Eugene Volokh's Blog, page 300

[Ilya Somin] Mercatus Center Study Documents Progress on Housing Reform

[Many states have enacted laws curbing exclusionary zoning and other regulations that block new housing construction.]

( Andrii Yalanskyi/Dreamstime.com)

A new Mercatus Center study documents encouraging progress on housing reform so far this year. The scope and pace of reform is greater than last year, which was covered in Mercatus's previous survey (which I discussed here). Here is a summary by authors Eli Kahn and Salim Furth:

Last year, we reported on the accelerating pace of state-level housing supply reform, with major victories in four states and laws being enacted across the country. This year, state legislatures kept up the pace, with 263 individual bills under consideration that would contribute to easing the regulatory burdens on homebuilding, touching on areas from accessory dwelling unit (ADU) permitting to building code reforms. With most state legislatures having adjourned for the year, we can take stock of this year's successes and failures:

In the first six months of 2024, states enacted 50 housing supply bills, compared with 30 enacted during the same months in 2023.

In the past 12 months, 65 housing supply bills have been enacted in 20 states (see figure 1).

Several states that had previously enacted major housing supply bills (such as California, Florida, and Rhode Island) continued to advance legislation building on or refining their previous reforms.

Colorado and Arizona were the year's comeback stories, enacting major housing packages after very public failures last year.

Two more high-cost states, Hawaii and Maryland, made strong opening bids in the zoning reform game.

The year's new trend is building code reforms. Five states took steps toward allowing "single-stair" multifamily building designs up to six stories.

Legislators in Vermont and Kentucky moved in the opposite direction, reversing housing supply reforms. Another counterproductive tactic cropped up in 10 states, where legislators introduced bills to prohibit institutional investors from buying single-family homes. However, none of those bills has passed.

With the exception of the last item on their list, this is all good news. And it is particularly notable that two big states—Arizona and Colorado—enacted major reforms this year, after failing last year. But, as the authors recognize, much work remains to be done. Exclusionary zoning still severely increases housing, blocks millions from "moving to opportunity," reduces economic growth, and restricts property rights.

Still, this is a sign that the cross-ideological "YIMBY" movement continues to make progress in many places. At the same time, it is also important to remember that "NIMBY" opposition to housing deregulation also cuts across ideological lines, and studies of public opinion on the subject arrive at mixed results depending on framing and question wording. Survey data indicates that many harmful "populist" supply restrictions also enjoy considerable public support. The restrictions on corporate investment in housing described in the Mercatus study may be an example of that. They attract support from both many left-wingers, and some on the populist right, such as GOP VP candidate J.D. Vance.

Elsewhere, I have argued that most exclusionary zoning is unconstitutional because it violates the Takings Clause of the First Amendment (see also shorter nonacademic version published in the Atlantic), and that the YIMBY movement should combine litigation and political action. Past successful social movements show that the two approaches together can accomplish more than either alone. The optimal mix of strategies may vary from state to state.

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[Eugene Volokh] Nina Jankowicz's Libel Lawsuit Against Fox News Network Dismissed by Federal Judge

[The judge concludes Fox's statements about Jankowicz's plans as Executive Director of the DHS Disinformation Governance Board, and the circumstances of her leaving the position, were constitutionally protected opinion—and, even if they were viewed as factual assertions, were substantially true.]

From today's decision by Chief Judge Colm Connolly (D. Del.) in Jankowicz v. Fox News Network:

According to the Complaint, [Nina] Jankowicz is "an internationally recognized expert in disinformation" who served as the Executive Director of the now-defunct Disinformation Governance Board (the Board) housed within the Department of Homeland Security (DHS)…. The Complaint alleges that Jankowicz resigned from the Board's Executive Director position "as a result of Fox's false statements and the ensuing harassment." In the Complaint's words:

Fox made three categories of repeated false claims about Jankowicz. First, over the course of over a year, Fox built a narrative calculated to lead consumers to believe that Jankowicz intended to censor Americans' speech.

Anyone consuming Fox starting in April 2022 understood that Fox was telling them that Jankowicz and the Board were out to censor them and that they should be afraid of her.

Second, Fox hosts, guests, and/or commentators said that Jankowicz was fired from DHS. In fact, as Fox knew, Jankowicz had resigned due to harassment arising from Fox's defamation.

Third, Fox hosts, guests, and/or commentators said that Jankowicz wanted to give verified Twitter users the power to edit others' tweets. They relied extensively on an obviously manipulated video—the full version of which was publicly available—to transform her description (and indeed, skepticism) of a developing beta feature on Twitter into a false declaration that she would supposedly police online speech on the platform.

Jankowicz sued Fox for defamation, but the court granted Fox's motion to dismiss:

Fox argues first that Jankowicz's defamation claim should be dismissed insofar as it is based on 37 alleged statements in the Complaint that "are not even about" Jankowicz but "[i]nstead … address the Disinformation Board, DHS, or the Administration." … In response to this argument, Jankowicz says that "[m]any of Fox's statements about the Board were about Jankowicz," and that "Jankowicz has identified statements concerning the Board that defame her in context and by implication." Jankowicz, however, identifies only one such statement: a statement alleged in paragraph 100 of the Complaint to have been made by Fox host Sean Hannity in November 2022. Accordingly, I will dismiss the Complaint insofar as Jankowicz's defamation claim is based on the other 36 challenged statements, as it is not disputed that those statements are not "of and concerning the plaintiff."

With respect to the remaining statement, the Complaint alleges in paragraph 100 that Jankowicz's image was used during [a] segment" of a show when Hannity stated that "the Board was a 'department … dedicated to working with the special media giants for the purpose of policing information.'" Jankowicz says that "[i]t is plausible that viewers understood th[is] statement[] to be about Jankowicz." But even if that were the case, the statement is not defamatory because it is not false. On the contrary, according to the Disinformation Governance Board's own charter, the "[p]urpose" of the Board was to "guide and support the [DHS's] efforts to address mis-, dis-, and mal­ information that threatens homeland security ('MDM')," and the "focus" of the Board was on the following four cross-functional lines of effort to counter MDM, many of which are already underway ('lines of effort'): (1) identifying MDM 'Identification'); (2) assessing and analyzing the risk that such MDM poses to homeland security ('Risk Assessment'); (3) responding to these MDM threats ('Response'); and (4) building resilience to MDM ('Building Resilience').

