended preschool at Dove Mountain. No other children were present.

Hartzell "sarcastically" thanked Divijak for "making [her] choose which kid [she was] going to support again today." Hartzell testified that she began to walk away, but Divijak responded that she was "sorry that [Hartzell was] just never happy." Hartzell testified that she turned back around and explained her proposed solution to the scheduling conflicts.

According to Hartzell, Divijak refused to speak with her further and began to walk away while Hartzell was speaking. Hartzell says she responded that it seemed she and Divijak were never able to have a conversation. However, Hartzell denies doing anything to stop Divijak from walking away and specifically denies grabbing Divijak's wrist. Even so, Hartzell acknowledges that she accidentally touched Divijak's arm as she walked by and that she said "stop, I'm talking to you." Hartzell recalls that Divijak shouted, "Don't touch me." Hartzell testified that Divijak continued walking away and that Hartzell said, "Forget it. I'll just contact the District."

After her interaction with Divijak, Hartzell went to the room where one of her daughters was giving a presentation. Hartzell testified that she was approached by a hall monitor, who ordered Hartzell to leave immediately, informed her that the police would be called if she did not leave, and escorted her out of the building. Hartzell went to the parking lot and was approached by Marana Police Department Officer Jerry Ysaguirre.

According to Ysaguirre, Hartzell admitted placing her hand on top of Divijak's wrist to stop her so they could continue speaking. Hartzell said she immediately regretted this action and removed her hand. Hartzell insisted to Ysaguirre that she never grabbed Divijak's wrist.

Ysaguirre advised Hartzell about the procedures for investigating "an assault" involving a teacher. He told her that she was "trespassed from" the entire school property and that, while her children could continue to attend Dove Mountain, Hartzell could not enter school property and would have to arrange for someone else to drop off and pick up her children. Ysaguirre explained that Hartzell could be arrested for trespassing if she returned. Ysaguirre told Hartzell that the order would remain in effect until the District decided otherwise….

On March 30, 2020, the state filed misdemeanor assault charges against Hartzell in Marana Municipal Court for "knowingly touching another person with the intent to injury, insult of provoke such person," in violation of At the request of the town prosecutor, the charges were dismissed on September 22, 2020….

Hartzell sued, among other things arguing that she was excluded under "District Policy KFA," and that this policy is unconstitutional. The court allowed this case to go forward:

District Policy KFA … prohibits "[a]ny conduct intended to obstruct, disrupt, or interfere with" a school's operations, "[p]hysical or verbal abuse or threat of harm to any person on property owned or controlled by the District," and "[u]se of speech or language that is offensive or inappropriate to the limited forum of the public school educational environment." The policy provides that "[a]ny member of the general public considered by the Superintendent, or a person authorized by the Superintendent, to be in violation of these rules shall be instructed to leave the property of the District," and that "[f]ailure to obey the instruction may subject the person to criminal proceedings pursuant to A.R.S. 13-2911 [for trespassing.]" …

Policy KFA defines "interfer[ing] with or disrupt[ing]" an educational institution to include, among other things, "[u]se of speech or language that is offensive or inappropriate to the limited forum of the public school educational environment." "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Because Policy KFA allows the District to prohibit speech that it finds "offensive or inappropriate," it runs afoul of this principle.

The District defends Policy KFA by arguing that schools nevertheless have substantial authority to regulate speech on school grounds. It is certainly true that "courts must apply the First Amendment 'in light of the special characteristics of the school environment.'"Even so, for "school officials to justify prohibition of a particular expression of opinion, [they] must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." "Certainly where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained."

Here, the District has failed to make this showing. First, Hartzell proffered testimony that she did not grab Divijak's arm, but merely accidentally touched Divijak's arm as she walked by. A reasonable jury could infer from this testimony that Hartzell was banned for her speech during her encounter with Divijak as opposed to any physical contact. "'[P]ure speech' … is entitled to comprehensive protection under the First Amendment."

Second, the District's interest in disciplining and protecting students was not in play. The speaker was a parent rather than a student, the parent was speaking to another adult, and the only child within earshot was the speaker's own. On these facts, the District does not have a special interest in regulating speech because it is not standing "in the place of parents," as sometimes occurs when regulating student speech.

