Eugene Volokh's Blog, page 197

[Josh Blackman] Today in Supreme Court History: December 31, 1884

12/31/1884: Justice Stanley Forman Reed's birthday.

Justice Stanley Forman Reed

 

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[Eugene Volokh] Monday Open Thread

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[Josh Blackman] Jack Smith Withdraws From Florida Case, Refers Case to U.S. Attorney for Southern District of Florida

A few moments ago, Jack Smith and his co-counsel filed a motion to withdraw from the Florida case:

Pursuant to Federal Rule of Appellate Procedure 27 and Eleventh Circuit Rule 27-1, the United States of America moves to withdraw from this case the following attorneys: Jay I. Bratt, David V. Harbach, II, James I. Pearce, John M. Pellettieri, and Cecil W. VanDevender. Those attorneys are associated with the Special Counsel's Office, which initiated the criminal prosecution from which this appeal arose. The Special Counsel has now referred this case to the United States Attorney's Office for the Southern District of Florida, which has separately entered an appearance.

The motion did not state whether the defendants oppose the withdrawal.

The U.S. Attorney for the Southern District of Florida has made an appearance.

This move was expected. Smith has already announced that he would no longer prosecute President Elect Trump, based on the Department's reading of the policy against prosecuting the sitting President. However, Smith has left open the possibility that the other two defendants can still be prosecuted. And it seems the U.S. Attorney will cary those prosecutions forward. One would expect that President Trump will promptly pardon both defendants, so this case may not go very far.

Of course, the indictment was secured by Jack Smith. If he was not properly appointed to his position, and lacked the authority to obtain a criminal indictment, then there may still be a constitutional problem. And referring the case to the U.S. Attorney may not cure that problem. Seth and I have addressed this issue before, and we may do so again.

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[Eugene Volokh] Aggregate Two-Party House of Representatives Vote Was 51.36% Republican, Yielding 50.57% of House Seats

This suggests that, whatever one thinks of gerrymandering and of geographic representation (as opposed to proportional representation), they didn't seem to have a particularly distortive effect on this year's race. (For the aggregate House vote totals, I'm looking at the Cook Political Report totals.)

As it happens, I don't much like gerrymandering, though I'm not sure what the optimal solution to it would be. (I'm not sure what I think on balance of geographic vs. proportional representation, if we were redesigning our political system from scratch.) I also appreciate that it's possible that, under some fair systems of district drawing, the 51.36% Republican vote would cash out into a minority in the House, while under other fair systems it would cash out into an even bigger majority. But I think these numbers should put into proportion arguments that Republican control of the House is the fault of "unfair maps."

Thanks to Richard Winger (Ballot Access News) for pointing this out. (His aggregate numbers are slightly different from the Cook Political Report's, but only slightly.)

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[Josh Blackman] Can SCOTUS Issue An Administrative Injunction In the TikTok Case To Preserve The Status Quo?

Yesterday, I wrote about President-Elect Trump's brief in the TikTok case, which urged the Court to "grant a stay to preserve the status quo in a case that presents novel." Trump is not actually asking for a stay. A stay is used to put on hold a lower-court injunction. In this case, the D.C. Circuit declined to enjoin the statute. Rather, Trump is seeking some sort of injunction to provide more time for negotiations. In my post, I speculated what this sort of injunction would even look like. Would it last for a specific number of days, or could the Court issue an injunction indefinitely? Implicit in my suggestions was that the Court would issue such an injunction, without regard to the merits. In other words, this order would not turn on whether the statute violates the First Amendment.

Steve Vladeck writes that the Court could not issue an injunction without opining on the merits:

The first is that it's asking the Court to do something that the Court … has no power to do. Without at least some view as to the constitutionality of the statute, there's no basis for the Court to do anything to prevent the statute's operative provisions from going into effect on January 19. . . .

The Court has no authority to block the statute solely because something that might happen on some un-specific future date could moot the constitutional questions it presents. Its authority depends upon at least an interim determination that the statute is unconstitutional. To argue for a pause without any constitutional determination is not merely to inject politics into a legal dispute; it's to ask for the law to take a backseat to the politics altogether.