The charter—which Jankowicz says in her briefing is "the most reliable information source as to the Board and Jankowicz's powers and limits"—further provided that the Board was to "serv[e] as [DHS's] internal and external point of contact for coordination with … the private sector[] and non-governmental actors regarding MDM." In other words, the Board was formed precisely to police information and to work with non­governmental actors (such as "media giants") to accomplish that purpose. See Police, Merriam-Webster Online Dictionary (defining "police" as "one attempting to regulate or censor a specified field or activity"); id. (defining "police" as "to control, regulate, or keep in order by use of police").

Jankowicz insists in her briefing that "[t]hrough media appearances, public remarks, and testimony under oath, current and former officials made clear that the Board had no operational authority and no role in speaking with social media companies." But whatever Jankowicz may mean or the "current and former" officials may have meant by the phrase "operational authority," the Board's charter expressly provided that the Board would "coordinate[], deconflict[], and harmonize[]" the "operational responses" undertaken by DHS's "[c]omponents." See D.I. 31-1 at 10 ("Whereas [DHS] Components will lead on operational responses to MDM in their relevant mission spaces, the Board will ensure DHS efforts are coordinated, deconflicted, and harmonized, both within DHS and across the interagency, to ensure efficiency, unity of effort, and promotion of applicable compliance and best practices."). And, as noted above, the charter also expressly provided that the Board would "serv[e] as [DHS's] internal and external point of contact for coordination with …        the private sector[] and non-governmental actors regarding MDM." …

[T]he alleged defamatory statements that fall within Jankowicz's first "category"—described by Jankowicz as statements "calculated to lead consumers to believe that Jankowicz intended to censor Americans' speech"—are opinion. First, the language used in these challenged statements lacks readily understood precise meaning. "To censor" can mean various things, including "to scrutinize and revise, to suppress or edit selectively." Bryan A. Garner, Garner's Modern English Usage (4th ed. 2016). Censorship can also be understood as the actual removal of text or video from the public realm. See Censor, Merriam-Webster Online Dictionary (defining "censor" in relevant part to mean "delete anything considered objectionable"). Jankowicz impliedly adopts this definition of censorship with her repeated assertions in the Complaint and her briefing that the Board lacked "operational authority." But censorship can also be understood to encompass efforts to restrain or suppress certain kinds of speech. See id. (defining "censor" in relevant part to mean "to examine in order to suppress"). "To suppress" means not only "to stop or prohibit the publication or revelation of' but also "to restrain" and "to inhibit." See Suppress, Merriam­Webster Online Dictionary. For many if not most American citizens, the identification of their speech as "misinformation," "disinformation," or "malinformation" by a government entity authorized to "coordinat[e]" with "the private sector" "regarding" that labeling would be viewed as an effort to discourage people from engaging in that speech. Jankowicz herself seems to concede as much in her briefing. See D.I. 32 at 27 (Jankowicz responding "[p]erhaps" to "Fox['s] claim[] [that] 'average citizens would surely feel censored by the government labeling their posts "disinformation."'").

Second, the challenged statements are not readily capable of being proven true or false because, to use Jankowicz's words, the statements were "calculated to lead consumers to believe that Jankowicz intended to censor Americans' speech. "[S]ubjective evaluations of intent and state of mind … are matters not readily verifiable and intrinsically unsuitable as a foundation for defamation" under New York law. Predictions about what Jankowicz would do in the future, see, e.g., D.I. 26 ¶ 72 (alleging that guest on Fox show stated that Jankowicz was "going to actually be taking things off [of the internet]") (brackets in the original), are similarly not readily verifiable statements that are actionable under New York's libel laws…. "Speculations as to the motivations and potential future consequences of proposed conduct generally are not readily verifiable, and are therefore intrinsically unsuited as a foundation for libel." …. Jankowicz says that "referring to [her] as a 'censor' or the 'Minister of Truth,' implies verifiable facts." But she does not identify those facts, and neither "censor" nor "Minister of Truth" makes apparent what those facts could be….

[T]he broader context in which the challenged statements were made confirms that viewers would likely have understood the challenged statements to be opinion. It is undisputed that from the time its existence was announced by DHS, the Disinformation Governance Board was a hypercharged subject of political debate. Within two weeks of the announcement, twenty state Attorneys General called upon DHS's Secretary to disband the Board. In a public letter addressed to the Secretary, the Attorneys General stated that "[t]he Disinformation Governance Board, by its very existence, and almost certainly by design, threatens to 'enforce silence' when Americans wish to express views disfavored by the Administration." On the same day that letter was published, two states sued the Biden Administration to prevent the implementation of what they described as a "campaign of censorship [that] culminated in … the creation of a 'Disinformation Governance Board." "In the charged context of a debate over a matter of public concern, the [viewer] will expect a certain amount of hyperbole and loose characterization—in short, a certain amount of opinion." ….

The parties' briefing with respect to whether Jankowicz's second category of alleged defamatory statements are opinion is wanting. Neither party bothered even to identify the universe of allegations in the Complaint that a Fox employee or agent stated that Jankowicz "was fired from DHS." (Based on my own review of the Complaint, it appears that there are five alleged defamatory statements that could fall within this category.) Fox specifically addresses in its briefing three alleged statements that fall in this category—that Jankowicz "got booted" from her position as Executive Director (alleged in paragraph 122 of the Complaint), that DHS's secretary "had to yank" Jankowicz from her job (alleged in paragraph 123 of the Complaint), and that "Jankowicz was so absurd that she had to go away" (alleged in paragraph 124 of the Complaint). Fox argues that these statements are "inherently imprecise" and "reflect opinions about the situation that played out as the Disinformation Board imploded." Jankowicz does not dispute this contention in her briefing. Accordingly, I will dismiss her defamation claim insofar as it is based on these three alleged statements….

