Eugene Volokh's Blog, page 288

[Josh Blackman] Today in Supreme Court History: August 13, 1788

8/13/1788: Federalist No. 85 is published by Alexander Hamilton.

Alexander Hamilton

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[Ilya Somin] The Logic of Voting for a Lesser Evil—and Other Writings on the Morality of Voting

[Compendium of some of my work on the rights and wrongs of voting. ]

Sauron—an example of a greater evil you can vote for a lesser evil to avoid. (NA)

 

We are in the midst of another election cycle. And I'm far from the only person who thinks the available options are far from great. This situation, like other recent elections, raises difficult questions about such issues as whether people have a duty to vote, whether it is permissible to vote for a badly flawed candidate if the alternative is even worse, and how to balance competing issues in making voting decisions.

I've written about these kinds of issues in some detail, previously, and this post links and and summarizes some of those writings. It is not a post about which 2024 presidential candidate is best (or least bad), though I will likely write about that on a later occasion. It's about how we should make such decisions. Unless otherwise noted, these pieces were all published right here at the VC blog:

1. "The Logic of Voting for a Lesser Evil"

This post was inspired by the 2016 election, but almost all of it remains relevant today. In it, I explain why it is both permissible and desirable to vote for the lesser evil in an election where all of the viable options are bad. I address a variety of counterarguments, including claims that voting for a lesser evil makes you morally complicit in that candidate's wrongdoing, arguments that it's better to cast a "protest vote" for a candidate that has no chance of winning, arguments based on the very low probability that your vote will be decisive, and more. Here's a brief excerpt:

Imagine an election where the only options are Queen Cersei from Game of Thrones, and Sauron, the Dark Lord from Tolkien's Lord of the Rings. If Cersei wins, she will kill many innocent people, and oppress others. But she will leave much of the population more or less alone (as long as they don't openly oppose her or threaten her family in any way). If Sauron wins, he will kill far more innocent people, and make the survivors his slaves.

You can instead cast a protest vote for a vastly better alternative, such as Gandalf….. But, by assumption, these are purely symbolic options, because they have zero chance of prevailing. If the protest voter would otherwise have backed Cersei, the net effect of his decision to protest is to increase the likelihood of the worst possible outcome: the triumph of Sauron.

Under those circumstances, it seems clear that a person who ensures a Cersei victory has done a good deed. He or she will have saved large numbers of people from slavery or death, even though the Cersei regime would be a deeply unjust one.

The Cersei-Sauron hypothetical was obviously inspired by the contest between Trump and Hillary Clinton, and is an exaggerated version of that tradeoff. But I think it works for Trump v. Harris—and many other elections—as well.

Notice how my logic is different from that of those who say you can only vote for a candidate if he or she meets some minimal threshold of character or good policy. On my approach, it is morally justifiable to vote for almost any candidate—even a cruel despot like Cersei—so long as the only feasible alternatives are even worse.

Canadian columnist John Robson responded to my piece in the National Post, and I, in turn, posted a rejoinder.

2. "Justifying a Moral Duty to Vote is a Lot Harder than You Might Think."

Many people, including some political theorists, believe we have a moral duty to vote. I disagree. Indeed, I think—in many cases—it's better if you don't vote, especially if ignorance and bias make it likely you will make a bad decision. Casting a ballot motivated by ignorance and bias is often worse than not voting at all.

3."Is there a Moral Duty to Vote in an Election Where the Stakes are Unusually High?"

Even if there is no general duty to vote, perhaps we are morally required to do so in situations where the stakes of an election are unusually high. In this post, I explain why I disagree—at least with respect to most voters. There is, however, a limited kernel of truth in this argument. An excerpt:

There is a kernel of truth to the claim that you have a duty to vote if the stakes are high enough. But the resulting moral duty applies far less often than advocates of the argument tend to assume. And the same reasoning actually implies many people have a moral duty not to vote.

Let's start with the kernel of truth. Imagine there's an election for a powerful political office that pits Gandalf (the benevolent wizard in J.R.R. Tolkien's Lord of the Rings) against Sauron, the despotic dark lord from the same story. If Sauron prevails, millions of people will die or be enslaved, while Gandalf would rule justly if he manages to win. And all you have to do to ensure Gandalf's victory is check his name on a ballot. If you do so, Gandalf wins; if not, Sauron does.

In this scenario, it seems like you have a moral duty to vote for Gandalf, at least barring some kind of extraordinary exigent circumstance. In a real election, of course, the odds that your vote will make a difference are far smaller than in this stylized example….