It is common enough for the Supreme Court, as well as lower courts, to enter administrative stays on the emergency docket. In the usual course, a district court enters some sort of injunction in a complex case. The appellate court, or the Supreme Court, receives an emergency motion for a stay. Without making any determination on the merits, the appellate court then enters an "administrative stay" for some limited period of time. These stays are issued without regard to the merits. Rather, they are usually justified on the grounds that the Court simply needs more time to grapple with a complex case. The stay has the effect of preserving the status quo, while an opinion is crafted, or at least while a majority is cobbled together.

To be sure, these administrative stays--especially in the Fifth Circuit--have been subject to some criticism from Justice Barrett and others. But the Court does use them. And the Court has extended these administrative stays for no other apparent reason than the Justices needed more time.

This is a slightly unusual case where Congress tries to shut down a business that has been in existence for several years. It is often unclear what exactly is the status quo. But I think most people would agree that the law going into effect on January 19 would disrupt the status quo.

If the Court can issue an administrative stay to preserve the status quo, why not issue an administrative injunction to preserve the status quo? The duration of that administrative injunction would be time-limited to facilitate the writing of a majority opinion, or to allow the political process to work its way through things. I can't think of an example when this has been done before, but I don't know any obvious reason why the Court could not do so.

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[Eugene Volokh] "Thumbs-Up Emoji Formed Binding Sales Contract in Canada"

Prof. Eric Goldman (Technology & Marketing Law Blog) has the details; an excerpt from the majority opinion that Prof. Goldman highlights:

[H]uman communication is often subtle. Words, phrases, gestures and symbols may carry more than one meaning. All of this gives rise to the potential for ambiguity and uncertainty and, indeed, litigation. The law has long accommodated for this, and courts are often called upon to determine the legal import of a multitude of communication types between individuals. The fact that, in this case, one part of the communication comprised an emoji simply provides a modern twist to this otherwise rather unremarkable observation.

There's much more in Prof. Goldman's post.

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[Eugene Volokh] Second Circuit Panel Upholds E. Jean Carroll's $5M Win Against Donald Trump as to 1996 Sexual Abuse and 2022 Defamation

The short introduction from the 17,000-word Carroll v. Trump, decided today by Second Circuit Judges Denny Chin, Susan Carney, and Myrna Pérez:

In this case, after a nine-day trial, a jury found that plaintiff-appellee E. Jean Carroll was sexually abused by defendant-appellant Donald J. Trump at the Bergdorf Goodman department store in Manhattan in 1996. The jury also found that Mr. Trump defamed her in statements he made in 2022. The jury awarded Ms. Carroll a total of $5 million in compensatory and punitive damages.

Mr. Trump now appeals, contending that the district court (Lewis A. Kaplan, Judge) erred in several of its evidentiary rulings. These include its decisions to admit the testimony of two women {Jessica Leeds and Natasha Stoynoff} who alleged that Mr. Trump sexually assaulted them in the past and to admit a recording of part of a 2005 conversation in which Mr. Trump described to another man how he kissed and grabbed women without first obtaining their consent. Mr. Trump contends that these and other asserted errors entitle him to a new trial.  {[As to those other errors], Mr. Trump argues that the district court unreasonably restricted his defense by precluding (1) evidence that some of Ms. Carroll's legal fees were being paid for by one of Mr. Trump's political opponents and (2) portions of a transcript made by Ms. Carroll of a 2020 interview between Ms. Carroll and Ms. Stoynoff that, Mr. Trump argues, suggests that Ms. Carroll coached Ms. Stoynoff on her testimony. Mr. Trump also asserts that the district court erred in preventing him from cross-examining Ms. Carroll on three matters: her out-of-court claim that she possessed Mr. Trump's DNA; her decision not to file a police report; and her failure to seek surveillance video footage from Bergdorf Goodman.}

On review for abuse of discretion, we conclude that Mr. Trump has not demonstrated that the district court erred in any of the challenged rulings. Further, he has not carried his burden to show that any claimed error or combination of claimed errors affected his substantial rights as required to warrant a new trial….

