Eugene Volokh's Blog, page 2627

Goldstein on Jones

(Orin Kerr)

Tom Goldstein weighs in with some excellent points about United States v. Jones over at SCOTUSblog.

The Dangerous Growth of State Dependence on Federal Funds

(Ilya Somin)

Tad DeHaven of the Cato Institute has a good post highlighting the data on state governments' growing dependence on federal funds. Since 2001, federal grants have risen from 25.7% of state government spending to 34.1% today. Most of that growth has occurred since the present recession began in 2008.

One of the main distinctive benefits of American federalism is that, historically, state governments have had to raise most of their funds from their own taxpayers, rather than relying on grants from the feds. This gives states incentives to compete for taxpayers and improve the quality of their policies and public services, thereby increasing the effectiveness of voting with your feet. I cover these points in more detail here.

In most other federal systems, the central government provides the lion's share of subnational governments' funding. If present trends continue, the United States may join this trend. State governments will increasing look to Washington for most of their funds, and incentives for competition and innovation will be undermined. It's possible that fiscal policy will return to "normal" as the economy improves. But state governments are likely to lobby for current grant levels to continue even after the recession ends. Current federal subsidy levels could easily become the new normal.

Prof. Brian Kalt, Guest-Blogging

(Eugene Volokh)

I'm delighted to report that Prof. Brian Kalt will be guest-blogging this week about his new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies. From the book summary:

The United States Constitution's provisions for selecting, replacing, and punishing presidents contain serious weaknesses that could lead to constitutional controversies. In this compelling and fascinating book, Brian Kalt envisions six such controversies, such as the criminal prosecution of a sitting president, a two-term president's attempt to stay in power, the ousting of an allegedly disabled president, and more. None of these things has ever occurred, but in recent years many of them almost have.

Besides being individually dramatic, these controversies provide an opportunity to think about how constitutional procedures can best be designed, interpreted, and repaired. Also, because the events Kalt describes would all carry enormous political consequences, they shed light on the delicate and complicated balance between law and politics in American government.

I much look forward to Prof. Kalt's visit.

Upcoming Talks

(Jonathan H. Adler)

For those interested, I'll be giving a variety of talks in the coming weeks, including the following:

I'll be speaking to the University of Michigan Law School Federalist Society chapter on "The Individual Mandate Litigation and the Future of Federalism," Jan. 25 at 12:30pm.
I'll be debating the constitutionality of the individual mandate with David Orentlicher of Indiana at the University of Utah S.J. Quinney College of Law's  28th Annual Jefferson P. Fordham Debate, Feb. 6 as 12:15pm.
I'll be speaking on an environmental law topic TBD to the Rutgers-Camden chapter of the Federalist Society, Feb. 8.
I'll be discussing EPA regulation under the Clean Air Act with Stephanie Tai before the Madison, Wisconsin lawyers chapter of the Federalist Society, Feb. 22.

Tim Thomas, Libertarian?

(Ilya Somin)

Earlier today, the Stanley Cup champion Boston Bruins visited the White House. But playoff MVP goaltender Tim Thomas chose not to attend. He issued a very libertarian-seeming statement explaining his reasons:

I believe the Federal government has grown out of control, threatening the Rights, Liberties, and Property of the People.

This is being done at the Executive, Legislative, and Judicial level. This is in direct opposition to the Constitution and the Founding Fathers vision for the Federal government.

Because I believe this, today I exercised my right as a Free Citizen, and did not visit the White House. This was not about politics or party, as in my opinion both parties are responsible for the situation we are in as a country. This was about a choice I had to make as an INDIVIDUAL.

This is the only public statement I will be making on this topic. TT

For reasons I described here, I don't think we should attach much weight to the political views of sports and entertainment celebrities. That holds true even in the rare cases like this one where a celebrity makes a political statement I agree with. Still, I thought Thomas' decision was interesting, if only because there are so few libertarian celebrities out there. I don't know if I would have rejected the invitation to the White House were I in Thomas' position. But I certainly sympathize with his reasons for doing so, including the point about both parties bearing responsibility for today's overgrown federal government.

UPDATE: Various media reports indicate that Thomas is a fan of Glenn Beck, who is far from uniformly libertarian, and occasionally endorses ridiculous conservative conspiracy theories. So Thomas may well be more of a conservative himself. That said, the reasons he gave in his statement are ones that most libertarians would agree with.

It's arguable that Thomas should have gone to the White House anyway, on the grounds that events like this are really about paying tribute to the office of the presidency rather than the policies of the present occupant of it. On the other hand, presidents of both parties do these sorts of events in part because they see a political advantage in it. On balance, if I were Thomas, I would probably have gone to the event anyway, since it doesn't imply endorsement of the president's agenda or of the general course of federal policy over the last few years. But I can certainly understand Thomas' reasons for making the opposite decision.

