Eugene Volokh's Blog, page 2563

May 1, 2012

John Rosenberg on Elizabeth Warren and Affirmative Action

(Todd Zywicki)

John Rosenberg discusses some of the bigger-picture slippery logic of affirmative action on Minding the Campus asking why those who believe in racial preferences have rushed to vouch that she never benefited from them.







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Published on May 01, 2012 20:02

Fear of Extremist Religious Violence Leads to Court Decision Barring Women from Praying at Religious Shrine

(Eugene Volokh)

I didn’t hear about this when the decision was handed down in 2003, and when it was apparently enforced in 2009 and 2010, but I just noticed it and thought it would be a good addition to our Blasphemy category and our Freedom of Speech Restricted by Fear of Thugs category.


From Prof. Sherry Colb, about the 2003 decision; other press accounts echo this (if any of you can point me to an English text of the opinions, please do):


Earlier this month [April 2003], the Israeli Supreme Court, in a 5-4 decision, refused to permit women to pray out loud at the Western Wall (“the Wall”) in Jerusalem. Known in Hebrew as the “Kotel Ha’Maaravi,” the Wall is all that remains of the second Jewish Temple destroyed by the Romans almost 2000 years ago. It is one of the holiest sites in existence for Jews around the world.


The plaintiffs in the case called themselves the “Women of the Wall.” They asked the Israeli Court to recognize their right to pray out loud at the Kotel, after they had repeatedly encountered physical and verbal abuse from the Ultra-Orthodox each time they tried to do so on their own.


The women had hoped and expected the Court to agree that they, as a matter of equality, should be able to assemble and pray just like men have done for as long as the Wall has stood. Besides formalizing the legal equality of women, such a ruling could help fortify the resolve of police who must invariably come to the women’s aid and repel acts of aggression.


On April 6, the women’s hopes were dashed. The Israeli High Court concluded that because of the violence that plaintiffs’ religious practice provokes on the part of Ultra-Orthodox spectators, the Women of the Wall would have to conduct their services elsewhere [at another portion of the Wall]. In the estimation of the Court, female assembly and vocal prayer at the Wall could endanger public order and lead to rioting by Ultra-Orthodox Jews.


And in 2009 and 2010, two women were indeed arrested for praying at a portion of the Wall covered by the 2003 decision: “Nofrat Frenkel was pushed into a police van and detained for the ‘crime’ of reading from a Torah scroll and wearing a tallit, and Anat Hoffman, a founder of Women of the Wall, was arrested, interrogated and fingerprinted for a similar ‘crime.’”







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Published on May 01, 2012 19:10

DSK Loses Immunity Claim in NY Civil Suit

(Kenneth Anderson)

As Opinio Juris’ Peggy McGuinness explains, a New York state trial court (confusingly called a “supreme court” in New York) today turned down former IMF chief Dominique Strauss Kahn’s claim of civil immunity in a suit by the (former) Sofitel Hotel maid for acts that first got DSK charged criminally with sexual assault – charges later dismissed, however:


On a quick read, it looks like the judge rejected DSK’s claim that he was entitled to diplomatic or “status” immunity on the grounds that: IMF officials do not fall within the status/absolute immunity protections of the Vienna Convention on Diplomatic Immunity; the U.S. is not a party to the Specialized Agencies Convention of 1947, which lays out privileges and immunities of officials of certain international organizations; (3) the Specialized Agencies treaty does not represent customary international law of IO immunities; (4) even if it the Specialized Agencies treaty was applicable, the scope of immunities for IMF officials is limited under an annex to that agreement by the Bretton Woods Agreement and IMF Articles, which specifically limit immunity only to official acts. DSK is not entitled to this official acts/functional immunity … since he was not carrying out official duties during his visit to the Sofitel.


The full opinion is here; see the Opinio Juris discussion as well on the further customary international law claim raised by DSK but also rejected by the court.







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Published on May 01, 2012 15:30

Former Fed Governor Mark Olson says “CFPB Stepping Into Vigilante Territory”

(Todd Zywicki)

Mark Olson says that CFPB is raising additional concerns as it ramps up in practice:


Two disturbing bits of recent information give us a taste of how the CFPB plans to operate. Representatives from the CFPB have acknowledged that lawyers from the bureau’s enforcement division are accompanying CFPB compliance examiners on their routine examinations….


