(To be sure, sometimes you really shouldn't take that next drink. But then again, sometimes you shouldn't be taking the Fifth, either.)

In 2018, Chief Justice Robert declared, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges." In election case after case, Trump appointees have proved the Chief was right about something.

Today, a unanimous Eleventh Circuit panel turned away L. Lin Wood's emergency appeal to enjoin certification of the Georgia election results. Chief Judge Bill Pryor wrote the majority opinion, joined by Judges Jill Pryor and Barbara Lagoa. Yes, the same Judge Lagoa who was on the super shortlist for the RBG seat. And you may recall that Pryor was on the super shortlist for Justice Scalia's seat.

Yesterday, another unanimous Eleventh Circuit panel denied relief in Sidney Powell's "Kraken" suit. Judge Andrew Brasher wrote the majority opinion. Trump had appointed Brasher to the District Court and to the Eleventh Circuit. He was joined by Judges Wilson and Rosenbaum.

Yesterday, Judge Brett Ludwig, a Trump appointee to the Eastern District of Wisconsin expressed serious concern about another Trump case. The Milwaukee Journal-Sentinel reported that Judge Ludwig "told an attorney for the president he was asking for 'pretty remarkable declaratory relief' by asking to have the fate of Wisconsin's 10 electoral votes decided by the Republican-led Legislature instead of voters.

Last week, a unanimous Third Circuit panel rejected President Trump's emergency appeal in a Pennsylvania case. Judge Bibas, one of Trump's first circuit appointees, soundly ruled against the President who appointed him. He was joined by two other W. Bush nominees, Chief Judge Smith and Judge Chagares. (Jon Adler wrote about the opinion here.)

I'm sure there are other cases I missed. But you get the idea.

Last term at the Court, Justice Gorsuch and Kavanaugh ruled against the President in Trump v. Vance, the New York tax return case. Well, nominally ruled against him at least: they still declared their independence.

For a generation, self-interested critics will deem Trump-appointed judges as illegitimate by association. Trump will have attainted them! At least during the final year of the Trump presidency, the new appointees have faithfully followed their oaths.

From Pruitt v. Smith, decided last month by the Arkansas Supreme Court (in an opinion by Justice Shawn A. Womack):

[A]rticle 5, section 9 of the Arkansas Constitution, "Persons Convicted Ineligible," provides:

(a) No person convicted of embezzlement of public money, bribery, forgery, or other infamous crime is eligible to the General Assembly or capable of holding any office of trust or profit in this state.

(b) As used in this section, "infamous crime" means: … (4) A misdemeanor offense in which the finder of fact was required to find, or the defendant to admit, an act of deceit, fraud, or false statement, including without limitation a misdemeanor offense related to the election process….

[David] Pruitt pled guilty to subsection (a)(19)(A), which states, "No person shall [v]ote, knowing himself or herself not entitled to vote." … [T]he statute … requires a culpable mental state—"knowing." Further, voting when not entitled is inherently dishonest, and when Pruitt pled guilty to the offense, he was required to admit having committed a deceitful act….

Pruitt had his misdemeanor conviction sealed pursuant to the Comprehensive Criminal Record Sealing Act. In Ark. Code Ann. § 16-90-1417, the Act details the effect of sealing a person's criminal history, providing in pertinent part:

(a)(1) A person whose record has been sealed under this subchapter shall have all privileges and rights restored, and the record that has been sealed shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law

In Haile v. Johnston (Ark. 2016), … a registered voter … filed a petition for declaratory judgment and writ of mandamus alleging Josh Johnston was constitutionally ineligible to run for or hold the public office of Cleburne County Sheriff. Johnston had previously pled guilty to a violation of the Arkansas Hot Check Law; however, his misdemeanor conviction was subsequently sealed …. This court [concluded that] the plain language of Ark. Code Ann. § 16-90-1417 dictated as a matter of law that Johnston's misdemeanor conviction never occurred once the record was sealed, and all of his privileges and rights were restored…..

Here, Pruitt pled guilty to section 7-1-103(a)(19)(A). Subsection (b)(2)(A) specifically provides that "[a]ny person convicted under the provisions of this section shall thereafter be ineligible to hold any office or employment in any department of this state." In contrast, Johnston was convicted under the Arkansas Hot Check Law, which includes no such provision limiting the restoration of rights after a record has been sealed. Under the plain and unambiguous language of section 16-90-1417(a)(1), the General Assembly reserved the authority to limit the effect of sealing in certain circumstances. With the inclusion of subsection (b)(2)(A), the General Assembly deliberately chose to exclude from public office all persons found guilty of election-related misdemeanors, regardless of whether the record is later sealed. Accordingly, we must conclude Pruitt is ineligible to hold the public office of alderman….

I think this result is right, but I wonder whether this should be seen as a state constitutional mandate, and not just a matter for the legislature to decide by statute. Haile held it wasn't a state constitutional mandate, citing Powers v. Bryant (1992), which in turn held:

Appellant argues that the mere "fact" of a prior conviction, regardless of whether the conviction has been expunged or voided, renders a citizen constitutionally ineligible to hold public office under art. 5, § 9. Appellant cites no authority to support his rigid constitutional interpretation, and we reject this argument based on the reasoning recently set out in Tyler v. Shackleford (1990). In the Tyler case, we discussed the legal effect of expunction under the Federal Youth Corrections Act, and relied on decisions of the Fifth and Sixth Circuits holding that expungement under the federal act actually removed the fact of a conviction. We adopted the reasoning of the Fifth Circuit in holding that following a discharge under the federal act, "the disabilities of a criminal conviction are completely and automatically removed; indeed, the conviction is set aside as if it had never been."

While appellant attempts to distinguish Tyler by pointing out that the Tyler case dealt with the effect of expunction under a federal law, we find the distinction irrelevant for purposes of this case. Judge Lineberger's order granting the writ of error coram nobis clearly stated that Doshier's 1932 convictions were "null and void." As Judge Lineberger's order manifested an intent to set aside Doshier's conviction as if it had never occurred, we find no constitutional violation in Doshier's holding of public office.

Are you folks persuaded? Or would you say that, even if federal expungement law preempts state constitutional provisions disqualifying convicted criminals from state office, mere state statutes can't do that—and a state court decision merely sealing a conviction can't make things "as if [the conviction] had never occurred"?