However, a large enough difference between the two candidates could potentially justify a duty to vote for the "right" candidate, even if the odds of casting a decisive ballot are very low….

But notice that the duty in question is not an obligation to participate in the process for its own sake. It's a duty to help good triumph over evil in a situation where you can do so at little or no cost. If you have a moral duty to vote for Gandalf in these types of scenarios, it follows that you also have a moral duty not to vote for Sauron. Indeed, the person who votes for Sauron is more worthy of condemnation than the one who merely abstains. The former is actively helping evil win, while the latter "merely" chooses not to help stop it.

While Gandalf supporters may have a duty to vote, Sauron supporters actually have a duty to abstain from doing so. Ideally, they should stop supporting Sauron entirely. But they at least should not take any actions that increase the likelihood of his victory.

All of the above analysis assumes that the voter knows which candidate is superior and to what degree. But, in reality, we have widespread political ignorance, and most voters often don't even know very basic facts about how government and politics work. Most are also highly biased in their evaluation of the information they do know….

Unless and until a voter becomes well-informed about the issues and at least reasonably objective in his or her evaluation of political information, she has good reason to question her judgment about which candidate is superior, much less by how much. Thus, she cannot conclude she has a duty to vote to help the "right" side win. She may instead have a presumptive duty to abstain from voting until she meets at least some minimal threshold of political knowledge….

Later in this piece, I not some possible exceptions to situations to the presumptive duty to abstain; there are unusual situations where ignorant voting really is better than no voting, and even unusual situations where ignorance leads to better decisions than knowledge (I expand on the latter possibility in greater detail in Chapter 2 of my book Democracy and Political Ignorance). I also address some other caveats and counterarguments.

4. "How to be a Better Voter"

Some steps you can take to be a better voter, building on a helpful article in Scientific American. I think a wide range of people can do these things. You don't have to be an academic or policy expert to undertake the task. But I am skeptical that more than a small fraction of the electorate will ever be willing to put in the time and effort.

5. "Suffer the Little Children to Vote"

In this post, I make a tentative argument for letting children vote, so long as they show they have attained a level of political knowledge as high as that of the average adult voter -which is not that high a standard! I expanded on the idea here. I do note the crucial caveat that it may not be feasible to do this, because it's possible government can't be trusted to come up with an objective knowledge test for the children (though we do in fact impose such a test on immigrants seeking to become US citizens). Letting knowledgeable children vote is one of my least popular ideas (which is saying no little, given how many other unpopular views I hold!). But I remain unrepentant about it. My nine-year-old daughter is one of the relatively few fans of this policy.

My proposal should be differentiated from the idea of letting parents cast votes on behalf of their children, endorsed by Republican VP candidate J.D. Vance, among others.

6. "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance," in Hana Samaržija and Quassim Cassam, eds. The Epistemology of Democracy (Routledge, 2023).

Many of the most serious flaws of voting arise from the fact that most voters tend to be ignorant about government public policy, and highly biased in their evaluation of the political information they do know. In this article, I go over a range of possible strategies for mitigating this problem. Here's the abstract:

There is broad, though not universal, agreement that widespread voter ignorance and irrational evaluation of evidence are serious threats to democracy. But there is deep disagreement over strategies for mitigating the danger. "Top-down" approaches, such as epistocracy and lodging more authority in the hands of experts, seek to mitigate ignorance by concentrating more political power in the hands of the more knowledgeable segments of the population. By contrast, "bottom-up" approaches seek to either raise the political competence of the general public or empower ordinary people in ways that give them better incentives to make good decisions than conventional ballot-box voting does. Examples of bottom-up strategies include increasing voter knowledge through education, various "sortition" proposals, and also shifting more decisions to institutions where citizens can "vote with their feet."

This chapter surveys and critiques a range of both top-down and bottom-up strategies. I conclude that top-down strategies have systematic flaws that severely limit their potential. While they should not be categorically rejected, we should be wary of adopting them on a large scale. Bottom-up strategies have significant limitations of their own. But expanding foot voting opportunities holds more promise than any other currently available option. The idea of paying voters to increase their knowledge also deserves serious consideration.

I expand upon the foot-voting approach to mitigating political ignorance in more detail in my book Free to Move: Foot Voting, Migration, and Political Freedom. Sadly, neither this strategy for dealing with political ignorance nor any other is likely to be enacted in time for this year's election! Any serious reform effort will probably take at least some years to have a significant impact.

7. "Setting Issue Priorities"

How to decide which issues to prioritize over others. Not solely about voting. But relevant to voting decisions.

8. "If You Don't Vote, You Still Have Every Right to Complain."

