Eugene Volokh's Blog, page 257

[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New cert petition! Friends, if an FBI SWAT team ever raids your home by mistake, terrifying your family, because they couldn't be bothered to double check they had the right address, you might like to sue over it. And you might think the Federal Tort Claims Act, which Congress amended in 1974 specifically to ensure there's a cause of action for federal police raids, lets you do just that. But you'd be wrong, at least in the Eleventh Circuit, which earlier this year ruled (unpublished and per curiam) that FBI agents have the discretion to do anything or nothing at all when it comes to making sure they raid the correct house. Today, IJ asked the Supreme Court to step in, resolve some circuit splits, and tell the Eleventh Circuit that the Supremacy Clause doesn't conflict with federal statutes.

New on the Short Circuit podcast: Michael Perloff of the ACLU joins us to discuss how the D.C. Circuit said your "effects" receive Fourth Amendment protection for as long as the police hold onto them.

Three individuals are arrested for murder of Boston pizza delivery man in 2010; one pleads guilty and the other two are tried together. Co-defendant "A" makes inculpatory statements about co-defendant "B." The state wants to use A's statements against B, so it creates a redacted transcript of the statements, replacing all references to B's name with a blank space. The state shows the jury that transcript at the close of B's trial and he's convicted. Sixth Amendment violation? First Circuit: Yes, but we have "no grave doubt" that the jury would have reached the same verdict without the redacted statement. Conviction affirmed. Partial dissent: "I entertain 'grave doubt' about whether the statement had such an influence" because it was "plainly critical to the prosecution." Not the worst news NYC Mayor Eric Adams received this week, but the Second Circuit has un-dismissed a lawsuit alleging that changes to the admission process for some of the city's most prestigious and highly selective high schools discriminated against Asian-American students. Drugmaker Merck has been in court for quite some time over the question as to whether federal law preempts state-law claims related to the labeling of its anti-osteoporosis drug Fosamax. How long? Longer than the publication of George R.R. Martin's most-recent novel in the A Song of Ice and Fire series (July 2011). And just like the book-version of that series, there's no telling when the end will be. After multidistrict consolidation in 2011, a "bellwether trial" in 2013, a Third Circuit ruling in 2017, a SCOTUS reversal in 2019, and a district court ruling in 2022, the Third Circuit has once again penned a chapter, this time reversing the district court, determining the claims are not preempted and remanding for further writing. Pennsylvania death-row prisoner with a history of mental illness is held in solitary confinement for 26 years. He sues a prison official, who does not dispute whether that violates the Eighth Amendment, arguing only that he is entitled to qualified immunity. Third Circuit (over a dissent): There's "no room for doubt that individuals with a known history of serious mental illness have a clearly established right not to be subjected to prolonged solitary confinement without penological justification." No QI. Two fishermen challenge a federal fishing rule limiting their catch in the Mid-Atlantic region. Unlike federal rules issued by agencies headed by Senate appointees, this one emanates from the Mid-Atlantic Council, run by people appointed to various degrees by state governors and are not Senate-confirmed. The Council can "pocket veto" the Senate-appointed Secretary of Commerce in certain situations. Third Circuit: Pocket vetoes are right there in the Declaration of Independence. As a remedy, though, we won't do anything so drastic. Let's just sever the pocket-veto powers. Octogenarian, disabled, good-hearted Texas veterinarian spends his golden years responding by e-mail to questions from pet lovers worldwide. Texas: This cannot stand! Under Texas law, vets cannot provide advice to pet owners unless the vet has first met the pet in-person (or visited the pet's home). A First Amendment violation? Fifth Circuit (2015): No. The First Amendment doesn't protect "professional speech" at all. Fifth Circuit (2020): Our bad, turns out the First Amendment does protect professional speech. Case remanded for the district court to deal with all this in the first instance. Fifth Circuit (2024): The vet wins. Even under intermediate First Amendment scrutiny, Texas's in-person examination requirement fails—not least because, under Texas law, "[e]xam-free telehealth, turns out, is fine for your Uncle Bernard, but not for your Saint Bernard." Concurrence: And the requirement definitely fails strict scrutiny, which is the standard I think should apply here. (This decade-long jaunt is an IJ case, and we couldn't be happier for the irrepressible Ron Hines: be sure to give your favorite schnoople, horse, Glaswegian cat, or Iranian pigeon a special pat on the head today in honor of Dr. Hines and the U.S. Constitution.) After Texas put floating barriers across the Rio Grande, the United States sued, alleging the barriers violated the Rivers and Harbors Act of 1899 and seeking an injunction ordering their removal. Texas, thinking it stood a better chance in front of a jury than a judge, demanded trial by jury. When that was denied, it petitioned for mandamus. Fifth Circuit: Which we deny. The United States is seeking only equitable relief, and it is well established that the