Fox argues, and I agree, that Jankowicz's third category of alleged defamatory statements—i.e., statements "that Jankowicz wanted to give verified Twitter users the power to edit others' tweets"—are assertions about Jankowicz's motivations and intentions that are not actionable under New York defamation law….

Fox [also] contends, and I agree, that Jankowicz has not pleaded facts from which it could plausibly be inferred that the challenged statements regarding intended censorship by Jankowicz are not substantially true. On the contrary, as noted above, censorship is commonly understood to encompass efforts to scrutinize and examine speech in order to suppress certain communications. The Disinformation Governance Board was formed precisely to examine citizens' speech and, in coordination with the private sector, identify "misinformation," "disinformation," and "malinformation." For the reasons discussed above, that objective is fairly characterized as a form of censorship.

The alleged statements to the effect that Jankowicz had been fired are similarly not sufficiently pleaded as not substantially true. According to the Complaint, on May 17, 2022, "after Jankowicz had drafted a resignation letter, DHS officials offered Jankowicz the opportunity to stay on with the agency as a policy advisor while the Board's future was under review." The next day, "DHS officials announced that the Board was being 'paused,"' and Jankowicz "chose to officially resign from the Board." Saying that DHS officials fired or dismissed Jankowicz from her position as the Board's Executive Director while the Board was put on pause so that DHS could determine the Board's future would not cause a different effect in the mind of a viewer than saying that DHS officials offered Jankowicz "the opportunity to stay on" in a lesser position while the Board's future was under review. Being offered the opportunity to stay on as a mere "policy advisor" is tantamount to being demoted or dismissed from the position of Executive Director. Being dismissed from a position is fairly described as being fired from that position.

Jankowicz faults Fox because, in her words, "Fox knew [she] had resigned when DHS would have continued to employ her." But she alleges in the Complaint that she did not submit her resignation until the day after DHS officials told her DHS would continue to employer in a lesser position. Moreover, given that Jankowicz "chose to officially resign" from her position as Executive Director on the same day that DHS publicly announced that the Board was being "paused," whether she resigned or was fired as the leader of the Board would have amounted to an immaterial technicality to the ears of a reasonable viewer because such a viewer would have expected the dismissal of the person in charge of an enterprise that had been "paused" and whose very future was in question.

Finally, the alleged defamatory statements that Jankowicz wanted to give verified Twitter users the power to edits others' tweets also are not plausibly pleaded as not substantially true. To the contrary, the Complaint itself quotes Jankowicz confirming in a Zoom session that she endorsed the notion of having "verified" individuals edit the content of others' tweets. Specifically, the Complaint alleges that Jankowicz stated "during a Zoom meeting" that she "like[d] the idea" of "verified people" "edit[ing]" Twitter and that she "like[d] the idea of adding more context to claims and tweets and other content online, rather than removing it." …

Fox is represented by Eric M. George, Patrick F. Philbin & Katherine A. Petti (Ellis George Cipollone O'brien LLP), and John L. Reed and Peter Kyle (DLA Piper LLP).

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[Stephen E. Sachs] Give Parents the Vote!

[Let voting parents cast ballots for their children.]

Kids don't vote. That means nearly a quarter of American citizens don't have their interests defended at the polls. But parents can vote, and they could vote on behalf of their children. This bipartisan idea, with support ranging from Cornel West to J.D. Vance, would be the most significant expansion of the franchise since the Nineteenth Amendment—and it's something that any state legislature could do on its own, without waiting for a divided Congress to act.

Josh Kleinfeld and I have a new paper, forthcoming in the Notre Dame Law Review, that explains how. As we argue, voting parents should be able to cast ballots on behalf of their otherwise-qualified children; so should the court-appointed guardians of people who can't vote due to mental incapacity. From the abstract:

Many of America's most significant policy problems, from failing schools to the aftershocks of COVID shutdowns to national debt to climate change, share a common factor: the weak political power of children. Children are 23% of all citizens; they have distinct interests; and they already count for electoral districting. But because they lack the maturity to vote for themselves, their interests don't count proportionally at the polls. The result is policy that observably disserves children's interests and violates a deep principle of democratic fairness: that citizens, through voting, can make political power respond to their interests.

Yet there's a fix. We should entrust children's interests in the voting booth to the same people we entrust with those interests everywhere else: their parents. Voting parents should be able to cast proxy ballots on behalf of their minor children. So should the court-appointed guardians of those who can't vote due to mental incapacity. This proposal would be pragmatically feasible, constitutionally permissible, and breathtakingly significant: perhaps no single intervention would, at a stroke, more profoundly alter the incentives of American parties and politicians. And, crucially, it would be entirely a matter of state law. Giving parents the vote is a reform that any state can adopt, both for its own elections and for its representation in Congress and the Electoral College.

And from the introduction:

Perhaps the most vivid lesson of the COVID pandemic, from the standpoint of the democratic process, was the weak political power of children. When bars and restaurants reopened, schools stayed closed; when it became clear that children were less likely to infect others or become seriously ill themselves, schools stayed closed; when it became clear that school closures caused children significant harm, schools stayed closed; when it became clear that the poorest children were harmed most, schools stayed closed. The COVID closures were a singularly clear case of the balancing of interests that marks all politics: if some institutions would be allowed to open to keep society functioning, and others would be closed for the sake of public health, politics would decide who'd bear the cost. In that balancing, children lost.