Feeling down after considering the above? This piece might make you slightly happier; even if you don't vote, you are justified in criticizing the policies of the winners! I would add that the same logic shows that, if you vote for the winner on the grounds that she is a lesser evil, you are still justified in complaining about her policies. Vote for Cersei over Sauron, when necessary. But then condemn the evil she does. Just make sure not to be at the wrong place at the wrong time when she decides to purge her critics.

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[Ilya Somin] Advice to Entering Law Students—2024

[Some ideas that might help you make better use of the opportunities available to you in law school.]

Law students around the country will be starting classes over the next few weeks. Back in 2018, I wrote a post offering advice to entering students, which I updated in 2019, 2022, and last year. I tried to focus on points that I rarely, if ever, see made in other pieces of this type. I think all three of my original suggestions  remain just as relevant today. So I reprint my advice from earlier posts largely unaltered,  with the addition of some modest editing and updating:

1. Think carefully about what kind of law you want to practice.

Law is a profession with relatively high income and social status. Yet studies repeatedly show that many lawyers are deeply unhappy, a higher percentage than in most other professions. One reason for this is that many of them hate the work they do. It doesn't necessarily have to be that way. There are lots of different types of legal careers out there, and it's likely that one of them will be a good fit for you. A person who would be miserable working for a large "Biglaw" firm might be happy as a public interest lawyer or a family law practitioner, and so on. But to take advantage of this diversity, you need to start considering what type of legal career best fits your needs and interests.

There are many ways to find out about potential options. But one place to start is to talk to the career services office at your school, which should have information about a range of possibilities. Many also often have databases of alumni working in various types of legal careers. Talking to these people can give you a sense of what life as a practitioner in Field X is really like.

This advice applies not just to what you do in school, narrowly defined, but what you do in the summer, as well. Law students typically get summer jobs at firms or other potential future employers. Apply widely, and look for organizations that might be good employers, or at least introduce you to areas of law that might be crucial for your future career.

The summer clerk job I took at the Institute for Justice after my first year in law school, was a key step towards becoming a property scholar, and helped lead me to write two books and numerous articles about takings.  Spending a summer at a public interest firm might change your life, too!

Regardless, don't just "go with the flow" in terms of choosing what kind of legal career you want to pursue. The jobs that many of your classmates want may be terrible for you (and vice versa). Keep in mind, also, that you likely have a wider range of options now than you will in five or ten years, when it may be much harder to switch to a very different field from the one you have been working in since graduation.

2. Get to know as many of your classmates and professors as you reasonably can.

Law is a "people" business. Connections are extremely important. No matter how brilliant a legal thinker you may be, it's hard to get ahead as a lawyer purely by working alone at your desk—even with the help of AI and other modern tech. Many of your law school classmates could turn out to be useful connections down the road. This is obviously true at big-name national schools whose alumni routinely become judges, powerful government officials, and partners at major firms. But it's also true at schools whose reputation is more regional or local in nature. If you plan to make a career in that area yourself, many of your classmates could turn out to be useful contacts.

The same holds true for professors, many of whom have extensive connections in their respective fields. They are sometimes harder to get to know than students. But the effort is often worth it, anyway. And many of them are actually more than eager to talk about their work.

This is one front on which I didn't do very well when I was in law school, myself. Nonetheless, I still suggest you do as I say, not as I actually did. You will be better off if you learn from my mistakes than if you repeat them.

3. Think about whether what you plan to do is right and just.

Law presents more serious moral dilemmas than many other professions. What lawyers do can often cost innocent people their liberty, their property, or even their lives. It can also save all three. Lawyers have played key roles in almost every major advance for liberty and justice in American history, including the establishment of the Constitution, the antislavery movement, the civil rights movement and many others. But they have also been among the major perpetrators of most of the great injustices in our history, as well.

Robert Cover's classic book Justice Accused—a work that made a big impression on me when I was a law student—describes how some of the greatest judges and legal minds of antebellum America became complicit in the perpetuation of slavery. While we have made great progress since that time, the legal system is not as far removed from the days of the Fugitive Slave Acts as we might like to think. There are still grave injustices in the system, and lawyers whose work has the effect of perpetuating and exacerbating them. We even still have lawyers who do such things as come up with dubious rationales for deporting literal escaped slaves back to places where they are likely to face further oppression.

Law school is the right time to start working to ensure that the career you pursue is at least morally defensible. You don't necessarily have a moral obligation to devote your career to doing good. But you should at least avoid exacerbating evil. And it's easier to do that if you think carefully about the issues involved now (when you still have a wide range of options), than if you wait until you are already enmeshed in a job that involves perpetrating injustice. At that point, it may be too late—both for you and (more importantly) for the people harmed.