Seventh Amendment does not apply. The Inflation Reduction Act gives HHS the power to "negotiate" prescription drug prices by telling companies how much they're allowed to charge for certain drugs and penalizing them if they don't agree. Manufacturers can only avoid the penalties if they give up Medicare coverage for all drugs they produce. Fifth Circuit (over a dissent): Yup, you can sue about that. Christian healthcare ministry and Catholic school challenge Michigan anti-discrimination laws. Michigan: But they have nothing to worry about because the law states it doesn't apply where doing so would violate other applicable law, so the law can't cover anything that it would be unconstitutional to cover. Sixth Circuit: Nice try. The American Rescue Plan Act conditioned certain kinds of COVID-19 aid for farmers on the race of the farmer receiving aid—which (said several federal judges) was probably unconstitutional but which (says two-thirds of this Sixth Circuit panel) was not, like, super-unconstitutional such that this plaintiff should be awarded fees for challenging it. Allegation: Charlestown, Ind. police officers assure woman that they're having her violent, abusive, unstable husband detained in a hospital for 24 hours. But that's a lie. The husband is free to leave, and he does, returning home and carrying out his threats to kill her. Seventh Circuit (per curiam, three opinions): To trial some of this must go. J. Scudder: "Above all else, this case presents a tragic example of the risks posed by domestic violence and the consequences of law enforcement's failure to appreciate those risks. … [P]olice departments ought to prioritize training on responses to domestic violence." Allegation: At oil pipeline protest in North Dakota, police tackle protestor, dogpile on top of him, and strike him even though he's not resisting—all without warning. He suffers a fractured pelvis, among other injuries. Eighth Circuit: Could be excessive force. No QI. Man flees traffic stop on foot after being pulled over for speeding; a Kansas City, Mo. officer chases him down and shoots him dead. Officer: He was pointing what I thought was a gun at me. (There's no video; the man was unarmed.) Eighth Circuit: A jury might think he couldn't have been pointing anything at you because you shot him in the back of the elbow (among other places). No QI. Pro se Arkansas inmate: I had a sexual relationship with a prison security officer, which violated my Eighth Amendment rights. Eighth Circuit: Since the (now-former) prison guard didn't bother to show up for any of this litigation, we've invited the Arkansas AG's office to weigh in as amicus, to ensure the integrity of the adversarial process. And based on the allegations in the complaint, the relationship was entirely consensual. No Eighth Amendment violation here. Dissent: I'm not so sure the plaintiff's handwritten complaint supports that conclusion. Mayhaps justice would be better served by remanding so she can have a hearing (and maybe even a lawyer to represent her!) to address whether the relationship was truly consensual. The Ninth Circuit, standing out "like a flamingo in a flock of finches," is the only federal circuit that treats dicta as binding precedent. That fun little quirk explains both why Judge Forrest has to write a unanimous en banc opinion correcting some ill-considered dicta in an old panel opinion about the False Claims Act and also why that same Judge Forrest writes a concurring opinion noting that it sure would save a lot of time if the court went back to treating dicta as dicta. Looking for male suspects behind a spate of car burglaries, Alameda County, Calif. officers detain, handcuff … a mother and her two teen daughters? For 90 minutes? Jury: Which violated the Constitution (and the Bane Act). Pay $8.25 mil. Officers: The judge erred by instructing the jury to decide whether the law was clearly established. That's a legal question for a judge. Plaintiffs: Sure, but the error made it harder for us to prevail. Ninth Circuit (unpublished): We're not going to throw out the verdict, but the judge [Ed.: who seemed none too happy with the defense last time around] should have another look at that. Remanded. Arizona enacts a law allowing counties to cancel an individual's voter registration if it receives confirmation from another county that the person has moved and registered in a new county. Nonprofits sue. Ninth Circuit: well nonprofits aren't voters, so they don't have standing. Alabama allows individuals to change the sex designation on their driver's licenses but only if they have had gender reassignment surgery. A group of transgender individuals who have not had that surgery sue so that they can also change their sex designations, raising equal protection, due process, and free speech arguments. Eleventh Circuit: And if you've been reading our opinions lately you'll know that these plaintiffs lose. Florida boat crew believes it has stumbled on an illegal long-line fishing buoy. It pulls up the lines, cuts free several sharks, and even tells Florida Fish & Wildlife what they'd done. Whoops. Turns out the line was lawfully placed by marine researchers with proper permits. So the feds bring felony theft charges against the crew, who are convicted. Eleventh Circuit: Convictions affirmed. Reversed. Thieves intend to profit from their crimes. Concurrence: I just want to take a moment to ensure that the name of the AUSA who brought this prosecution—"taking a page out of Inspector Javert's playbook"—is immortalized in the Federal Reporter. [Ed.: The staff here has many regrets, and getting the holding of this case precisely backwards is one of them.]