I have long argued that during the pandemic, "essential" services is a synonym for "important" services. Some governors think houses of worship are important/essential. Other governors think abortion services are important/essential. The right/left divide here is patent. (I spoke about this issue on the Lawfare podcast). But governors of all stripes agree that retail is essential. The argument goes, people need to buy stuff to survive, and people need to work in retail establishments to remain employed. Governors are never crass enough to come out and say that businesses are deemed "essential" because of their favorable economic impact. But what if they did? What if the government simply said, "We cannot shut down business X because too many people would lose their jobs; we'll flatten the curve somewhere else."

Well, the United Kingdom has stated this issue bluntly. Generally, the nation requires inbound travelers to quarantine after arrival. But not all travelers. Only unimportant people. The government has announced a series of exemptions for important people:

From 4am on Saturday 5 December, individuals undertaking specific business activity which would deliver a significant benefit to the UK economy – including activity that creates or preserves 50+ UK jobs – will no longer need to self-isolate when travelling or returning from non-exempt countries.

Individuals will only be exempt when undertaking the specific business activity and will only be able to meet with others as required by that specific activity. Further information will be available on gov.uk when these exemptions come into force.

Exemptions will also come into force at the same time for domestic and international performing arts professionals, TV production staff, journalists, and recently signed elite sportspersons, ensuring that industries which require specific, high talent individuals who rely on international connections can continue to complete their work.

PHE do not anticipate these changes will raise the risk of domestic transmission, due to the protocols being put in place around these exemptions, however all exemptions will remain under review.

I appreciate the candor. The country is willing to accept the risk of transmission from very, very important people. Elite athlete? Welcome aboard. Recreational tennis player? Stay in quarantine.

Would this measure be constitutional in the United States? I think so. Classifications based on economic status are (thankfully) non-suspect. And the government certainly has a rational basis to treat people differently based on their economic impact. Kelo reached this holding explicitly. Still, this sort of policy would be very unpopular in the U.S. It would make clear that "essential" workers is merely a synonym for "profitable" workers.

In time, the entire "essential" edifice needs to be dismantled once this pandemic subsidies. Governor should not be vested with such absolute authority to decide who and what is important based on arbitrary whim.

Generally, the Circuit Justice plays a minimalist role. He can deny frivolous emergency applications without referral to the full Court–often without even calling for a response. For meritorious emergency applications, the Circuit Justice can call for a timely response, and then refer the matter to the full Court. But there is a third path for the Circuit Justice that is less obvious: de facto denial by delay.

The Court will not grant emergency relief without hearing from the other side. Sometimes, the Circuit Justice will enter an "administrative" stay that preserve the status quo will briefing concludes. But that stay will usually only last a few days.

Some emergency applications need relief by a certain date. For example, the state schedules an execution date and time. The Court must decide the pending application before the execution date and time. If the Court waits too long, the prisoner will be executed, and the application becomes moot. Recently, this frantic briefing schedule has created public schisms on the Court. Another example might concern an election. The Court may have to issue a ruling before an election is held so administrators know what rules to apply. Indeed, the so-called Purcell principle was used consistently this year to avoid last-minute changes to election rules.

This year, post-election litigation is facing a pressing deadline. December 8 is the so-called "safe harbor" date. Under the Electoral Count Act, elections settled by this date will be treated as presumptively valid by Congress. On December 3, a congressional candidate from Pennsylvania filed an emergency application with the Court. For this appeal to have any chance of succeeding, the Court would have had to resolve the application before December 8. The Court could have easily ordered a 24-hour briefing schedule. Sucks for the parties, but the Court seldom considers the burden of tight deadlines. But Circuit Justice Alito ordered a response by December 9. Generally, six days is the standard reply time for an emergency application. And, apparently, Justice Alito did not think the case warranted faster consideration.

By slow-walking the response, Justice Alito effectively denied the application. Election Law professor Rick Hasen explained, "By setting the deadline for a response as December 9, this means that the Supreme Court won't act until well after the safe harbor deadline has closed, making it even less likely that the Supreme Court would overturn the results in Pennsylvania."

Another aspect of shadow docket litigation: de facto denial through by granting the full six days for a call-for-response.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

In 2015, CBP agents seized Gerardo Serrano's truck as he tried to cross the border into Mexico. Gerardo asked for a hearing before a judge, and then he waited. And waited. And waited. Two years later, he filed a class action on behalf of all U.S. citizens whose vehicles are seized at the border, claiming that CBP's failure to provide for a prompt post-seizure hearing violates due process. The Second Circuit has previously required prompt post-seizure hearings, in an opinion by then-Judge Sotomayor, but the Fifth Circuit disagreed and ruled against Gerardo. Now, in a petition filed this week, IJ is asking the Supreme Court to resolve the split. Click here to learn more.