Yet the COVID experience really just made evident a larger political pattern. The performance record of American schools—whatever one's preferred solution—reflects the political weakness of children. So does the limited supply of housing for new families, the state of public transportation and public parks, anemic support for working parents or responses to child poverty, and many aspects of crime and public-safety policy. Too often our political decisions hand out benefits in the present while shifting costs to the future—from growing public debt to
unfunded entitlement programs to long-term environmental worries such as climate change.

The common thread is that, in policy contexts that put children's interests particularly at stake, children lose. And there's a simple explanation why. "Kids don't vote," and their parents can't vote for them. American policy is observably and significantly distorted by the political weakness of children, whose interests aren't adequately defended at the polls.

The most important thing to realize about this problem is its sheer scale. Roughly 23% of all American citizens, or nearly a quarter, are children under 18. The tendency in the United States and elsewhere has been to accept as if it's a fact of nature that, as children can't vote for themselves, their interests will go proportionally underrepresented in politics (at 23%, radically underrepresented). But why? It is a fact of nature that children aren't ready to defend their own interests. Yet the overwhelming majority of these children have parents who are also citizens, who have the right to vote, and who legally represent their children in virtually every other circumstance. Why accept the assumption that these parents can vote only for themselves?

This Article is about that assumption. Today it's so unquestioned that even pointing it out can seem like a silly provocation rather than a serious policy proposal. Deep assumptions are like that: questioning them always seems crazy at first. The suggestion that women should be allowed to vote once spurred derision, until wave upon wave of challenging assumptions produced the Nineteenth Amendment. Of course, there's a crucial difference: unlike the women who demanded their right to vote, children really are incompetent to vote their interests, at least at a sufficiently young age. One might disagree whether 18 is the right line, but surely something is: 8-year-olds aren't competent to vote their interests.

So our claim isn't that children should be able to vote from birth; our claim is that their parents should cast votes for them. State legislatures should change their election laws to let voting parents cast ballots for their too-young-to-vote children. This Article's aim is to move this idea from provocation to serious policy proposal: one that's mandated as a matter of frst principles, pragmatically feasible, robust to objections, and within each of the fifty states' legal control. Called "parent proxy voting," "parent voting," or sometimes "Demeny voting" afer demographer Paul Demeny, the idea has been proposed in a few foreign countries and endorsed by commentators from both sides of the aisle, from presidential candidate Cornel West to vice-presidential candidate J.D. Vance. But it's largely remained an academic curiosity, without much analysis of its philosophical foundations, its legal underpinning, or its detailed implementation.

Ideas about voting rights have always changed slowly. Yet the remarkable thing, we submit, shouldn't be the idea that parents might vote on behalf of their children, but that we have a group of citizens with legitimate interests constituting almost a quarter of the country, that they're plainly disadvantaged in the political process, and that we don't make the obvious repair.

Our proposal isn't only about children. Citizens with severe mental disabilities are similarly excluded from the ballot. They have real interests that deserve to be counted in a democratic republic, but they lack the ability or legal right to defend those interests through voting. And their numbers may not be small either—or, at least, won't remain so. (By 2050, when over a fifth of Americans may be over 65,8 as many as 15 million Americans may have dementia—nearly 4% of the entire population.) Many of these citizens are under the legal care of court-appointed general guardians, who are already empowered to act for their charges, already obliged to look out for their interests, and already capable of voting in U.S. elections. These guardians could and should be permitted to vote on behalf of their charges.

We focus primarily on children, though, because they're far more numerous. A 23% share of the citizenry is so breathtakingly large that it's hard to think about it clearly—enough disenfranchised fellow citizens to elect 102 of the 435 Representatives in the House. The number of citizen children is roughly sixteen times larger than the roughly 1.4% of Americans barred from voting due to felonies (long a cause célèbre among reformers), and six times larger than the number of noncitizens who lawfully and permanently reside in the United States (some of whom, of course, are children themselves). Children and parents together represent about 42% of America's population but only one-quarter of its voting-age population: the other 58% of Americans have three-quarters of the votes.

It's likely, of course, that parents already think about their children when voting. But each parent is just one vote; there aren't enough of them to defend their own interests and their children's interests at the same time. When state governors decide on school closures, legislators restrict access to child care, or Senators reimpose tariffs on baby formula, they can write off in their political calculations the citizens most affected by their policies, asking what the median adult voter will think instead. The magnitude of this under-counting is so extreme that one should take a deep breath and ask what could possibly justify a political process which excludes children's interests if there's any other choice available.

It's also important to see clearly the status quo. The illusion is that current law is neutral—that it makes no decision about representing children—and that our proposal would disturb this baseline. But in fact our political system already counts children in apportioning seats in Congress, allocating electoral votes among states, and drawing legislative district lines. Because children can't vote, though, their numerical influence just flows to the median adult voter who lives in their district. In substance, then, proxy voting for children is what we have today: we already let other people vote for children, we just insist that they be strangers. For example, the children who lived in Connecticut in 2020 earned the state an extra House seat, but they couldn't vote for the seat; other people did. The most powerful voter in America is a childless adult in a district with plenty of children.

The status quo also means that a household of six Americans—say, two parents, three children, and an incapacitated grandparent—wields the same political power within their district as a neighboring household of only two adults. That's obviously unfair. And it gives the lie to claims that letting parents vote for their children would be unfair to the childless. A family of six "contains more human beings than a family of two"; if our proposal gives these extra citizens their proportional influence in the political system, that's hardly "some shady sleight of hand." Our proposal doesn't give parents extra votes for being parents, the way Oxford and Cambridge graduates used to get extra votes in England. Instead, our proposal recognizes that these other citizens exist, that they matter politically, and that their interests are better represented by the people closest to them than by strangers. It isn't about extra votes, but extra people. By contrast, the status quo is effectively the Oxford-Cambridge arrangement on behalf of the childless. Our proposal restores the otherwise broken promise of "one person, one vote."