Three Questions Raised By The Trespass Test in United States v. Jones

(Orin Kerr)

Today's decision in United States v. Jones holds that the Katz test is not the exclusive test for what is a Fourth Amendment search: When the government conducts a common-law trespass into a person, house, paper, or effects, that trespass is a search if it is done "for the purpose of obtaining information." Three questions come to mind about what this means:

1) What kind of "trespass" counts for purposes of this test? As Blackstone noted in his Commentaries (Vol. 3. Ch 12), at common law there were two understandings of "trespass" — a broad one and a narrow one. Blackstone wrote:

Trespass, in its largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or of the country in which we live, whether it relates to a man's person or his property. Therefore, beating another is a trespass, for which (as we have formerly seen) an action of trespass vi et armis in assault and oattery will lie; taking or detaining a man's goods are respectively trespasses, for which an action of trespass vi et armis, or on the case in trover and conversion, is given by the law: so also, non-performance of promises or undertakings is a trespass, upon which an action of trespass on the case in assumpsit is grounded: and, in general, any misfeasance or act of one man whereby another is injuriously treated or damnified is a transgression or trespass in its largest sense: for which we have already seen(a) that whenever the act itself is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.

But, in the limited and confined sense in which we are at present to consider it, it signifies no more than an entry on another man's ground without a lawful authority, and doing some damage, however inconsiderable, to his real property.

So which conception of trespass does Scalia mean to adopt — the broad one or the narrow one? Scalia says that he has "no doubt" that there was a trespass here, but he doesn't say why or what kind of trespass he has in mind. Scalia quotes Entick v. Carrington for the idea that setting foot on a neighbor's "close" and "tread[ing] upon his neighbor's ground" is a trespass. It seems that Entick was relying on the narrow trespass concept of trespass to land, which, after all, was the cause of action alleged in Entick. That obviously isn't the case in Jones, though: The agents installed the GPS device when the car was parked in a public parking lot, so there was no trespass to land in the traditional sense.

In his concurring opinion, Justice Alito indicates that he takes the majority to be referring to a trespass to chattels cause of action, but as far as I can tell the majority never establishes this. Moreover, the common law doesn't seem to provide an answer: The common law of searches and seizures provided a defense to a civil tort action, not an independent cause of action. So it's hard to know what kind of conduct counts as a "trespass" for purposes of the new Fourth Amendment test.

2) Did Jones unintentionally make the use of undercover agents and informants illegal, at least without a warrant or probable cause? This is a long shot, to be sure, but it's not a frivolous argument. The common law of trespass included the doctrine of trespass ab initio, by which a person who was permitted to come on to your land could be guilty of trespass if they engaged in some sort of misconduct once there. In the first Fourth Amendment challenge to the use of informants, On Lee v. United States, 343 U.S. 747 (1952), the defendant tried to invoke this doctrine. Lee sold opium from his laundry store and one day made incriminating statements to his friend Poy. It turned out that Poy was an undercover informant wearing a wire, and the recording of Lee's statements was used against Lee at trial. Lee argued (among other things) that Poy's misleading him rendered Lee a trespasser ab initio, such that Poy's entry was a Fourth Amendment search. Justice Jackson rejected the argument:

Petitioner contends, however, that Chin Poy's subsequent 'unlawful conduct' vitiated the consent and rendered his entry a trespass ab initio.

If we were to assume that Chin Poy's conduct was unlawful and consider this argument as an original proposition, it is doubtful that the niceties of tort law initiated almost two and a half centuries ago by the case of the Six Carpenters, 8 Coke 146(a), cited by petitioner, are of much aid in determining rights under the Fourth Amendment. But petitioner's argument comes a quarter of a century too late: this contention was decided adversely to him in McGuire v. United States, 273 U.S. 95, 98, 100, 47 S.Ct. 259, 260, 261, 71 L.Ed. 556, where Mr. Justice Stone, speaking for a unanimous Court, said of the doctrine of trespass ab initio: 'This fiction, obviously invoked in support of a policy of penalizing the unauthorized acts of those who had entered under authority of law, has only been applied as a rule of liability in civil actions against them. Its extension is not favored.' He concluded that the Court would not resort to 'a fiction whose origin, history, and purpose do not justify its application where the right of the government to make use of evidence is involved.' This was followed in Zap v. United States, 328 U.S. 624, 629, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477.

By the same token, the claim that Chin Poy's entrance was a trespass because consent to his entry was obtained by fraud must be rejected. Whether an entry such as this, without any affirmative misrepresentation, would be a trespass under orthodox tort law is not at all clear. See Prosser on Torts, s 18. But the rational of the McGuire case rejects such fine-spun doctrines for exclusion of evidence.

Does the rationale of McGuire survive Jones? If the test for a Fourth Amendment search is established by common law trespass doctrine, then I'm not sure why the "fiction" of trespass ab initio shouldn't be restored to the Fourth Amendment despite McGuire. As a practical matter, I doubt the Supreme Court would go this way. But if you take the majority opinion in Jones at face value, it seems like an argument worth making.

3) What happens to Kyllo's "general public use" exception? I read Jones as relying on Kyllo for the idea that there is more than just the Katz test to determine what is a search. I gather then that the Court is casting Kyllo as an example of a case which was not a Katz "reasonable expectation of privacy" case but rather was a common law trespass case. If that's right, then does that mean the "general public use" inquiry is no longer applicable? After all, the general public use idea was rooted in Katz cases, not the common law of trespass. If use of a thermal imaging device was a search because it was a common law trespass, then presumably it should stay a search regardless of how common thermal imaging devices may be.