The second disturbing bit of information concerns the manner in which examination findings are shared with other agencies. Because of the confidential nature of bank examination reports, there is a precise protocol for how government agencies share information. This is to guard against information gathered for one purpose by one agency being used by another agency for a different purpose. For example, there are good and obvious reasons why the IRS does not share personal tax information with other agencies outside a court order. There is also a wide concern that the CFPB, which has a Congressional mandate limited to consumer compliance, might use information collected by the safety and soundness regulators (Office of the Comptroller, FDIC, and Federal Reserve) in its enforcement efforts. With such an initiative, the CFPB would be sending an early signal that it does not intend to be limited in its scope by either precedent or Congressional directive. Hopefully the safety and soundness regulators will recognize the implications of such a request and will resist.


There is good reason why the new CFPB should feel it has a mandate for aggressive supervisory action. But just as in the old west, where vigilance committees quickly became vigilantes, there will be a fine line between the CFPB managing its new powers to achieve greater compliance with consumer laws and regulations, and the potential of an army of CFPB lawyers administering frontier justice on providers of financial services.







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Published on May 01, 2012 14:29

The Affirmative Action Racket

(Todd Zywicki)

One of the obvious questions prompted by the public recognition that Elizabeth Warren’s claimed Native American ancestry is what it takes for someone to avail themselves of the preferential treatment afforded to racial and cultural minorities in hiring–and in particular, can someone assert the identity if they are only 1/32 and have absolutely no cultural ties, such as tribal membership.  (I say “public recognition” because I first heard this a decade ago but I certainly didn’t realize that she was only 1/32 Native American with no cultural tie.)  Warren herself, when originally asked about it, simply said that it was part of her “family lore,” indicating how little care she had put into classifying herself accurately.


To put it another way, would Warren’s 1/32 blood from her great-great-great grandmother, with no other discernible cultural links count for most university preference plans?  Hans Bader, who has worked on a number of such cases, is skeptical (he also notes David’s previous post on this).


I should also hasten to add that although Harvard frequently touted her Native American ancestry (Warren says she never authorized Harvard to claim her as a minority hire although Harvard must’ve gotten the information from somewhere) that does not necessarily mean that was a determining factor in Harvard’s decision to hire her, even if it was a consideration for her stepping-stone law school positions.  By that time she was a well-established commercial law scholar, certainly to the point where it seems plausible would not need to claim Native American background in order to receive a preferential boost to be hired (although obviously I don’t share the general enthusiasm for her work).


Update: Hans has updated and corrected his post so I’ve deleted the block quote that has been superseded and for those who want to read the specifics you can click through the link.







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Published on May 01, 2012 14:20

Texas Fight on Planned Parenthood Funding Heats Up

(Jonathan H. Adler)

Earlier this year, the state of Texas adopted a rule barring organizations that promote abortions or affiliate with groups that promote abortions from participating in the state’s Medicaid-funded Woman’s Health Program. This rule effectively barred Planned Parenthood clinics from the program. In response, cut off funding for the state’s program, and Texas sued.


At the same time, the state’s Planned Parenthood affiliates also filed suit, alleging the restriction is unconstitutional. Yesterday, a federal district court judge issued a preliminary injunction prohibiting Texas from excluding Planned Parenthood clinics from the state program. Then, late last night, the U.S. Court of Appeals granted an emergency stay, temporarily setting aside the injunction. (The order is here.)


UPDATE: Here’s a link to the original order granting the preliminary injunction.







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Published on May 01, 2012 12:42

Fannie Mae Is Not a Government Actor for Constitutional Purposes, Despite Federal Takeover

(Eugene Volokh)

So holds yesterday’s Herron v. Fannie Mae (D.D.C. Apr. 30, 2012), citing (among other cases) United States v. Beszborn (5th Cir. 1994):


When FHFA [the Federal Housing Finance Agency] steps in as conservator or receiver it immediately succeeds to all rights and powers of the stockholders, officers, and directors of the regulated entity placed into such conservatorship or receivership. In like manner, on September 6, 2008, FHFA placed Fannie Mae into conservatorship. As conservator, FHFA took over the assets and operations of Fannie Mae with all the powers of the shareholders, officers, and directors to conduct all of Fannie Mae’s business, in order to preserve and conserve the assets and property of Fannie Mae….


