Eugene Volokh's Blog, page 2577
March 31, 2012
EPA Forced to Backtrack on Fracking Contamination Claims
The WSJ notes that the EPA has had to backtrack and reevaluate allegations that hydraulic fracturing has been responsible for environmental contamination.
On Friday, the agency told a federal judge it withdrew an administrative order that alleged Range Resources Corp. had polluted water wells in a rural Texas county west of Fort Worth. Under an agreement filed in U.S. court in Dallas, the EPA will also drop the lawsuit it filed in January 2011 against Range, and Range will end its appeal of the administrative order.
In addition to dropping the case in Texas, the EPA has agreed to substantial retesting of water in Wyoming after its methods were questioned. And in Pennsylvania, it has angered state officials by conducting its own analysis of well water—only to confirm the state's finding that water once tainted by gas was safe.
Taken together, some experts say, these misfires could hurt the agency's credibility at a time when federal and state regulators seek ways to ensure that natural-gas drilling is done safely.
There's no question fracking can pose some environmental risks. Improper techniques appears to have contributed to minor earthquakes in northeast Ohio. But some other claims of widespread harm from fracking, particularly water pollution, appear to have been overstated.
Federal Judge Voids Part of WI Collective Bargaining Reform
The Journal-Sentinel reports that a federal district court judge has struck down parts of the controversial Wisconsin law that limits the collective bargaining rights of public sector unions.
Seven major public employee unions had challenged the fact that Act 10 dramatically narrowed what could be bargained by general public employee unions, and required those unions to recertify every year by an absolute majority of membership while denying the same unions voluntary payroll deductions for dues.
The court sided with state officials in upholding limitations on what can be bargained, but found the two other provisions violated the union members' equal protection and First Amendment rights, considering that the same rules did not apply to unions for public safety workers such as police and firefighters.
"So long as the State of Wisconsin continues to afford ordinary certification and dues deductions to mandatory public safety unions with sweeping bargaining rights, there is no rational basis to deny those rights to voluntary general unions with severely restricted bargaining rights," wrote U.S. District Judge William M. Conley.
The opinion is here.
March 30, 2012
Brian Aitken Case: Two of Three Gun-Related Convictions Reversed
I don't think we blogged about the case, but it got a good deal of attention a couple of years ago; for more, see this Reason piece. Today, a New Jersey appellate court reversed two of Aitken's three convictions (for unlicensed transportation of a gun and for possession of a high-capacity magazine), and affirmed the third (for possession of hollow-point bullets). A retrial is possible on the unlicensed transportation count, but Governor Christie's commutation of Aitken's sentence a while ago "precludes imposition of any custodial sentence following such a retrial."
Question for Readers about Preferential Tax Treatment for AIG
There's an op-ed by Elizabeth Warren and other former COP-TARP members in today's WaPo criticizing the preferential tax treatment given to AIG as part of the bailouts. I agree, of course, with their criticism of preferential tax treatment for bailed out companies. But isn't the favoritism under the tax law about which they are complaining the same provision that GM exploited as well–and so that the same criticism could be applied with equal validity to GM? Or is there something different about the benefit that AIG is getting from the benefit GM received?
(BTW, I'm genuinely asking–they seem like the same things but I just don't know if there is a nuance of tax law that I'm missing here, so forgive me if I'm missing something obvious here.)
ACA Discussion and Podcasts
For readers who aren't entirely exhausted with all the ACA discussion, PointofLaw.com has been hosting a discussion with several interesting participants (and me, too) on the case. Ilya and I also did a podcast for the Federalist Society reflecting on the oral arguments, and Randy Barnett gave a daily argument briefing that you can find here: Monday, Tuesday, Wednesday.
