Eugene Volokh's Blog, page 198

[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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[Eugene Volokh] Federal Court Decides on How Lockerbie Crash Victims' Relatives Can View Accused Terrorist's Criminal Trial Remotely

From U.S. v. Al-Marimi, decided last Monday by Judge Dabney Friedrich (D.D.C.):

On December 21, 1988, Pan Am Flight 103 exploded 30,000 feet over the small town of Lockerbie, Scotland. The indictment alleges that all 259 people aboard died—including citizens of the United States, the United Kingdom, Switzerland, France, Canada, Israel, Argentina, Sweden, Ireland, Italy, Hungary, South Africa, Germany, Spain, Jamaica, Philippines, India, Belgium, Trinidad and Tobago, Japan, and Bolivia. It further alleges that debris from the explosion killed eleven townspeople instantly.

On November 29, 2022, the defendant Abu Agila Mohammad Mas'ud Kheir Al-Marimi, was … charged with two counts of destruction of an aircraft resulting in death … and one count of destruction of a vehicle used in foreign commerce by means of an explosive, resulting in death ….

On February 9, 2023, the government filed an unopposed motion for alternative procedures under the Crime Victims' Rights Act, requesting, among other things, that the Court establish a call-in telephone line so that victims could listen to the proceedings in real time. The Court denied the government's motion in relevant part, explaining that Rule 53 of the Federal Rules of Criminal Procedure prohibits the broadcasting of criminal court proceedings and that no statutory provision granted the Court authority to provide real-time telephonic access.

Thereafter, on January 26, 2024, Congress passed … [the] Lockerbie Victims Access Act …, which directs the Court to order that reasonable efforts be made to provide victims of the Pan Am Flight 103 bombing with remote video and telephonic access to the proceedings in this case….

The court discusses all this in some detail (the opinion is over 8000 words long) and concludes:

Today's decision interprets the plain language of the Lockerbie Victims Access Act in a manner that effectuates Congress's directive to provide victims of the Lockerbie bombing with remote access to pretrial and trial proceedings, while safeguarding the integrity of those proceedings and the defendant's constitutional right to a fair trial. As a result, victims will have unprecedented access to pretrial and trial proceedings in the criminal case against Abu Agila Mohammad Mas'ud Kheir Al-Marimi.

The Court recognizes that it would be more convenient and less expensive for the Lockerbie bombing victims to access evidentiary and trial proceedings from their homes and offices. But livestreaming such proceedings to individuals' personal devices is fraught with risks of a constitutional dimension. It is impossible to anticipate the numerous ways in which an inadvertent or intentional unauthorized accessing or rebroadcasting of evidentiary or trial proceedings could prejudice the defendant's due process rights. Because witness testimony and other evidence is admitted in real time in the courtroom, even a single breach of procedure could be incurable. In today's Internet age, a rebroadcasted court proceeding could travel around the world and remain electronically preserved forever. Not only would such a breach jeopardize the defendant's right to a fair trial, it could also taint any future retrial.

The Court also appreciates that facilitating remote viewing locations will be more costly and administratively burdensome to the government than allowing U.S. and foreign victims to access evidentiary and trial proceedings from their personal devices. But this is the unfortunate consequence of a crime of this nature being committed overseas. In our legal system, regardless of the scope, date, or circumstances of a crime, the role of the Court is to ensure that the parties, particularly the charged defendant, receive a fair trial. While establishing secure remote viewing locations will be onerous, a mistrial of a months-long trial would be potentially irremediable and far more expensive to the parties and to the Court.

To fulfill its constitutional duty to ensure that the defendant receives a fair trial, the Court must mandate effective safeguards to protect the integrity of the proceedings, even if such safeguards come at some cost to the victims of the Pan Am Flight 103 bombing and the government. Consistent with the Act, the Court exercises its statutory authority to grant victims access to non-evidentiary pretrial proceedings from their homes and offices by Zoom and telephone, as well as access to livestreamed video and audio feeds of evidentiary and trial proceedings in courthouses across the United States and other secure, monitored locations around the world. Such access most reasonably furthers the victims' substantial interests in having remote access to pretrial and trial proceedings without undermining the integrity of those proceedings or the defendant's constitutional right to a fair trial.