In such circumstances, the federal agency in its guise as a conservator or receiver of a private corporation is not a government actor. For example, in United States v. Beszborn, 21 F.3d 62, 67–68 (5th Cir.1994), the Fifth Circuit held that the Resolution Trust Corporation (“RTC”) as receiver of a failed bank was not a government actor. The RTC had sued the former officers and directors of the failed bank in a civil case and obtained a judgment including punitive damages. The government subsequently brought criminal charges against the officers and directors based on the same conduct. The officers and directors asserted Double Jeopardy as a defense. The Fifth Circuit found that the RTC as receiver stood in the shoes of the insolvent bank, i.e., that the RTC was a private entity and not the government for purposes of the Double Jeopardy clause. Similarly, Fannie Mae was not converted into a government entity when it was placed into conservatorship; instead, FHFA stepped into the shoes of Fannie Mae. FHFA as conservator for Fannie Mae is not a government actor.


[Footnote: Ms. Herron unsuccessfully attempts to distinguish Beszborn, asserting that the RTC in that case operated to benefit the creditors and stockholders and asserting that FHFA operates Fannie Mae to benefit the federal government. This reflects an incorrect understanding of the facts. Treasury's interest in Fannie Mae is as a shareholder of Senior Preferred Stock. FHFA operates Fannie Mae to benefit of creditors and shareholders, in the same way that RTC operated the failed financial institution in Beszborn.]


Ms. Herron avers that Fannie Mae is a federal actor for the purpose of her First Amendment claim because: (1) the conservatorship is of indefinite duration; (2) FHFA presently controls Fannie Mae; and (3) Treasury provides financial support to Fannie Mae in exchange for non-voting Senior Preferred Stock. Ms. Herron draws the wrong conclusion from these three uncontested facts. Fannie Mae would be a federal actor if the FHFA conservatorship retained for the government permanent authority to appoint a majority of the corporation’s directors. Lebron, 513 U.S. at 400. To the contrary, the appointment of FHFA as conservator did not establish permanent government authority to control Fannie Mae….


First, Ms. Herron insistes that there is no date certain when the conservatorship of Fannie Mae will end,FN11 and, therefore, she erroneously concludes that FHFA control over Fannie Mae must be permanent. In order to be a government actor under the Lebron framework, permanent government control is required. Lebron itself distinguishes permanent from temporary control. The Supreme Court contrasted Amtrak, which was a federal actor in the permanent control of the government, from “a private corporation whose stock comes into federal ownership,” which is in the temporary control of the government. Lebron, 513 U.S. at 398. Although the duration of the conservatorship is indefinite, FHFA’s control over Fannie Mae is temporary. Fannie Mae was not a federal actor at the relevant time.


Second, Ms. Herron asserts that FHFA’s complete control over Fannie Mae makes Fannie Mae a federal actor. Congress empowered FHFA to act as conservator of Fannie Mae for the purpose of reorganizing, rehabilitating, or winding up its affairs. Thus, the enabling statute expressly allows FHFA temporary but complete control over Fannie Mae, not permanent control. The complete control exercised by FHFA is authorized by statute; it is how conservatorship is accomplished. Because conservatorship is by nature temporary, the government has not acceded to permanent control over the entity and Fannie Mae remains a private corporation.


Finally, Ms. Herron also argues that Fannie Mae was transformed into a federal entity via (1) Treasury’s appointment of Fannie Mae as administrator of the Home Affordable Modification Program through the Financial Agency Agreement and (2) Treasury’s entry into the Stock Agreement with Fannie Mae. With regard to the Financial Agency Agreement, it states that Fannie Mae is distinct from the government and must maintain a fiduciary duty of loyalty to the federal government. The Financial Agency Agreement also expressly provides that contractors to Fannie Mae (such as Ms. Herron) do not become subcontractors of the government. These provisions make it clear that the Financial Agency Agreement did not transform Fannie Mae into a government entity.


As a result, Herron’s allegation that Fannie Mae violated the First Amendment by terminating Herron’s contract based on Herron’s speech cannot go forward: Because Fannie Mae, even while it’s run by the federal government, is treated as a private actor, it is not bound by the First Amendment.


I’m not sure this is right. The government is in some measure bound by the First Amendment (and other Bill of Rights provisions) even when it’s running entities that could be run privately, such as housing projects, universities, utilities, railroads, and so on; nor do I see a difference between temporary control by the government and permanent control. But that’s what the court held, and the Fifth Circuit case that it cited (Beszborn) did the same. (The Supreme Court in Lebron v. National Railroad Passenger Corp. (1995) left open the possibility that the temporary vs. permanent control distinction was constitutionally relevant, but it didn’t decide the question.)