4. Legal knowledge isn't as different from other kinds of knowledge as you might think.

Students often ask me how best to study for law school classes. My answer is that there isn't one way that's best for everyone. You probably know what works for you far better than I do.

In law school, you are likely to be bombarded with all sorts of complex methods of studying and outlining cases. Advocates of each will often tell you theirs is the One True Path to law school success. Some students really do find these methods useful.

But I would urge you to consider the possibility that you can study for law school classes by using…. much the same methods as you used to study other subjects in the past. If you were successful in social science and humanities classes as an undergraduate, the methods that worked there are likely to carry over.

I know because that's largely what I did as a law student myself. I did the reading, identified key points, and didn't bother with complicated outlines or spend money on study guides. If I did badly in a class, it wasn't for lack of more complex study methods (usually, I either got lazy or just had a bad day on the final exam). And I've seen plenty of other people succeed with similar approaches. You can save a lot of time and aggravation (and some money) that way. And that time, energy, and money can be better devoted to other purposes—including advancing your studies and your career in other ways!

Ultimately, when reading a legal decision (or any assignment), you need to 1) identify the key issues, and 2) understand why they are important. With rare exceptions, the case in question was likely included in the reading because it highlights some rule, standard, or issue that has a broader significance. If you know what that is and why it matters, much of your work is done. The same goes for  most other kinds of assigned reading: they are probably there because the professor thinks they elucidate some broadly important point. Figure out what it is, and you will be in good shape.

The experience of the Covid-19 pandemic has highlighted the importance of Point 2. The loss of much in-person contact was a serious problem, one we would do well to avoid repeating.

I don't think I need to dwell on how the events of the last few years have reinforced the significance of Point 3. Suffice to say there are many recent examples of lawyers facilitating both good and evil. Even if you don't maximize the former, you should at least avoid contributing to the latter.

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[Eugene Volokh] "Why You Should Feel Good About Liberalism" "in the Tradition of Locke, Kant, and the Founders"

["We need to get better at standing up for the greatest social technology ever devised."]

From the always thoughtful and readable Jonathan Rauch, in Persuasion; some excerpts, though the whole thing is much worth reading:

Never in my lifetime have critiques of Locke, Smith, Mill, the British Enlightenment, and the American founding emanated from so many different quarters, attacked from so many directions, and sounded so scathing and confident. The liberal tradition has been undone by its amorality (says the right) and its injustice (says the left); it has, they charge, made society unfair, politics narcissistic, and truth meaningless.

Above all, they charge, liberalism has lost the confidence of the public—and of liberals….

[Yet] no viable system has emerged that can come close to replicating liberalism's capacity to produce knowledge, prosperity, freedom, and peace. In fact, both on its own terms and compared with all the historic alternatives, liberalism has delivered spectacular results. It is the greatest social technology ever invented, and well ahead of whatever comes second.

This paradoxical situation has me scratching my head, and I'm not alone. Why is liberalism so widely challenged and attacked, and so defensive and self-doubting, when it has so much to brag about? Increasingly, I have come to think we must look for an answer not just in liberalism's failures—though there certainly are some—but in liberals' failure of nerve….

I have made a couple of claims here: that liberalism delivers spectacular results; and that its would-be systemic competitors have not and cannot. Both claims require some defining and defending.

Begin, then, with a basic question: what do we (or at least I) mean by liberalism?

Not progressivism or moderate leftism, as the term came to mean in postwar U.S. discourse. Rather, liberalism in the tradition of Locke, Kant, and the Founders. It is not one idea but a family of ideas with many variants. Its central philosophy is that all persons are born free and equal. Its operational principles include the rule of law, pluralism, toleration, minority rights, distributed authority, limited government, and (subject to the other requirements) democratic decision-making. Its distinctive method of social organization is to rely on impersonal rules and open-ended, decentralized processes to make collective decisions.

Embodying those notions are three interlinked social systems: liberal democracy to make political choices; market capitalism to make economic choices; and science and other forms of open critical exchange to make epistemic choices (that is, decisions about truth and knowledge). By transcending tribe, renouncing authoritarianism, substituting rules for rulers, and treating persons as interchangeable, liberalism achieves what no other social system can offer, at least on a large scale: coordination without control. In a liberal system, everyone can participate but no one is in charge.