Teacher Sex With >=18-Year-Old Students Can't Be Criminalized
So the Arkansas Supreme Court held yesterday — applying the Arkansas Constitution — in Paschal v. State (Ark. Mar. 29, 2012), relying on the right to sexual autonomy that it had recognized in Jegley v. Picado (Ark. 2002). As the court noted, cases from other states applying the federal constitution and other state constitutions have come out the other way. But Arkansas courts are the final interpreters of the state constitution (though of course the people can change it, if they wish), and therefore the U.S. Supreme Court will not be reviewing this case. Here's the key passage:
"[T]he fundamental right to privacy implicit in our law protects all private, consensual, noncommerical acts of sexual intimacy between adults." Picado, 349 Ark. at 632, 80 S.W.3d at 350. Section 5-14-125(a)(6) criminalizes consensual sexual contact between adults. While it is possible that the General Assembly intended to criminalize a teacher's use of his or her position of trust or authority over an adult student to procure sex, section 5-14-125(a)(6) contains no language evincing such intent. While we might be inclined to assume the General Assembly so intended, we are constrained from making such assumptions. This court strictly construes criminal statutes, resolving any doubts in favor of the accused. This court cannot, and should not, by construction or intendment, create offenses under statutes that are not in express terms created by the legislature. Nothing is taken as intended which is not clearly expressed, and this court is without authority to declare an act to come within the criminal laws of the state merely by implication.
As applied in this case, section 5-14-125(a)(6) criminalizes consensual sexual conduct between adults and, therefore, we conclude that the statute infringes on Paschal's fundamental right to privacy. A statute that infringes on a fundamental right is subject to strict-scrutiny review, and the statute cannot survive unless "a compelling state interest is advanced by the statute and the statute is the least restrictive method available to carry out [the] state interest." Picado.
The State does not claim a compelling state interest in its brief to this court. Rather, it contends that the Arkansas Constitution clearly contemplates the preservation of a special learning environment for high school students through the age of twenty-one and that the State has a legitimate interest in protecting that environment…. As we understand the argument, the State asserts that it has an interest in protecting adult students from the sexual advances of teachers who have power, authority, or control over them.
Assuming that the State has asserted a compelling state interest and assuming that section 5-14-125(a)(6) advances that interest, we must determine whether the statute is the least restrictive method available to carry out the State's interest. We recognized in Picado that "the State has a clear and proper role to protect the public from offensive displays of sexual behavior, to protect people from forcible sexual conduct, and to protect minors from sexual abuse by adults," and that "criminal statutes, including those proscribing indecent exposure, rape, statutory rape, and the like, are in existence to protect the public from precisely such harms." Likewise, we recognize that the State has an interest in protecting adult students from the sexual advances of teachers.
But section 5-14-125(a)(6), which criminalizes adult consensual sex, is not the least restrictive method available to carry out the State's interest. Moreover, the State's interest is already advanced in section 5-14-126(a)(1)(C) (Supp. 2011), which prohibits a mandated reporter in a position of trust or authority over a victim from using the position of trust or authority to engage in sexual intercourse or deviate activity. [Footnote: Oddly, the dissents repeatedly refer to Paschal's misuse of his position of trust or 10 authority when that is not at issue in this case. Section 5-14-125(a)(6) is a strict-liability statute. The State was required to prove only that, while Paschal was a teacher, he had sexual contact with a student who was less than twenty-one years of age....] Section 5-14-125(a)(6), as applied in this case, infringes on a fundamental right and is not the least restrictive method available for the promotion of a state interest; therefore, it is unconstitutional. Because we conclude that the statute is unconstitutional on this basis, we need not address the remaining constitutional challenges to the statute.