Third, to be sure, schools have "an interest in protecting minors from exposure to vulgar and offensive spoken language." But although Hartzell's speech was critical and sarcastic, it was not vulgar or lewd like the speech described in Bethel. Bethel also recognized a school's interest in "prohibit[ing] the use of vulgar and offensive terms in public discourse." However, unlike a "school assembly or a classroom" with an "unsuspecting audience of … students," the need to teach students the "appropriate form of civil discourse" does not arise when the speech at issue is made by a parent to an administrator outside of the presence of students except for the parent's child….

Finally, although Hartzell's speech occurred on school property, Hartzell had been invited to attend the presentations of her children, and Divijak had been speaking with other parents. In that context, it was not disruptive or intrusive for Hartzell to approach Divijak and express concerns related to her children's education.

The District cannot constitutionally prohibit all speech on school property that it finds "offensive or inappropriate." Nor can the District prohibit that speech simply by defining it as disruptive or intrusive. Clearly, the District can prohibit offensive or inappropriate speech if it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school[.]" Although "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression," "facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities" could be different. Such facts are not present here.

As a result, the provision of Policy KFA barring "speech … that is offensive or inappropriate" is unconstitutional if the District applied it to ban Hartzell because of her criticism of Divijak….

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[Josh Blackman] See, I Told You So

One of my many thankless tasks is to criticize conservatives. In many regards, this work is more unpleasant than criticizing liberals. When I talk about people on the left, the blowback is predictable: liberals call me a partisan hack, while conservatives support me, or at least silent. But when I talk about people on the right, conservatives attack me as a turncoat, while liberals hold me up as a token to attack those they despite. Like I said, the task is thankless. At times, I feel like Cassandra: I saw troubles long ago, but others wouldn't listen. Now, they're listening.

With each passing day, Justice Barrett is demonstrating why she had no business being appointed to the Supreme Court. Indeed, she should have never been put on the "short list" before she decided a single case. And I'm not sure why she leapfrogged over so many other qualified candidates in Indiana for the Seventh Circuit seat. Justice Kavanaugh was described as the most qualified Supreme Court nominee in modern history. Justice Barrett, by that standard, would be the least qualified Supreme Court nominee in modern history. Everything is laid out here. If the goal was to give Chief Justice Roberts a wing-woman, mission accomplished.

There is a constant drumbeat urging Justice Thomas and Justice Alito to retire. I think those calls are unlikely to succeed for many reasons, but also they are misguided. Thomas and Alito are still making important jurisprudential contributions to the Court. By contrast, Justice Barrett is not. I struggle to count five Barrett opinions that are noteworthy. And when Barrett casts an important vote, her actual bottom line is murky. We saw this in the Trump immunity case, yesterday in San Francisco v. EPA, and in today's USAID ruling (more on that confusing case later). Justice Barrett tells us to read the opinion, but when we read what she writes, we are left confused.

I'll lay down the marker. I think Justice Barrett should step down. I don't think she actually enjoys this job. I can't imagine her family actually prefers the swamp over South Bend. I don't think she enjoys being the focus of the political storm. And I am fairly confident she does not like President Trump. Look at this video! Justice Alito learned his lesson about making facial expressions at the Joint Session, but Justice Barrett has not.

Maybe Amy Coney Barrett does have a soul pic.twitter.com/kICrskHf8c

— ian (@Boatstory1) March 5, 2025

The next four years will be a never-ending series of balancing acts to avoid ruling for Trump. And to what end?

And if Barrett steps down and is replaced by someone in the mold of Justice Thomas or Alito, then Chief Justice Roberts will be sidelined for the foreseeable future. His shenanigans only work when he has a fifth vote. Roberts may see fit to step down as well. I don't think he really wants to be here either. Look at how quickly he scurried away after Trump talked to him.

"Thank you again. Thank you again. Won't forget," President Trump says as he shakes the hand of Supreme Court Justice John Roberts. pic.twitter.com/uFrvem6rUj

— Tom Dreisbach (@TomDreisbach) March 5, 2025

Cue the howls. I'm used to it.