I have little to say about the substance of the analysis, since it has to do with evidentiary issues that I generally don't follow; the opinion is available here, and is generally quite readable. (No part of the opinion deals with the substantive law of libel, which I do follow.) But here's what struck me as an interesting and relatively self-contained analysis as to the litigation funding question:

The facts established during the ensuing discovery confirmed that Ms. Carroll's case was taken on a contingency fee basis, and that, in September 2020, Ms. Carroll's counsel received outside funding from a nonprofit to help offset costs. There was no evidence to suggest that Ms. Carroll was personally involved in securing the funding, interacted with the funder, received an invoice showing the arrangement before or after her counsel received the outside funding, or had discussed the arrangement with anyone between learning of it in September 2020 and being deposed in October 2022.

Upon consideration of this evidence, the district court granted Ms. Carroll's motion to preclude evidence and argument about the litigation funding in the case. The district court concluded:

In general, litigation funding is not relevant. Here I allowed very limited discovery against what seemed to me a remote but plausible argument that maybe something to do with litigation funding arguably was relevant to the credibility of one or two answers by this witness in her deposition. I gave the defense an additional deposition of the plaintiff, and I gave the defense limited document discovery.

On the basis of all that, I have concluded that there is virtually nothing there as to credibility. And even if there were, the unfair prejudicial effect of going into the subject would very substantially outweigh any probative value whatsoever.

We perceive no abuse of discretion here.

First, district courts regularly exclude evidence of litigation financing …, finding it "irrelevant to credibility" and that it "does not assist the factfinder in determining whether or not the witness is telling the truth."

Second, the district court did not abuse its discretion in precluding cross-examination on this point because, as the district court found, Ms. Carroll's prior statement on the litigation funding was not sufficiently probative of her credibility. Ms. Carroll plausibly represented that she had forgotten about the limited outside funding counsel obtained in September 2020 when this question was first posed to her in 2022, and the additional discovery did not indicate otherwise. Rather, it showed that Ms. Carroll simply was not involved in the matter of who was or was not funding her litigation costs. Ms. Carroll testified that, after her counsel informed her in September 2020 that they had received some outside funding, she did not speak with her counsel about this topic again until the spring of 2023 and did not even know the funder's political position or why they were partially funding her lawsuit.

Therefore, by the time of her deposition in October 2022, Ms. Carroll had not spoken with her counsel about the matter of outside funding for over two years. It was not an abuse of the district court's discretion to conclude that the available litigation-funding evidence would have little probative value compared to its potential for unfair prejudice….

For similar reasons, we conclude that extrinsic evidence of the litigation funding had minimal, if any, probative value on the issue of Ms. Carroll's bias and motive….

To the extent Mr. Trump argues that the acceptance of outside funding goes toward Ms. Carroll's motive in lodging these allegations at Mr. Trump, the discovery also confirmed that Ms. Carroll publicly accused Mr. Trump of sexual assault over a year before the outside litigation funding was secured. Moreover, whether the outside funder was politically opposed to Mr. Trump was of little probative value because Ms. Carroll herself frankly admitted her political opposition to Mr. Trump, and her key witnesses testified to their opposition as well. On multiple occasions, defense counsel was able to bring out the political opposition and distaste for Mr. Trump held by Ms. Carroll and her witnesses.

{Mr. Trump separately argues that the district court also "improperly restricted questioning and argument regarding [an attorney, George] Conway." Ms. Carroll testified at trial that about one month after she publicly accused Mr. Trump of sexually assaulting her, she attended a party where she met a lawyer named George Conway. Mr. Conway encouraged Ms. Carroll to seriously consider filing a lawsuit against Mr. Trump. The district court sustained an objection to portions of Mr. Trump's opening statement that concerned Mr. Conway on the ground that counsel was impermissibly arguing to the jury that Mr. Conway had recommended Ms. Carroll's counsel.

Even if Mr. Conway's conversation with Ms. Carroll was somehow probative of bias, we find no error in the district court's ruling. Argument related to Ms. Carroll's choice of counsel had been ruled inadmissible pursuant to Ms. Carroll's unopposed motion in limine. Further, contrary to Mr. Trump's representation on appeal, defense counsel was permitted to meaningfully cross-examine Ms. Carroll about Mr. Conway. Ms. Carroll acknowledged that Mr. Conway had encouraged her to file the lawsuit, and defense counsel was able to argue these facts to the jury during summation.}

In light of the minimal probative value of the evidence, we conclude that the district court did not abuse its discretion in excluding it under Rule 403 [which provides that "a court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence"].