[Footnote: We find it perplexing that one of the dissenting justices chooses to ignore this court' binding precedent and instead turns to cases from other jurisdictions to determine whether an Arkansas statute, section 5-14-125(a)(6), as applied in this case, violates the fundamental right to privacy found in the Arkansas Constitution. See Flaskamp v. Dearborn Pub. Sch., 385 F.3d 935 (6th Cir. 2004) (holding that a school board's denial of tenure to a teacher who had allegedly engaged in a sexual relationship with a high school student within nine months of the student's graduation did not violate the teacher's federal constitutional rights); State v. McKenzie-Adams, 915 A.2d 822 (Conn. 2007) (holding that a statute criminalizing sexual intercourse between a teacher and a student was not unconstitutional under the United States Constitution and the Connecticut Constitution), overruled on other grounds by State v. Payne, 34 A.3d 370 (Conn. 2012); State v. Hirschfelder, 242 P.3d 876 (Wash. 2010) (holding that a statute criminalizing sexual conduct between teachers and students was not void for vagueness and did not violate the teacher's right to equal protection under the United States Constitution).]
Thanks to Opher Banarie for the pointer.
Proposed Connecticut "Cyber-Harassment" Law
The Raised Bill No. 456, sec. 2 would provide, in relevant part:
(a) A person commits electronic harassment when such person, with intent to harass, annoy or alarm another person, transmits, posts, displays or disseminates, by or through an electronic communication device, radio, computer, Internet web site or similar means, to any person, a communication, image or information, which is based on the actual or perceived traits or characteristics of that person, which: …
(2) Has a substantial and detrimental effect on that person's physical or mental health;
(3) Has the effect of substantially interfering with that person's academic performance, employment or other community activities or responsibilities;
(4) Has the effect of substantially interfering with that person's ability to participate in or benefit from any academic, professional or community-based services, activities or privileges; or
(5) Has the effect of causing substantial embarrassment or humiliation to that person within an academic or professional community.
So say Michael Bellesiles says things that are false, and my colleague Jim Lindgren posts a devastating critique of Bellesiles' work. This rightly should "caus[e] substantial embarrassment or humiliation to [Bellesiles] within an academic or professional community," and rightly should "substantially interfer[e] with [Bellesiles'] … employment" (Bellesiles was ultimately fired from his tenured job because of what his critics, including Jim, pointed out about his work) as well as with Bellesiles' "ability to … benefit from any academic[ or] professional … privileges." [UPDATE: And the critique may well be based on Lindgren's judgment about Bellesiles' "perceived trait" of academic carelessness or even dishonesty.]
This means that the only thing that would stand between Jim and criminal prosecution — if Lindgren were in Connecticut, and the law were enacted — would be the question whether Lindgren had the "intent to harass, annoy or alarm another person." Now knowing Jim Lindgren as I do, I'm sure he had no such intent. But some critics may well be so upset and offended by the behavior of the people they are criticizing that they might well have the intent to "annoy" with their criticism as well as the intent to inform the public. (Note that the statute requires just that there be an intent to harass, annoy, or alarm, not that this be the sole intent, likely because there is almost never a sole intent behind any human action.) [UPDATE: Note also that the law isn't limited to speech that is said to the person being criticized: It applies to any communication "to any person," not to "such person" (which would have referred back to the "another person" who is the target of the alleged harassment or annoyance).]
And of course that's just one example. Customers who are publicizing what they see as business employees' malfeasance could be criminals under this law. So could people who had been cheated on by their lovers, who inform their friends of the now ex-lovers' misbehavior. So could crime victims who publicize their attackers' misdeeds. So could newspaper reporters who are writing articles that criticize certain people — politicians, businesspeople, community activists, or others — and who are seen by prosecutors as being motivated by a desire to "annoy" the targets. And of course the law isn't limited to threats, or libel, or any other First Amendment exception that has been recognized (or even hinted at) by the Supreme Court.
The law therefore strikes me as quite clearly unconstitutional, and I hope it will be defeated. I'm glad to see that the ACLU of Connecticut and the Connecticut Daily Newspaper Association have taken the lead in criticizing the law. If anyone knows more about who the political backers of the law are — a Hartford Courant article says it what proposed by "state prosecutors," but doesn't say which ones — please let me know.