In the context of human history, everything about liberalism is radical: its rejection of personal and tribal authority, its insistence on treating persons as interchangeable, its demand that dissent be tolerated and minorities protected, its embrace of change and uncertainty. All of its premises run counter to hardwired human instincts. Liberalism is the strangest and most counterintuitive social idea ever conceived, a disadvantage offset only by the fact that it is also the most successful social idea ever conceived….

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[Eugene Volokh] New Faculty-Edited Law Journal

Looks like an excellent project, and with top editors:

Launching JLEA
Journal of Law and Empirical Analysis

The Journal of Law and Empirical Analysis solicits papers that offer empirical evidence on questions of importance for the law. In addition to rigorous work permitting causal inference, it is open to qualitative research, intriguing correlations, registered reports, and methods papers.

JLEA provides a forum for interdisciplinarity and encourages contributions from lawyers, economists, political scientists, sociologists, criminologists, psychologists, computer scientists, and any other social or natural science.

The editors aim to provide the fastest responses possible consistent with peer review. In particular, our goal is to provide an initial decision in 6-8 weeks. Accepted articles will be published continuously as soon as they are ready.

The journal is completely open access, and there are no publication or article processing fees.

The first issue is available at https://journals.sagepub.com/home/LEX.

The editors in chief are:

Christoph Engel, Max Planck Institute for Collective Goods
Lee Epstein, Washington University
Dan Klerman, USC Gould School of Law
Eyal Zamir, Hebrew University

The Editorial Board includes: Tom Baker (Penn), Yun-chien Chang (Cornell), Alejandro Chehtman (U. Torcuato Di Tella), John Donohue (Stanford), Susann Fiedler (Wirtschaftsuniversität Wien), Michael Frakes (Duke), Jim Greiner (Harvard), Mitu Gulati (Virginia), Ulrike Hahn (Birkbeck University of London), Eric Helland (Claremont McKenna), Gretchen Helmke (Rochester), Naomi Lamoreaux (Yale), David Law (U. Hong Kong), Michael Livermore (Virginia), Florencia Marotta-Wurgler (NYU), Michael J. Nelson (Penn State), Anthony Niblett (Toronto), Eric Posner (Chicago), Ilana Ritov (Hebrew U.), Emily Ryo (Duke), Maya Sen (Harvard), Dan Simon (USC), Holger Spamann (Harvard), Cass Sunstein (Harvard), Doron Teichman (Hebrew U.), Mila Versteeg (Virginia), Keren Weinshall (Hebrew U.), David Weisburd (Hebrew U. & George Mason).

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[Eugene Volokh] Is Saying a Fellow Servicemember (Not to Her Face) Is a "Slut" a Crime in the Military?

From U.S. v. Truitt, decided earlier this month by the U.S. Coast Guard Court of Criminal Appeals, in an opinion by Judge Kurt Brubaker, joined by Chief Judge Lane McClelland and Judge Herbert Claiborne Pell:

In this case, we examine the boundaries of the Coast Guard's punitive order prohibiting sexual harassment. Appellant was the leading petty officer of Coast Guard Sector San Francisco's machinery technician shop. She was in a locker room with Machinery Technician Second Class (MK2) TC, who had recently joined the shop. The two were alone, chatting as they changed clothes. While talking about people within the shop, Appellant referred to Seaman (SN) SA, a junior enlisted member of the shop, as "[a] sector slut." MK2 TC testified she found the comment offensive and was "shocked," but said nothing until, about three weeks later, she relayed the comment to SN SA.

During a meeting with junior enlisted members of the shop, Appellant asked whether they felt they could trust her. SN SA said she did not because she heard what Appellant had called her. After the meeting, Appellant said, "You know I didn't mean it. You're like a little sister to me." …

A military judge, sitting as a special court-martial, convicted Appellant of … violating ALCOAST Commandant's Notice (ACN) 003/20, dated 7 January 2020, by sexually harassing SN SA. [Discussion of other charges, related to unrelated misconduct, omitted. -EV] …

ACN 003/20 provides:

Definition: sexual harassment is unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature, when:

Submission to such conduct is made either implicitly or explicitly a term or condition of employment; Submission to or rejection of such conduct is used as a basis for employment decisions; or Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. This definition also includes unwelcome display or communication of sexually offensive materials. Physical proximity is not required. Conduct may occur telephonically, virtually, or by way of other electronic means.

At issue here is whether Appellant's comment to MK2 TC was "other conduct of a sexual nature" that "unreasonably interfere[d] with [SN SA]'s work performance or create[d] an intimidating, hostile, or offensive working environment." … ACN 003/20's language defining "sexual harassment" is obviously transplanted from the Equal Employment Opportunity Commission's (EEOC) Guidelines on Discrimination Because of Sex, which states:

Harassment on the basis of sex is a violation of section 703 of title VII.4 Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment….