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Published on May 01, 2012 12:02

Judge vs. Blogger Libel Lawsuit Can Go Forward

(Eugene Volokh)

So holds today’s Lewis v. Rapp (N.C. Ct. App. May 1, 2012). An excerpt:


In April 2010, plaintiff was the serving Senior Resident Judge of Judicial District 13B in North Carolina and was engaged in a campaign to retain her seat in the November 2010 election. She was also a vocal supporter of William Rabon who was running for the North Carolina State Senate. Defendant, a citizen of North Carolina, was a known supporter of Rabon’s opponent, Bettie Fennell. Defendant also volunteered to serve as Fennell’s “Media Strategist” without receiving compensation.

On 9 April 2010, defendant posted a blog entry on Facebook titled “Dirty Politics by the good ol boys.” The blog entry was also posted on Carolina Talk Network. In this post, defendant criticized Rabon and further stated: “When sitting judges campaign for a candidate, in clear violation of the seventh canon of the NC Code of Judicial conduct[,] [w]e are clearly into dirty politics” (hereinafter referred to as “the 9 April publication”). That same day, plaintiff’s attorney emailed defendant and informed him that plaintiff was a candidate for office and that Canon 7B(2) of the Code of Judicial Conduct allows a candidate to endorse any other candidate seeking election to any office. Plaintiff’s attorney also cited a memorandum issued by Chief Judge John Martin on 26 February 2010 in which he reiterated to members of the judiciary what conduct was permissible and what conduct was prohibited by the Code of Judicial Conduct during the 2010 election cycle. The memorandum specifically cited to Canon 7B(2) and stated that a judge was permitted to endorse any candidate seeking office so long as the judge is also a judicial candidate.


On 12 April 2010, defendant posted another blog entry on Facebook and Carolina Talk Network titled: “Apologies, Corrections, Explanations and Amplifications on my Blogs.” Defendant stated in pertinent part:

I have spent this past weekend in prayer, mediation [sic], and contemplation…. First, let me apologize for my comment about the sitting judge being in violation [of] The North Carolina Code of Judicial Conduct. I was wrong. This can be done only by proper disciplinary proceedings and I have neither right nor authority to make that judgment and will let the proper authorities make that determination, if and when, it is brought before them. I have read, top to bottom, The North Carolina Code of Judicial Conduct and have voiced my opinion based on the pertinent articles provided in appendix 1 at the end of this blog. I also solicited the opinion of a friend of mine who happens to be an attorney. We both agreed that there is probable cause for such action. Read the appendix and make up your own mind…. It is my belief that for any Republican office holder to campaign openly for any candidate in a primary is wrong. Office holders cannot appear to be private citizens. The power and authority of their office precludes this.

Defendant included portions of the Code of Judicial Conduct in the appendix to his blog entry; however, he did not include Canon 7B(2).


The court concluded that there was no evidence that defendant’s April 9 statement was said with so-called “actual malice,” which is to say that defendant knew it was false or consciously entertained serious doubts about its truth; plaintiff’s case was therefore thrown out as to the statement. But the court concluded that there was sufficient evidence of such “actual malice” as to the April 12 statement:


Although defendant expressly stated that it was his opinion that plaintiff had violated the Code of Judicial Conduct, an individual “cannot preface an otherwise defamatory statement with ‘in my opinion’ and claim immunity from liability[.]” Daniels, 179 N.C. App. at 539, 634 S.E.2d at 590. Defendant claimed in the 12 April publication that he had read the Code of Judicial Conduct from “top to bottom” and it was his “opinion” that “probable cause” existed for the “proper authorities” to take “action.” Defendant was aware at that point that plaintiff was a candidate for judicial office. Having read the Code of Judicial Conduct from “top to bottom,” he was also aware that as a candidate for office, plaintiff was permitted to campaign on behalf of another candidate pursuant to Canon 7B(2). Defendant had been told by plaintiff’s attorney that Chief Judge Martin had issued a memorandum in which he stated that a sitting judge seeking reelection was permitted to campaign for any other candidate. Whether plaintiff was, in fact, in violation of the Code of Judicial Conduct could be easily investigated and proven false. Defendant ignored the proof that plaintiff was not in violation of the Code of Judicial Conduct and chose to assert a provable false accusation against plaintiff.