New case! Friends, Pennsylvania law allows "waterways conservation officers" to traipse across private land at will to investigate violations of state fishing laws. Might that violate the Fourth Amendment? And might all that unbridled authority result in officers behaving like serious jerks? We say yes to both, as evidenced by the abusive and out-of-control behavior of an officer who harassed IJ client Tim Thomas and his late wife Stephanie, trespassing at their cabin, leveling baseless charges against Tim, and then—when Tim prevailed in court—retaliating with more trespassing, angry confrontations, and more bogus charges. "Protecting and preserving wildlife is important, but that doesn't mean those in government tasked with doing so can ignore the Constitution," says IJ Attorney Kirby Thomas West. "If any law enforcement officer wants to search someone's private property, the Fourth Amendment requires them to get a warrant based on probable cause." Click here to learn more.

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[Ilya Somin] Virginia Court Rules Against Arlington "Missing Middle" Zoning Reform

Today, a Virginia state trial court ruled against Arlington County's "missing middle" zoning reform, which allows owners of land previously zoned for single-family homes only, to build multifamily residences, with up to four or six units. I previously wrote about the Arlington missing middle reforms (which I support) here and here. The new policy could do much to protect property rights, reduce housing costs, and make it possible for more people to move to Arlington and make use of the many job and education opportunities available in the area, thereby benefiting both themselves and the regional economy.

In addition to being a property and land-use scholar, I am also an Arlington County resident. When people claim I only advocate zoning deregulation in places where other people live, I respond by citing my support for "missing middle."

The Arlington Now website has a helpful summary of the ruling (the decision itself does not seem to be available online):

A circuit court judge has overturned Arlington's Missing Middle zoning changes.

Judge David Schell ruled against the county on four counts this morning (Friday), finding that the county failed to adequately consider localized impacts, failed to follow proper procedure and violated state tree canopy requirements when adopting the amendments.

As of today, the county cannot lawfully issue any more permits under the Expanded Housing Option, which allowed for the construction of up to six-unit buildings on properties that were previously zoned for only single-family homes…

Although a county expert testified that Arlington does, in fact, have sufficient infrastructure to support anticipated growth, the judge found "no evidence presented that the county considered likely overflows" and other localized impacts.

"It appears from the evidence that no consideration was given to the effect of additional sewage," he said.

On a more procedural note, the judge found that the County Board's original resolution to advertise zoning changes "contains no statement that the County Board is resolving to amend the zoning ordinance." He also found that the Board's ordinance "unlawfully delegated legislative responsibility" to county staff.

Finally, the judge found that EHO zoning fails to comply with tree planting and placement standards in the Virginia Code.

The ruling will almost certainly be appealed.

I won't comment on the merits of the decision, which largely turn on technical aspects of Virginia state law, many of which are outside my expertise. But I will note that rulings like this highlight the need for state-wide zoning reform, and for stronger judicial enforcement of constitutional protections for property rights. This is far from the only case where zoning reform has been undercut by state-law litigation. Another recent example is a dubious California court decision striking down SB 9—a significant law limiting single-family zoning

A statewide law could abrogate or at least limit the kinds of procedural hurdles relied on by the plaintiffs here. A state constitutional amendment would be even better. Sadly, Virginia has made little progress on statewide zoning reform, despite support from Gov. Glenn Youngkin.

Stronger judicial enforcement of state and federal constitutional takings clause protections for property rights would also be a big help. In "The Constitutional Case Against Exclusionary Zoning," a forthcoming Texas Law Review article, University of Wisconsin law Professor Josh Braver and I explain why most exclusionary zoning rules violate the Takings Clause of the Fifth Amendment. Part IV of the article explains how litigation to bolster judicial enforcement of the Takings Clause could work in tandem with political reform efforts. We published a shorter, nonacademic version of our argument in the Atlantic.

UPDATE: If you object to using state legislation or constitutional litigation to override zoning rules on the grounds that it undermines local autonomy, I refer you to my post on why "YIMBYism is the Ultimate Localism."

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[Ilya Somin] Revised Versions of Articles on "The Constitutional Case Against Exclusionary Zoning" and "Land Use Regulation" Now Available

I recently posted substantially revised versions of two new articles on land use and property rights issues to SSRN. The first is "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver, forthcoming in the Texas Law Review). Here is the abstract:

We argue that exclusionary zoning—the imposition of restrictions on the amount and types of housing that property owners are allowed to build— is unconstitutional because it violates the Takings Clause of the Fifth Amendment. Exclusionary zoning has emerged as a major political and legal issue. A broad cross-ideological array of economists and land-use scholars have concluded that it is responsible for massive housing shortages in many parts of the United States, thereby cutting off millions of people – particularly the poor and minorities—from economic and social opportunities. In the process, it also stymies economic growth and innovation, making the nation as a whole poorer.

Exclusionary zoning is permitted under Euclid v. Ambler Realty, the 1926 Supreme Court decision holding that exclusionary zoning is largely exempt from constitutional challenge under the Due Process Clause of the Fourteenth Amendment, and by extension also the Takings Clause. Despite the wave of academic and public concern about the issue, so far, no modern in-depth scholarly analysis has advocated overturning or severely limiting Euclid. Nor has any scholar argued that exclusionary zoning should be invalidated under the Takings Clause, more generally.