So the choice isn't between counting children and not counting them, or between avoiding a policy decision about them and forcing one. The choice is between counting children for their numbers but discounting their interests, or counting children for their numbers and their interests both. Our proposal wouldn't increase any state's share of seats in Congress or the Electoral College; again, children already count for that purpose. We'd simply re-assign children's existing political power to their parents, rather than to random and unrelated adults.

Faced with a reform of this magnitude, it's natural to wonder about the details: "Would parents fill out multiple ballots?" "What if they disagree about how to cast them?" "What about orphans?" "What about children who are citizens but whose parents aren't?" And so on. We offer detailed answers below, but the short answers are as follows. We argue that, if someone is unable to vote for reasons of age or incapacity, and if she has a parent or guardian who under her state's law is eligible to vote and who's generally charged with her care and able to act in her name, then this parent or guardian should be able to cast a proxy vote on her behalf. The right to vote is important enough—to each citizen and to our democracy—that no one but a parent or guardian should be able to act for another, and that no one but a lawful voter should be able to cast a vote.

As to mechanics, we suggest that parents be added to the rolls as proxy voters in advance, through the voting registration process. When it comes time to vote, a parent could cast a ballot marked with the number of people it represents. For example, a single parent with one child could receive a ballot indicating that it counts for two. When there's more than one parent registered, each could cast a fractional vote: two parents with three children could cast one-and-a-half proxy votes each, so that five total votes are cast by a family of five. (One person, one vote.) Admittedly, such fractional voting is unfamiliar. But the math is simple and would be automated, the information needed is readily available to state governments already, and the injustice of the current system is plain.

Indeed, the problem is one of such screaming, urgent magnitude that the most important response to objections of detail is to ask: what would you do instead? Refusing to account for a quarter of the population's interests is so great a democratic failure that the only justification for doing nothing is that nothing can be done. A country isn't morally obligated to do the impossible. But in this case, there's a solution. We should give parents the vote.

As they say, read the whole thing!

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[Josh Blackman] Atlas Roofing Shrugged

[Another Burger Court precedent is about to be “abandoned” or “overruled” like Roe, Lemon, Chevron, Abood, and Bakke.]

I've finally had a chance to finish Jarkesy v. SEC. There is no reason for that opinion to have been nearly 100 pages. The Justices need to grant more cases, reduce the time of oral argument, and spend less time writing encyclopedias. I could read Atlas Shrugged three times, and it would still take less time than reading through all the Court's decisions from this term. Some of the majority opinions are longer than the John Galt speech. Speaking of Rand…

From the 1930s through 2010, the Securities and Exchange Commission (SEC) would seek civil penalties in federal court. But that practice changed with the Dodd Frank Act, which gave the SEC the choice to bring suit in federal court, or through "in-house" adjudications before an ALJ. Unsurprisingly, the SEC prefers Door #2. The government is more likely to win before an administrative law judge. Moreover, the rules favor the government, as the Federal Rules of Civil Procedure and Evidence do not apply to these internal proceedings. And if the defendant appeals the agency's ruling to federal court, the ALJ's findings are nearly dispositive. Justice Gorsuch's concurrence well explains how this process is stacked against the accused.

The crux of Chief Justice Roberts's majority opinion is that the SEC must bring suit for civil penalties in a federal court, where a jury trial is available under the Seventh Amendment. To be frank, I'm not sure that Jarkesy really cares about having a jury. Rather, he would prefer to be in a federal court with a neutral Article III judges, and all of the protections of the Federal Rules of Civil Procedure and Evidence. I question how many SEC suits brought in federal court wind up before a jury trial. The Seventh Amendment is a means to an end.

Jarksey split 6-3. Justice Sotomayor wrote a vigorous dissent. In her view, Jarkesy was controlled by Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n (1977). This case upheld the use of in-house adjudication for the Occupational Safety and Health Administration. Chief Justice Roberts did not mention Atlas Roofing until a footnote on page 18 of his majority opinion. And he buries his analysis of that precedent at the tail-end of his decision.

Justice Sotomayor charges:

It should be obvious by now how this case should have been resolved under a faithful and straightforward application of Atlas Roofing and a long line of this Court's precedents. The constitutional question is indistinguishable. The majority instead wishes away Atlas Roofing by burying it at the end of its opinion and minimizing the unbroken line of cases on which Atlas Roofing relied.

The Court distinguishes Atlas Roofing, and finds it "does not extend to these civil penalty suits for fraud" by the SEC so "that case does not control." Justice Sotomayor finds this distinction is non-existent. I won't get into that debate here. Rather, it is far more important that Atlas Roofing is being set up to be overruled. Here, Atlas Roofing may join other Burger Court chestnuts that have roasted over an open fire, including Roe, Abood, Chevron, and Bakke.

Roberts explains that the reasoning of Atlas Roofing does not withstand scrutiny, and is inconsistent with later decisions–all factors that cut against stare decisis:

The reasoning of Atlas Roofing cannot support any broader rule. The dissent chants "Atlas Roofing" like a mantra, but no matter how many times it repeats those words, it cannot give Atlas Roofing substance that it lacks

Roberts, who usually scoffs at law professors, cites his preferred stable of scholars to show that Atlas Roofing is an outlier:

Reading the dissent, one might also think that Atlas Roofing is among this Court's most celebrated cases. As the concurrence shows, Atlas Roofing represents a departure from our legal traditions. See post, at 12–20 (opinion of GORSUCH, J.). This view is also reflected in the scholarship. Commentators writing comprehensively on Article III and agency adjudication have often simply ignored the case. See, e.g., R. Fallon, Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915 (1988) (no citation to Atlas Roofing); J. Harrison, Public Rights, Private Privileges, and Article III, 54 Ga. L. Rev. 143 (2019) (same); W. Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511 (2020) (same).

