Eugene Volokh's Blog, page 86

[Ilya Somin] Liberty Fund Symposium on the Legacy of David Boaz

[Contributors include Andy Craig, Tarnell Brown, Aaron Ross Powell, Jonathan Blanks, and myself.]

David Boaz. (Cato Institute)

 

The Liberty Fund has organized a symposium on "The Legacy of David Boaz," the leading libertarian thinker and longtime Cato Institute leader, who passed away last year. Participants include Andy Craig, Tarnell S. Brown, Aaron Powell, Jonathan Blanks, and myself. Contributions will be posted over the next month or so. Here is the Introduction to the symposium:

David Boaz (August 29, 1953–June 7, 2024) was one of the most influential libertarians of the 20th century, and a driving force behind The Cato Institute for many decades. The breadth of his interests and his consistent application of his principles to real world challenges were obvious and inspiring to those who knew him. The authors in this series are connected by their work with Boaz and inspired by his demonstrated careful and courageous thought and action. Authors were asked to respond to one of two prompts: "What is an issue that you think David would want to bring forward today and what do you think he would have said about it?" or "What is an issue about which David's influence helped you see the importance, and how does what he taught you shape your thought about it?" On the one year anniversary of his death, we hope to show the continuing relevance of his legacy.

The first contribution - Andy Craig's essay "David Boaz Understood Liberty and the Rule of Law are Inseparable," was posted today. My initial essay, "David Boaz on Immigration," will be posted tomorrow.

When David passed away last June, I posted an obituary, and a transcript of his final speech, "The Rise of Illiberalism in the Shadow of Liberal Triumph." The speech is, if anything, even more relevant today than it was a year ago.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Jonathan H. Adler] First Circuit Rejects Constitutional Challenge to Federal Marijuana Prohibition

[Like it or not, Gonzales v. Raich remains good law, and federal prohibition is constitutional under current doctrine. ]

In 2005, in Gonzales v. Raich, the Supreme Court rejected a constitutional challenge to the federal prohibition of the cultivation, distribution, and possession of marijuana, even where legal under state law for medicinal purposes. Many did not like this decision (including me), in no small part because it embraced an unnecessarily capacious understanding of Congress's power to reach intrastate conduct through the Necessary and Proper Clause. While the Court's enumerated powers holdings in NFIB v. Sebelius may have constrained some potential applications of Raich, the underlying decision remains good law.

With Raich on the books, it should be no surprise that the U.S. Court of Appeals for the First Circuit rejected newly filed constitutional challenges to federal marijuana prohibition in Canna Provisions v. Bondi. Specifically, the Court rejected both the claim that federal marijuana prohibition exceeds the scope of Congress's powers under the Interstate Commerce and Necessary & Proper Clauses, as well as a claim that federal marijuana prohibition violates the Due Process Clause of the Fifth Amendment.

The challengers had sought to argue that intervening events, including the widescale legalization of marijuana for medicinal or recreational purposes under state law and Congress's failure to fund and support more aggressive drug enforcement, meant that Raich's holding no longer controlled, but the First Circuit did not buy it.

The reality remains that if federal marijuana prohibition is to end, so as to allow real marijuana federalism, it will take an act of Congress. Federal drug policy will not be made in the federal courts.

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[Eugene Volokh] Claim Over Penn's Alleged Knowing Toleration of Anti-Semitic Behavior Dismissed,

[though the court found the plaintiffs had standing to bring the claim, and gave them one last chance to amend their complaint to plausibly allege enough to allow the case to go forward.]

From today's decision by Judge Mitchell Goldberg (E.D. Pa.) in Yakoby v. Trustees of Univ. of Pa.:

Plaintiffs, Jewish students attending the University of Pennsylvania ("Penn"), allege it engaged in antisemitic conduct that warrants a federal lawsuit. Plaintiffs' 111-page amended complaint sets out a wide variety of general allegations, complaints, historical and current events, and alleged antisemitic incidents that allegedly took place not just on Penn's campus, but elsewhere in the United States and the world. The amended complaint also includes sweeping allegations of ideological, philosophical, religious, and political concerns and grievances, that have nothing to do with a federal lawsuit.

It is unclear why Plaintiffs' counsel deemed it necessary to allege so many unrelated facts when doing so is directly contrary to federal pleading requirements. Indeed, under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain only a "short and plain statement of the claim showing that the pleader is entitled to relief."