What to Do if a Cellphone "Rings" During Your Violin Concert

(David Bernstein)

Interesting Old Prosecution for Expelling Someone from a Church Based on How He Voted

(Eugene Volokh)

State v. Rogers, 38 S.E. 34 (N.C. 1901) (paragraph breaks added); I would suspect that today there wouldn't even be a prosecution in such a case, even if the statute were more broadly worded:

The defendants were indicted under section 2715 of the Code ...: "Any person who shall discharge from employment, withdraw patronage from, or otherwise injure, threaten, oppress or attempt to intimidate any qualified voter of the state, because of the vote such voter may or may not have cast in any election, shall be guilty of a misdemeanor."

The indictment charges the defendants with having injured, threatened, oppressed, and attempted to intimidate the prosecutor, a duly-qualified voter, by expelling him from the church of which he and they were members, on account of his having voted the Democratic ticket at the election held in August, 1900. The statute, being penal, must be construed strictly, not by implication, or otherwise than by its strict words and plain signification.

The object of the statute is to secure to the voter the exercise of the elective franchise free from pecuniary loss, personal injury, or physical restraint, neither element of which is embraced in his expulsion from the church. The injury or oppression, if any, done to the voter, was not of a physical nature. While he may have felt mortified or humiliated in being excluded from the fellowship of his associates in the exercise of the rites of that body of Christian believers holding the same creed and acknowledging the same ecclesiastical authority, and to that extent injured and oppressed, yet he suffered no loss of property or gain, nor was he in any way restrained of his liberty or otherwise controlled in the exercise of his personal conduct.... [Quashing of the indictment a]ffirmed.

UPDATE: By the way, it turns out that North Carolina was closely split in 1900, with 54% of voters voting for the Democrats. The expulsion was thus likely based on the particular views of this church, and not on some broad social anti-Democrat sentiment.

Spam Comments Aimed at Boosting Lawyers' Sites

(Eugene Volokh)

I've recently seen a couple of cases in which someone seems to be promoting lawyers' Web sites using spam blog comments. Here's a sample of the most recent incident (with the name of the lawyer blanked out, because he assured me that he told his SEO company to stop doing this):

Aattorney

electricalexamanswers@gmail.com

27.0.111.218

Submitted on 2012/01/14 at 2:41pm

Hi Todd Zywicki,

Mr __ __ like like as attorney cleveland tn.

He is also a law blogger.After he visited your site.He explained some great news from your site.

thanks....

Aattorney

__.__123@gmail.com

27.0.111.218

Submitted on 2012/01/12 at 8:31am

Thank you for your great article.

attorney cleveland tn

cleveland tn attorneys

attorneys in cleveland tn

us attorney cleveland

lawyers in cleveland tn

The first comment included one link to a page on the lawyer's blog; the second included five such links. When this sort of thing happened (on two occasions, involving two different lawyers), I got in touch with the lawyers, who reported that (1) they had hired some company to get their sites better placed in search engine results, and (2) now that they had learned what the company had done, they were telling the companies to stop doing it (or stopped working with the companies altogether) — understandable, since this sort of thing is a good way to get unfavorable attention online rather than favorable attention.

In any case, I think this might be a helpful alert to lawyers who are hiring someone to try to promote their sites: It's possible that the promotion might consist of behavior that is par for the course for purported penis enlargement products, but not really in keeping with the sort of reputation that lawyers generally seek to cultivate.

Why Did Justice Sotomayor Join Scalia's Majority Opinion in Jones?

(Orin Kerr)

One of the puzzles of Jones is how Scalia's opinion ended up being the majority opinion of the Court, while Justice Alito's view is merely a concurring opinion. The puzzle is that the apparent 5th vote for the Jones majority, from Justice Sotomayor, wrote a concurrence strongly hinting that she would accept a far broader rationale something akin to that in Justice Alito's concurrence in the judgment. The question is, why sign on to Scalia's opinion instead of Alito's?

There are a bunch of possible reasons, of course, but one possibility involves the timing of circulated drafts. The Chief assigned the majority opinion to Scalia, who had floated his theory of the case at oral argument. Imagine Scalia circulated his majority opinion quickly, and Sotomayor joined it pretty soon after that. Some time passed, and then Justice Alito sent around his concurring opinion. Justice Alito's opinion is mostly a criticism of Scalia's approach, but it then has a relatively brief pro-privacy section at the end that addresses questions not reached by Scalia's opinion. Imagine Sotomayor read Alito's opinion and really liked that part of Alito's opinion. But she had already signed on to Scalia's draft majority, and it's considered bad form to un-join an opinion after signing on. It's especially bad form if you followed the common practice of asking for a few changes to the draft majority opinion as a condition of signing it. Also, while Alito hinted at how he would decide the case, that section is relative brief and quite vague. So Sotomayor might have stuck with Scalia's opinion as a matter of propriety and good internal court relations, and then written her solo concurring opinion indicating her agreement with much (although by no means all) of Alito's opinion.

Of course, that's just one possibility among many.