The Court stops short of overruling Atlas Roofing. The Court did "not reach" Jarkesy's argument that Granfinanciera, S. A. v. Nordberg (1989) "overruled Atlas Roofing." Though Chief Justice Roberts does leave open the possibility that Atlas Roofing was already "abandoned" like Lemon:

The dissent chides us for "leav[ing] open the possibility that Granfinanciera might have overruled Atlas Roofing." Post, at 25, n. 8 (opinion of SOTOMAYOR, J.). But the author of Atlas Roofing certainly thought that Granfinanciera may have done so. See Granfinanciera, 492 U. S., at 79 (White, J., dissenting) ("Perhaps . . . Atlas Roofing is no longer good law after today's decision."); see also id., at 71, n. 1 (Granfinanciera "can be read as overruling or severely limiting" Atlas Roofing).

Justice Gorsuch's concurrence goes further, and explains that Atlas Roofing cannot be squared with original meaning:

The high-water mark of the movement toward agency adjudication may have come in 1977 in Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n. Some have read that decision to suggest the category of public rights might encompass pretty much any case arising under any "'new statutory obligations,'" Brief for Petitioner 22 (quoting Atlas Roofing). It is a view the government essentially espouses in this case. But without reference to any constitutional text or history to guide what does or does not qualify as a public right, that view has (unsurprisingly) proven wholly unworkable.

Michael Showalter explains how the Court tried to reconcile Atlas Roofing, as precedent, and original meaning. But this decision is merely a temporary way-station on the road to overruling. One last chance, as Richard Re might call it.

Justice Sotomayor sees the writing on the wall. If Jarkesy is extended beyond the SEC, many other agency adjudications would have to be brought in federal court. Indeed, some agencies do not even have the authority to seek civil penalties in federal court, so Congress would have to grant that power:

Some agencies, like the Consumer Financial ProtectionBureau, the Environmental Protection Agency, and the SEC, can pursue civil penalties in both administrative proceedings and federal court. Others do not have that choice. As the above-cited statutes confirm, the Occupational Safety and Health Review Commission, the Federal Energy Regulatory Commission, the Federal Mine Safety and Health Review Commission, the Department of Agriculture, and many others, can pursue civil penalties only in agency enforcement proceedings. For those and countless other agencies, all the majority can say is tough luck; get a new statute from Congress.

I think it unlikely that a divided Congress would ever enact such a statute, so these agencies would be severely weakened. Justice Sotomayor describes this change as a "seismic shift" that would unleash "chaos."

I think Atlas Roofing is on borrowed time. And there is a vehicle on the horizon that presents this issue. 

The SpaceX case against the NLRB pending in the Fifth Circuit has expressly preserved the issue of whether Atlas Roofing should be shrugged: 

The NLRB may argue that the Supreme Court has already upheld its proceedings against a Seventh Amendment challenge. See NLRB v. Jones & Laughlin Steel Corp. (1937); Atlas Roofing Co. v. OSHRC (1977). SpaceX expressly preserves its argument that both these cases should be overruled as they were wrongly decided. Notably both these cases are missing from the Supreme Court's litany of historic public rights cases in Jarkesy at 2131-34. And the Court leaves open that Atlas Roofing has been overruled in footnotes 3 and 4. Moreover, the Court notes Atlas Roofing adopts a problematic "circular" definition of public rights. Id. at 2138-39. And the dissent expressly recognizes that "it is unclear how OSHA, or the National Labor Relations Act at issue in Jones & Laughlin, would fit the majority's view of the public-rights doctrine." Id. at 2165 (Sotomayor, J., dissenting).

The Fifth Circuit reinvigorated the Seventh Amendment in Jarksey. And it was affirmed. The SpaceX case could continue that trend.

At a recent conference, I was asked if I could overrule any one Supreme Court precedent, what would it be? My answer, without hesitation, was NLRB v. Jones & Laughlin Steel. People often point to Wickard v. Filburn as the focal point of the Supreme Court's expansion of federal power. But really that explosion began with Jones & Laughlin Steel. That case adopted the "substantial effects" test, which eliminated the distinction between what is local and what is national. Jones & Laughlin Steel, in addition to obliterating limits on Congress's commerce powers, also wiped out protections of the Seventh Amendment. As a result, the National Labor Relations Authority can bring suits in-house, and not before federal courts. Atlas Roofing may be on the chopping block, so let's see if the Roberts Court would reach back to the New Deal. 

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[Eugene Volokh] Limited Right of Access to Court Records in Extradition Cases?

From Judge James Donato's opinion Wednesday in In the Matter of the Request Extradition of Artt (N.D. Cal.):

In 1992, the United States, at the request of the United Kingdom, initiated extradition proceedings in this District against Kevin John Barry Artt and other individuals who had escaped from a prison in Northern Ireland after convictions for acts of violence. The United Kingdom eventually dropped the extradition request, and Artt appears to have remained in the United States. The extradition case was presided over by District Judge Charles Legge, who retired from the bench in 2001.

Dan Lawton was an attorney who represented Artt in immigration matters in the 1990s. In February 2024, Lawton filed a request to unseal and obtain documents submitted by the United States in 1995 for in camera review by Judge Legge in connection with a discovery dispute in the extradition case. The documents concerned an investigation by the Royal Ulster Constabulary (RUC) into the shooting of Peter Heathwood in Belfast, Northern Ireland, in 1979. Based on personal research, Lawton believes that Heathwood was shot by "mistaken identity" when "Loyalist paramilitaries" broke into his house to "assassinate" Artt, who rented a room there. Lawton wants access to the RUC investigation documents because he thinks they will evidence a Loyalist plot against Artt and "regards Mr. Heathwood as a friend who deserves to know why what happened to him, happened to him." Lawton says that he "withdrew completely" from representation of Artt in 2000, and that he does not represent Heathwood.

The United States opposed Lawton's request. The United States represents that the government of Northern Ireland also opposes the request. The United States represents that Artt does not object to allowing access to the investigation documents, but asks that other materials about "stops, encounters, and sightings" of Artt by United Kingdom law enforcement personnel not be disclosed.