Penn has filed a Motion to Dismiss and Strike the Plaintiffs' Amended Complaint pursuant to Federal Rule of Civil Procedure 12. After review of Plaintiffs' amended complaint, I find that it fails to sufficiently allege the facts necessary to plausibly state viable claims under Title VI, the Pennsylvania Unfair Trade Practices and Consumer Protection Law, and for breach of contract. Consequently, I will grant Penn's motion. I will, however, provide Plaintiffs one last opportunity to amend its complaint, but only as to the Title VI and breach of contract claims….

Plaintiffs Eyal Yakoby, Jordan Davis, and Noah Rubin are Jewish undergraduate students attending the University of Pennsylvania. All three are members of Students Against Antisemitism ("SAA"), "a not-for-profit corporation organized under the laws of the State of Delaware, formed to defend human and civil rights, including the right of individuals to equal protection and to be free from antisemitism in higher education, through litigation and other means."

Viewing their amended complaint as a whole, Plaintiffs essentially allege that since the October 7, 2023 attack on Israel, Penn has permitted, tolerated and/or facilitated multiple antisemitic incidents on its campus that have created a hostile educational environment for Jewish students….

The court concluded plaintiffs had standing to bring their claims:

Penn's subject matter jurisdiction challenge may be interpreted as being both factual and facial in nature insofar as it argues the amended complaint fails to plead the requisite elements of standing on its face and the actual facts of the case do not show Plaintiffs sustained actual injuries that were caused by any conduct by Penn. By arguing that Plaintiffs' claims are not yet ripe for adjudication, Penn factually contests the court's subject matter jurisdiction, submitting documentary evidence showing it has long had policies in place opposing antisemitism in all its forms on its campus. These documents also allegedly establish that since October 7, Penn has developed action plans to address and "combat" antisemitism and the expression of religious and racial hatred on its campus, and has increased its security measures to ensure the safety and well-being of its Jewish students….

Annexed to the Plaintiffs' response in opposition to Penn's motion are Declarations from Plaintiffs Yakoby and Davis attesting to incidents of antisemitism which they experienced personally and to the fact that the antisemitic campus hostilities are ongoing. Although it is difficult to parse through the 312 paragraphs of allegations contained in the Amended Complaint, I find Plaintiffs have alleged various incidents where they were personally subjected to derogatory language, verbally harassed, and/or targeted because they were Jewish. Because of these incidents, the numerous protests, and the Palestine Writes Festival, Plaintiffs assert they have been forced to miss classes and other campus activities and experiences, have felt threatened and/or unsafe in their residences, classrooms, and other places on campus, have felt as though they needed to refrain from wearing certain articles of clothing or jewelry or refrain from speaking out on matters of importance to them, and/or have otherwise felt as though they had to hide or obscure their Jewish identities. As a result, Plaintiffs aver they have lost educational and extracurricular opportunities and lost the value of the tuition and fees paid to Penn.

Plaintiffs also point to some seven Penn policies which they allege can be viewed as giving rise to contractual obligations on the part of the University and on which they purportedly relied in deciding to attend Penn. These facts, read in the light most favorable to Plaintiffs, are enough to make out injury in fact that is "fairly traceable" to the defendant's "challenged actions." These allegations and submissions raise material factual questions which cannot be resolved at this time given the current posture of this case without conducting a plenary trial, and are enough to overcome (at least for now) Penn's Rule 12(b)(1) factual and facial jurisdictional challenge to Plaintiffs' standing….

I reach the same conclusion with regard to Students Against Antisemitism. Again, to have associational standing, the individual members must have standing in their own right, the interest asserted must be germane to the organization's purpose, and neither the claim nor the relief requested must require the participation of the individual members in the lawsuit.

The Amended Complaint in this case avers that SAA is "a not-for-profit corporation organized under the laws of the State of Delaware, formed to defend human and civil rights, including the right of individuals to equal protection and to be free from antisemitism in higher education, through litigation and other means." In paragraphs 87–91, it is alleged that "SAA Member #1, a Modern Middle East Studies major" was "targeted" by Professor Ahmad Almallah, a lecturer in the English Department, "for her opinion on his antisemitic tirades and pitted her against other students in the class," and that on one occasion when SAA Member #1 opined that she was grateful for the Israeli-West Bank Wall because it saved lives, she was harassed for thirty minutes by Professor Almallah and other students. Professor Abdulrahman Atta, a professor teaching Elementary Arabic I and Professor Huda Fakhreddine are alleged to have required their students, including Jewish members of SAA, to attend the Palestine Writes Literature event, and to have punished those who did not attend.

