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Posted by Jonathan H. Adler

Nancy MacLean’s new book, “Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America,” presents a sharply critical intellectual history of the libertarian right in America, with a particular focus on Nobel laureate James Buchanan, often credited as one of the founders of “public choice” economics. As MacLean tells it, Buchanan’s work was profoundly anti-democratic and is responsible for much of the political dysfunction we witness today.

MacLean’s book is receiving significant attention, not all of it positive. Glowing reviews have appeared in Slate, the Atlantic and the New Republic, and on NPR. The review on the Law & Liberty blog, on the other hand, was a more-than-a-bit more critical, and Daniel Mitchell has posted a sharply negative review of the positive reviews.

Disagreements about a book with a politically charged thesis are nothing new. More notable, perhaps, are allegations that MacLean has misquoted and misrepresented material to create a less flattering — but also less accurate — picture of her subjects.

Russell Roberts, for example, points to MacLean’s treatment of Tyler Cowen. According to Roberts, MacLean has selectively quoted Cowen in a highly misleading way. His critique is followed by MacLean’s response and Roberts’s reply. Readers may judge who has the best of the exchange. Don Boudreaux comments as well.

Roberts is not the only one to raise such concerns. David Henderson points to another example of selective quotation, this time involving Buchanan. Phillip Magness alleges that MacLean concocts a connection between Buchanan and Southern Agrarian thinkers that simply did not exist. Boudreaux argues that MacLean misrepresents Buchanan’s intellectual influences. There appears to be a pattern here, and it is not a good one. If MacLean responds to any of these allegations, I will post an update with links.

According to the various reviews — positive and negative — MacLean devotes substantial attention to those who have funded libertarian academic work, the Koch brothers in particular. Thus I had to chuckle when BHL’s Jason Brennan pointed out that MacLean’s book was funded, at least in part, by the federal government. So an attack on academics critical of government was funded by … the government. Were Buchanan still alive I suspect this would make him smile.

Translating Genesis: Physicality

Jun. 28th, 2017 12:38 pm
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Posted by Sam Bray

The Book of Genesis is replete with physical imagery. Older translations, such as the King James Version, tended to carry that physicality over into English. More recent English translations often favor abstraction. This is the third post in a series on “Genesis 1–11: A New Old Translation for Readers, Scholars, and Translators” (available from the publisher or from Amazon). In this post and the next one, I’ll discuss the theme of physicality and briefly discuss a number of examples. For each example, I’ll first give our translation of a verse (in bold) and then mention how a word or phrase is rendered in other translations.

1:11 And God said, “Let the earth become green with green shoots, grain sowing seed, fruit trees making fruit after their kind, with its seed in it, upon the earth.”

Instead of “green shoots,” most recent translations have “vegetation” (e.g., NRSV). But “vegetation” is broader than the Hebrew word (as that word is used in biblical texts and other texts found at Qumran). And “vegetation” misses that the Hebrew description is concrete and specific. It’s not a term from a Linnaean taxonomy. In addition, “vegetation” obscures the wordplay in “become green with green shoots.”

2:24 Hence a man leaves his father and his mother and cleaves to his wife, and they become one flesh.

“Cleaves to” translates a Hebrew word used elsewhere for a tongue adhering to the roof of a mouth, or for a hand adhering to a sword after a day of battle. This translation choice follows the Tyndale Bible and the King James Version. In some recent translations, however, the physical image is replaced with an abstraction. For example: “That is why a man leaves his father and mother and is united to his wife, and they become one flesh” (NIV).

4:5 And Cain burned greatly with anger, and his face fell.

These descriptions of anger and sorrow are intensely physical — more literally, “And it burned Cain greatly, and his face fell.” As noted in an earlier post, we keep the reference to burning with a double translation (“burned … with anger”). We also keep the reference to Cain’s falling face. Many English translations prefer abstractions. For example: “Cain was furious, and he looked despondent” (CSB).

4:8 And it happened, when they were in the field, that Cain rose up against Abel his brother and killed him.

For centuries, the rendering in English Bibles has been that Cain “rose up against” his brother. That rendering follows the Hebrew closely. It goes back to the Great Bible, which was named for its size and which predates the King James Version by 70 years. But in a number of more recent translations, the image of rising up is eliminated with the use of a more abstract word, “attacked” (e.g., NIV). Attack has a connotation of aggression, of some kind of unjustified disruption of the status quo. That fits the context. After all, Cain did attack Abel. But the Hebrew text does not label Cain’s action that way. It offers a description that is plain and physical. In Thomas Merton’s words, in his unpublished “Notes on Genesis,” “since people can be killed in the pulling of a trigger we have lost this image of a man ‘rising up’ gathering up all his force for the single blow that must not miss.”