We contend Euclid should be reversed or strictly limited, and that exclusionary zoning restrictions should generally be considered takings requiring compensation. This conclusion follows from both originalism and a variety of leading living constitution theories. Under originalism, the key insight is that property rights protected by the Takings Clause include not only the right to exclude, but also the right to use property. Exclusionary zoning violates this right because it severely limits what owners can build on their land. Exclusionary zoning is also unconstitutional from the standpoint of a variety of progressive living constitution theories of interpretation, including Ronald Dworkin's "moral reading," representation-reinforcement theory, and the emerging "anti-oligarchy" constitutional theory. The article also considers different strategies for overruling or limiting Euclid, and potential synergies between constitutional litigation and political reform of zoning.

The second is "Land-Use Regulation," a chapter in the forthcoming Routledge Handbook on Classical Liberalism (edited by Richard Epstein, Liya Palagashvili, and Mario Rizzo). Here is the abstract:

Land use regulation is a major function of every government in the world. It raises many issues for classical liberalism. This chapter provides an overview of three of the most important areas of land-use policy: the use of eminent domain to forcibly take property for government-approved projects, regulations that restrict property owners' use of their land, and the relationship between property rights in land and migration restrictions.

Part I covers the use of eminent domain to take private property, and arguments for its limitation to genuinely "public" projects, as opposed to coerced transfers between private owners. Advocates of the latter argue they are needed to overcome "holdout" problems. But unconstrained use of eminent domain is a serious threat to property rights and hampers economic development.

Part II considers regulatory restrictions on land use that do not involve physical occupation of property. There is a longstanding debate about the value of such restrictions and whether the government should pay owners compensation. The most significant regulatory restrictions of this type in many nations are zoning rules restricting housing construction.

Finally, Part III provides a critical overview of property-rights rationales for restricting mobility, particularly in the form of international migration. Such theories justify severely constraining the liberty and property rights of both migrants and natives.

In addition to contributing to this volume, I am also a contributor to Routledge Handbook of Libertarianism, edited by Jason Brennan, Bas van der Vossen, and David Schmidtz, and the Cambridge Handbook of Classical Liberal Thought, edited by M. Todd Henderson. Yet, I'm far from clear on what, if anything, differentiates libertarianism and classical liberalism. I explored that question  in a previous post.

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[Jonathan H. Adler] Previewing the Next Supreme Court Term

On Tuesday, October 1, I will be participating in the Federalist Society's annual Supreme Court term preview event in Washington, D.C. Those joining me in examining what is in store for October Term 2024 will include Paul Atkins, Lisa Blatt, Erin Hawley, and John Moran. Sarah Isgur will moderate. Registration info is here.

For those interested in a deeper dive in the term's first environmental case, City and County of San Francisco v. Environmental Protection Agency, I moderated this teleforum webinar previewing the case with Prof. Robin Kundis Craig and Andre Monette.

And for folks in Northeast Ohio, I'll be doing a program on the Court with Pete Williams, formerly of NBC News, at John Carroll University on Monday evening.

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[Eugene Volokh] Restriction on Veterinary Advice Given via Telemedicine Violates First Amendment

From yesterday's decision in Hines v. Pardue, by Fifth Circuit Judge Don Willett, joined by Judges Cory Wilson:

Dr. Ronald S. Hines is a retired, physically disabled, Texas-licensed veterinarian who enjoys spending his golden years giving online pet-care advice to animal lovers around the world—often for free. Dr. Hines does not physically examine animals, perform surgeries, apply casts, splints, or bandages, administer vaccinations, or prescribe prescription medication. He merely sends emails. This would be no problem if the patients were people instead of pets. For humans, Texas law allows telemedicine without first requiring a face-to-face examination to establish a physician-patient relationship. Not so with animals, which require an in-person visit. Exam-free telehealth, turns out, is fine for your Uncle Bernard, but not for your Saint Bernard.

No one ever complained about Dr. Hines's online pet-care advice or alleged that it harmed a single animal. However, because Dr. Hines does not physically examine animals before sharing his expertise, the State of Texas considered some of his emails criminal offenses, going so far as penalizing him with a year of probation, fining him $500, and forcing him to retake the jurisprudence section of the veterinary licensing exam….

Today, we uphold Dr. Hines's First Amendment rights. We specifically conclude that the State of Texas is directly regulating Dr. Hines's speech and that this regulation fails to survive even intermediate scrutiny….

First things first, we must determine what the physical-examination requirement primarily regulates. The State does not dispute that Dr. Hines's speech is implicated. It contends that the physical-examination requirement restricts Dr. Hines's speech incidentally to the general regulation of conduct. So, we consider whether the requirement regulates Dr. Hines's speech directly or only incidentally to the regulation of his conduct. On the one hand, all Dr. Hines does is send emails—pure speech. But on the other, the law regulates his speech as part of the practice of veterinary medicine. {We are mindful that under "[Supreme Court] precedents, [s]tates may regulate professional conduct, even though that conduct incidentally involves speech."} …

[C]ircuit courts have, until recently, applied the so-called professional-speech doctrine to licensing regulations like this one. These courts, including our own, treated laws regulating professionals' speech as a separate category from non-professional speech, entitling them to less protection and exempting them from traditional First Amendment scrutiny. The Supreme Court, however, rejected this doctrine in NIFLA v. Becerra (2018), and instructed courts to apply the "traditional conduct-versus-speech dichotomy." But "[a]s it stands today, the relevant First Amendment doctrine is a mind-numbing morass of tangled precedents developed in contexts very different from professional licensing."