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[Jonathan H. Adler] Could the FDA's Approach to Vaping Cause an Increase in Smoking?

In early December, the Supreme Court heard oral argument in Food and Drug Administration v. Wages and White Lion Investments, a challenge to the FDA's denial of marketing approval for flavored vaping products. The specific question before the Court is whether the U.S. Court of Appeals for the Fifth Circuit correctly concluded that the FDA's denial of specific vaping product applications was arbitrary and capricious. Among other things, the FDA is accused of a bait-and-switch in evaluating vaping product applications, applying different standards to product applications than it had said it would apply.

A particular sticking point is that the FDA appears to have adopted a more stringent standard for non-tobacco-flavored vaping products without having done so officially, as through a rulemaking, or otherwise giving manufacturers notice of the policy. Indeed, it appears that the FDA has adopted a de facto ban on non-tobacco and non-menthol-flavored vaping products* by requiring such products to meet a higher threshold for approval--a threshold that no such products have been able to meet. So vaping companies can only make their products taste like cigarettes, but not anything else.

[*Note: All vaping products are flavored. What are generally referred to as "flavored" vaping products are those with non-tobacco flavors, whether menthol or something else (e.g. vanilla, coffee, fruit, etc.).]

To date the FDA has only approved a few dozen of the over one million vaping product applications it has received. If this trend continues, the FDA regulatory process is likely to cartelize the industry, and may jeopardize the public health benefits of vaping products.

As the FDA acknowledges, vaping products are far-less-dangerous than cigarettes and can help some smokers quit. Adding non-tobacco flavors is one way to make vaping products more appealing than cigarettes, including to current or would-be smokers. Yet the FDA has been reluctant to acknowledge this potential benefit of non-tobacco-flavored vaping products.

There is a growing body of empirical evidence that restricting or banning alternative flavors both reduces vaping and increases smoking. Given that smoking is vastly more dangerous than vaping (to users and bystanders both), this is a real public health concern.

The most recent study to document this substitution effect, and finding that removing alternative flavors from the market can increase smoking, comes from a just-published paper in JAMA Health Forum: "Flavored E-Cigarette Sales Restrictions and Young Adult Tobacco Use," by Abigail S. Friedman, Michael F. Pesko, and Travis R. Whitacre. Consistent with prior research, the paper finds that "restricting flavored ENDS sales is associated with reduced vaping but increased cigarette smoking among young adults, potentially offsetting these policies' public health benefits."

From the paper:

This study found that ENDS flavor restrictions were associated with decreases in vaping but marked increases in cigarette smoking among 18- to 29-year-old individuals compared with the trends expected without restrictions. Comparing effect estimates for restrictions outside Maryland suggests that, in the most conservative case, state restrictions on flavored ENDS sales yield 3.1 to 4.4 additional daily smokers for every 5 fewer daily vapers (unweighted, 2.2 ppt ÷ −3.6 ppt = 0.61; 0.61 × 5 = 3.1; weighted: 3.0 ÷ −3.4 = 0.88; 0.88 × 5 = 4.4). While these point estimates may seem small at first glance, they represent a 22% to 30% increase in daily smoking and a 76% to 80% reduction in daily vaping compared with young adults' rates in 2018, 1 year before the first state-level restriction on flavored ENDS sales went into effect.

These findings concur with a growing body of evidence that ENDS and cigarettes are economic substitutes among youth, implying that policies that make ENDS more expensive (taxes) or less appealing (flavor restrictions) are likely to increase use of more dangerous combustible cigarettes in this age group. These findings reinforce the need to consider young adults as a high-priority group when developing tobacco and nicotine policies.

Although our findings will disappoint advocates of aggressive ENDS flavor restrictions, the findings regarding Maryland's policy suggest an alternative. Specifically, Maryland's restriction on nonmenthol flavors in disposable and cartridge products was associated with reductions in both vaping and smoking. Because that policy exempts the open-system ENDS used more by adults than youth, it may offer a better target for interventions to reduce youth use without impeding adult smokers' substitution away from combustible cigarettes. Or perhaps exempting menthol ENDS dampened cross-product substitution, so that those who vaped flavors and did not want to quit were nudged toward vaping menthol instead of smoking cigarettes.