6:14 “with nests will you make the ark, and pitch her with pitch, inside and out.”

Noah is instructed by God to make the ark “with nests,” or at least that is what the Hebrew seems to mean, and that is how it was understood by the ancient Jewish translators of the Septuagint. But the Vulgate used a word referring to small compartments, and most English translations follow its lead, with renderings such as “rooms” (e.g., ESV) or “compartments” (e.g., NABRE). That is a possible interpretation, but the image of a bird’s nest, a place of safety and new beginning, is compelling. And it connects to the description in chapter 8 of the dove returning to Noah with a torn-off olive leaf in her mouth, a leaf that she could use to build a new nest outside the ark.

In the next post, I’ll offer a couple more examples of physicality from our translation, mention Monty Python and raise the question of whether physicality matters in legal writing and interpretation.

(Page references to our volume: Physicality is discussed in our “To the Persistent Reader” essay on pp. 45–46. Thomas Merton’s “Notes on Genesis” are cited or quoted on pp. 98, 109, 128, 133 and 179.)

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Posted by Eugene Volokh

Yesterday, the City Council of Tacoma (the third-largest city in Washington) repealed its stun gun ban; thanks to Stephen Stamboulieh and Phil Watson of the Firearms Policy Coalition. In recent years, stun gun bans have also been invalidated or repealed in Michigan; New Jersey; Wisconsin; the District of Columbia; the Virgin Islands; New Orleans; Overland Park (the second-largest city in Kansas); and Annapolis, Baltimore, Anne Arundel County, Baltimore County, Harford County and Howard County (all in Maryland).

Stun gun bans remain in effect, to my knowledge, in Hawaii, Massachusetts, New York, Rhode Island, Philadelphia, Wilmington (the largest city in Delaware) and smaller towns. The Massachusetts and New York laws are being challenged in court. Stun guns are also heavily regulated (e.g., with total bans on carrying in most places outside the home) in some other places. For more, see this article, though the listing of restrictions in Appendix II is now out-of-date.

Disclosure: I’ve consulted a very little bit, through the Firearms Policy Coalition, on some of the stun gun litigation, and I’m also involved pro bono in some such litigation through the Center for Individual Rights.

Criticisms of religious arbitration

Jun. 28th, 2017 12:02 pm
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Posted by Michael Broyde

There is a case to be made against religious arbitration. It has five flavors, each with its own approach.

The first can be called “One Law for One People.” While it is important for the liberal state to be respectful of cultural diversity, all need to be governed by a single law that none can opt out of, not even by contract. It is necessary for any society to have only a single legal order in which all citizens are bound by and all societal relationships are governed by the same set of norms.

In truth, the “one people, one law” argument presented above is likely the weakest challenge to religious arbitration in the United States. Like it or not, there is not now, nor has there ever really been, only one law of the land in the United States. Unlike many other nations, which have uniform national and local laws, the United States maintains a much deeper commitment to substantive federalism in which there are 50 states, each with its own laws, an overlay of federal law, Indian tribal law and a maddening patchwork of overlapping local codes and regulations at the county, city and town levels. This diversity — which Europeans find maddening — provides Americans with myriad opportunities to choose which kinds of legal regimes they will use to order their lives.

The second criticism is more profound: Religious arbitration produces terrible injustice, both procedural and substantive. (This will be discussed more in the final post, about Islamic law). First, religious norms and values very often include commitments that clash severely with contemporary liberal notions of gender equality, religious liberty, freedom of choice, personal privacy and distributive justice. The much-publicized 2005 ban on religious arbitration in family law enacted in Ontario, Canada, argued that the practice of religious norms through religious arbitration produces substantive injustices to women and other traditionally disadvantaged parties during divorce.

For example, many Christian arbitration organizations explicitly commit themselves to resolving disputes brought before them in accordance with biblical principles. It is not too difficult to imagine, however, how in some Christian arbitrations such principles might clash sharply with contemporary liberal legal commitments in commercial and other contexts. Consider, for example, the case of a Christian-owned bakery, which as part of its standard custom baking contract includes an arbitration clause. After entering such a contract with a customer to bake a cake for a wedding, and just shortly before the cake is scheduled to be delivered, the baker discovers that the wedding will be that of a same-sex couple and refuses to perform under the contract. The customer seeks legal redress for this breach of contract but finds himself in Christian arbitration that applies what it regards as biblical values. Religious arbitrators might find squarely in favor of the baker, holding that no valid agreement could be made to provide support services for a union that contravenes what they view as biblical principles and values.