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[Eugene Volokh] Phoenix March 13 with Arizona Supreme Court Justice Clint Bolick

I'm much looking forward to this program on free speech Thursday, March 13 at 6 pm in Phoenix, particularly because I've long so admired Justice Bolick. I first met him when I was a law student, and he had just recently before cofounded the Institute for Justice; he went on to become one of the leading libertarian lawyers in the country.

Since joining the bench, he has become one of the leading proponents of state courts interpreting their state constitutions differently (and often more broadly) than the U.S. Supreme Court has interpreted the federal Constitution. (They are, after all, often worded quite differently.) He's an excellent and creative legal thinker, and it's always a pleasure to have a conversation with him. If any of you are around Phoenix then, and are inclined to join us, it would be great to see you there.

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[Eugene Volokh] Tort Law vs. Privacy: Ride-Share Services May Have Duty to Prevent Anonymous Riders

[So the Missouri Court of Appeals concludes, in allowing a negligence/design defect case to proceed against Lyft, based on a driver's having been murdered by riders who ]

Yesterday's Missouri Court of Appeals decision in Ameer v. Lyft, Inc. reversed a grant for summary judgment for Lyft, allowing plaintiff's claim to go forward on products liability and negligence theories; here's part of the analysis (from Judge Robert Clayton, joined by Judge Michael Wright and, as to the negligence claim, Judge John Torbitzky). The trial court granted summary judgment from Lyft, but the appellate court reversed, reasoning (in part) that Lyft's allowing people to "fraudulently and anonymously request[]" a ride may be legally actionable. Lyft "purportedly failed to contain multiple protections for its drivers including," among other things, "adequate data verification technology pertaining to a passenger's age, identity, or violent propensity":

Plaintiff avers Lyft implemented measures in states other than Missouri requiring purported passengers using the Lyft App with an anonymous form of payment "to provide a driver's license, state ID, or another type of document that shows their name or mailing address," allowing Lyft to discover that a "fictitious person who set up the Lyft account d[oes] not exist[ ] and that the form of payment [i]s unverified." Notably, to allow Lyft to be foreclosed from liability in Missouri for omissions in the design of the Lyft App which were allegedly implemented in other states would incentivize Lyft and other mobile application developers to: (1) not put protections in place for Lyft drivers and customers in Missouri; and (2) eliminate protections for its users in other states….

Plaintiff's petition specifically avers Lyft implemented measures in its App in other states requiring purported passengers using a Lyft account with an anonymous form of payment "to provide a driver's license, state ID, or another type of document that shows their name or mailing address," allowing Lyft to discover that a "fictitious person who set up the Lyft account d[oes] not exist[ ] and that the form of payment [i]s unverified" ….

Plaintiff's petition sufficiently alleges Lyft should have realized through special facts within its knowledge that its omissions exposed Plaintiff's Son to an unreasonable risk of harm through the conduct of third parties, like Son's perpetrators, who were able to use the Lyft App to fraudulently and anonymously request a ride.

I'd love to hear what people think about this, and the broader pressure that negligence law (and, relatedly, product design defect law) imposes on companies to forbid anonymous uses. I wrote about this back in 2014, in Tort Law vs. Privacy, but of course surveillance and identification technology has improved markedly since then, which suggests that tort law may impose yet more pressure to use it.

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[David Bernstein] The Supreme Court's Mysterious 1920s Due Process Education Trilogy

[My new article is available on SSRN]

You can download it at this link.

Abstract:

The Supreme Court's 1920s Education Trilogy cases–Meyer v. Nebraska, Pierce v. Society of Sisters, and Farrington v. Tokushige–were important milestones in American constitutional history.

These decisions protected private schools, religious and otherwise, from the threat of closure in many states. This preserved educational freedom for parents who preferred private education for their children.

As a constitutional matter, the Trilogy became the foundation of a due process jurisprudence that moved beyond liberty of contract, property rights, and police power considerations to a broader protection of fundamental rights.

This Article describes external forces that may have motivated this shift—revulsion at the Ku Klux Klan, backlash against Progressive statism of the sort that demanded the closure of private schools, and the Justices' need to cultivate political allies among ethnic and religious minority populations.

This Article also reviews the idiosyncratic biographical factors that may have led Justice Brandeis to join the majority in Meyer. Brandeis' vote with the majority helped preserve the Education Trilogy cases as precedents that later generations of liberal Justices felt comfortable relying upon.

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