While the Amended Complaint does not contain any other details about SAA, or the necessity for its individual members' participation in this suit, in light of its described purpose "to defend human and civil rights, including the right to be free from antisemitism in higher education," and given that it is alleged that several of its individual members have faced antisemitism, I find that associational standing has also been adequately pled. After all, "[w]hen facing a motion to dismiss, an association plaintiff 'need only make a plausible allegation of facts establishing each element of standing.'" …

But the court concluded that plaintiffs didn't adequately plead a Title VI violation on Penn's part:

But while Plaintiffs spend an inordinate amount of space expounding on long-past injustices and incidents, some dating as far back as 1993, and complaining that Penn did not take the actions or respond to their reports, letters, or emails in the manner which Plaintiffs wanted, Plaintiffs have failed to plead any facts showing either intentional discrimination or deliberate indifference on the part of Penn. Indeed, I could find no allegations that Penn or its administration has itself taken any actions or positions which. even when read in the most favorable light, could be interpreted as antisemitic with the intention of causing harm to the Plaintiffs. At worst, Plaintiffs accuse Penn of tolerating and permitting the expression of viewpoints which differ from their own. And the Amended Complaint acknowledges that Penn has responded to the antisemitic incidents and expressions of antisemitism on its campus and has made efforts to redress these problems. {For example, among other things, Plaintiffs acknowledge that Penn has formulated and announced an "Action Plan to Combat Antisemitism."}

Deliberate indifference is a very high bar and Plaintiffs' dissatisfaction with Penn's responses is not enough to establish there was an official decision by Penn to not remedy a Title VI violation and that this deliberate indifference effectively caused racial discrimination. (emphasis added).

The court likewise concluded that plaintiffs didn't adequately plead breach of contract, either:

Plaintiffs assert that "at least seven" of Penn's issued "policies designed and intended to protect students from discrimination, harassment, and intimidation," give rise to "an express contractual relationship between Penn and the individual Plaintiffs and SAA's Jewish and/or Israeli members by virtue of their enrollment at Penn …" These are: ["](1) the Code of Student Conduct, (2) Guidelines on Open Expression, (3) Nondiscrimination Statement, (4) Charter of the Student Disciplinary System, (5) Principles of Responsible Conduct, (6) Equal Opportunity and Affirmative Action Policy, and (7) Faculty Handbook.["]

In paragraphs 41 – 57 of their Amended Complaint, Plaintiffs describe the foregoing policies in terms of their sharing of the University's common mission to provide a world class education to its diverse student body through, inter alia, the promulgation and enforcement of policies of non-discrimination, freedom of thought, inquiry, speech and lawful assembly, respect and tolerance for others and the law. Plaintiffs go on to allege that Penn breached its agreements by failing to comply with those policies.

Reading the Amended Complaint as a whole and in the most favorable light to the Plaintiffs, there is no foundation upon which a finding could be made that the foregoing policies constituted a promise or guarantee by Penn that everyone within its ambit and its community would adhere to those stated policies or that its mission would be achieved. Instead, Plaintiffs allege only that "[t]hrough the documents and materials it publishes and provides to students, Penn makes contractual commitments to its students concerning bias-related abuse, harassment, intimidation, and discrimination." In the absence of an alleged failure by Penn to perform a specific contractual promise, I cannot find that the alleged agreements' terms are sufficiently definite or enforceable, or that there was a manifestation by the parties that they intended to be bound by the agreement. Even read in a favorable light, Count II of the Amended Complaint alleges nothing more than a generalized failure to meet its students' expectations, and will therefore be dismissed.

And it held the same as to the Pennsylvania Unfair Trade Practices and Consumer Protection Law:

[Plaintiffs'] averments fail to plead a viable cause of action under the UTPCPL. Examining the alleged representations made by Penn in the various policies, procedures, guidelines, code and/or handbooks identified in the Amended Complaint in totality, they are clearly nothing more than general statements regarding Penn's educational philosophy and mission. On their face and giving them a plain reading, they are decidedly not confusing, deceptive, or misleading, and it is inconceivable how they could be so interpreted or viewed as giving rise to a contractual obligation to prevent antisemitic language, acts, or incidents from occurring on Penn's campus. Hence, any reliance by Plaintiffs on such an interpretation is inherently unreasonable and unjustifiable.