• Federal law prohibits all felons—including one who made "a materially false statement on her tax returns"— from possessing guns. A Second Amendment problem? Third Circuit: No, because the Second Amendment only protects "virtuous citizens." Dissent: Not so. The Second Amendment protects all but "dangerous" citizens. See, among other things, then-Judge Barrett's dissent in a recent case from Seventh Circuit.
• In which the Third Circuit issues an unpublished decision affirming that the district court did not abuse its discretion in denying a motion for leave to amend under Federal Rule of Civil Procedure 15.
• District court: The conviction of a former Penn State president in state court (for his role in the decision not to report suspected child sex abuse) violated the Ex Post Facto and Due Process Clauses because—although the relevant conduct took place in 2001—the jury was instructed under statutory language that was enacted in 2007. Third Circuit: The Ex Post Facto Clause applies to retroactive legislation, but here the problem (if there is one) is with how the relevant legislation was applied by the courts. And the court decision wasn't so indefensible that it violated due process. The conviction is reinstated.
• Augusta County, Va. sheriff's deputy spies a familiar face at a local eatery—a man he had previously arrested on drug charges—and asks him to step outside. Once there, he asks the man to empty his pockets and, finding nothing, pats him down, also finding nothing. Then a drug dog alerts on the man's car, leading to a search that finds nothing. A Fourth Amendment violation? Fourth Circuit: Anyone who was asked to follow a police officer who had previously arrested them would feel perfectly free to walk away from the encounter.
• How much does the past matter? The Fourth Circuit considers the question and concludes that—at least in the context of a constitutional challenge to a state voter ID requirement—it doesn't matter nearly as much as the district court thought it did. Although North Carolina's 2018 voter ID law was enacted by many of the same legislators who passed an earlier 2013 voter ID law that was struck down as a product of racially discriminatory intent, the district court still had to start with a presumption of constitutionality.
• In July 1976, a Maryland couple planted a red maple in their yard. Forty-four years later, the Fourth Circuit explains that the "Japanese red maple tree features deeply lobed leaves that are red or reddish-purple in the spring and fall" and "is smaller than most other species of maple tree." This particular tree is the "centerpiece" of the family's yard. And more to the point, the tree does not interfere with the operation of a natural gas pipeline and doesn't need to be cut down.
• Texas makes it illegal for veterinarians to offer telemedicine services for any animal they haven't physically examined. (Telemedicine for humans you haven't examined is fine, even if they are noncommunicative, such as babies.) Fifth Circuit (2015): Obviously no constitutional problems here. Fifth Circuit (2020): Okay, so the Supreme Court said we were wrong about the First Amendment claim, so that one goes back down to the district court. Concurrence/Dissent: The Equal Protection claim should go back down, too. (This is an IJ case.)
• In response to the increase in COVID-19 cases, Kentucky's governor issues an executive order closing all public and private schools. Religious schools sue and secure a preliminary injunction. Sixth Circuit: Which was erroneous. The order treats religious and nonreligious schools identically, so the plaintiffs are unlikely to succeed on the merits.
• Though gun collector has spent a decade negotiating for the return of 400-plus guns seized by the LAPD and is still actively trying to recover them, an officer goes to court behind the collector's back and, with the court's permission, has 300-plus guns (valued at hundreds of thousands of dollars) destroyed. Ninth Circuit: Permanently destroying someone's property without providing any notice violates due process, and that is so obvious that the responsible officer doesn't get qualified immunity. The collector can sue the officer, the LAPD, and the city too.
• Does expecting to take non-cash, temporary government benefits after immigrating make one a "public charge?" Ninth Circuit: That wasn't the understanding of either "Victorian Workhouses" or Congress. So we affirm the district courts, but cut back on the nationwide injunctions because a bunch of other courts are doing the same stuff. Dissent: Yeah, about those other courts, one of which has "Supreme" in the title . . . .
• Woman slaps fellow passenger on flight from Minneapolis to Los Angeles, is convicted of assault in California. Ninth Circuit (panel): Wrong venue. She can only be prosecuted in the district over which the assault occurred. Ninth Circuit (en banc, over a dissent): Nonsense. Not only would that make it practically difficult to prosecute, the Framers couldn't possibly have intended the Venue and Vicinage Clauses to include the airspace over a state or district (had they foreseen metal tubes carrying people while hurtling through the sky at 600 miles per hour). Venue is proper where the plane lands [edited to add:] and any state it traveled through; conviction affirmed.
• A woman assists Seaside, Ore. law enforcement in their investigation of a brutal child rapist. As a result, immigration officials grant her a U-visa, a type of visa available for certain crime victims. She seeks to use her visa to obtain a derivative visa for her husband, whom she married while her application was pending. Yikes! A regulation says they needed to be married when she applied for her visa. Ninth Circuit (en banc): Statutory interpretation dictates that the regulation goes too far. Give her husband a visa. Dissent: The statute is ambiguous, and unreasonably restricting the agency's ability to interpret it invites mischief.
• ATF has a list of the origins of over 6.8 million firearms linked to criminal activity. Sounds juicy! A group files a FOIA request seeking to find out how many of those guns were owned by law enforcement (not the identities of those officers). ATF: No way; searching the database would create a new record, and we aren't required to do that. Ninth Circuit: If running a search across existing databases creates a new record, much gov't info will become forever inaccessible under FOIA, "render[ing] FOIA a nullity in the digital age."
• Drunk man shows up to his ex-wife's house. When Tahlequah, Okla. cops arrive, he picks up a hammer, and appears to pull it back behind his head. The cops shoot and kill him. Excessive force? Tenth Circuit: A reasonable jury could find that the cops recklessly created a dangerous situation by backing the deceased into a garage, and a reasonable officer would've known from prior precedent that this conduct was unconstitutional. Reversed and remanded.
• Georgia death-row inmate files lawsuit alleging that his planned execution by lethal injection violates the Eighth Amendment because his veins are in such bad shape that an IV is too risky. Requests execution by firing squad instead. Eleventh Circuit (over a dissent): Since firing squad isn't permitted by Georgia law, this is really a challenge to his death-penalty conviction, so he should have filed a habeas petition. And, because he's ineligible for a habeas petition, we dismiss.
• And in en banc news, the Fourth Circuit will reconsider its decision that the Trump Administration's new understanding of "public charge" (see Ninth Circuit, above) is a permissible interpretation of the Immigration and Nationality Act.
• And in more en banc news, the Fifth Circuit will not reconsider its decision that an ordained Southern Baptist minister may sue the governing body of his church over his dismissal. Eight of 17 judges dissent from denial.
• And in further en banc news, the Sixth Circuit will reconsider its decision that a Kentucky prosecutor's striking four African-American veniremen did not violate Batson v. Kentucky (or, more precisely (since, of course, this is a habeas case (the complexity of which is best captured by multiple layers of nested parentheticals)) that the Kentucky Supreme Court's holding to that effect was not an unreasonable application of clearly established Supreme Court precedent).
• And in additional en banc news, the Eleventh Circuit will reconsider its decision holding that a Georgia deputy's prolonged questioning during a traffic stop was an excusable Fourth Amendment violation. (The now-vacated panel decision itself had vacated an earlier panel decision to more fully explain why the panel majority saw fit to rule for the gov't based on a theory the gov't had neglected to raise at any point on appeal.)
• And in subsequent en banc news, the Eleventh Circuit will not reconsider its decision that the Florida Department of Corrections did not violate the Eighth Amendment when it refused to allow a transgender inmate to socially transition by wearing female undergarments, makeup, and long hair, triggering some "spicy rhetoric" from the dissenting judges.