Opponents of religious arbitration further argue that religious dispute resolution often lacks the kinds of procedural protections necessary to ensure a fair and unbiased arbitration process. Existing arbitration law frameworks provide that parties to arbitration proceedings are entitled to certain basic procedural protections that help ensure the fairness of the proceedings and protect vulnerable parties. These protections include the right to have notice of when and where a hearing will take place; the right to have an attorney present for the proceedings; the right to be heard and present and impeach evidence; the right to a fair and impartial tribunal; and the right to have the tribunal consider relevant evidence. Religious procedural rules fail to provide the kinds of protections for vulnerable parties and even playing fields that we have come to expect from contemporary due process standards. Both traditional Jewish and Islamic law, for instance, maintain formal procedural distinctions between men and women in a number of respects and do not allow women to assume all of the same roles as men in adjudication.

Another concern is the problem of coercion. All arbitration is premised on the parties voluntarily agreeing to submit their dispute to arbitration, but courts have a poor track record of recognizing various forms of pressure exerted by religious communities to get individuals to agree to arbitrate disputes before religious tribunals as legal duress. The ways some well-organized religious groups have dealt with allegations of sexual abuse is illustrative. In many cases, the religious establishments in these communities seek to resolve such matters internally, without involving secular law enforcement authorities. The Catholic Church has used a variety of means to convince alleged victims and whistleblowers to keep such matters within church disciplinary channels. In one headline-making case of alleged sex abuse of a minor girl by an unlicensed community therapist and rabbi, communal leaders enacted numerous measures to punish the victim and her family for handling the matter through the secular criminal-justice system.

Finally, secular enforcement of religious arbitration ultimately involves state coercion to give force to religious arbitration and is thus a serious violation of individuals’ right to the free exercise of religion. By recognizing and enforcing religious arbitration agreements and the decisions of religious arbitration tribunals, secular courts compel recalcitrant parties to participate in what are essentially religious practices, or abide by religious norms and values that they may not hold.

Take, for example, the 1999 case of Encore Productions, Inc. v. Promise Keepers, in which a Christian organization that conducts conferences in large venues across the United States entered into a contract with Encore Productions. The agreement included an arbitration clause in front of the Christian Conciliation organization. Encore sued Promise Keepers, which moved to have the action dismissed and sent to Christian arbitration pursuant to the parties’ contract. The court rejected the argument made by Encore that compelling it to abide by the Christian arbitration would violate its rights to the free exercise of religion, since it agreed by contract to waive its rights. Encore illustrates what many have noted is a serious challenge to religious freedom posed by secular court enforcement of religious arbitration agreements and awards.

Some argue that societal recognition and enforcement of religious arbitration are problematic because they undermine important interests in assimilation of religious communities into secular society. From a standard liberal perspective, these commenters argue that by permitting religious groups to remain insular and unintegrated into mainstream societal norms, secular enforcement of religious arbitration actually highlights and widens gaps between ordinary members of society and religiously observant “others.” Society ought to encourage minority groups and cultures to more fully integrate into a broader societal ethos. Religious isolationism within secular societies, moreover, correlates to a number of serious communal ills (such as the subjugation and oppression of women and children) within religious communities that ought to be discouraged and if possible avoided.

In our next post, we explore the virtues of religious arbitration and set the stage for our final post, on Islamic law’s future in America.

* * *

[The guest posts in these series are designed to introduce the reader to the basic issues presented in my book “Sharia Tribunals, Rabbinical Courts, and Christian Panels: Religious Arbitration in America and the West,” which is being released this week. I am a law professor at Emory University School of Law and the projects director at its Center for the Study of Law and Religion. For about 20 years, I served as an arbitrator in the Beth Din of America, first as the consultant hired to write the rules that are still used by the BDA, then as the director and then as one of the four standing members of the rabbinical court.

These posts are divided into five: The first explains the rise in religious arbitration and the law governing it. The second explains the evolution of religious arbitration in America, focusing on the Jewish experience, which is the most nuanced and complex in America now. The third, this one, explores the criticisms of religious arbitration, and the fourth will explain its virtues. The final post will explore how this applies to the recent conversation about Islamic courts and what the rabbinical courts can teach Islamic courts about how to conduct religious arbitration.]