Additionally, if as alleged, Plaintiffs Rubin and Davis saw and were aware of Penn's unfair, deceptive, and misleading acts, statements, and representations before they enrolled, their reliance would clearly not have been reasonable.

The court concluded:

For the reasons outlined, Plaintiffs' Amended Complaint is dismissed for failure to plead claims on which relief can be granted under Title VI, breach of contract, and the UTPCPL. However, a district court must provide a plaintiff with an opportunity to make a curative amendment even if the plaintiff does not seek leave to do so unless such amendment would be inequitable or futile. I find that amendment of Count III would be futile as the facts which Plaintiffs have put forward simply cannot sustain a claim under the UTPCPL. I cannot, however, definitively make that determination with respect to Counts I and II. Because it appears that the deficiencies noted in those counts could potentially be resolved through the filing of a Second Amended Complaint, leave to amend the Title VI and breach of contract claims shall be granted.

However, and as has been repeatedly observed throughout this Opinion, many of the more than 300 paragraphs in the Amended Complaint contain language which is unnecessarily inflammatory and "impertinent," and immaterial allegations that have virtually nothing to do with the claims which Plaintiffs are endeavoring to raise. Filing of yet another complaint would be Plaintiffs' third bite at the apple. Plaintiffs are cautioned that if they choose to file a third complaint, the additional allegations must be alleged in good faith and in compliance with Rules 8(a) and 11.

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[Jonathan H. Adler] Is the American Bar Association's Accreditation Monopoly about to End?

[My latest Civitas Outlook column looks at the growing pressure on the ABA's role in law school accreditation.]

For all practical purposes, the American Bar Association has a monopoly on law school accreditation. There is, at present, no other entity approved to accredit law schools, and the vast majority of states require graduation from an ABA-approved school in order to take the bar exam.

The ABA's de facto monopoly may explain why the organization has been able to impose ever-increasing (and often quite costly) requirements on law schools without ever really demonstrating that these requirements enhance educational outcomes, benefit students, or create better lawyers. It has also enabled the ABA to impose pressure on law schools to embrace progressive priorities, race-conscious admissions in particular (not that most law schools would resist).

There is increasing unhappiness with the ABA, and other accrediting institutions. Storm clouds are brewing at both the state and federal level. But will this pressure produce any change? I explore these issues, and possible reforms, in my latest column for Civitas Outlook. Here's a taste:

As the cost of legal education continues to rise and technological changes threaten to transform the delivery of legal services, the ABA's de facto monopoly on legal accreditation is under siege. Texas and Florida, the states with the third and fourth-most lawyers in the country, are both considering whether to stop requiring bar applicants to have attended an ABA-accredited school. At the same time, the Trump Administration is pushing to expand accreditation options. An April Executive Order directed the Department of Education to step up scrutiny of existing accrediting institutions while simultaneously expediting approval of new accreditors so as "to increase competition and accountability in promoting high-quality, high-value academic programs focused on student outcomes." . . .

In theory, accreditation could serve as a means of consumer protection, helping ensure students do not waste money on fly-by-night operations and graduate capable of passing the bar and serving clients. Yet it is not clear that ABA accreditation has ever actually served that purpose. Just as the medical profession has sought to limit the number of medical school spots to constrain the supply of doctors, the history of legal accreditation suggests that the ABA became involved to advance the financial interests of existing lawyers.

Whether the ABA sees itself as a cartel today, much of its accreditation behavior aligns with what a self-interested cartel would do. Accordingly, many of the ABA's accreditation requirements focus on costly inputs, such as the number of books in the library or the number of full-time, tenured faculty, that have no demonstrated relationship to a student's ability to pass the bar or become an effective lawyer. These requirements, however, have helped inflate the cost of obtaining a law degree and stifled innovation in legal education. . . .

If the ABA's accreditation standards serve their purposes of ensuring quality legal education and protecting consumers, it should welcome competition. If current accreditation standards produce better lawyers, the organization should have nothing to fear. But if, as many suspect, the ABA's standards have served the interests and ideological leanings of the organization, at the expense of the public and prospective students, then some degree of competitive pressure could foster a needed course correction. The ABA did not always accredit law schools, and there is no reason it should continue to do so forever.

You can read the whole thing here.

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[Eugene Volokh] Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": Shift of Control to Speakers: The Decline of Private Speech Regulations

[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]

While American government agencies generally don't regulate speech, private parties do. Publishers sometimes refuse to publish material they disagree with. Private groups sometimes pressure publishers to drop certain material. And even the viewpoint-neutral reluctance of publishers to accept work that appeals to too few consumers has the effect of shutting out political fringe groups on all sides of the spectrum.