The "notoriously foggy" speech-conduct dichotomy makes "finding the line between speech and conduct … not as simple as asking whether the prohibition is literally one against verbal or written 'speech,' on the one hand, or one against 'conduct' (i.e., nonverbal action) on the other." In as-applied challenges—especially those involving "generally applicable regulation[s] of conduct," such as the regulation here—a particular act constitutes protected speech, rather than unprotected conduct, if that act "consists of communicating a message."

For example, a generally applicable regulation proscribing breaching the peace regulated speech, rather than conduct, when an individual was arrested and convicted for wearing a jacket that said "F*** the Draft" inside a courthouse. The Supreme Court found the conviction to "clearly rest[ ] upon the asserted offensiveness of the words [the plaintiff ] used to convey his message to the public." Because "[t]he only 'conduct' which [California] sought to punish [wa]s the fact of communication," the Supreme Court applied First Amendment scrutiny and reversed the conviction.

In another (and more apt) example, a law proscribing support for "the humanitarian and political activities of" two designated terrorist organizations, which "generally function[ed] as a regulation of conduct," regulated speech because as "applied to [the] plaintiffs[,] the conduct triggering coverage under the statute consist[ed] of communicating a message"—individualized legal advice. As the court recognized, whether the plaintiffs could speak with designated terrorist organizations"depend[ed] on what they [said]" because the regulation barred certain forms of speech—including "speech to those groups [that] impart[ed] a 'specific skill' or communicate[d] advice derived from 'specialized knowledge.'"

Our goal then is to determine whether the physical-examination requirement primarily affects Dr. Hines's speech ("communication of a message") or his conduct by looking at what "trigger[s] coverage under the statute." …

The State contends that the law is primarily a conduct regulation because the definition of practicing veterinary medicine applies to a "set of skilled actions"—that is, conduct. But calling an act "speech" or "conduct" (or "actions") does not make it speech or conduct for First Amendment analysis. Indeed, the Supreme Court has been clear: "State labels cannot be dispositive of [the] degree of First Amendment Protection." It is a court's duty to consider a "restriction's effect, as applied, in a very practical sense"—not to follow whatever label a state professes. If courts were required to accept a governmental actor's speech-or-conduct designation, we would be compelled to forgo our solemn duty to "assess[ ] the First Amendment interest at stake and weigh[ ] it against the public interest allegedly served by the regulation." This means we must determine from the evidence, rather than the parties' labels, whether Dr. Hines's course of action involved speech.

The State identified Dr. Hines's provision of "individually tailored diagnostic services and veterinary medical advice for specific animals" as practicing veterinary medicine. Dr. Hines was penalized specifically for engaging in the practice of veterinary medicine without first establishing VCPRs [veterinarian-client-patient relationships] in person. But in detailing the specific acts that constituted the practice of veterinary medicine in violation of the physical-examination requirement, the State pointed to Dr. Hines's email exchanges in which he communicated individualized diagnoses and treatment plans with various animal owners.

For example, Dr. Hines was contacted by an owner whose bird had managed to remove a splint on its leg only a week after its placement by a local veterinarian. The bird owner, who was concerned that the bird's legs were crossing and that this might inhibit its mobility, attached a video of the bird to the email she sent Dr. Hines. Dr. Hines wrote back and informed the owner that a splint was necessary to ensure the bird's full recovery, and he instructed the owner on how to make a splint and how to apply and adjust it. The State concluded, based on the conclusions of its investigator and experts, that Dr. Hines had engaged in the practice of veterinary medicine without establishing a VCPR by communicating (via email) an individualized diagnosis and treatment plan to the bird owner.

Critically, not all of Dr. Hines's conduct was barred. Indeed, the State did not find Dr. Hines's review of the owner's email or video or the substance of his diagnosis and treatment plan violative of the physical-examination requirement; the State did not penalize Dr. Hines for viewing charts or considering different medical reports. And the State did not penalize him for applying a splint or administering medicine—nor could they. Instead, the State only penalized him for his communication with the owner about her bird in which he gave a diagnosis and treatment plan. In effect, the regulation only kicked in when Dr. Hines began to share his opinion with his patient's owner—as is the case with all of Dr. Hines's alleged violations of the physical-examination requirement. Because the act in which Dr. Hines engaged that "trigger[ed] coverage" under the physical-examination requirement was the communication of a message, the State primarily regulated Dr. Hines's speech.