Roberta A. Kaplan and Matthew J. Craig (Kaplan Martin LLP) and Joshua Matz and Kate Harris (Hecker Fink LLP) represent Carroll.

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[Eugene Volokh] Seemingly Final Election Totals: Harris 75M, Trump 77.3M, Stein 878K, Kennedy 756K, Oliver 650K

This is from David Leip's U.S. Election Atlas; other sources have slightly different numbers, but not by much (especially as to the two major candidates). This is about 1M less than I expected (on Nov. 11) for Harris and Trump, estimating based on the then-far-from-complete totals; and it shows that Harris received 6.3M fewer votes than Biden's 81.3M in 2020, and Trump got 3M more than he did in 2020. (Final turnout was 155.5M this year, down from 158.4M in 2020, and the third party vote was up slightly.)

Also making an appearance: Lucifer Everylove with 2.5K, and Vermin Supreme with 1K, among others.

In any event, though, it's a reminder of just how many votes were excluded from the election night results (when Harris had 67M and Trump 72M), and how it's a mistake to compare the election night far-from-final totals for one election with the final totals from previous elections. It's also a reminder that, so long as heavily Democrat-voting California is one of the few very slow-counting states, the election night results will tend to underestimate the Democratic vote more than they underestimate the Republican.

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[Jonathan H. Adler] The Socio-Economic Backgrounds of American Academics

Does an individual's socio-economic background affect their likelihood of success in academia or their field of study? It certainly might.

A new study, "Climbing the Ivory Tower: How Socio-Economic Background Shapes Academia," by Ran Abramitzky, Lena Greska, Santiago Pérez, Joseph Price, Carlo Schwarz, and Fabian Waldinger, casts some light on this subject. Here's the abstract:

We explore how socio-economic background shapes academia, collecting the largest dataset of U.S. academics' backgrounds and research output. Individuals from poorer backgrounds have been severely underrepresented for seven decades, especially in humanities and elite universities. Father's occupation predicts professors' discipline choice and, thus, the direction of research. While we find no differences in the average number of publications, academics from poorer backgrounds are both more likely to not publish and to have outstanding publication records. Academics from poorer backgrounds introduce more novel scientific concepts, but are less likely to receive recognition, as measured by citations, Nobel Prize nominations, and awards.

And from the body of the paper:

While individuals from higher socio-economic backgrounds are overrepresented in all disciplines, there are large differences across disciplines (Figure 7). Agriculture, veterinary medicine, pedagogy, sociology, and pharmaceutics are the disciplines with the highest representation of individuals from lower socio-economic backgrounds. In contrast, the humanities, archaeology, architecture, cultural studies, medicine, anthropology, and law have the lowest representation.24 Contrary to the common perception of economists, economics is more representative than the median discipline.

Peter Boettke comments: "This might actually explain a lot about how we should think about the two cultures thesis of CP Snow for our era."

UPDATE: It is worth noting that the study is based on those who entered academia between 1900 and 1969. While this facilitates some aspects of the authors' inquiry, it also justifies caution. What was true about 20th century academics may or may not be true today.

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[Eugene Volokh] Plaintiff "Took Thousands of Photographs and Videos of Many of Her Coworkers Without Their Permission"

From Thursday's decision by Judge Lee Rosenthal (S.D. Tex.) in Berry v. City of Houston:

[T]aking the disputed facts in the light most favorable to Ms. Berry, summary judgment is nonetheless appropriate. The facts show a temporary employee who created, and received, workplace friction and unpleasantness, but not based on unconstitutional grounds. The facts do not permit an inference that there was discrimination or harassment based on animosity to the employee's national origin [Egyptian] or religion [Muslim], or in retaliation for her complaints….

Ms. Berry first reported that she felt she was treated discriminatorily in May 2022. In an email to Ms. Ikpeme, followed by emails to Ms. Brownlow and Ms. Johnson, Ms. Berry complained that she had "experienced … Humiliation and Mobbing at work" by a group of other employees who came in and left at the same time she did, and who parked in the same parking garage, near her parking place. She also complained that Ms. Ikpeme had talked to her at a lunch once about Jesus, including stating that those who do not believe in Jesus are "lost."