The shift of control from publishers to speakers will greatly weaken these private speech regulations. When speech comes straight from the speaker to the listener, there's no one in between to regulate the speech, and no one for various groups to pressure if they think the speech is reprehensible. Threats of boycotts may work against diversified companies that sell information to many markets-someone can tell, say, Time Warner Records "If you carry Ice-T's Cop Killer, I won't buy other Time Warner material." But telling Ice-T "If you keep singing Cop Killer, I won't buy your other material" probably won't work; people who say this probably wouldn't buy his music anyway.

There's no consensus today about whether such private regulations are proper. Some consider them almost as dangerous as government censorship; others argue that private pressure on speakers is legitimate, sometimes even laudable.  But regardless of one's normative judgment on this, the new information media will make it much harder for such private speech regulation, good or bad, to take place.

Of course, there'll still be some intermediaries. Though the power of publishers will wane, the equivalents of the music stores and bookstores—the music databases, and the computer systems that people access to subscribe to opinion columns, to buy books, or to get video-on-demand—will remain. They could refuse to carry certain kinds of speech, and various groups could pressure them into doing this.

But such a refusal will probably have a limited effect on the speech that's being rejected. Each infobahn-connected home will be able to access every computer service in the nation. If one service refuses to carry, say, gangsta-rap music, others can instantly take advantage of the resulting market.

Moreover, starting a new nationwide electronic service should be comparatively cheap, certainly cheaper than starting a nationwide chain of bookstores or music stores. Today, it's conceivable that all the major stores in an area might refuse to carry a certain product. But even if all the mainstream computer services reject a particular genre, other services-say, an all-gangsta-rap service, or even a service specializing in materials that others don't carry-could easily spring up. The private speech regulations will remain only where there must be intermediaries who select what gets distributed, for instance in newspapers, whose editors will still control who writes for them.

Another form of speech regulation I alluded to above-regulation by poverty and unpopularity-will also become much less potent. Many extremist groups have relatively little ability to speak out because they don't have enough of a base to fund their speech. At least one KKK chapter, for instance, is dormant largely because it's broke.  Cheap electronic distribution might mean that not only the ACLU or NRA newsletters, but also the KKK and Communist Party newsletters, could be sent to millions of subscribers.  One would hope these fringe groups would find few people willing to listen, but their voices would be amplified along with the voices of worthier organizations.

Finally, the new media might affect one more sort of speech regulation: self-regulation for accuracy. It's generally assumed that intermediaries-publishers, editors, and broadcasters-help make sure the things we read and hear are actually true. They might, for instance, fact-check articles, or refuse to work with writers who are known to be unreliable.

But when speakers can communicate to the public directly, it's possible their speech will be less trustworthy: They might not be willing to hire fact checkers, or might not be influenced enough by professional journalistic norms, or might not care enough about their long-term reputation for accuracy. Talk radio, for instance, has been criticized for being unreliable in large part because of how democratic and spontaneous it is.

{See, e.g., Nat Hentoff, New FCC Head Frets Sometimes over Free Speech, Rocky Mountain News, Nov. 28, 1994, at 42A (describing complaints by FCC Chairman Reed Hundt and outgoing Speaker of the House Thomas Foley); Claudia Puig, FCC Chief Wants Talk Radio Shows To Deal in 'True Facts', L.A. Times, Oct. 14, 1994, at D2, D2-D5 (same); Chuck Raasch, Talk May Be Cheap, But It's Big on Radio, Gannett News Serv., Sept. 25, 1994, available in LEXIS, News Library, GNS File (describing complaints that talk radio is rife with rumor and misinformation); Howard Kurtz, Radio Daze, Wash. Post, Oct. 24, 1994, at B1 (calling talk-radio show hosts angry "rumor-mongers" who eschew maintenance of "appearance of journalistic balance").

A recent science-fiction novel, Vernor Vinge, A Fire upon the Deep (1992), has a memorable line, a sort of proverb of the future. Referring to an interstellar communications network seemingly modeled on today's Internet, the characters say: "It's not called the Net of a Million Lies for nothing." Id. at 228, 309, 431.}

It's not clear, though, what the magnitude of the greater inaccuracy would be. The new technologies will give some untrustworthy speakers a forum that responsible editors would deny them, and some people will end up misinformed by these speakers. But the majority of new speakers may be no worse than most media of today. Many leading publishers actually don't employ fact checkers;  and while today's media aren't notorious for intentional falsehoods, misunderstandings and misreporting seem quite common-consider how often we all find errors in newspaper articles about subjects we know well.