When Joe and Annalyse Victor bought a home in rural Eagle, Wisconsin, they purposefully selected a 10-acre property where Joe, a commercial driver, would be able to park his trucks outside (just as the previous owner had done). But town officials decided to start enforcing code violations more strictly, and, though Joe moved his trucks inside, the Victors found themselves facing $88k in fines, which had been racking up daily without any notice from the town. Indeed, town officials routinely impose outrageous fines for insignificant offenses, often targeting residents who criticize the town board. To make matters worse, the entire system is tainted by a profit motive for the private law firm contracted to handle code enforcement. This week, the Victors' joined with IJ to put a stop to the town's abusive fines and fees enforcement. Click here to read more.

[Many textile merchants wound up as bankers. These useful IOUs were a major reason why.]

This is my last guest post of the week, and I'd again like to thank Eugene Volokh for inviting me to share some selections from The Fabric of Civilization. These posts on "social technologies" are all taken from chapter five, "Traders."

Thomas Salmon had a problem. As a tax collector in Somerset, Salmon had amassed thousands of pounds of gold and silver that needed to get to London. But the England of 1657 had no checking accounts, wire transfers, or armored cars. Physically traveling with that much specie was difficult and dangerous. What was Salmon to do?

He took the coins to local cloth makers, known as clothiers. In return, they gave him slips of paper called bills of exchange. These bills worked like checks, but instead of drawing on a bank they told a London businessman named Richard Burt to give Salmon cash. Burt bought woolen cloth from scattered producers and sold it to London merchants, taking a commission from the sale.

When he sold their goods, Burt kept the clothiers' credits on his books, and they drew down their accounts with bills of exchange. A Somerset clothier could buy household provisions from a local merchant and pay with a bill of exchange. The merchant would cash the bill on a trip to London or, more likely, use it to pay his own suppliers who had dealings there. Accepting coins from the tax man was yet another way for clothiers to cash in their credits. Salmon would carry the bills of exchange to London, swap them for specie at Burt's, and deposit the money at the treasury. An institution created to serve the textile industry had become crucial to the finances of the British Crown.

Originating with Italian textile merchants in the 13th century, bills of exchange have been called "the most important financial innovation of the High Middle Ages." They started as a way for merchants to transfer proceeds from the fairs at Champagne back to the home office. Written in a kind of shorthand, these slips of paper were essentially form letters telling an agent, usually a bank, in another city to pay someone a certain amount; when a merchant issued a bill of exchange, his local bank sent a notice to its foreign branch, telling it to honor the bill when presented. Bills of exchange were not official, state-sanctioned documents, designed in advance but, rather, social technologies that evolved through trial and error. Their usefulness depended on connections and trust.

As merchants built up networks of offices in multiple places, bills of exchange became increasingly flexible. By the early 14th century, you could cash one in most major cities in western Europe. Whether to buy wool or pay armies, coins no longer needed to be hauled over land and sea. "Bills of exchange," historian Francesca Trivellato writes, "were the invisible currency of early modern Europe's 'international republic of money.'"

Although bills began as a way to easily transport funds and convert foreign money, they quickly evolved other uses. For starters, they addressed the shortage of currency by enabling many more transactions with the same amount of specie.

To see why, consider two hypothetical English businessmen. The first ("John") exports raw wool, selling it to a Florentine merchant ("Giovanni") for a bill of exchange payable in London. The second ("Peter") imports silk fabric, buying it (from "Piero") with a bill of exchange payable in Florence. On the banks' books, the two bills can be offset against one another, with only the difference actually changing hands as currency. A small supply of coins can enable many more exchanges. "Such a system could be incredibly efficient," writes economist Meir Kohn. "For example, between 1456 and 1459, one bank in Genoa received 160,000 lire in payments from abroad in bills of exchange, and only 7.5% of this amount was settled in cash: the remaining 92.5% was settled in bank."

Bills of exchange also provided credit. In its simplest form, they gave users a float. A bill was made payable not immediately but after a certain period, or usance, from its date of issue. The usance was somewhat longer than the usual travel time between the two cities, ensuring that notice to honor the bill could reach the payer. The cushion added an extra grace period to the short-term loan.

Over time, merchants figured out ways to turn bills of exchange into overt loans. In a common but oft-condemned practice known as dry exchange, the first bill of exchange was paid not in cash (or an account offset) but with a new bill of exchange that simply reversed the original one. This paper swap created an interest-free loan twice as long as the usance. Lenders could extend the terms by adding multiple round-trip exchanges.

With a slight variation, dry exchange could dodge bans on charging interest. The trick was to alter the exchange rate on the return bill. If, for instance, a merchant in Bordeaux exchanged 100 livres for an original bill payable for 140 guilders in Amsterdam, the return bill might repay the 140 guilders with 105 livres in Bordeaux.

Over time, bills of exchange became negotiable. You could transfer a bill originally made out to you simply by signing the back. The signature conveyed the legal obligation for you to make good on the underlying debt if the bill couldn't be cashed. Once bills of exchange were negotiable, they became more liquid. If you needed cash, you could sell your bills at a discount off their face value, just as bonds change hands today. Or you could issue a new bill of exchange and sell it at a discount to a money broker to redeem later. At least in theory, there was no limit to the number of times a bill could be endorsed, passing from one owner to the next.

"The product of this evolutionary process—the discounting of negotiable bills of exchange—was a financial invention of enormous economic importance," writes Kohn. "Indeed, in the seventeenth and eighteenth centuries it was to become the foundation of modern commercial banking."

Negotiability made bills increasingly useful in everyday commerce, outside of specialized money markets. Although no one had to accept them as payment—bills of exchange were not legal tender—if people trusted the signatories, they were nearly as good as cash.

Despite risks of default, bills of exchange endured, fading from everyday commerce only when superseded by currencies from central banks. As late as 1826, a Manchester banker testified to their continuing popularity, telling a parliamentary inquiry that he'd seen £10 bills of exchange circulating with a hundred or more signatures. "I have seen slips of paper attached to a bill as long as a sheet of paper could go," he said, "and when that was filled another attached to that."

RESULTS: Uunona Adolf Hitler of the SWAPO party is the duly elected councilor of the Ompundja Constituency.#NamVotes2020 #NamibiaVotes2020 #EagleFM pic.twitter.com/6ZQqaNctZx

— Eagle FM Namibia (@EagleFMNam) November 26, 2020

The BBC has the story. I'm not worried, but …. Thanks to Ed Driscoll (InstaPundit) for the pointer, and thanks, as always, to the Amazonia-Ambazonia connection.

UPDATE: Commenter Absaroka writes, "Who has 'Adolf Hitler elected' in the 2020 sweepstakes?"