Until mid-2024, the US Food and Drug Administration had not authorized marketing for any nontobacco flavored ENDS, a track record that shifted in June of 2024 with the approval of 4 menthol ENDS submitted by NJOY (Altria Group; Scottsdale, Arizona). Although flavored ENDS remain widely accessible, it is unclear whether this pattern of marketing authorizations is paving a path toward policy outcomes more similar to those estimated by this analysis for Maryland vs other states' flavor restrictions. Future research should further investigate the potential of ENDS flavor restrictions that exempt open-system devices and/or menthol to reduce young adult vaping without increasing cigarette smoking.

If anything, the authors of this study go easy on the FDA, as the agency has largely ignored this growing body of evidence in developing its approach to vaping regulation.  Rather than promulgate vaping product standards, based upon a comprehensive assessment of the available empirical research on how the mix of available vaping products (including flavors) influences smoking rates and otherwise impacts public health, the FDA has engaged in case-by-case evaluation of individual vaping product applications using a standard that few products can meet. This has allowed the FDA broad latitude to deny the vast majority of applications on the grounds that individual applicants cannot show how approval of their specific product is consistent with public health while ignoring the fact that denial of all non-tobacco-flavored products could actually produce some of the public health harms--more young smokers--that the FDA says it wants to avoid.

While the FDA claims it wants to reduce the harm of smoking, there are reasons to suspect FDA regulation has done the opposite. The FDA's regulatory regime is driving less dangerous products from the market and barring manufacturers from informing consumers that their products are less dangerous than cigarettes and are often more effective at helping smokers quit than FDA-approved nicotine replacement therapies. The FDA is also not doing much to educate consumers (including smokers) about the relative risks of nicotine products. Indeed, since the FDA asserted regulatory authority over vaping products, public (mis)understanding of the relative risks posed by different sorts of nicotine products has gotten worse.

The question before the Supreme Court is ultimately about how federal courts should review agency action, not whether the FDA has adopted the best vaping product policy. But how the Supreme Court decides this case will have broad implications for vaping policy and public health.

For more on the Wages & White Lion case and the FDA's regulation of vaping products, I discussed these issues and more in a recent episode of TechFreedom's Tech Policy podcast with Corbin Barthold and Ari Cohn.

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[Josh Blackman] Today in Supreme Court History: December 29, 1971

12/29/1971: Justice John Marshall Harlan II dies.

Justice John Marshall Harlan II

 

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[Josh Blackman] President Biden Regrets Selecting Merrick Garland As Attorney General

The Washington Post has an in depth profile of President Biden's administration. Apparently, Biden regrets selecting Merrick Garland as Attorney General, and would have preferred former Alabama Senator Doug Jones.

In private, Biden has also said he should have picked someone other than Merrick Garland as attorney general, complaining about the Justice Department's slowness under Garland in prosecuting Trump, and its aggressiveness in prosecuting Biden's son Hunter, according to people familiar with his comments.

During the 2020 presidential transition, Biden's attorney general selection pitted some of his closest aides against each other. Former senator Ted Kaufman (D-Delaware) and Mark Gitenstein, both longtime friends of Biden, advocated for the president naming then-Sen. Doug Jones (D-Alabama) as attorney general, arguing that as a politician he would be better able to navigate the bitterly partisan moment.

But Ron Klain, Biden's incoming chief of staff, pushed for Garland. He stressed that Garland — a federal judge with a sterling reputation for independence and fairness — would show Americans that Biden was rebuilding a department badly shaken by Trump's political attacks.

Biden was persuaded, and some Democrats believe the decision had devastating results. Had the Justice Department moved faster to prosecute Trump for allegedly seeking to overturn the 2020 election and mishandling classified documents, they say, the former president might have faced a politically damaging trial before the election. (Others blame the Supreme Court and a Trump-appointed judge in Florida for repeatedly siding with the former president and delaying the cases; the Justice Department declined to comment.)