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Posted by Mike Glyer

With unanimous support from our City Council, the Lucas Museum is officially coming home to L.A.! Thank you, George Lucas & Mellody Hobson! pic.twitter.com/tiWx9FIYdB — Mayor Eric Garcetti (@MayorOfLA) June 27, 2017 The Los Angeles City Council voted 14-0 to … Continue reading

Batman and Green Hornet Roundup

Jun. 28th, 2017 07:00 am
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Posted by Mike Glyer

By Carl Slaughter: Batman, Robin, Green Hornet’s Cato. Adam West, Burt Ward, and Bruce Lee. (1) Their golden years. In this 2003 film, Return to the Batcave:  The Misadventures of Adam and Burt, 1960s series actors Adam West and Burt … Continue reading
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Posted by Mike Glyer

(1) STICK IT TO ‘EM. There will be “Ten of Disney’s finest villains on new U.S. set” – Linn’s Stamp News has the story. The Disney Villains stamps will be issued in a pane of 20 July 15 at the … Continue reading
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Posted by Eugene Volokh

I’m delighted to report that Saikrishna Prakash, a professor at the University of Virginia School of Law, is joining us as a co-blogger. Prakash is one of the country’s leading scholars of the law and history of presidential power; he is the author of “Imperial from the Beginning: The Constitution of the Original Executive” (Yale University Press 2015), and the author or coauthor of “Congress & the Reconstruction of Foreign Affairs Federalism” (Mich. L. Rev. 2016); “50 States, 50 Attorneys General, and 50 Approaches to the Duty to Defend” (Yale L.J. 2015); “The Sweeping Domestic War Powers of Congress” (Mich. L. Rev. 2015); “The Imbecilic Executive” (Va. L. Rev. 2013); “The Indefensible Duty to Defend” (Colum. L. Rev. 2012); “Reverse Advisory Opinions” (U. Chi. L. Rev. 2013); and many more articles published from 1993 on. I am very much looking forward to his posts!

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Posted by Mike Glyer

NASA Astronaut Dr. Kjell Lindgren has been named a Special Guest of Worldcon 75. As one of Sasquan’s guests of honor in 2015 he participated by video from the International Space Station, which was wonderful in its own way, but … Continue reading
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Posted by Jonathan H. Adler

The Supreme Court. (J. Scott Applewhite/Associated Press)

The Supreme Court’s just-concluded term was relatively quiet and inconsequential, as far as Supreme Court terms go. With only eight justices for most of the term, the justices avoided taking on too many difficult cases and appeared to make an extra effort to decide cases on the narrowest of grounds. Now that the court is back to nine justices, however, don’t expect this to continue.

As Adam Liptak reports in the New York Times, October term 2016 produced an unusual degree of unanimity.

The last term was marked by a level of agreement unseen at the court in more than 70 years. That was a consequence of a lack of divisive disputes on social issues and hard work by the justices, who often favored exceedingly narrow decisions to avoid deadlocks. . . .

Less consequential cases seemed to produce consensus. According to data from Lee Epstein, a law professor and political scientist at Washington University in St. Louis, the percentage of cases decided by a 5-to-4 or a 5-to-3 vote was 14 percent, compared to an average since 1946 of 22 percent.

Professor Epstein also devised another measure of consensus, dividing the number of votes in support of the majority or plurality opinion by the total number of votes cast. The last term’s rate, 89 percent, was the highest in at least 70 years.

While the degree of unanimity did not reach the levels of October term 2013, there were relatively few cases decided by a single vote (although two cases have been scheduled for reargument next term, presumably because they produced 4-4 splits). Some cases widely anticipated to divide the court along ideological lines, such as Trinity Lutheran Church of Columbia v. Comer, were instead decided by wider margins. Trinity Lutheran, which concerned whether a state could exclude a church from funding intended to enhance playground safety, was decided 7-2.

Liptak quotes my co-blogger William Baude reflecting on the term:

“It has been a quiet term, and that is a good thing for the country,” [Baude] said. “Over all, this year the court was the least dramatic, and most functional, branch of government.”

“We will look back on this term,” he added, “as the calm before the storm.”

That’s for sure. When Liptak filed his story, the court had already agreed to hear cases concerning the Trump administration’s immigration executive order, religious objections to providing services for same-sex weddings, the constitutional limits (if any) on partisan gerrymandering, the limits on state ability to maintain (or “purge”) voter rolls, the application of the Fourth Amendment to historical cell-site data, the “waters of the United States” (aka “WOTUS”) rule, the Alien Tort Statute and mandatory employee arbitration, as well as two immigration-related cases for which the court scheduled reargument (Jennings and Dimaya).

That would all be enough for any term, but there’s more. Today the court agreed to hear several additional cases, including New Jersey Thoroughbred Horsemen’s Association, Inc. v. NCAA, an important federalism case concerning the application and scope of the New York and Printz anti-commandeering rule. Although this case is about sports betting, it could have implications for disputes over sanctuary cities and other instances in which state or local governments refuse to cooperate with federal law.