The majority concurred that it need not decide whether the law was content-based or content-neutral, because it was unconstitutional even under the less demanding legal standard applicable to content-neutral speech restrictions. An excerpt:

The State's defense of the physical-examination requirement focuses exclusively on its interest in animal welfare…. [But] the State has failed to show that the alleged harms to animal welfare in the context of the physical-examination requirement are real.

The State alleges that the physical-examination requirement protects animal welfare by reducing the risk that veterinarians will misdiagnose—and thereby harm—animals. In other words, the harm the State seeks to address is misdiagnosis by veterinarians who conduct telemedicine without first performing a physical exam….

Before the district court, the State relied on a literature review conducted by Dr. Teller. The State does not press this evidence before us now, likely because the review didn't find any evidence of actual harm. It found "no published reports of veterinarians providing inadequate or substandard care via virtual care." And it found no "studies comparing in clinic visits with telehealth visits to determine if there is concordance between the findings of those exams." Although it mentions "risks of missed diagnoses" as a "concern[ ]," a hypothetical concern—even if seemingly significant—is insufficient to identify a "real harm."

[The expert witnesses'] anecdotes fare no better….

The State has effectively proven that veterinarians believe that a physical exam is helpful and that telemedicine should be used only as a follow up to the in-person exam. Indeed, a physical exam seems to be a plus factor to a veterinarian's analysis—a check for physical ailments or physical manifestations of ailments that may not be readily apparent to a pet's owner. These are risks that an individual knowingly chooses to forego by choosing a telemedicine appointment for their animal.

But proving that a physical examination is helpful is not enough. The State has failed to meet its burden of proving that misdiagnoses from telemedicine are a real harm in this case. The State emphasizes that the physical exam reduces the risk of misdiagnosis from telemedicine without an exam and argues that it can enact prophylactic rules before the harm occurs. Both are true, and the State's interest in reducing misdiagnoses is legitimate. But the State cannot meet its burden of proving real harm by pointing to "risks" of harm—or hypothetical concerns—that, according to the evidence, have never materialized….

Even if the harms alleged by the State were real, as the State contends, the law suffers from a fatal defect: The State fails to prove that the law "alleviate[s] these harms in a direct and material way."

The first problem with the State's chosen means is apparent on the face of the statute itself. There are two ways a vet can establish the VCPR, and one of them doesn't require a physical exam at all. To recap, a veterinarian must first establish a VCPR before practicing veterinary medicine. The VCPR exists "if the veterinarian: … possesses sufficient knowledge of the animal." And "[a] veterinarian possesses sufficient knowledge of the animal … if the veterinarian has recently seen, or is personally acquainted with, the keeping and care of the animal by: (1) examining the animal; or (2) making medically appropriate and timely visits to the premises on which the animal is kept." But the VCPR cannot "be established solely by telephone or electronic means."

The State does not explain how the law alleviates the harm of misdiagnoses from telemedicine without a physical exam when the VCPR can also be established by a visit to the premises without a physical exam. Although the State's experts testified that the premises-visit option is typically used for herd animals, she conceded it is not so limited, testifying that the "premises" visited "could be the premises on which a dog is kept." Nor does the plain text provide this limitation. And furthermore, the State fails to explain why a "recent[ ]" physical examination—which has no definition—is sufficient to establish a VCPR. For example, why would a "recent" physical examination in the last year or two provide any better insight into an animal's condition than a real-time telehealth appointment without a preceding physical examination?

If that weren't enough, the State's looser approach to human welfare undercuts the State's insistence on a physical exam to advance animal welfare. After all, the State of Texas allows exam-free telemedicine for babies and noncommunicative adults—those who, like animals, cannot communicate with their physicians. How can the State insist a hands-on exam is necessary to protect animals while conceding a hands-on exam is unnecessary to protect humans? Put differently, why does Texas mandate tougher telehealth rules for veterinarians treating animals than for physicians treating people? The State does not say….

Judge Irma Carrillo Ramirez concurred, arguing that the "the physical examination requirement, as applied to [Hines], is a content-based speech restriction that does not survive strict scrutiny"; a short excerpt:

Here, it is the interaction between the PER [physical examination requirement] and the statutory definition of practicing veterinary medicine as applied to Dr. Hines that he challenges as a content-based restriction on his speech. To determine whether Dr. Hines engaged in the practice of veterinary medicine, the State examined his words. Where Dr. Hines's communications conveyed general information regarding veterinary care that was not tailored to a specific animal, the State found that Dr. Hines had not engaged in the practice of veterinary medicine. Where he had communicated veterinary-care information tailored to a specific animal, however, the State drew the opposite conclusion….

[E]ven assuming arguendo that the PER is content neutral under City of Austin v. Reagan National Advertising (2022) and Ward v. Rock Against Racism (1989), it may nevertheless be content based under McCullen v. Coakley (2014). A law may be facially content neutral yet content based in application….

Andrew Heller Ward and Jeff Rowes (Institute for Justice) represent Hines.