This episode demonstrates that this notion of the Department of Justice as "independent" has always been a ruse. The Attorney General works for the President. Garland's efforts to make the institution separate from the President backfired, in a way that left no one happy. Moreover, Biden expressly viewed the criminal prosecution of Trump as a way to harm his primary political opponent. The stuff about protecting democracy was just a veneer, as evidenced by the silence about insurrection and fascism in the lead-up to January 6, 2025.

By the way, when is Garland going to resign? Garland should have stepped down when Biden criticized him for the Hunter Biden prosecution, but didn't. Attorney General Loretta Lynch stayed on until January 20, 2017. Will Garland continue to ride this out till the bitter end?

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[Josh Blackman] The Unprecedented Dynamics of Trump's TikTok Brief

On Friday, Present Elect Trump filed an amicus brief supporting neither party in TikTok v. Garland. The brief was submitted by John Sauer, who will be the nominee for Solicitor General. In short, Trump wants the Court to leave the law in effect, at least till he takes office, so he can negotiate a better deal.

On January 20, 2025, President Trump will assume responsibility for the United States' national security, foreign policy, and other vital executive functions. This case presents an unprecedented, novel, and difficult tension between free-speech rights on one side, and foreign policy and national-security concerns on the other. As the incoming Chief Executive, President Trump has a particularly powerful interest in and responsibility for those national-security and foreign-policy questions, and he is the right constitutional actor to resolve the dispute through political means.

The dynamics of this brief are unprecedented, and may actually scramble the Court's calculus here.

To recap, the law goes into effect on January 19, unless President Biden grants an extension, or if the Supreme Court grants some sort of temporary injunction beforehand. I wrote about the timeline here.

First, why did Trump even file a brief here? Maybe he was reading this blog. Last week, Will Baude and Richard Re suggested that Trump should file an amicus brief in the case, and perhaps the Court could even call for his views:

The statute effectively banning TikTok goes into effect on January 19, the day before President-Elect Donald Trump is slated to begin his second presidential term. Recognizing that deadline, the justices have crafted an expedited briefing schedule with oral argument on January 10.

The Biden administration will of course litigate the case. But Trump has made public statements indicating that he may be more supportive of TikTok. In this situation, it might make sense for Trump to appear as an amicus. As the imminent president, he would hardly be a run-of-the mill friend of the court.

I for one am grateful that Will describes Trump as "president-elect," notwithstanding my colleague's views that Trump has been disqualified from the presidency since January 6, 2021.

Second, Trump is asserting his inchoate interest in setting national policy:

In light of these interests—including, most importantly, his overarching responsibility for the United States' national security and foreign policy—President Trump opposes banning TikTok in the United States at this juncture, and seeks the ability to resolve the issues at hand through political means once he takes office. . . . The 270-day deadline imposed by the Act expires on January 19, 2025—one day before President Trump will assume Office as the 47th President of the United States. This unfortunate timing interferes with President Trump's ability to manage the United States' foreign policy and to pursue a resolution to both protect national security and save a social-media platform that provides a popular vehicle for 170 million Americans to exercise their core First Amendment rights. The Act imposes the timing constraint, moreover, without specifying any compelling government interest in that particular deadline.

Trump's filing of a brief creates a conflict between the once and future DOJ. Current SG Prelogar wants the law to go into effect right away. Future SG Sauer wants the Court to grant some sort of injunction to give future President Trump some room to negotiate. I can't think of a comparable example where the incoming President has sought to counteract the current President before the Supreme Court. Yet, we are living in strange times. President Biden has severely diminished capacities. It is not clear who is actually running the show. Foreign leaders are now visiting with Trump at Mar-A-Lago to discuss policy concerns. Perhaps this sort of brief is consistent with the broad role that Trump is already playing over our polity. Trump may be the de facto President at this point. We had a constitutional amendment to reduce the lame duck period. Maybe we should shrink it even more.

Third, Trump is not relying on law here, but on his deal-making powers.

Furthermore, President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government—concerns which President Trump himself has acknowledged. See, e.g., Executive Order No. 13942, Addressing the Threat Posed by TikTok, 85 Fed. Reg. 48637, 48637 (Aug. 6, 2020); Regarding the Acquisition of Musical.ly by ByteDance Ltd., 85 Fed. Reg. 51297, 51297 (Aug. 14, 2020). Indeed, President Trump's first Term was highlighted by a series of policy triumphs achieved through historic deals, and he has a great prospect of success in this latest national security and foreign policy endeavor. . . .