UPDATE: The law talks about "perceived traits or characteristics" of a person, and I read that to include traits such as perceived dishonesty, incompetence, stupidity, and so on. There's certainly nothing in the statute to limit it to, say, race, religion, sex, weight, and so on. But even if it is so limited, the statute is unconstitutional — it would criminalize criticism of people (including, say, politicians and academics) based on their religious beliefs, or for that matter based on claims that a person shouldn't be in some job because of his or her race, sex, and such.
No More Recess Appointments
The Hill reports that Senate Majority Leader Harry Reid has promised Senate Minority Leader Mitch McConnell that there will be no more recess appointments made by the President during Congress' next adjournment.
Why Did Legal Elites Underestimate the Case Against the Mandate?
Greg Sargent is one of many commentators wondering "How did legal observers and Obamacare backers get it so wrong?" I think he's asking the wrong question. A better question to ask is: why did so many expect legal elites to have any particular insight into the current court? After all, many of the legal experts who were so dismissive of the arguments against the mandate were equally dismissive of the federalism arguments that prevailed in cases like United States v. Lopez, New York v. United States, and City of Boerne v. Flores. Many of the legal academics who ridiculed Randy Barnett's work on the mandate, and who were relied upon by legal journalists and commentators, thought their schools were advancing viable legal claims in Rumsfeld v. FAIR. Oops. Premier appellate litigators may have a good sense of how the Court is likely to assess complex constitutional law claims, but elite legal academics, not so much.
What explains this state of affairs? I believe there are several factors at work, but one in particular is the increasing separation of the legal academy from the practice of law — a separation that is greatest in fields, such as constitutional law, that touch on broad questions of public policy. At many schools, academics are more interested in developing a comprehensive theory of justice than in divining the nuances buried in the Court's cases. Junior academics are routinely discouraged from doctrinal scholarship and pushed to develop broad overarching and original theories for what the law should be. Constitutional scholarship in particular is increasingly focused on theory and less on the law. In some corners, it's more important to reconcile one's claims with the writings of John Rawls than the opinions of John Roberts.
This divide explains why so many legal academics were dismissive of some of the concerns raised in this week's oral arguments, such as the need for a limiting principle. The Solicitor General's office has taken this concern seriously from day one, as have a few liberal legal academics (e.g. Neil Seigel, Michael Dorf whereas others, such as Andrew Koppelman, have been sneeringly dismissive of this argument from the get-go. Even if Koppelman were right as a matter of first principles, he's clearly wrong as a matter of current doctrine as understood by the current Supreme Court, though you wouldn't know it from what he's written.
Another factor that contributes to this problem is the relative lack of ideological diversity within legal academia. The current Supreme Court has a right-leaning majority, but legal academia leans decidedly to the left. On many faculties their are few, if any, professors with any particular appreciation or understanding (let alone sympathy) for the jurisprudential views of a majority of the current justices. This means that when ideas are floated in the faculty lounge, they may get a far more sympathetic hearing than they would ever receive in court. So, for instance, it's easy for Jack Balkin to dismiss an argument premised on Bailey v. Drexel Furniture because it's a Lochner-era decision, even though Bailey remains good law. A practicing lawyer would have been less likely to make this mistake. Indeed, the SG actually cited Bailey approvingly this week in his argument before the Court.
In teaching our students to be effective lawyers it is important that we teach them how to understand opposing legal arguments on their own terms. Effective appellate attorneys are conscious of this problem and devote substantial energy trying to get inside the minds of their opponents. As I've heard Paul Clement (among others) explain, you can't effectively advocate your own position until you truly understand the other side. This can be difficult to do, particularly when we have strong feelings about a subject. Someone who believes the PPACA is a long-overdue step toward remedying the profound injustices of the American health care system is not predisposed to embrace arguments that the PPACA is unconstitutional. And if those same academics both lack colleagues with opposing points of view and have no particular professional interest in making sure they fairly consider the other side, it is easy for them to overlook the strength of opposing arguments and reduce them to caricatures. Ridiculing the need for a limiting principle or other anti-mandate arguments may get approving nods in the faculty lounge, but, as we saw this week, it won't receive an equally warm welcome in court.
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