This morning, the Court punted away Harvest Rock v. Newsom. A few hours later, Governor Newsom announced a new "stay at home" order that could apply to huge portions of the state.

California Gov. Gavin Newsom introduced Thursday the framework for a regional stay-at-home order, with the expectation that most of the state will fall under the more stringent requirement in days, with the Bay Area lagging a week or two behind. No regions have been placed into this regional stay-at-home order at this time.

Newsom said the state has created five regions by grouping counties based on hospital networks: Bay Area, Greater Sacramento, Northern California, San Joaquin Valley and Southern California.

Regions will be required to implement shutdown rules when intensive care unit capacity falls under 15%, and the governor said state projections show all regions except the Bay Area reaching this point in early December. It's estimated the Bay Area will follow in mid- to late December.

Regions that fall under the stay-at-home order will have 48 hours to close several business sectors including all dining (both indoor and outdoor), bars, wineries, personal services, hair salons and barbershops. The order expires three weeks after it is implemented but can be extended.

The Governor's explanatory site explains that "places of worship and political expression" can "allow outdoor services only." In short, all houses of worship will be shut down. Shopping malls stay open at 20% capacity. But churches must close. And the order lasts for three weeks. Just enough time to frustrate Supreme Court review. This awful game of whac-a-mole continues.

The petitioners in Harvest Rock should file a motion for reconsideration, and seek an injunction pending appeal.

I've pasted below the fold the specifics of the program:

[One Ilya reviews a book written by another. Hopefully, this won't exacerbate #IlyaConfusion!]

In this post, I review Ilya Shapiro's important new book Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court. Unfortunately, the "other" Ilya and I often get confused with each other. To prevent this review from fostering the growth of the pernicious phenomenon of #IlyaConfusion, I recommend reading my definitive guide to telling the two Ilyas apart. On to the actual review!

It's hard to think of a better-timed book than Ilya Shapiro's Supreme Disorder. The book was officially released in September, just a few days after the passing of Supreme Court Justice Ruth Bader Ginsburg.  That event soon led to Donald Trump's nomination of Amy Coney Barrett to fill the seat in a rushed confirmation process that concluded just before the 2020 presidential election. Democrats understandably cried foul, and pointed out how the GOP's actions contradicted their own insistence, in 2016 (when President Barack Obama nominated Merrick Garland to fill the seat vacated by the death of Justice Antonin Scalia), that Supreme Court nominations should not be taken up in an election year.

The clashes over the Garland and Barrett nominations were just part of a long series of other bitter conflicts over Supreme Court seats, including the bitterly contested nominations of Robert Bork, Clarence Thomas, Brett Kavanaugh, and others. Long gone are the days when SCOTUS nominees were routinely confirmed with little or no controversy.

Ilya Shapiro's book is not only timely, but also invaluable as a guide to the history of political battles over Supreme Court nominations, as well as a thorough discussion of possible reform proposals to improve the confirmation process. He traces the history of those conflicts from the early days of the republic on through the bitter fight over the nomination of Brett Kavanaugh in 2018.

As Shapiro shows, conflict over nominations is not a new thing. In the  early 1800s, the Federalists and Democratic-Republicans each maneuvered in various ways to gain control of the courts. Later, in the 1860s, the Republican Party twice adjusted the size of the Court—each time primarily for the purpose of securing a majority of justices amenable to the party's positions on various key constitutional issues. Franklin D. Roosevelt's 1937 court-packing plan was a less successful effort to achieve a similar result (though some historians still argue that the threat of court packing triggered a "switch in time that saved nine," even as the dominant view among scholars has shifted away from that position).

At the same time, Shapiro describes how, during many periods in American history, Supreme Court nominations attracted little or no controversy. For example, John F. Kennedy's 1962 nomination of Byron White resulted in only a brief, perfunctory Senate hearing, much of which was devoted to discussion of White's earlier career as an professional football player! Such a process is almost unimaginable today.

As Shapiro explains, the key difference between 1962 and the present day is not that politicians were nicer back then or that judicial nominees were better qualified, but that in 1962 there was much less polarization on legal issues between the two major parties. Today, there is a stark difference between Republican and Democratic SCOTUS nominees on both methodology (originalism vs. living constitutionalism) and likely votes on specific issues, such as abortion, gun rights, religious liberties, executive power, campaign finance regulation, and much else. By contrast, such partisan differences between nominees were much more modest in the 1960s—and during other periods when SCOTUS nominations attracted little controversy.

In the part of his book devoted to more recent events, Shapiro traces the gradual increase in conflict over Supreme Court nominations during the last several decades. One symptom of the growing conflict is that Democrats and Republicans each have their own conflicting narratives about when the conflict began and who is responsible. Each claims that it was the other party that violated norms, while they themselves only acted defensively.

Although Shapiro is, on the whole, more sympathetic to the conservative side than the liberal one, it is to his credit that he provides as balanced an account of this history as we are likely to get. For example, many conservatives point to the defeat of Robert Bork's nomination in 1987 as a precedent-shattering event that destroyed previous norms of Senatorial deference to "qualified" nominees. Bork's defeat was indeed a notable turning point in the conflict. But, as Shapiro explains, it was prefigured by such earlier events as Republicans' successful maneuvering (with the aid of conservative Democrats), to block the elevation of Justice Abe Fortas to the position of Chief Justice in 1968-69, thereby enabling Richard Nixon to appoint the more conservative Warren Burger to the post after he narrowly won the 1968 election. Still earlier, segregationist senators had (albeit unsuccessfully) forcefully opposed the nomination of appointees seen as sympathetic to civil rights (most notably Thurgood Marshall in 1967).

Shapiro also notes that, while Bork was the victim of some ridiculous and scurrilous charges (such as  bogus claims that he sought to bring back the days of segregation and slavery), he also held views on some issues that really were out of the mainstream, and are today rejected by most conservative judges and legal scholars. Among other things, he believed that the Bill of Rights was not properly "incorporated" against state and local governments, and had an extremely narrow view of freedom of speech. Viewed in historical perspective, the Bork nomination was not a sudden break with the past, but rather an escalation of a conflict that had already begun, as the parties diverged more on key legal issues in the late 1960s and 1970s.