President Trump, therefore, has a compelling interest as the incoming embodiment of the Executive Branch in seeing the statutory deadline stayed to allow his incoming Administration the opportunity to seek a negotiated resolution of these questions. If successful, such a resolution would obviate the need for this Court to decide the historically challenging First Amendment question presented here on the current, highly expedited basis.

This may not be as crazy as it sounds. I don't think the Supreme Court actually wants to decide this case. I suggested that the Court could simply affirm the D.C. Circuit to avoid having to write a majority opinion. But if it looks like Trump can actually negotiate some sort of deal, the issue comes off the Court's plate. Would the Chief Justice really be turned off by some of the puffery in the brief?

Fourth, there is some precedent for the Court letting the political branches work things out. Were Justice Breyer on the Court, I'm sure he would be eager to let this one play out. Sauer cites one recent example from the wake of Justice Scalia's death:

Indeed, the Court recently pursued a similar course in Zubik v. Burwell, vacating lower-court decisions and pausing the enforcement of HHS's contraceptive mandate against religious organizations to "allow the parties sufficient time to resolve any outstanding issues between them." 578 U.S. 403, 408 (2016) (per curiam).

Recall that the eight-member Court punted this issue to let the next administration figure things out. Little did they know that it would be Trump, and not Hillary Clinton. And, low and behold, Trump expanded exemptions from the contraception mandate, which led to Little Sisters of the Poor v. Pennsylvania (2020). In a way, this example proves that compromises at the Court can work, sometimes.

Fifth, I'm not sure what an injunction would look like. Would it be set for a certain number of days--to give Trump a negotiating window? Or would the Court leave the injunction open for some unspecified time. The closest analogue I can think of is Northern Pipeline Constr. Co. v. Marathon Pipe Line Co. (1982), where the Court stayed its ruling for a year.

The judgment of the District Court is affirmed. However, we stay our judgment until October 4, 1982. This limited stay will afford Congress an opportunity to reconstitute the bankruptcy courts or to adopt other valid means of adjudication, without impairing the interim administration of the bankruptcy laws. Buckley v. Valeo, 424 U.S., at 143, 96 S.Ct., at 693; *89 cf. Georgia v. United States, 411 U.S. 526, 541, 93 S.Ct. 1702, 1711, 36 L.Ed.2d 472 (1973); Fortson v. Morris, 385 U.S. 231, 235, 87 S.Ct. 446, 449, 17 L.Ed.2d 330 (1966); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 675–676, 84 S.Ct. 1429, 1439–1440, 12 L.Ed.2d 595 (1964).

Justice Alito referenced the stay from Norther Pipeline in King v. Burwell, as a way to give Congress the power to adjust the Affordable Care Act subsidies.

Sixth, the statement of interest has garnered some criticism. For example, the brief states:

Moreover, President Trump is one of the most powerful, prolific, and influential users of social media in history. Consistent with his commanding presence in this area, President Trump currently has 14.7 million followers on TikTok with whom he actively communicates, allowing him to evaluate TikTok's importance as a unique medium for freedom of expression, including core political speech. Indeed, President Trump and his rival both used TikTok to connect with voters during the recent Presidential election campaign, with President Trump doing so much more effectively. As this Court instructs, the First Amendment's "constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office." Susan B. Anthony List v. Driehaus, 573 U.S. 149, 162 (2014) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). . . .

Further, President Trump is the founder of another resoundingly successful social-media platform, Truth Social. This gives him an in-depth perspective on the extraordinary government power attempted to be exercised in this case—the power of the federal government to effectively shut down a social-media platform favored by tens of millions of Americans, based in large part on concerns about disfavored content on that platform. President Trump is keenly aware of the historic dangers presented by such a precedent.