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[Eugene Volokh] Speaking of AI Liability

The discussion at today's AI Liability conference reminds me of one of my favorite stanzas from a poem (Kipling's Hymn of the Breaking Strain):

The careful text-books measure
(Let all who build beware!)
The load, the shock, the pressure
Material can bear.
So, when the buckled girder
Lets down the grinding span,
The blame of loss, or murder,
Is laid upon the man.
Not on the Stuff — the Man!

The rest of the poem, to be sure, isn't about tort liability.

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[Eugene Volokh] Lawfare AI Liability Symposium

I'm participating in this in-person event today at the Georgetown Law Center in D.C., and Lawfare is posting the articles here (the link also includes some other pieces on related topics). The articles all look very interesting; mine in particular is on AI and the First Amendment—readers of the blog might find it familiar, since it's based on past articles (including one cowritten with Mark Lemley and Peter Henderson), but it might still be a helpful shortish digest of those longer articles.

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[Jonathan H. Adler] Justice Kavanaugh Warns Against Over-Reading Loper Bright Decision

Yesterday Justice Brett Kavanaugh spoke at Catholic University's Columbus School of Law as part of a program sponsored by the Center for the Constitution and the Catholic Intellectual Tradition. His remarks came in the form of an interview with Professor Joel Alicea.

As Bloomberg's Lydia Wheeler reports, the Justice had some interesting things to say about how to understand the Court's decision dispatching with Chevron deference in Loper Bright Enterprises. In particular, the Justice characterized the decision as "a course correction consistent with the separation of powers to make sure that the executive branch is acting within the authorization granted to it by Congress."

From the Bloomberg report:

"To be clear, don't over read Loper Bright," Kavanaugh said, while speaking at Catholic University of America Columbus School of Law in Washington on Thursday. "Oftentimes Congress will grant a broad authorization to an executive agency so it's really important, as a neutral umpire, to respect the line that Congress has drawn when it's granted broad authorization not to unduly hinder the executive branch when performing its congressional authorized functions, but at the same time not allowing the executive branch, as it could with Chevron in its toolkit, to go beyond the congressional authorization ."

This is consistent with my initial analysis of the decision.

In his remarks, Justice Kavanaugh seemed to confirm that the Court's majority was concerned about the increasing tendency of federal agencies to try and pour new wine out of old bottles and stretch pre-existing statutory authorizations into new areas. During the Bush Administration, Kavanaugh said "he saw firsthand how hard it is for presidents to get big legislation through Congress and the pressure there is on the agencies to 'push the envelope,' when it comes to regulating, which Chevron facilitated." In this regard, Loper Bright Enterprises can be seen as of a piece with the Court's major questions doctrine decisions that likewise seek to prevent agencies from exceeding the bounds of their delegated authority. (One might even say they combine to make something of a "delegation doctrine.")

Law.com also reported on Justice Kavanaugh's remarks.

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[Paul Robinson and Jeffrey Seaman] It's Time to Confront Failures of Justice (Part V)

This is the final post in a five-part series where we're guest blogging about our new book Confronting Failures of Justice: Getting Away With Murder and Rape, available here. In the previous posts we considered the frequency of failures of justice (instances of unpunished or inadequately punished crime), their costs, and the problem of balancing competing societal interests in criminal justice policy. Identifying problems is important, and our book identifies numerous problematic areas of the justice system where serious criminals either completely escape conviction or escape what society would see as a just punishment.

However, we also offer reform ideas for what a better balance of societal interests might look like in each area of the justice system. While we describe or suggest dozens of possible reforms to reduce failures of justice, consider an excerpt from the book listing ten reforms (not by order of importance) we think policymakers should particularly consider.

[1.] Abolish the Statutes of Limitation for Serious Felonies, and for Other Felonies Restart the Limitation Clock after Any New Felony (chapter 2). As discussed in chapter 2, while statutes of limitation might have had more justification when introduced centuries ago, the reasons for their continued use are lacking, especially when they regularly produce failures of justice for serious offenses.

[2.] Adopt a Fair Import Test in Place of a Strict Construction Test, after Adopting a Modern Criminal Code Format (chapter 2). As with statutes of limitation, the rule of strict construction might have made sense back when it was first adopted, but the advent of modern criminal codes with their careful drafting and defined terms have left it with little continuing justification.

[3.] Adopt a Desert-based Distributive Principle, as per the Model Penal Code (chapter 3). Half a century ago, when the Model Penal Code was first drafted by the American Law Institute, the state of criminal law theory left it unsettled as to whether criminal law ought to be primarily aimed at doing justice—giving offenders the punishment they deserve, proportionate to the seriousness of the offense and the blameworthiness of the offender—or in the business of avoiding future crime through general deterrence or incapacitation of the dangerous, even if doing so meant violating principles of deserved punishment. But as the 2007 amendment of the Model Code illustrates, it has now become clear that abandoning desert as the guiding principle for criminal liability and punishment creates its own enormous costs to effective crime control.