The day after Ms. Berry sent the emails to Ms. Brownlow and Ms. Johnson, they convened a meeting between Ms. Berry and Ms. Ikpeme. Ms. Ikpeme agreed not to discuss religion with Ms. Berry, and it did not happen again. It is unclear what was discussed about Ms. Berry's belief that a group of coworkers who arrived at and left work from the same parking garage at the same times as Ms. Berry were "mobbing" her. Berry did not tell Ms. Brownlow or Ms. Johnson that this was based on her religion or national origin….

Before, during, and after these events, Ms. Berry described a series of events in sinister terms. For example, in June 2021, Ms. Ikpeme asked Ms. Berry for a copy of her driver's license and names of family members. Ms. Berry described this as a "trespass on Berry's personal information." When Ms. Berry's job was extended past the originally anticipated end date, Ms. Ikpeme reminded her that the job was temporary, which Ms. Berry viewed as inappropriate. Ms. Johnson and Ms. Ikpeme tried to have Ms. Berry sign an acknowledgment of temporary employment, which Ms. Berry refused to do because she insisted that she had the status of a protected civil servant. She did not….

When Ms. Berry changed her work arrival time by 30 minutes to avoid walking to and from the parking garage with a group of people, she encountered another group of people walking to and from the garage. She believed that because this group was arriving and leaving work at the same time she was, she was being followed and harassed, and began taking pictures of the other employees. She continued to report to Ms. Ikpeme and Ms. Johnson that she was being "mobbed" on her way to and from the parking garage. When a coworker who Ms. Berry believed was "often hovering" over her shoulder commented on a computer course she was taking, she reported him. When that same coworker came into the filing room where she worked and "hit" the back of her chair with her arm, she reported him; that employee was reprimanded and moved to another area.

In short, Ms. Berry complained about even the slightest workplace interactions with other employees and took offense at innocuous and mundane occurrences. Despite the lack of any evidence that religion came up more than once, she alleges discrimination on the basis that she is Muslim. Despite the lack of any evidence that any ethnic slur or non-trivial comment was made, she alleges discrimination on the basis that her national origin is Egyptian. Despite the lack of any evidence that she was treated less favorably than other similarly situated temporary employees of the City, she alleges discrimination and retaliation.

Ms. Berry was taking thousands of pictures and videos of coworkers who she apparently believed were "mobbing" her as she walked between the building where they all worked and the attached parking garage where they all parked. As the photographing became more obvious and frequent, employees complained. Several employees from other departments complained, and they shared fears for their safety and the safety of their coworkers….

Ms. Berry was [repeatedly] told by Ms. Johnson and Ms. Ikpeme that she had to stop photographing other employees and their cars because of the workplace disruption it caused. Ms. Berry was also told that if she did not stop, she could be terminated. Ms. Berry continued to photograph other employees, who continued to complain….

Because Ms. Berry refused to stop taking photographs of other employees despite management's repeated orders to do so, and because her continued photographing of other employees was causing disruption in the workplace, Ms. Ikpeme recommended the termination of Ms. Berry's temporary employment….

No one replaced Ms. Berry, and her temporary position was eliminated after her termination.

The court ultimately concluded that Berry hadn't introduced enough evidence of discrimination, hostile environment harassment, or retaliation for complaining about discrimination or harassment. A brief excerpt of the court's longer analysis:

Nor is there any basis to infer that the actions Ms. Berry found so offensive were targeted at her because of her religion or national origin. It seems clear that Ms. Berry made herself an unpopular coworker, who frequently complained about others and who saw sinister reasons behind the actions of others. But the evidence does not support an inference that she was singled out because she was Muslim or Egyptian, or that the conduct that she subjectively found so offensive rose to the level of objective harassment….

[T]he City looked into Ms. Berry's complaints and responded when it could do so. Ms. Ikpeme was counseled not to talk about religion in the workplace. The man who was accused of hovering next to Ms. Berry and hitting the back of her chair was reprimanded. The one person who did not heed repeated counsel about the need to change one workplace habit was Ms. Berry, who ignored warnings that if she continued to photograph her coworkers in the parking garage, she would be fired.

Marjorie Leigh Cohen represents the City.

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