Lawton's request reaches back in time to the Troubles in Northern Ireland. In 1983, Artt and several other individuals escaped from a prison in Belfast and made their way to San Francisco. Artt was a Catholic Republican and opposed extradition under Article 3(a) of the Supplementary Treaty of extradition between the United Kingdom and the United States, which stated that "extradition shall not occur" if it would result in punishment "by reason of [the respondent's] race, religion, nationality or political opinions…." Judge Legge ultimately declined to apply Article 3(a) and certified Artt for extradition. While this decision was on appeal, the United Kingdom withdrew the extradition request.

A number of discovery disputes arose during the extradition proceedings. One of the disputes involved Artt's request for the RUC investigation documents, which was argued to Judge Legge at a hearing on December 18, 1995. Artt wanted the RUC documents as possible evidence that he had been targeted by government-related forces for being Catholic, which Artt believed would support an Article 3(a) defense to extradition on grounds of punishment for his religious and political beliefs. The United States said that nothing in the RUC documents indicated that Artt was a target, and so the documents were irrelevant to the extradition case, among other objections to producing them. The United States proposed that Judge Legge review them in camera, and filed the RUC documents under seal.

After that, the whole thing appears to have faded away. The docket does not show that Judge Legge did anything with the documents after they were presented for his review. The docket also does not indicate that Judge Legge relied on the contents of the RUC documents in any way for an order, decision, or judgment in the case. The case moved on without any further attention to the RUC documents.

Lawton's request is denied for several straightforward reasons. To start, the procedural posture of the request is doubtful. Lawton cites to District Civil Local Rule 79-5 and Criminal Local Rule 56-1 as the grounds of the request. The rules state the general principle of public access to court records and, in the case of Civil Local Rule 79-5(g)(3), acknowledge the possibility of a non-party like Lawton filing a request to unseal a document. Even so, the applicability of the rules here is subject to serious question. This case was an extradition action under an international treaty, and "the rules of … civil procedure that govern federal court proceedings heard under the authority of Article III of the United States Constitution do not apply in extradition hearings that are conducted under the authority of a treaty enacted pursuant to Article II."

Although it is certainly true that the public's right to court filings is a bedrock principle in our federal judicial system, access to documents submitted for in camera review for a discovery dispute are a different matter. Judge Legge had the RUC documents in chambers to review for discovery purposes. They were not used in a dispositive order, and never came up again in the case. In these circumstances, access is not warranted. See, e.g., Phillips ex rel. Ests. of Byrd v. Gen. Motors Corp. (9th Cir. 2002) (no right of access to discovery attached to non-dispositive motion); Times Mirror Co. v. United States (9th Cir. 1989) (no right of access to ex parte warrant application before indictment); States v. Wolfson (2d Cir. 1995) (no right of access to "documents that were submitted to a court in camera as part of a discovery dispute and were held not discoverable," 27 years later); United States v. Rodriguez (9th Cir. 2010) (unpublished) (district court did not err by declining to unseal documents that the court reviewed for "materiality").

There is also the fact that extradition "is a diplomatic process that is initiated by a request from the nation seeking extradition directly to the Department of State." If the State Department determines the request is within the scope of an extradition treaty, the U.S. Attorney will file a complaint in the relevant judicial district for an arrest warrant of the individual to be extradited. The resulting case does not determine the guilt or innocence of an alleged fugitive such as Artt, but rather only: (1) "whether the crime of which the person is accused … falls within the terms of the extradition treaty"; and (2) "whether there is probable cause to believe the person committed the crime charged."

The RUC documents were provided by Northern Ireland to Judge Legge in this context, and the Court is advised that Northern Ireland objects to providing them to Lawton. Principles of international comity weigh against access. It may be that Heathwood cannot obtain the RUC documents in the United Kingdom, as Lawton suggests, but a United States court is not a forum for an end run around another nation's laws.

As a closing observation, the Court independently reviewed the RUC documents in connection with Lawton's request. Nothing in the documents indicates that Artt was the intended target of the shooting in Heathwood's home in 1979.

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[Josh Blackman] Today in Supreme Court History: July 22, 1937

7/22/1937: The Senate voted down President Roosevelt's Court-Packing plan, 70-20.

President Franklin D. Roosevelt

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Josh Blackman] The International Court Of Justice's Decision Against Israel

["The only avenue for a permanent solution to the Israeli-Palestinian conflict remains the negotiation framework set out in the United Nations and bilateral agreements."]

In Part II of my series on my mission to Israel, I discussed what I learned about international law. I signaled that the International Court of Justice (ICJ) would soon issue an opinion concerning the status of the West Bank, known as Judea and Samaria. That ruling came on Friday. To no one's surprise, the ICJ found that Israel was occupying the territory in violation of international law.

There is a single opinion of the Court, combined with fourteen separate writings. (There are fifteen members of the Court). You can save yourself some time, and jump to the only member who dissented from the entire decision, Judge Julia Sebutinde of Ugande. Here is the summary of her opinion:

The Court has jurisdiction to entertain the request for an advisory opinion—However, in exercising its discretion judiciously and maintaining the integrity of its judicial role, the Court should have refrained from rendering the advisory opinion requested—The Advisory Opinion omits the historical backdrop crucial to understanding the multifaceted Israeli-Palestinian dispute and is tantamount to a one-sided "forensic audit" of Israel's compliance with international law—The Advisory Opinion does not reflect a balanced and impartial examination of the pertinent legal and factual questions—It is imperative to grasp the historical nuances of the Israeli-Palestinian conflict, including the competing territorial claims of the parties in former British Mandatory Palestine, as well as the previous and ongoing efforts to resolve the conflict through the negotiation framework identified by the Security Council—The Court lacks adequate, accurate, balanced and reliable information before it to enable it to judiciously arrive at a fair assessment and conclusions on the disputed questions of fact—The Advisory Opinion not only circumvents Israel's consent to the Court's resolution of the issues involved, but also circumvents and potentially jeopardizes the existing internationally sanctioned and legally binding negotiation framework for the resolution of the Israeli-Palestinian conflict—The Advisory Opinion also contains several shortcomings, in particular with respect to its answer to Question 2—The timeline proposed by the Court for Israel's withdrawal from the occupied territories is impracticable and disregards the matters agreed upon in the existing negotiating framework, the security threats posed to Israel and the need to balance competing sovereignty claims—The Court's application of the principle of full reparation is not appropriate in the circumstances of the Israeli-Palestinian conflict—The Court has misapplied the law of belligerent occupation and has adopted presumptions implicit in the question of the General Assembly without a prior critical analysis of relevant issues, including the application of the principle of uti possidetis juris to the territory of the former British Mandate, the question of Israel's borders and its competing sovereignty claims, the nature of the Palestinian right of self-determination and its relationship to Israel's own rights and security concerns—The only avenue for a permanent solution to the Israeli-Palestinian conflict remains the negotiation framework set out in the United Nations and bilateral agreements.