Another case likely to reach the court next term concerns the constitutionality of the Securities and Exchange Commission’s administrative law judges. As I discussed here, the U.S. Court of Appeals for the D.C. Circuit just split 5-5 on this question, and the U.S. Court of Appeals for the 10th Circuit concluded that the SEC’s ALJs are unconstitutional. It’s also reasonable to assume cases concerning various Trump administration initiatives could reach the court in time for the spring sittings.

With the full complement of nine justices, the court is unlikely to deadlock (barring the occasional recusal) and the justices may be less inclined to try and find common ground.

To top it all off, there will be continuing speculation as to whether Justice Anthony M. Kennedy (or any other justice) is ready to retire.

All this is a long way of saying that court watchers better rest up this summer. Come October, it will be time to strap in, as the next Supreme Court term is likely to be a doozy.

 

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Posted by Mike Glyer

The Clarion workshop began June 25 at UCSD, and the Clarion instructor reading series commences tomorrow night at San Diego’s Mysterious Galaxy bookstore — five evenings with leading sff writers working, presented by Mysterious Galaxy and Comickaze comics. Dan Chaon … Continue reading

Same-sex marriage after Obergefell

Jun. 27th, 2017 04:54 pm
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Posted by Will Baude

The Supreme Court building in Washington. (J. Scott Applewhite/Associated Press)

Yesterday the Supreme Court took action in two different cases about same-sex marriage. In one, Pavan v. Smith, the court summarily reversed an Arkansas Supreme Court decision about Arkansas’s birth-certificate regime, concluding that because “Arkansas law makes birth certificates about more than just genetics” and sometimes allows spouses who are not biological parents to be listed on the birth certificate, it must extend the same recognition to same-sex couples.

Justice Neil M. Gorsuch dissented (joined by Justices Clarence Thomas and Samuel A. Alito Jr.). Interestingly, Gorsuch did not quarrel with the correctness of Obergefell, but rather suggested that the case did not meet the standards for summary reversal, which he said is “usually reserved for cases ‘where the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.'” (As an aside, I take it that these criteria are supposed to be necessary, but not sufficient, conditions for summary reversal — the court certainly does not summarily reverse every case that is a clear error in the application of settled law. And as I’ve written extensively in “The Supreme Court’s Shadow Docket,” it is actually quite a parlor game to figure out what, in practice, the criteria for summary reversal really are.)

In the other case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court granted certiorari to consider whether the Constitution exempts a “cake artist” from a law requiring him to make cakes for same-sex marriages and opposite-sex marriages alike. I should eat a little crow on this one, because for weeks I have been confidently predicting to my colleagues that the court was not going to grant cert in this case (even though I thought that it should). But after a record-setting 14 times being relisted for conference, the case is now on the merits docket.

The underlying legal issues in both cases are quite different, but I see them as sharing a fundamental theme — the question of what and how much is supposed to be settled by the Supreme Court’s decision in Obergefell. Was the decision supposed to basically end national debates about the status and rights of same-sex couples, or does it still leave space to debate the narrowing or extension of these rights? To be clear, I am not talking about the fundamental holding of Obergefell, which I suspect is already more secure than the holding in Roe v. Wade, but about the broader message to society — the music, not the words.

Indeed, this theme makes me wonder if the court’s actions in these two cases were actually causally related. As noted above, Masterpiece Cakeshop was relisted over and over and over again, which usually means that a case is not going to be granted. Rather, it looks like somebody was writing a dissent from the denial or cert. that changed a mind or two at the final moment. (If there were four votes to grant once Gorsuch joined the court, it could have been granted as early as April, at least eight relists ago.) I wonder — and this is rank speculation — if one of the justices became concerned with the possible maximalist implications of the Pavan summary reversal, and changed his vote to “grant” in Masterpiece Cakeshop.

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Posted by Mike Glyer

SF writer Vernor Vinge and architect Niall McLaughlin will speak about Science Fiction Meets Architecture: Designing for an Aging Population as part of the Arthur C. Clarke Center for the Human Imagination’s “London in 2080” debate series on June 29. … Continue reading
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Posted by Mike Glyer

The fourth War for the Planet of the Apes trailer is online. The film comes to theaters July 11. In War for the Planet of the Apes, the third chapter of the critically acclaimed blockbuster franchise, Caesar and his apes … Continue reading
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Posted by Jonathan H. Adler

One First Street was not the only place for dramatic legal developments on Monday. Just down Constitution Avenue, at the E. Barrett Prettyman Courthouse, the U.S. Court of Appeals for the D.C. Circuit was doing its part to help ensure that the Supreme Court has a monumental term next year.