Moreover, defendant included portions of the Code of Judicial Conduct in the appendix to his blog entry so that his readers could “make up [their] own mind[s]”; however, he did not include Canon 7B(2), which exonerates plaintiff of any wrongdoing. Defendant did, however, include Canon 7B(1), which, if read in isolation, would indicate that a judge may not endorse a political candidate. The inclusion of Canon 7B(1), coupled with the exclusion of Canon 7B(2), can only be perceived as a deliberate attempt by defendant to substantiate the false accusation contained in the publication….


[Footnote:] We note that defendant did express an opinion when he stated: “It is my belief that for any Republican office holder to campaign openly for any candidate in a primary is wrong. Office holders cannot appear to be private citizens. The power and authority of their office precludes this.” This statement, unlike the accusation that plaintiff was in violation of the Code of Judicial Conduct, cannot be proven true or false. Defendant is entitled to his opinion that it is “wrong,” or even unethical, for an office holder to campaign for a candidate. An opinion that a judge has acted unethically is quite different from an accusation that a judge has committed an act that could potentially lead to official disciplinary action.







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Published on May 01, 2012 11:34

Grand Ole Opry v. Army Corps

(Jonathan H. Adler)

Following Louisiana victims of post-Katrina flooding, the Grand Ole Opry is suing the federal government over damage resulting from a 2010 flood of Nashville, claiming negligence by the U.S. Army Corps of Engineers was at least possible responsible for over $250 million in damage to the Opry and other buildings. The LAT reports:


Monday’s lawsuit is notable not only because one of its main plaintiffs, Gaylord Entertainment Co., is the owner of the landmark Opry and the nearby Opryland Hotel, but also because the plaintiffs will try to hold the government accountable using a strategy similar to one employed by a group of New Orleanians who successfully sued the Army Corps over the floods that followed Hurricane Katrina in 2005. . . .


In the Nashville case, plaintiffs argue that the flooding was caused by a botched handling of the Old Hickory Dam upriver. The suit alleges that the federal dam was congressionally authorized not as a flood-control project, but as a hydroelectric power and navigation project. As a result, it argues, the government should not be immune to a lawsuit.


The suit also alleges that the government failed to issue a proper warning of the danger.







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Published on May 01, 2012 05:22

April 30, 2012

Elizabeth Warren Update

(David Bernstein)

Plenty of other bloggers are following the story of Warren’s claim of minority status, and I’ll leave it to them. But I did want to reprint the reporting below by Professor Jacobson, because it’s salient to many of the comments to my original post (and kudos to Jacobson for gathering more information than reporters from major newspapers have managed). In particular, Jacobson confirmed that Warren self-identified in the AALS faculty guide as a “minority” based on Native American status.

I spoke this afternoon with Alethea Harney, Warren’s campaign press secretary, and confirmed several key details.

Harney acknowledged that the minority status reported by Warren to AALS was Native American, and that while Warren does not remember the precise forms, she believes there was a box or other designation to be selected for Native American.


The AALS reporting was the only time Warren self-identified as Native American as far as Warren currently is aware, according to Harney, and Warren never has joined any Native American groups, or asserted any tribal memberships.


According to Harney, Warren’s Native American status did not come up in connection with her hiring by HLS, and in fact she was recruited and did not apply.


Harney said that Warren does not have any records documenting her Native American heritage, but that is being researched. Harney said that the campaign has been told that there is no good genealogical documentation with regard to tribes from Oklahoma, unlike tribes from some other areas. Harney did indicate that the tribal connection is believed to be on Warren’s grandmother’s side of the family.


Harney was unaware of whether Warren ever claimed Native American status on any college or law school applications, and would not comment on how HLS ended up listing Warren as Native American.


UPDATE: Oh, and this made me laugh out loud, for reasons having nothing to do with the “diversity” issue: “On Monday night, officials involved in her hiring at Harvard, the University of Pennsylvania, the University of Texas and the University of Houston Law Center all said [in statements released by the Warren campaign] that she was hired because she was an outstanding teacher, and that her lineage was either not discussed or not a factor.”


Harvard and other elite law schools are now hiring tenured faculty primarily based on teaching prowess, rather than scholarship? Expect the relevant lateral appointments committees to be inundated with c.v.s from student-selected “professors of the year” who have until now somehow escaped the top law schools’ notice.


[As Orin writes in the comments, "to a law professor familiar with academic hiring, this [being hired by an elite school based on teaching rather than scholarship] is akin to proposing that a 19-year old guy was attracted to a Victoria’s Secret model primarily because of her personality. It’s possible in theory, but not likely in reality.”]







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Published on April 30, 2012 19:01

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