More recent judicial nomination battles also feature gradual escalation, as opposed to completely unprovoked aggression by one side or the other. For example, the GOP's blocking of the Garland nomination in 2016 was prefigured by Democrats' very similar tactics in blocking a series of GOP lower-court nominees in the early 2000s, including some that were seen as likely future Supreme Court nominees (such as DC Circuit nominees Peter Keisler and Miguel Estrada). In all of these cases, the Democrats sat on the nomination for years, without letting it come up for a vote (much as the GOP later sat on the Garland nomination). Prominent Democrats (including then-Senator Joe Biden) also threatened to block GOP SCOTUS nominees in election years in 1992 and 2008 (though the opportunity to act on this intention did not actually arise in those years).

Blocking a Supreme Court nominee without a vote was an escalation that went beyond previous shenanigans. But it did not arise in a vacuum. The same goes for the GOP's 2017 repeal of the filibuster for Supreme Court nominees (adopted to push through the nomination of Neil Gorsuch), which built on the Democrats' earlier 2013 abolition of the filibuster for lower-court nominees (in order to push through Obama nominees opposed by GOP senators). The Democrats' actions, of course, were a response to GOP efforts to block Obama's nominees, which in turn were in part a reaction to Democrats' blocking of various George W. Bush nominees. And so it goes.

Ultimately, as Shapiro effectively explains, the roots of such skullduggery reside less in the nefarious nature of specific politicians, than in the growth of partisan polarization. The more nominees of different parties systematically diverge on key issues, the greater the incentive to block opposing-party nominees, and ram through your own—regardless of norms.

While Shapiro makes a strong effort at balance, in a few instances his relatively greater sympathy for the conservative side in these battles does lead him astray. For example, he suggests that the debate triggered by the sexual assault accusation against Brett Kavanaugh during his 2018 confirmation hearing "wasn't really about Kavanaugh," but about liberal Democrats' opposition to GOP SCOTUS nominees more generally. In reality, a plausible accusation of assault would have triggered strong opposition even during less contentious periods. The real difference is that, during an era with less polarization, a nomination with such a cloud over it would likely have simply been withdrawn. The president could take such action confident in the knowledge that the Senate would go on to confirm another nominee with a similar judicial philosophy, but no hint of scandal. And the opposition party (at least most of it) would accept the new nominee.

In 2018, the Republicans dug in on the Kavanaugh nomination in large part because they feared that withdrawing it would enable the Democrats to "run out the clock" until the 2018 midterm election after which the party might have a stronger position in the Seante (though, as it turned out, it was the Republicans who gained seats on net). Both sides calculated there was little to be gained from compromise or restraint.

In the last part of the book, Shapiro goes over a number of possible proposals to improve the nomination and confirmation process, and deescalate the conflict over it. They range from modest changes to the confirmation process, all the way up to more radical ideas such as term limits for SCOTUS justices and various plans to "pack" or "balance" the Court. This part of the book functions as a handy guide to various proposals for reform of SCOTUS, and the arguments for and against them.

While Shapiro gives a lukewarm endorsement to term limits  and also urges the abolition of confirmation hearings (I disagree for reasons outlined here), on the whole he argues that such procedural structural reforms are unlikely to defuse the conflict. At least not so long as we continue to have deep polarization over judicial philosophy and ideology. His argument on that point is highly persuasive. I would add that, in the process of considering reforms, we should be wary of those that are likely to make the conflict worse, and in the process undermine the valuable institution of judicial review—most notably court-packing.

One proposal Shapiro doesn't consider is restoring the filibuster for SCOTUS confirmations. If the filibuster is brought back and presidents must, in effect, secure 60 votes to get a nominee through, that would incentivize them to appoint more moderate justices who have at least some substantial bipartisan support. This idea deserves further exploration (perhaps in a second edition of Shapiro's book!). But it is unlikely to be implemented anytime soon, in part because the Senate majority is will be reluctant to tie its own hands, especially given the prospect that the opposing party will simply change the rules back whenever they get the majority. In addition, it's not clear that more moderate SCOTUS justices are necessarily better ones. Historically, there have been many situations where "mainstream" views were badly wrong about key constitutional issues, while more "extreme" outliers were right.

Shapiro's own proposed solution to the conflict is to limit federal government power generally, and that of the executive branch in particular. In that event, he claims, the stakes of judicial review would be smaller than now, and there would be less conflict over SCOTUS nominations, as a result.

Like Shapiro, I favor tightening limits on federal power, and believe that greater decentralization can help defuse partisan conflict generally. But I am skeptical that this approach will do much to defuse conflicts over Supreme Court nominations, in particular. Many of the most contentious questions that come before the Court are actually primarily about judicial review of state and local laws. Examples include gun control, abortion, religious liberties, takings and other property rights issues, and much else. Conflicts over SCOTUS' role on these matters would continue even if federal power was cut back. Even Shapiro himself concedes that his solution is a partial one, and that it might only have a major impact in the long run.

In sum, I highly recommend Shapiro's book to anyone interested in the history of conflict over Supreme Court nominations, and in various reform proposals intended to ameliorate that conflict. If Shapiro is better at diagnosing the disease than in proposing a cure, it may be because there is no easy cure available, so long as we continue to be a highly polarized society.

On September 2, 2020, the Central District of California denied a preliminary injunction in Harvest Rock Church v. Newsom. The five-page order upheld the Governor's restrictions on houses of worship, based on the reasoning of the (dearly departed) South Bay concurrence:

"Because the Orders restrict indoor religious services similarly to or less than comparable secular activities, it is subject to rational basis review, which it easily passes: by limiting certain activities, the Orders reduce person-to-person contact, which in turn furthers the interest of reducing COVID-19 spread."

One month later, on October 1, the Ninth Circuit denied a motion for an injunction pending appeal. Judge O'Scannlain dissented from that order. He argued, correctly, that South Bay was not a binding Supreme Court precedent:

I first clarify a point that is somewhat obscured by the majority's decision: we are neither bound nor meaningfully guided by the Supreme Court's decision to deny a writ of injunction against California's restrictions on religious worship services earlier this year. See South Bay United Pentecostal Church, 140 S. Ct. at 1613. That decision, which considered a challenge to an earlier and much different iteration of California's restrictions, was unaccompanied by any opinion of the Court and thus is precedential only as to "the precise issues presented and necessarily decided." Mandel v. Bradley, 432 U.S. 173, 176 (U.S. 1977) (per curiam).