At worst, the new technologies may supplement some fairly unreliable publications with other, perhaps more unreliable, ones. At best, they might allow the publication of more trustworthy materials—for instance, science news publications put out by specialists, rather than generalist journalists—that couldn't be printed before.

The post Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": Shift of Control to Speakers: The Decline of Private Speech Regulations appeared first on Reason.com.

[Josh Blackman] Justice Kavanaugh to Second Amendment: We're Really Busy Now, Come Back In A Year Or Two

["Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two."]

On December 1, 2020, the Maryland ban on AR-15s was challenged. The plaintiffs lost in the District Court and before the Fourth Circuit. In August 2024, a cert petition was filed in . The petition sat in purgatory for nearly a year with fourteen relists.

Today, the Supreme Court finally put the petition out of its misery and denied cert. Justices Thomas, Alito, and Gorsuch would have granted. Justice Barrett, as usual said nothing. Justice Kavanaugh wrote a very unusual statement respecting the denial of the petition. The first two paragraphs explain why the Maryland decision was "questionable." If you read these parts, you would expect a grant. Indeed, Kavanaugh as circuit judge had found that the District of Columbia's ban on AR-15s was unconstitutional. But then, we get to the last paragraph:

In short, under this Court's precedents, the Fourth Circuit's decision is questionable. Although the Court today denies certiorari, a denial of certiorari does not mean that the Court agrees with a lower-court decision or that the issue is not worthy of review. The AR–15 issue was recently decided by the First Circuit and is currently being considered by several other Courts of Appeals. See Capen v. Campbell, 134 F. 4th 660 (CA1 2025); see also, e.g., National Assn. for Gun Rights v. Lamont, 685 F. Supp. 3d 63 (Conn. 2023), appeal pending, No. 23–1162 (CA2); Association of N. J. Rifle & Pistol Clubs, Inc. v. Platkin, 742 F. Supp. 3d 421 (NJ 2024), appeal pending, No. 24–2415 (CA3); Viramontes v. County of Cook, No. 1:21–cv–4595 (NDIll., Mar. 1, 2024), appeal pending, No. 24–1437 (CA7); Miller v. Bonta, 699 F. Supp. 3d 956 (SD Cal. 2023), appeal pending, No. 23–2979 (CA9). Opinions from other Courts of Appeals should assist this Court's ultimate decision making on the AR–15 issue. Additional petitions for certiorari will likely be before this Court shortly and, in my view, this Court should and presumably will address the AR–15 issue soon, in the next Term or two.

My mouth nearly hit the floor when I read this. Kavanaugh all-but signals that he will be a fourth vote to grant cert. He does not identify any vehicle problems, or reasons why the Maryland petition should not be granted. Does he really think that rulings from the Ninth Circuit will help much in the deliberations? These courts will all rule against the Second Amendment. Nothing is in doubt. The upshot is that the Court is really busy with other stuff right now, and you all should just come back later. The Second Amendment could take a sabbatical for a year or two until the docket lightens up. Indeed, this case has been pending for nearly four years. Maryland gun owners will just have to chill.

Of late I've been praiseworthy of some of Kavanaugh's actions, but this is the sort of Kavanaugh opinion that infuriates me. And where is Justice Barrett on these issues? A decade ago in 2015, Justice Scalia dissented from denial of cert in Friedman v. Highland Park, a challenge to an assault weapon ban. This issue isn't new. I think this term will be remembered as the term in which Justice Barrett's slide became indisputable. I started tracking it years ago, but it is hard to ignore now.

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[Eugene Volokh] Norman Rockwell, FDR's Press Secretary, Roman Law, and Property

Generated by ChatGPT; not a real Normal Rockwell image!

 

A short excerpt from the long and interesting Elam v. Early, decided Friday by Fourth Circuit Marvin Judge Quattlebaum, joined by Judge Pamela Harris:

Our story begins during the Franklin D. Roosevelt administration. In 1943, famed artist Norman Rockwell drew four panels capturing various visitors in the West Wing waiting for an audience with FDR. That same year, Rockwell gifted the four original illustrations—entitled So You Want to See the President—to FDR's Press Secretary, Stephen T. Early…. Early was the longest-serving press secretary in our nation's history, holding the role for twelve years under President Franklin D. Roosevelt. Roughly eight decades later, his relatives are fighting over this art….