Jack Goldsmith describes Sauer as "kissing" Trump's ring, and "diminish[ing] his credibility before the Court even before assuming office." I read the brief differently. Though the case is commonly known as TikTok v. Garland, there is a companion case called Brian Firebaugh v. Garland. Who is Brian Firebaugh, you may ask? He is a person who uses TikTok, apparently. Not a particularly compelling plaintiff. Trump, by contrast, is perhaps the most significant person to have ever used social media. I don't think that is hyperbole. He has won two presidential elections, and those victories would have been impossible without social media. Trump, more than perhaps anyone else, can speak to what happens when access is lost to a social media platform. The brief cites the example of Twitter in Brazil, but another example could be his suspension from Twitter and Facebook in the wake of January 6.

***

After nearly a decade, I think people still do not understand Trump. He doesn't play like everyone else does, and that is what infuriates people. When he says something that people deem outlandish, it is merely an opening bid, not the final offer. I think he views this case like he views just about everything else--as a deal to be made. In the normal course, Supreme Court litigation is not a mediation. But this statute contains an express provision to allow a compromise to be reached--and Trump is trying to reach it. It is painfully clear that Biden certainly cannot engage in such dealmaking.

I think the money is still on the Court affirming the D.C. Circuit, but Trump's brief at least ups the odds for TikTok, ever so slightly. Will Sauer seek leave to participate in oral argument?

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[Eugene Volokh] Shareholder Derivative Lawsuit Against Fox Officers and Directors Over Fox $787M Libel Settlement Can Go Forward

From In re Fox Corp. Derivative Litigation, handed down yesterday by Vice Chancellor Travis Laster of the Delaware Court of Chancery:

This pleading-stage decision addresses whether the stockholder plaintiffs have standing to pursue a derivative action. When making that determination, the court must accept the complaint's well-pled allegations as true and grant the plaintiffs the benefit of all reasonable inferences. The complaint casts the defendants in a poor light, but at this stage of the case, the court cannot assess the truth of the allegations. The question instead is whether, taking those allegations as true, the plaintiffs have standing to assert their claims.

The plaintiffs have sued over events surrounding the 2020 presidential election. Late on November 3, 2020, the Fox News Channel declared Joseph Biden the winner of Arizona's electoral votes. Then-President Donald Trump contested the call based on allegations about election fraud. Hours later, Trump declared himself the winner. Despite Trump's claim, Fox News called the election for Biden on November 7. The daytime and primetime audiences for Fox News plummeted by over one-third.

Starting the next day, Fox News began airing stories sympathetic to Trump's election-fraud claims. Fox News also hosted guests who championed those claims. Trump advisors Sidney Powell and Rudy Giuliani appeared repeatedly on Fox News and asserted that Dominion Voting Systems and Smartmatic USA provided voting machines and voting software that illegally switched votes from Trump to Biden.

Dominion and Smartmatic sent cease-and-desist letters to Fox News' parent corporation, Fox Corporation ("Fox" or the "Company"). In the "Brainroom"—the Fox News fact-checking department—no one could find evidence to support the accusations against Dominion or Smartmatic. Yet Fox News continued to air the election-fraud narrative and host guests who advanced it.

In February 2021, Smartmatic sued Fox for defamation. Dominion sued Fox in March. The Dominion trial moved forward more quickly. On the first day of the trial, Fox settled with Dominion for $787.5 million. The Smartmatic litigation remains pending.

Corporations don't have minds or bodies. They only act when humans cause them to act. But like humans, corporations can act in ways that harm themselves. Delaware law gives its corporations expansive freedom to pursue any lawful business in pursuit of profit. But Delaware law does not permit a corporation to operate unlawfully. Not only that, but corporate fiduciaries breach their duty of loyalty when they decide to violate the law. Thus, when humans cause a corporation to violate the law in a way that harms the corporation, the corporation can recover from the humans who knowingly caused the corporation to violate the law and suffer harm.

In this lawsuit, Fox stockholders seek to shift the Company's losses onto the individuals who they say caused the Company to violate the law and suffer harm. The plaintiffs contend that Fox's senior officers—including Rupert and Lachlan Murdoch—and its board of directors (the "Board") decided to violate the law by having Fox News defame Dominion and Smartmatic. The plaintiffs allege that the defendants knew that Fox News was breaking the law by defaming Dominion and Smartmatic but consciously prioritized profits over legal compliance.