Sitting en banc, the D.C. Circuit split 5-5 over the constitutionality of the Securities and Exchange Commission’s administrative law judges in Raymond J. Lucia Cos. v. SEC. Given the composition of the en banc panel, this means that the court could not have split purely along partisan lines. The en banc panel included four judges nominated by a Republican (Henderson, Brown, Kavanaugh, Griffith) and six judges nominated by a Democrat (Rogers, Tatel, Srinivasan, Millett, Pillard and Wilkins); therefore, at least one judge did not play to political type. (Chief Judge Garland did not participate.)

The underlying issue is whether the SEC’s ALJs are “officers” for purposes of the Appointments Clause, which largely turns on the authority they exercise. If the ALJs are officers, then they are unconstitutional, as the SEC’s ALJs are appointed through an administrative process, and not by the “head of a department,” as the Appointments Clause requires. If, on the other hand, the ALJs are not “officers” (in this case, inferior officers) but are instead merely employees, then there is no problem.

A three-judge panel had previously rejected a constitutional challenge to the SEC’s ALJs. A panel of the U.S. Court of Appeals for the 10th Circuit reached the opposite conclusion last year in Bandimere v. SEC. I discussed this decision here.

Monday’s D.C. Circuit split virtually guarantees Supreme Court review of the underlying issue — perhaps as early as next year.

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Posted by Eugene Volokh

As an April post here noted, some people have been trying to get Google to deindex mainstream news articles — hide them from searchers by removing them from Google indexes — by (a) suing the people quoted in the articles, (b) getting stipulations from the people recanting their allegations, (c) getting court orders based on those recantations, and then (d) submitting those orders to Google.

Now, if a media organization itself gets such a recantation from one of the sources that it quotes, the editors would reasonably ask: Was the source lying then, or is he lying now? If the editors are persuaded that the recantation is accurate, they might well publish a correction, or revise or even take down the original article. But if they think that the original report was accurate, and the recantation was coerced using a lawsuit, they might stand by their story.

When a plaintiff sues the source, though, gets a stipulation and submits the order to Google with a deindexing request, the plaintiff is trying to short-circuit the news organization’s review of the matter. Instead, the plaintiff wants to just get the original story hidden, with no independent evaluation of whether the story was and continues to be correct. Such attempts have proved futile, to my knowledge, because Google seems skeptical of these particular requests; but even the attempt seems troubling.

Paul Alan Levy of Public Citizen — who took the lead in blowing open the (separate) Richart Ruddie/Profile Defenders deindexing fraud story — has just gone to court to set aside the order in one such case, Welter v. Does. You can read Paul’s full post, but here’s the heart of the matter:

1. Megan Welter made national news as an Iraq War veteran who became an Arizona Cardinals cheerleader, but then made the news again when she was arrested for allegedly beating her boyfriend, Ryan McMahon (after having called the police alleging that he was the one who attacked her).

Two years later, Welter filed a defamation lawsuit against an array of fictitious defendants, including businesses as well as individuals. The lawsuit was brought by a lawyer at the Kelly/Warner firm, which I have blogged about before, and which was also involved in two other Internet libel cases that involved apparently fake notarizations, though it’s not clear whether the lawyers in those cases knew the notarizations were fake.

The premise of the lawsuit appears to be that McMahon had recanted his allegations; the day before the complaint was filed, McMahon seems to have signed a proposed stipulated injunction “admit[ting] that all or substantially all of the statements made in [a list of] URLs are false and defamatory.” Yet what appears to be the audio of the eventual court hearing on the injunction (you may need this player software to hear it) suggests that McMahon may not have actually recanted and may still take the view that his initial allegations to the police were accurate; he states, at 03:00:

Even though she did these things, I really believe that everybody deserves a fresh start. And, you know, if it ever happens to me, I would want somebody to do this for myself, so I’m OK with that, you know, and I guess I just hope she learns her lesson and I hope she takes this as a carrot, and doesn’t do it again.

Some follow-up correspondence that I’ve seen that purports to be from McMahon seems to echo that position.

2. Moreover, the lawsuit, though based on McMahon’s stipulation, seems to be after much bigger game than him: The list of URLs included a huge array of mainstream news stories about the arrest, including on the sites of ABC News, Fox News, New York Daily News, Daily Mail (UK), CBS News, USA Today, Yahoo Sports, New York Post, Sports Illustrated, and more. And the proposed injunction — which the court adopted — purported to order not just McMahon but also “Defendant’s Agents, affiliates, and/or other person/entity assisting or enabling Defendant’s publication of the below-referenced Content” to “immediately remove from all websites, search engines, forums, blogs, lists, social media sites, and/or other forums of mass communication” “all negative statements, material, and/or information pertaining to Welter”; and that expressly included “the Content located” at the listed URLs.