Sebutinde captures, to a tee, how I understand the proceedings before the ICJ: a one-sided effort to use legal principles to force Israel to capitulate on a complicated diplomatic situation. It is a myth that some elite lawyers in the Hague can solve with an opinion what the Israelis and Palestinians have struggled with for decades.

You may not think of Uganda as a staunch defender of Israel, but Sebutinde has consistently dissented on the various rulings the ICJ issued against Israel with regard to Gaza. Regrettably, President Biden's appointee to the court, Judge Sarah Cleveland, concurred with the majority.

Robert Nicholson in the Wall Street Journal provides some background on Sebutinde that could explain her jurisprudence:

More intriguing is the phenomenon Judge Sebutinde represents. She is an African woman steeped in Pentecostal Christianity who feels a natural kinship with one side of the conflict. If Judge Salam's Muslim identity shapes his views, Judge Sebutinde's Christianity no doubt shapes hers—and she is no outlier. In a crucial geopolitical development of the last century, American missionaries seeded evangelical Christianity across Africa, Asia and Latin America—and with it, the famous evangelical penchant for Zionism. The political consequences are only now emerging.

I agree with Robertson's conclusion:

The Israel-Palestinian conflict will be solved by a political process based on negotiations between the parties, Judge Sebutinde wrote, not a judicial settlement in The Hague. She is nothing if not brave, breaking ranks with her peers in asserting the legality of Jewish rights in all of Mandatory Palestine. She cites the legal documents and principles that justify those rights, recounts the history of Palestinian intransigence, and notes a Jewish presence in the land going back to ancient times. "Israel," she wrote, "is not a colonizer."

Judge Sebutinde also points out how a "pro-Palestinian group of states" is hijacking institutions like the ICJ to create on paper what they can't build on the ground. This group of states speaks in legal language, but its goals and motives flow from anything but law. After rejecting seven peace offers and mismanaging the West Bank and Gaza, the Palestine Liberation Organization is waging a multifront legal intifada designed to sway public opinion and prompt the U.N. Security Council to act.

To date, President Biden has been fairly solid on Israel, but things could change now. As a lame duck, he is no longer seeking the nomination, or even votes in the general election. Moreover, given his decline in mental capacity, it is unclear who is actually calling the shots. Whatever committee is making decisions will now be faced with a choice of how to respond to the ICJ's decision. The President could call out the decision for the reasons Sebutinde explains, and stand with Israel. Or the President could call for sanctions. Or the President, could do nothing.

Vice President Harris, who likely will be the Democratic nominee, may agree with President Biden, or may disagree with him. Whether there is any daylight between them could create some chaos and consternation with our foreign policy. This six-month lame duck period, combined with the President's declining mental faculties, will present many novel difficulties for the unitary executive.

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[Josh Blackman] Today in Supreme Court History: July 21, 1824

7/21/1824: Justice Stanley Matthews's birthday.

Justice Stanley Matthews

 

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[Eugene Volokh] "Getting a Home Depot Employee Fired for Calling for Trump's Assassination Is Still Cancel Culture"

Billy Binion had a piece on Reason about this on Wednesday, which I think is generally quite right. An excerpt, though there's more at the link:

Whatever your feelings on the former president, cheering on his assassination attempt is, in fact, wrong. It is also wrong to weaponize your millions of followers to turn a random woman into a national pariah, siccing a mob on her and rendering her unable to support herself—and possibly her family—because she made a tasteless comment on social media. These two things are true at the same time.

Cancel culture comes in different forms. But this is arguably its purest. We're not talking about someone who wielded considerable influence over society, whether in Hollywood or on Capitol Hill in Washington, D.C. We aren't even talking about a public school teacher who said this to a classroom full of students. We are talking about a woman who worked at a big box retail store, whose ability to pay for housing and food is potentially now up in the air for saying something gross on the internet.

It's ironic that the people leading this mob are some of the same individuals who have repeatedly—and rightly—decried mob justice over the last several years.

Binion's piece is fundamentally about the right and wrong of the situation; but if you're interested in whether it's legal for private employers to fire employees for such speech, see this article, which canvasses the state and local laws on the subject. Here also is a map that summarizes this (from this article); the dark gray states are the ones where this sort of firing is most likely to be illegal:

For a case bearing on whether government employers may fire employees for saying, after an assassination attempt on the President, "If they go for him again, I hope they get him," see Rankin v. McPherson (1987); the Court there held that firing an employee for such speech violated the First Amendment.

To be sure, Rankin is not completely on point: On one hand, it dealt with on-the-job speech, and off-the-job speech would presumably be even more protected. On the other, the speech was just to a friend, and the Court noted that "Nor was there any danger that McPherson had discredited the office by making her statement in public," though perhaps this was just because McPherson was an employee at a law enforcement office—it's not clear that a concern about discrediting the office would apply to, say, a firefighter. But whatever the legal analysis might be, Binion's ethical analysis strikes me as correct.

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