It all turns on a claim that Early had given the prints (appraised in 1979 for $80K, and doubtless worth much more now) as a gift to his daughter (plaintiff Elam's mother) in 1949—and the fact that Helen had possession of them for a considerable amount of time. An excerpt from the legal discussion:

Virginia generally presumes that possession indicates ownership…. The importance Virginia law places on the possession of property in determining ownership is nothing new. In fact, it dates all the way back to Roman law…. By Justinian's time (482–565 A.D.), this doctrine was extended to chattels….

And the conclusion:

Family disputes are often messy and always unpleasant. The presumption that Elam owns the Rockwells because Helen possessed them may not make this dispute any more pleasant, but it does help sort through the mess. Following Virginia law, we affirm the district court [, which] {found that Elam's possession of the Rockwells created a presumption of ownership, which the Earlys did not rebut}.

Judge Julius Richardson dissented; an excerpt:

I don't doubt the existence of the presumption of ownership from possession. Since the days of Hammurabi's Code, individuals embroiled in property disputes have been able to take their disputes to a factfinder. And if the ownership of the property was uncertain, a factfinder could use possession to break the tie.

But the factfinder was just that—a finder of facts. That's why, in the United States, the presumption that possession weighs in favor of ownership is, and always has been, a device for allocating the burden of proof when settling disputes as a matter of fact—not, as summary judgment does, as a matter of law.

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[Josh Blackman] New Deal Justices and MAGA Justices

[FDR appointed Hugo Black because he was a "thumping, evangelical New Dealer." Why can't Trump want a "thumping, evangelical MAGA warrior"?]

The current outrage is that President Trump might seek to appoint judges who are in line with his MAGA agenda. This pearl clutching lacks any sense of history. Let's jump back about nine decades to the Democratic party's favorite modern president.

The centerpiece of President Franklin D. Roosevelt's domestic agenda was the New Deal. Roosevelt and New Dealers in Congress enacted statutes and reforms that clearly violated settled Supreme Court precedent. And, perhaps unsurprisingly, the Supreme Court halted several planks of his federal platform, as well as analogous state legislation.

FDR was so incensed by these rulings that he considered amending the Constitution to grant the federal government more powers. When that process seemed too difficult, he instead proposed the Court packing bill, to ensure there would be more Justices who supported his agenda. Ultimately, that plan never came to pass. Justice Owen Roberts, for one reason or another, began to uphold New Deal legislation. And soon enough, the Four Horsemen retired.

Biographer Howard Ball offers this account of how Roosevelt made his first Supreme Court appointment. Read it carefully: whenever you see the word "New Deal," substitute it for "MAGA." I think you'll get the picture quickly.

Consequently, Roosevelt turned to his attorney general, Homer Cummings, for a list of possible nominees to replace Van Devanter. Sixty names were produced, including federal judges, Solicitor General Stanley Reed, law professors such as Felix Frankfurter, and strong congressional defenders and advocates of the New Deal, including Senators Hugo Black of Alabama and Sherman "Shay" Minton of Indiana.

At a White House meeting, Roosevelt and Cummings agreed upon four criteria that the nominee had to meet. First, the nominee needed solid New Deal credentials; he had to be a "thumping, evangelical New Dealer," said Roosevelt (and Black was certainly that, having voted for all twenty-four of Roosevelt's major New Deal programs.) Second, he had to be confirmable in the Senate. Third, he had to be reasonably young. And finally, he had to come from a region of the country unrepresented (on the Court)--the West or the South. Using these criteria, by August 1, 1937, the two men had cut the list to seven names.

The seven included four federal judges (quickly dropped out because they were not economically liberal enough,) Solicitor General Reed (Kentucky), Senator Minton (Indiana), and Black. However, Reed, according to Roosevelt, "had no fire" and was dropped from consideration. . . .

Franklin Roosevelt, according to Harold Ickes, a Roosevelt Administration figure, liked Black very much. FDR thought Hugo was too liberal for his own state; while he was not as good a lawyer as others, he would make a good justice because of his support of New Dealism. According to Bill Douglas, at the time the new appointed chairman of the Securities and Exchange Commission (SEC), Roosevelt was attracted to Black for three reasons: his use of the investigative role of the Senate to shape the American mind of reforms, his strong voting record in the Senate, and his early support for FDR in 1933.

Douglas insisted that President Roosevelt chose Black because he wanted "to throw a 'tiger' as he put it, into the Court--an outstanding opponent of all that the old Court had done."