The injunction thus appears to be aimed at legally binding the various sites that host the content (again, such as ABC, Fox and CBS), which seem to be the “other … entit[ies] assisting or enabling” the publication of McMahon’s allegedly false statements. And it is certainly aimed at trying to get the material on those sites hidden from public view, whether by direct enforcement by the sites (as the injunction on its face seems to authorize) or by submission to Google for deindexing (as the injunction also seems to contemplate).

3. Levy represents one of the sites that was included in the list of URLs — Avvo.com, a site that provides lawyer referrals as well as articles submitted by lawyers, often about stories in the news; in this case, one of the lawyer-posted articles on Avvo was about the Welter arrest and prosecution. Levy’s motion to vacate argues in detail why the injunction is impermissible, but here is an excerpt (some paragraph breaks added):

The complaint and the Stipulated Injunction were riddled with violations of the federal and state constitutional, statutory and common law rights of the many third parties who were subjected to a prior restraint of their right to talk about the legal controversy that ensued after plaintiff Megan Welter made a call for help to the local police. Although her former boyfriend Ryan McMahon was apparently willing to assist her quest to bury these many online articles by agreeing to entry of an injunction against himself, he had no ability to empower the Court to enjoin the free speech of others, even if those others repeated his own statements that he might later have come to regret. And the means employed by plaintiff to secure this injunctive relief against the third-party publishers, withholding notice by pretending to sue anonymous defendants, are additional grounds for vacating the Stipulated Injunction.

First, there was no basis for filing this lawsuit as an action against Doe defendants. On the date she filed this lawsuit, Megan Welter knew that the original source of the negative reports about her were the words of her then-boyfriend Ryan McMahon, as reported in the media and in the police report that was linked from some of the stories, and her own statements and actions as portrayed on the police bodycam video, the video taken from McMahon’s cell phone. McMahon’s signature on the stipulated order was dated May 19, the day before the lawsuit was filed. Thus, McMahon, at least, was not a Doe defendant.

Moreover, to the extent that her real objective was to use a purported agreement with McMahon as a basis for seeking an injunction against the continued posting of the underlying source materials, and the news reports and analyses that reported those details — that is to say, the reports published at the URLs listed in Exhibit A to the Stipulated Injunction — Welter knew the identities of the media entities and internet platforms that she wanted to subject to injunctive relief. Avvo’s contact address for legal process is available on both the Terms of Service and the Privacy Policy linked from the bottom of its web site; the name of the individual Arizona lawyer who wrote the article about how Welter’s case illustrates the application of Arizona disorderly conduct law was displayed on the article, and the lawyer’s address could be found on his firm’s web site.

Second, even assuming that there was evidence that some facts stated by McMahon about plaintiff Welter (and then reported by the press) were false, and even if there were any reason to believe that the statements from McMahon falsely accused Welter with actual malice on McMahon’s part, the defamation and false light invasion of privacy claims were [barred by the statute of limitations] ….

Third, Ryan McMahon’s purported confession that he had made false factual statements does not constitute evidence of falsity that is admissible against the enjoined parties. The stipulation was not signed under oath; the stipulation does not specify which words were false; and the authors and publishers of the news stories have had no opportunity to cross-examine McMahon.

Thus, no evidence supports the issuance of injunctive relief against the defendants whose web sites carried stories reporting on the police visit to the residence, including reports of what McMahon told the police and what he told the various reporters who covered the story. Even as a matter of state law, without admissible evidence Welter did not carry her burden of establishing an entitlement to injunctive relief that extended to the third parties that carried these reports.

Fourth, extending the injunction to third parties such as Avvo violates the fundamental precept that “a court order does not bind a non-party to the litigation in which the order is entered.” [Footnote: Although Avvo believes that it is one of the defendant corporations that was named an anonymous defendant, in that the URL for a story carried on its web site was one of the stories that the complaint alleged was defamatory, it was never served with process and thus never brought before the Court as a party that could be ordered to do anything.] … Neither the news media nor professional web sites such as Avvo become “co-conspirators” with parties that have agreed not to speak ill of each other when they report on the otherwise-enjoined criticisms, or when they leave previous reports on their web sites despite the adoption of injunctions such as the one that the Court entered in this case.

Similarly, … merely reporting on a controversy does not make third parties the “agents” of one of the parties to the controversy; and in any event, the procedure in this case was deliberately designed to avoid any notice to Avvo as well as the many media entities subjected to this unlawful injunction. Avvo is not Ryan McMahon’s agent, and Avvo received no notice of this case or, indeed, notice of the entry of the injunction against it….