Under [sexual harassment precedents], contrary to Appellant's assertion, the use of a sexual epithet such as "slut" may constitute "other conduct of a sexual nature." See, e.g., Forrest v. Brinker Int'l Payroll Co., LP (1st Cir. 2007) ("A raft of case law … establishes that the use of sexually degrading, gender-specific epithets, such as 'slut,' 'cunt,' 'whore,' and 'bitch,' … has been consistently held to constitute harassment based upon sex."); Andrews v. City of Philadelphia (3d Cir. 1990) ("[T]he pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile environment."). Nor … does the use of such an epithet need to be accompanied by conduct implying sexual desire ….

However, to rise to the level of unlawful harassment, such conduct "must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." … The evidence establishes a single instance of using the word "slut" to describe a junior enlisted servicemember in a one-on-one locker room conversation with a fellow petty officer.

We assuredly do not condone this behavior. Labeling someone in this sexually demeaning manner, as the Government aptly put it in oral argument, is offensive, contrary to administrative policy, and could, in the right circumstances, rise to the level of criminal sexual harassment under the order. Those circumstances, however, are absent here. This was a single instance of uttering an offensive epithet to a third person….

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[Eugene Volokh] Judges' Boycott of Columbia in Clerk Hiring Is Permissible Under Judicial Ethics Rules

From Fifth Circuit Chief Judge Priscilla Richman's June 24 opinion, which was affirmed earlier this month by an Appellate Review Panel of the Judicial Council for the Fifth Circuit (in an order signed by Judge Jennifer Elrod):

Complainant, a state prisoner, has filed a complaint against a United States Circuit Judge and seven United States District Judges.

The subject judges [together with] {judges from other circuits and districts} signed a letter addressed to the president of a university, criticizing the university for its asserted inaction with respect to protests following the Hamas attacks on Israel on October 7, 2023. In the letter, the judges state that on the university's campus "[d]isruptors have threatened violence, committed assaults, and destroyed property"; the university has become "an incubator of bigotry"; and "professors and administrators are on the front lines of the campus disruptions, encouraging the virulent spread of antisemitism and bigotry." The judges state that they have lost confidence in the university as an institution of higher education, and that they will not hire law clerks with undergraduate or law degrees from the university starting with the entering class of 2024.

The judges assert the university should impose "[s]erious consequences for students and faculty who have participated in campus disruptions and violated" university rules concerning use of facilities and public spaces and threats against fellow members of the university community. The letter further asserts that the university "should also identify students" who engage in "unlawfully trespassing on and occupying public spaces" so that "future employers can avoid hiring them." Otherwise, the letter concludes, "employers are forced to assume the risk anyone they hire from [the university] may be one of these disruptive and hateful students."

The letter suggests the university should provide "[n]eutrality and nondiscrimination in the protection of freedom of speech and the enforcement of rules of campus conduct," asserting that "[f]reedom of speech protects protest, not trespass, and certainly not acts or threats of violence or terrorism." The judges assert "[i]t has become clear that [the university] applies double standards when it comes to free speech and student misconduct" and charge the university with "favoring certain viewpoints over others based on their popularity and acceptance in certain circles." The judges express their view that "[s]ignificant and dramatic change in the composition of its faculty and administration is required to restore confidence in [the university]."

Complainant complains that "[i]f the Judges are willing to openly and collectively punish a university and its students and graduates, a reasonable person has every reason to believe the Judges will skew their judicial rulings" and "discriminate and retaliate" against parties and counsel who have differing political views and will be biased against any current or former member of the university's community, whether appearing before them as an attorney or party. He further alleges that it is "highly likely" the judges engaged in a conspiracy with political organizations to issue the letter, possibly during work hours, which he claims would be evidence that the judges committed a crime. Complainant asks that the judges be "removed from federal office," and asserts that they "are politicians and possibly foreign agents masquerading as federal judges."

Quoting various sections of Rule 4(a), Rules for Judicial-Conduct and Judicial-Disability proceedings, Complainant specifically contends that the judges:

are "using their office to obtain special treatment for friends" [Rule 4(a)(1)(A)]; are "engaging in partisan political activity and making inappropriate partisan statements" [Rule4(a)(1)(D)]; are committing "abusive behavior" because they "are and will be treating litigants, attorneys, judicial employees, or others in a demonstrably egregious and hostile manner" [Rule 4(a)(2)(B)]; are discriminating "against various races, religions, and national origins that may share in the views of their targeted community" [Rule 4(a)(3)]; and have likely caused "a substantial and widespread lowering of public confidence in the courts among reasonable people" [Rule 4(a)(7)].