Harvest Rock did not seek an emergency application from the Supreme Court for nearly two months. (I am not entirely certain why, but the church seems to have been concerned about pending enforcement actions.) On November 23, 2020, the church filed an application for injunctive relief with the Court. Harvest Rock sought a ruling by November 29. Circuit Justice Kagan said nope, and set the response due by November 30. And on November 25, the Court decided Diocese.

Today, the Court issued an unusual order in Harvest Rock.

The application for injunctive relief, presented to Justice Kagan and by her referred to the Court, is treated as a petition for a writ of certiorari before judgment, and the petition is granted. The September 2 order of the United States District Court for the Central District of California is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to remand to the District Court for further consideration in light of Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020).

What do we make of this order? I see it as a creative punt. I can't recall an instance where the Court granted certiorari before judgment only to then vacate and remand that case in light of a non-merits decision. In other words, the Court GVR'd a shadow docket case in light of another shadow docket case. The more expected route would be for the Court to simply deny cert, and a few Justices would issue a statement respecting the denial of cert, saying "Hey lower court, you should really take another look at this case in light of our recent injunction." But here, the Court–without recorded dissent–GVR'd the entire case.

What happened here? It is possible there were four votes to grant certiorari before judgment, and hear the case ASAP. But, there were likely vehicle problems, as the Governor would almost certainly revise the regulations to moot out the appeal. Thus, the compromise position was to take the unusual step of cert before judgment, with a vacatur of the district court decision.

But, and here is the big but, there is no injunction in place. Vacating the district court decision leaves the Governor's order in full effect. Another two or three full months could elapse before this case gets back to the Supreme Court. Harvest Rock remains subject to the very regime they sought emergency relief on. This punt leaves the church in a very difficult place. I'm surprised Thomas and Gorsuch did not dissent from the vacatur and remand.

It took more than three months from the date of the District Court's decision to the Supreme Court's ruling. Some of that delay was attributable to the plaintiffs. But litigation still takes time. In Diocese, Justice Breyer suggested there was no need for the Court to act with haste because the Justices could "decide the matter in a day or two, perhaps even in a few hours." No. Litigation takes time. The Court was correct to end Governor Cuomo's whac-a-mole game. Alas, Governor Newsom can keep moving the goal posts at the French Laundry.

In any event, give the likely trajectory of the COVID-19 vaccine, it is unlikely the Court will ever have to decide a pandemic case on the merits. Shadow docket rulings can keep things moving along for the next few months. And, I suspect, Fulton will change the landscape of Free Exercise cases. There will be plenty more GVRs come June. And eventually, all of the COVID orders will be lifted. I am grateful that Diocese, and not South Bay will be the final word on this issue.

Here is the data from the Europe Center for Disease Prevention and Control; the blue bars are the totals for Europe (note that the dates are in the European format, DD/MM/YYYY):

And here is the data from Worldometers site for the U.S.:

As you can see, the U.S. daily numbers (the grey bars) are comparable to the April peak, though the 7-day rolling average (the brown line) isn't yet up there. The per capita numbers in Europe (which has a population of about 2.25 times the U.S.'s) are a bit higher than in the U.S., though over the Summer they were much lower. Let's hope those vaccines we're hearing about are coming soon ….

From Bauer v. Brinkman, decided Monday by the Iowa Court of Appeals (in an opinion by Judge Paul Ahlers, joined by Chief Judge Thomas Bower and Judge David May):

The Kendall R. Bauer Trust owns an apartment building in Sloan, Iowa, known as the Bauer Apartments. The trustee of the trust, Richard Bauer, … manages the apartment building. K.L. … owns and operates a dog grooming and boarding business. As part of that business, she began construction on a dog care facility in a lot adjacent to the Bauer Apartments.

During the course of the construction of the dog care facility, Bauer contacted K.L. to express concerns that the outdoor "dog run" may become a nuisance issue and could be in violation of Sloan's zoning ordinance. Bauer also contacted the Sloan city council about his concerns. When his concerns were not addressed to his satisfaction, Bauer filed suit against the city, alleging the city failed to enforce its zoning ordinances.

During the pendency of Bauer's lawsuit against the city, K.L. took to airing her disgruntlement with the situation on Facebook, posting comments about Bauer, Bauer Apartments, and the dispute regarding construction of the dog care facility. K.L.'s adult daughter joined the Facebook fray, as did the defendant, Bradley Brinkman. It was Brinkman's commentary that resulted in this lawsuit, as Brinkman posted the following comment:

It is because of shit like this that I need to run for mayor! Mr. Bauer, you sir are a PIECE OF SHIT!!! Let's not sugar coat things here people, [K.L.] runs a respectable business in this town! You sir are nothing more than a Slum Lord! Period. I would love for you to walk across the street to the east of your ooh so precious property and discuss this with me!

Bauer filed suit against Brinkman alleging Brinkman's statement that Bauer is a "slum lord" constituted libel….

Drawing the line between opinion and fact … is important because opinions are "absolutely protected under the first amendment." Because drawing this line involves important first amendment issues, its determination is one for the court rather than the fact finder…. To make this determination, courts look to four factors: (1) whether the "statement 'has a precise core of meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous'"; (2) the degree to which the statement is "objectively capable of proof or disproof"; (3) "the context in which the" statement occurs; and (4) "the broader social context into which" the statement fits.

We begin our analysis of the first two factors by noting that the term "slum lord" is not defined in Brinkman's Facebook post. Nevertheless, a legal dictionary defines the term to mean, "A real-property owner who rents substandard housing units in a crowded, economically depressed area and allows the units to fall into further disrepair, esp. while charging unfairly high rents," or simply "the owner of any run-down rental property." …

While slum lord is capable of a definite meaning, its appearance in Brinkman's comment is vague enough that a reader of the post would be left to use his or her own definition, which would result in the term meaning different things to different people. This indefiniteness as to the meaning of the term cuts against a conclusion that it was a statement of fact. Further, the above definitions are not particularly capable of objective proof or disproof ….

Additionally, Brinkman's comment that Bauer is a "slum lord" followed on the heels of calling Bauer a "piece of shit." While understandably offensive and insulting, this type of name calling is generally not actionable….