FDR wanted an economic liberal who supported his agenda, and would have courage on the Supreme Court. And who were Roosevelt's other picks: Solicitor General Stanley Reed, who defended New Deal policies in Court; Professor Felix Frankfurter, who provided the intellectual foundation of New Deal policies: William O. Douglas, who chaired the Roosevelt SEC; Attorney General Frank Murphy; Senator James Byrne, a New Dealer; Robert Jackson, the Solicitor General and Attorney General. FDR appointed all people close to him who he deemed loyal and supportive of the new Deal. Indeed, Byrne stepped down from the Court to take a position in the administration. Frankfurter continued advising Roosevelt even after he was appointed. These justices remained loyal to Roosevelt throughout.

If Trump simply said, "I want to appoint Justices like FDR did," would the left say "okay"? No. They'll say Trump is being hypocritical; progressives have no actual judicial philosophy, other than achieving progressive results, but conservative profess fidelity to originalism, which is not results oriented. Do as I say, not as I do.

For starters, I'm not sure Trump has ever said he was an originalist. And he has publicly disavowed those who supported his appointing originalists to the Court during his first term. Do you think anyone told Trump that appointing Justices who would overrule Chevron means that his policies get less deference?

Still, I will give Justice Black the benefit of the doubt, and assume was not just acting to support New Deal legislation. His judicial philosophy operationalized New Deal politics. His understanding of the Commerce Clause and other facets of federal authority led to decisions favorable to Roosevelt.

Relatedly, President Nixon wanted to appoint justices who were "tough on crime." As awful his picks were, Nixon succeeded on this limited front. The Burger Court scaled back the exclusionary rule and Miranda, even as they decided Roe v. Wade.

If Trump were to follow FDR's playbook, who would he pick? Let's see: who is a young Senator who supports the MAGA agenda who would be confirmed, and represents an under-represented part of the country? I think the obvious candidate would be Senator Josh Hawley. Plus, as a former Roberts clerk, that selection might even be enough to get Chief Justice to (at long last) retire.

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[Jonathan H. Adler] Permitting the Future

[A symposium looking at the need to permit the construction and deployment of energy infrastructure in order to meet environmental goals. ]

Last week, the Supreme Court issued its long-awaited opinion in Seven County Infrastructure Coalition v. Eagle County. This opinion scaled back the (largely judicially imposed) requirements for Environmental Impact Statements under the National Environmental Policy Act (NEPA), and could dramatically reduce permitting burdens on needed infrastructure.

Also last week, the Case Western Reserve Law Review posted the papers from its "Permitting the Future" symposium issue. These papers examine the burden of permitting requirements on environmentally desirable development. Energy infrastructure is a major focus of the symposium, as it is of the larger debate over permitting, but some papers examine the effect on other issues, such as federal land management and urban revitalization.

The volume includes:

Introduction - Permitting the Future by Jonathan H. Adler (PDF) Infrastructure for the Energy Transition by Timothy Fitzgerald (PDF) Permitting the Energy Transition by James W. Coleman (PDF) The New NEPA? – A Case Study in Congressional Frustration by Victor Flatt (PDF) Overcoming Unreasonably Burdensome Restrictions on the Use of Farmland for Solar Generation  by Matthew Eisenson (PDF) If We Fail to Solve Global Climate Change, Blame the Nuclear Regulatory Commission by Jeremy Kidd (PDF) The National Environmental Policy Act and Climate Change Adaptation Within Federal Natural Resource Management AgenciesS by Sara Sutherland (PDF) Plain-Bagel Streamlining? Notes from the California Housing Wars by Christopher S. Elmendorf and Clayton Nall (PDF) Regulating Entities, Not Activities: Reforming the Environmental Permit Raj by Andrew P. Morriss and Roger E. Meiners (PDF)

All of the papers are available online in their printed form.

My own contribution, beyond providing an introduction and overview, walks through the permitting gauntlet faced by the Lake Erie Wind Project, a gauntlet that ultimately killed the project. I believe it is a useful case study of how even well-intentioned permitting requirements and regulatory processes can make it very difficult for alternative energy sources to be developed and deployed (and can make it all-too-easy for a small set of determined opponents to kill a potentially valuable project).

The papers were prepared for a workshop co-sponsored by the Coleman P. Burke Center for Environmental Law (where I have spend the  past six years as the founding Director) and the Property and Environment Research Center (where I am a Senior Fellow).

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