Complainant maintains the judges "have effectively disqualified themselves from hearing any cases in which a litigant or their counsel has publicly taken a position on the Israeli-Palestinian conflict," and a "reasonable person has every reason to believe the Judges would be biased against those supporting Palestinians and would favor those supporting Israelis."

While Complainant does not cite the Code of Conduct for United States Judges ("the Code"), I have also analyzed the judges' letter in accordance with the Code's relevant provisions, including Canon 2(A) ("A judge should [act] in a manner that promotes public confidence in the integrity and impartiality of the judiciary.") and Canon 4 ("A judge should not participate in extrajudicial activities that … reflect adversely on the judge's impartiality ….").

First, the judges' letter does not demonstrate, and Complainant has offered no evidence, that the judges provided "special treatment for friends" under Rule 4(a)(1)(A); engaged in "abusive behavior" under Rule 4(a)(2)(B), a section that addresses judges' direct conduct toward litigants, attorneys, judicial employees, or others; or conspired with political organizations in issuing the letter. These aspects of the complaint are therefore subject to dismissal under 28 U.S.C. § 352(b)(1)(A)(iii) as "lacking sufficient evidence to raise an inference that misconduct has occurred."

With regard to Rule 4(a)(1)(D) (prohibiting judges from "engaging in political activity or making inappropriate partisan statements") and Rule 4(a)(3) (prohibiting judges from discriminating "on the basis of race, color, sex, gender, gender identity, pregnancy, sexual orientation, religion, national origin, age, or disability"), Complainant mischaracterizes the contents of the letter. While the subject of the protestors' cause has been viewed as highly political, the judges' reasoning behind their boycott is not. The judges do not express any views on the protestors' or any member of the university's political views, race, color, religion, or national origin. Rather, the judges express disapproval of unlawful and rule-breaking conduct in which some of the protestors reportedly engaged and of the university's response to the disruptions on campus, which the judges believe demonstrate the lack of diverse ideological backgrounds and "double standards when it comes to free speech and student misconduct."

Judges do not violate ethical rules or standards when they exercise discretion in refusing to hire law clerks who may have engaged in unlawful conduct or violation of a universtiy's rules. Likewise, the judges (regardless of whether they are correct in their assumptions) have discretion to refuse to hire law clerks who graduated from a university that does not foster what the judges believe to be important aspects of higher education, such as viewpoint diversity and tolerance of differing viewpoints. The judges have not engaged in misconduct in the form of political partisanship or discrimination on the basis of race, national origin, or religion, and this aspect of the complaint is therefore also subject to dismissal under 28 U.S.C. § 352(b)(1)(A)(iii) as "lacking sufficient evidence to raise an inference that misconduct has occurred."

As to Rule 4(a)(7) (prohibiting conduct that is "reasonably likely to have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people") and the Code's rules regarding impartiality, Complainant's claims also fail.

Complainant alleges that anyone who is currently or formerly affiliated with the university will fear that the judges will be biased against them. However, a refusal to hire a law clerk from a particular university whose students reportedly engaged in unlawful activity or violent acts, without more, is not evidence that the judge cannot remain impartial towards attorneys or parties who graduated from that university.

Judges have many qualifications they use to determine whether a potential law clerk meets their standards for hiring. Judges may have a requirement that their potential law clerks graduate from a "top-ten" law school, which categorically excludes a large swath of candidates based solely on the judge's assessment of the relative quality of the education provided by law schools not in the "top ten." Many judges require background checks, and a criminal record of any kind would be disqualifying. A not uncommon requirement for some judges is that clerkship applicants' grades place them within a certain percentile of their class. But such hiring qualifications do not mean the judge is necessarily biased against attorneys or litigants appearing before them who do not meet the specified metrics.

Complainant's conclusory allegation that the judges who are the subject of his complaint are generally biased against graduates of the university because they have categorically chosen not to hire them as law clerks, without more, does not
support a finding of misconduct. This aspect of the complaint is therefore also subject to dismissal under 28 U.S.C. § 352(b)(1)(A)(iii) as "lacking sufficient evidence to raise an inference that misconduct has occurred."

{Complainant does not allege that the judges failed to recuse in any specific case involving the university or were biased against a particular party or attorney appearing before them.}

The subject judges have chosen to boycott the hiring of future graduates of the university as a means to implement their hiring discretion. While reasonable jurists may disagree about the effectiveness of their method and whether it is justified, the judges have not engaged in misconduct….