[4.] Establish a National Experts Group to Set Best Investigative Practices and to Help Gain Funding to Meet Them (chapters 4 & 5). Chapters 4 and 5 made clear the frequent failures of justice that come from investigative errors, poor training, and inadequate financing. Given the importance of doing justice in the community's eyes, these problems, which can easily be fixed with greater investment, ought to be high on the reform list. This proposed reform could have an enormous practical effect in reducing failures of justice in a wide range of cases without requiring more complicated legal changes.

[5.] Enlarge Investigative Databases and Capabilities but Establish Limitations on Their Use (chapter 7). There is understandable reluctance to allow governments to be too intrusive in our private lives, but at the same time, there seems to be strong support for the idea that minor intrusions in our collective privacy are worth the enormous benefits to justice and safety that can be obtained by allowing investigators to have greater access to modern technology. Greater access can dramatically alter the level of serious criminality in a society with only minor intrusions on our privacy, as in the collection of a genetic fingerprint from all arrestees to only be used when investigating serious offenses. Additionally, expanding the use of CCTV and automatic license plate readers in public spaces, where the community approves, improves justice at little cost to privacy. A key to adopting modern investigative technology is making sure sufficient limitations and safeguards are put in place to prevent its abuse and assuage public concerns.

[6.] Replace the Exclusionary Rule with Direct Sanctioning of Offending Officers (chapter 8). For many people, the exclusionary rule will stand as one of the most offensive doctrines disregarding the importance of doing justice. Should a serial torturer and murderer like Larry Eyler go free (to kill again) because he was held too long during a Terry stop? Such applications of the exclusionary rule bring into disrepute the entire criminal justice system…. The existence of the rule is even more offensive because it commonly fails in its stated justification of deterring police overreach.

[7.] Use Consolidated Offense Drafting with Particularized Offense Grading to Reduce the Justice-Frustrating Costs of Plea Bargaining (chapter 10). Plea bargaining may be the most common source of justice failures in the current system among caught criminals. Nearly every "bargain" is a case in which the offender is getting less criminal liability than they deserve, with the prosecution trading that deserved punishment for the efficiency and certainty of a guilty plea. While it may be impractical to stop offering plea bargains, there is no reason to have a system that offers any greater reduction in justice than is needed to induce a plea…. Prosecutors can try to work around the problem in a variety of ways, but the most obvious and cleanest solution is simply to draft criminal codes in a way that consolidates all related offenses into a single offense provision (for homicide, theft, assault, sexual assault, fraud, etc.) and provides many offense grades within each consolidated offense, as some modern and proposed codes already do.

[8.] Adopt Comprehensive Sentencing Guidelines, as per the Federal System (chapter 11). A common source of justice failures is the exercise of sentencing discretion by judges who have their own idiosyncratic view of what justice requires. To make things worse, these failures of justice also introduce unacceptable punishment disparities among similar cases.

[9.] Abolish Early Release on Parole, as per the Federal System (chapter 12). The federal Sentencing Reform Act of 1984 demonstrates the value of abolishing early release on parole…. The federal system provides transparency with the public about how offenders are dealt with: the sentence publicly imposed in court really is the sentence served. Compare such honesty with the shell game played currently in many states where the sentence publicly imposed means little or nothing. The actual sentence served will be determined later out of public view by a parole commission. This systemic deception simply contributes to the lack of confidence that so many communities have in their criminal justice system.

[10.] Create a Police-Community Oversight Commission Designed to Build Trust with Both the Community and the Police (chapters 14 & 15). Chapters 14 and 15 documented the existence and resulting problems from poor police-community relations, which stem from a variety of factors. Whatever their cause, such poor relations have an enormous negative effect by producing a regular stream of serious justice failures and increasing crime. The solution to the problem cannot be found simply in "fixing" the police, as some political activists seem to think, but rather in building a police-community relationship that changes community views as well as police practices. Thus, our recommendation is a joint police-community oversight commission that has broad jurisdiction to oversee police-community interactions and to actively promote better policing and public recognition of such.

Reasonable people can and will disagree on some of our reform proposals, just as they may disagree on how society should balance certain interests. But what reasonable people should agree on is that failures of justice are a serious problem and one that society must not ignore. The lack of serious study of the problem is also an indictment against modern legal academia, which is so obsessed with getting criminals out of prison that it forgets how few crimes ever lead to punishment in the first place. As we conclude in the book:

The tragic irony of the American justice system is that so little justice is done by it. Change begins with awareness, however, and this book has attempted to investigate the reasons why justice fails so frequently and suggest ways to make it succeed more often.

This volume is not a work of one-sided activism but acknowledges and confronts the serious tradeoffs faced in creating criminal justice policy. As such, it is our hope that it can be useful to everyone—from academics to policymakers to concerned voters—of whatever political persuasion who wish to make the American justice system a more just system for all. Our ultimate goal is simple: a system that punishes the guilty in proportion to their blameworthiness, protects the innocent from liability and crime, and upholds the moral credibility of the law in the eyes of the community. We hope this work will help further that end.

If that goal resonates with you, we hope you give Confronting Failures of Justice a read, a think, and a share.

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[Eugene Volokh] Thursday Open Thread

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