Finally, the injunction against publication and public access to Avvo’s story violates the First Amendment as well as federal and state law. It violates the First Amendment in part because it is a prior restraint — an injunction issued against speech without any evidence and without any judicial findings issued after a full and fair hearing that any statement in the article was false or published with actual malice…. [As] the Arizona Court of Appeals has held, “Absent a clear finding supported by the evidence that a given expression is unentitled to First Amendment protection, a prior restraint should not issue and cannot stand.” [And] the Supreme Court has also held that the First Amendment entitles a party to notice and an opportunity to be heard before injunctive relief is issued interfering with its free speech. The failure to give such notice thus violated the First Amendment.

In conclusion, Megan Welter no doubt regrets that she called down a rain of publicity on herself, and her former boyfriend appears to have been willing to help her in her effort to put her past behind her. But American law does not provide a “right to be forgotten” that overrides the First Amendment rights of news media and professional web sites to provide truthful information about past controversies. Welter cannot be granted injunctive relief suppressing unflattering coverage, even if her former boyfriend had the misplaced gallantry to help her get such a court order.

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Posted by Mike Glyer

(1) OFF THE TOP OF HER HEAD. In “Nattering Social Justice Cook: Celebrating Rainbow Hair”, Cat Rambo delves into the history and symbolism of the hairstyle. A common adjective in many of the more conservative, alt-right, and other theater-of-outrage rants … Continue reading

The travel ban endgame

Jun. 26th, 2017 11:39 pm
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Posted by Will Baude

Among its other interesting end-of-term work Monday, the Supreme Court issued a per curiam cert. grant/stay in Trump v. IRAP, the travel ban case. As Steve Sachs discusses at Prawfsblawg, the court stayed the injunctions in part but left them in place “with respect to parties similarly situated” to the plaintiffs. The court also ordered “a briefing schedule that will permit the cases to be heard during the first session of October Term 2017,” noting that “(The Government has not requested that we expedite consideration of the merits to a greater extent.).”

Now here is where I get a little puzzled.

Constant readers will recall a disagreement that Marty Lederman and I had about whether the challenges to the executive order were going to become moot on June 14. On June 14, the president issued a memorandum clarifying (or amending, if necessary) “the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision.” This was supposed to stop the mootness problem, and the court Monday also ordered the parties to brief “Whether the challenges to Section 2(c) became moot on June 14, 2017.”

But is there going to be a new mootness problem? After all, 90 days from now is Sept. 24, which is before the court will hear argument and decide the cases. Marty Lederman says “yes“:

The case will be moot for two … reasons: For one thing, the 90-day entry ban goes into effect 72 hours from now, at least as to some aliens (see below), and thus it will expire by its terms on September 27. Moreover, as the Court explains, by October the Section 2 “internal review” should be completed (“[W]e fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c).”), and therefore the predicate for the entry ban will be kaput by then, too.

What is weird is that the court doesn’t come out and say this exactly. It says:

In light of the June 12 decision of the Ninth Circuit vacating the injunction as to §2(a), the executive review directed by that subsection may proceed promptly, if it is not already underway. EO–2 instructs the Secretary of Homeland Security to complete this review within 20 days, after which time foreign governments will be given 50 days further to bring their practices into line with the Secretary’s directives. §§2(a)–(b), (d). Given the Government’s representations in this litigation concerning the resources required to complete the 20-day review, we fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c).

A few questions for now:

1. When does Section 2(c) currently expire? The court refers to “the 90-day life of §2(c),” without explicitly spelling out when that is. The presidential memorandum, mentioned above, says that “the effective date of each enjoined provision” is “the date and time at which the referenced injunctions are lifted or stayed with respect to that provision.” But what if the injunction is stayed in part, as happened Monday? Does that trigger the effective date? Or does it trigger it only “in part,” so that each provision of the ban will now have two effective dates, one for the plaintiffs and other beneficiaries of the injunction and the other for the rest of the world?

2. Even if Section 2(c) doesn’t technically expire, what happens to it once review is complete? I think Marty is right that the travel ban will be much harder to justify at that point. Will the government realize this and stop enforcing the ban? And if not, isn’t the government giving the court the worst possible vehicle for its claims?

3. Why didn’t the court say more about the endgame it seems to have deliberately set up? It does rather seem as if the effect of the ruling is to schedule the case for an argument date that it will never reach and to order the parties to brief a mootness question that will itself be moot, while ignoring the mootness question that will be more relevant in October. So if the court means “that earlier talk of briefing schedules and additional questions was just for show,” this is a funny way to say it.

4. What is President Trump’s next move?

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