Note that I have criticized the boycott on the merits, but without claiming it violated any ethical rules.

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[Eugene Volokh] Empty Threats to Sue Donors of Entity That Allegedly Defamed You Could Be Tortious

American Muckrakers PAC, Inc. v. Boebert (D. Colo. June 9, 2024) (just recently posted on Westlaw) stemmed from the PAC and journalist David Wheeler making various allegations about Rep. Lauren Boebert. Rep. Boebert said they were all lies, threatened to sue Wheeler (which she did), and also "threatened donors to Plaintiff American Muckrakers PAC, Inc., in a … statement to the media," saying "Muckrakers' sloppy, reckless, and wildly irresponsible actions have created substantial legal liability for Muckrakers, David Wheeler in his personal capacity, and each donor to the organization who chose to fund the effort knowing it would result in defamation."

The PAC and Wheeler sued for various torts, including defamation (based on Boebert's claims that plaintiffs had been lying) and interference with contract and prospective advantage. Magistrate Judge Kathryn Starnella recommended that the defamation claims be dismissed under the Colorado anti-SLAPP statutes, on the grounds that plaintiffs hadn't introduced enough evidence that Boebert knew that her allegations of Wheeler's lying were false or likely false ("actual malice"); for more on that, see the opinion itself.

But the Magistrate Judge recommended that the tortious interference claim based on the threats of litigation against the donors be allowed to go forward, reasoning:

The … third, fourth, and fifth factors [of the interference tort, as set forth by the Restatement (Second) of Torts,] "require[ ] a balancing of the parties' conflicting interests to determine whether the interference was warranted under the particular circumstances[.]" Here, both Plaintiffs (and their donors/sponsors) and Defendant were engaged in First Amendment activity, so their interests are neutral. The social interests weigh in favor of Plaintiffs' contractual interests because Plaintiffs rely on donations to perform their work reporting on matters of public interest (and their donors/sponsors express themselves through monetary contributions), while Defendant enjoys a large platform by virtue of her elected office.

While Defendant has an interest in protecting her reputation, even through litigation, Plaintiffs' donors and sponsors have a weightier interest in exercising their First Amendment right to engage in political speech (in the form of financial donations to political action committees) without fear of retaliation. The Court finds no social value in allowing elected officials to silence speech they dislike by threatening gadfly journalists' donors, who have not themselves engaged in any unlawful or tortious activity.

Turning to the Restatement's sixth factor, the close temporal proximity between Defendants' comments and the diminished donations, including from donors who cited the threat of litigation, demonstrates the proximity of Defendant's conduct to the interference.

Finally, while the parties have no contractual or commercially competitive relationship, the Court finds that the Restatement's seventh factor (the relations between the parties) weighs toward a finding of impropriety because Defendant is an elected official with a large platform and access to multiple media platforms, while Plaintiffs' speech concerning matters of public interest and Defendant, a public official, relies upon donors' and sponsors' support.

Overall, the Court finds that Plaintiffs have demonstrated a reasonable likelihood of proving that Defendant's threats of litigation against donors/sponsors (as opposed to her allegedly defamatory comments about Plaintiffs and her threats of litigation against Plaintiffs) were improper. In making this finding, the Court emphasizes that the "determination that [Plaintiffs have] demonstrated a reasonable likelihood of success is in no way an opinion that [they] will actually prevail."

After the report was handed down, the parties settled and the case was dismissed.

As the Restatement notes,

The use of [threats of litigation] is ordinarily wrongful [and thus potentially tortious] if the actor has no belief in the merit of the litigation or if, though having some belief in its merit, he nevertheless institutes or threatens to institute the litigation in bad faith, intending only to harass the third parties and not to bring his claim to definitive adjudication.

To be sure, lawsuits against major donors who donate a lot of money to entities that they know will use the money to engage in defamation might be viable. See Restatement (Second) of Torts § 876(b) ("For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he … knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself"). But the tort requires substantial assistance; to quote the comments to § 876(b),

The assistance of or participation by the defendant may be so slight that he is not liable for the act of the other. In determining this, the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind are all considered.

Given that the PAC had raised hundreds of thousands of dollars, and the largest donation (according to FEC disclosure forms) seemed to be under $3000, the threat of lawsuits against donors did appear likely to be empty.

The post Empty Threats to Sue Donors of Entity That Allegedly Defamed You Could Be Tortious appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: August 12, 1795

8/12/1795: Chief Justice John Rutledge takes judicial oath.

Chief Justice John Rutledge

 

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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