The defendants have moved to dismiss the complaint under Court of Chancery Rule 23.1. In substance, the motion asserts that even if the plaintiffs have identified valid corporate claims, they do not have standing to bring them. A corporate claim is a corporate asset, and under Delaware law, the board of directors has authority over how to manage the company. That includes making decisions about whether to assert corporate claims. But there is an exception to that rule. A stockholder plaintiff can pursue litigation on the corporation's behalf when its board of directors is so conflicted that the board cannot make an independent and disinterested decision about whether to sue. When a stockholder plaintiff seeks to invoke this exception, Rule 23.1 requires that the complaint plead facts sufficient to support it.

To analyze a Rule 23.1 motion, the court examines the board of directors in office when the suit was filed. Considering each director in turn, the court asks whether the complaint contains particularized allegations sufficient to raise a reasonable doubt about whether that director could make a disinterested and independent decision about whether to assert the claim. If that director-by-director analysis results in the board lacking a majority of independent and disinterested directors who could decide whether to sue, then the plaintiff has standing.

Here, the Board has eight members. For the Board to be able to exercise disinterested and independent judgment about whether to assert a claim, there must be at least five directors who qualify as disinterested and independent. Stated conversely, the plaintiff must raise a reasonable doubt about the disinterestedness or independence of at least four directors.

The complaint alleges particularized facts sufficient to support a reasonable inference that Murdoch faces a substantial risk of liability for breaching his duty of loyalty by deciding in bad faith to have the Company violate the law. When a director faces a substantial risk of liability on a claim, that director has an interest in the corporation not asserting that claim. Murdoch is therefore disqualified for purposes of Rule 23.1.

The court need not analyze whether other members of the Board face a substantial risk of liability, because the complaint alleges facts sufficient to raise a reasonable doubt that at least three other directors lack independence from Murdoch. A reasonable doubt exists about whether Lachlan could make an independent decision about whether to sue his father. A reasonable doubt also exists about two other directors—Chase Carey and Jacques Nasser. The complaint alleges particularized facts about close and longstanding business and personal ties between them and Murdoch that are sufficient to disqualify them.

That is the introduction; the whole opinion is over 12,000 words long, and is available here.

The post Shareholder Derivative Lawsuit Against Fox Officers and Directors Over Fox $787M Libel Settlement Can Go Forward appeared first on Reason.com.

[Josh Blackman] Here We Go Again: Federal Judges Should Review Prosecutions From The Trump DOJ "Through a Different Lens"

A common thread during the first Trump Administration was that this presidency was not "normal" and courts should not "normalize" it. Advocates and scholars on the left argued that the Trump administration should not be entitled to the "presumption of regularity." Professor Dawn Johnson, for example, lectured the Seventh Circuit Judicial Conference that "Courts attend to reality and context, and they can and should adapt their screens of deference when circumstances so indicate." And so on. I wrote about these developments at some length.

Now, with Trump 2.0 about to start, we are already seeing similar pleas. In The New York Times, Nancy Gertner (a retired Clinton appointee) and Joel Cohen (a retired prosecutor) offer advice of how judges should review prosecutions by the Trump DOJ:

In previous administrations, federal trial judges have had generally well-founded confidence that the Justice Department and the post-Hoover F.B.I., under presidents from either party, have not been employed to attack political enemies. Most district judges — especially those who have served as federal prosecutors, as most have — believe that the prosecutors appearing before them act with integrity, that their offices are not being manipulated to undermine those who challenged the current administration or its leader.

A judge could assume that the warrant has gone through layers of approval within the Justice Department, even reaching the assistant attorney general in charge of the criminal division, an extremely high ranking official in the department. That judge could also be reasonably confident that very little, if anything, would be amiss after passing through the layers of the approval process, including senior department officials.

But with the astonishing comments from the president-elect and his appointments, it is reasonable to ask if judges can still assume that level of confidence in the review process. The previous assumption that prosecutions would be undertaken only against individuals suspected of committing crimes may be wrong.

Now, when judges are asked to review warrant applications, or any other ex parte submissions from the government, they should do so through a different lens, much more scrupulously than ever before.

Nothing new here. We've heard it all before.

The post Here We Go Again: Federal Judges Should Review Prosecutions From The Trump DOJ "Through a Different Lens" appeared first on Reason.com.