"The common law has always differentiated sharply between genuinely defamatory communications as opposed to obscenities, vulgarities, insults, epithets, name-calling, and other verbal abuse. It has thus been held that a libel does not occur simply because the subject of the publication finds the publication annoying, offensive, or embarrassing. …

"No matter how mean or vulgar, such language is not defamatory. It is not defamatory, for example, to call someone a 'bastard,' or a 'son of a bitch,' or an 'idiot.' No matter how obnoxious, insulting, or tasteless such name-calling, it is regarded as a part of life for which the law of defamation affords no remedy."

Given the nebulous nature of the term "slum lord," standing alone as it was in this case, the first two factors cut in favor of the statement being that of opinion rather than fact.

Having determined the first two factors cut in favor of finding Brinkman's words to constitute nonactionable opinion rather than fact, we turn to the last two factors. These factors cause us to consider the fact that Brinkman's statement was made on Facebook and the context within which it was made on that social media platform in determining whether the statement was opinion protected by the first amendment….

The statements were made by adding to a chain of comments started between private individuals expressing disgruntlement over Bauer's dispute with the city regarding K.L.'s dog care facility. The message chain was not related to a news account or any other form of communication that purported to be fact based. Instead, it was clearly an exchange of opinions about the topic at hand. Brinkman's comments did not purport to interject facts to the discussion, but, instead, merely added to the string of expressed opinions. The comments focused on the dispute over K.L.'s dog care facility and not on Bauer's rental property.

We conclude that anyone viewing Brinkman's comments would have viewed them as nothing more than expressions of Brinkman's opinions, rather than a declaration of facts. Viewed in this context, the last two factors of the analysis join the first two factors in cutting in favor of a finding that Brinkman's statements were opinions rather than facts.

To be clear, we are not saying that statements made on Facebook or other social media forums cannot be defamatory as a categorical rule. Rather, we are acknowledging that, when alleged defamatory statements are made on a social media platform, the forum in which the statements were made is a contextual factor to consider in determining whether the statements are an expression of opinion or fact. In this case, we find the context of the postings on Facebook contribute to the conclusion Brinkman's statements were those of opinion and are thus protected by the first amendment….

Quite right, I think.

[Somebody had to invent those techniques you learned in elementary school.]

In 1479, a few months shy of his eleventh birthday, Niccolò Machiavelli left the school where he'd learned to read and write and went to study with a teacher named Piero Maria. The future author of The Prince spent the next twenty-two months mastering Hindu-Arabic numerals, arithmetical techniques, and a dizzying assortment of currency and measurement conversions. Mostly he did word problems like these:

If 8 braccia of cloth are worth 11 florins, what are 97 braccia worth?

20 braccia of cloth are worth 3 lire and 42 pounds of pepper are worth 5 lire. How much pepper is equal to 50 braccia of cloth?

One type of problem reflected the era's shortage of currency. Goods that would sell for one price in coins cost a premium if the buyer paid with other goods. (These problems assume familiarity with trading conventions and therefore present ambiguities to the modern reader.)

Two men want to barter wool for cloth, that is, one has wool and the other has cloth. A canna of cloth is worth 5 lire and in barter it is offered at 6 lire. A hundredweight of wool is worth 32 lire. For what should it be offered in barter?

Two men want to barter wool and cloth. A canna of cloth is worth 6 lire and in barter it is valued at 8 lire. The hundredweight of wool is worth 25 lire and in barter it is offered at such a price that the man with the cloth finds he has earned 10 percent. At what price was the hundredweight of wool offered in barter?

Others were brain teasers dressed up in ostensibly realistic detail.

A merchant was across the sea with his companion and wanted to journey by sea. He came to the port in order to depart and found a ship on which he placed a load of 20 sacks of wool and the other brought a load of 24 sacks. The ship began its voyage and put to sea.

The master of the ship then said: "You must pay me the freight charge for this wool." And the merchants said: "We don't have any money, but take a sack of wool from each of us and sell it and pay yourself and give us back the surplus." The master sold the sacks and paid himself and returned to the merchant who had 20 sacks 8 lire and to the merchant who had 24 sacks 6 lire. Tell me how much each sack sold for and how much freightage was charged to each of the two merchants?

Along with their famed humanist arts and letters, the mercantile cities of early modern Italy fostered a new form of education: schools known as botteghe d'abaco. The phrase literally means "abacus workshops," but the instruction had nothing to do with counting beads or reckoning boards. To the contrary, a maestro d'abaco, also known as an abacist or abbachista, taught students to calculate with a pen and paper instead of moving counters on a board.

The schools took their misleading name from the Liber Abbaci, or Book of Calculation, published in 1202 by the great mathematician Leonardo of Pisa, better known as Fibonacci. Brought up in North Africa by his father, who represented Pisan merchants in the customs house at Bugia (now Béjaïa, Algeria), the young Leonardo learned how to calculate using the nine Hindu digits and the Arabic zero. He was hooked.

After honing his mathematical skill as he traveled throughout the Mediterranean, Fibonacci eventually returned to Pisa. There he published the book that enthusiastically introduced the number system we use today.

Fibonacci's novel methods of pen-and-paper reckoning were ideal for Italian textile merchants, who wrote lots of letters and needed permanent account records. Beginning in Florence in the early fourteenth century, specialized teachers began teaching the new system and producing handbooks in the vernacular. Consistent sellers, the books served simultaneously as children's textbooks, merchants' reference tools, and, with their brain-teasing puzzles, recreational materials.

From the abacists' classrooms, future merchants and artisans typically graduated to apprenticeships and work. But a grounding in commercial math was also common for those like Machiavelli, who were destined for higher education and a career of statesmanship and letters. In a society based on trade, cultural literacy included calculation.

As they drilled generations of children on how to convert hundredweights of wool into braccia of cloth or to allocate the profits from a business venture to its unequal investors, the abacists invented the multiplication and division techniques we still use today. They made small but important advances in algebra, a subject universities scorned as too mercantile, and devised solutions to common practical problems. On the side, they did consulting, mostly for construction projects. They were the first Europeans to make a living entirely from math.

In his seminal 1976 study of nearly 200 abacus manuscripts and books, historian of mathematics Warren Van Egmond emphasizes their practicality—a significant departure from the classical view of mathematics, inherited from the Greeks, as the study of abstract logic and ideal forms. The abacus books treat math as useful.

"When they study arith­metic," he writes, "it is to learn how to figure prices, compute interest, and calculate profits; when they study geometry it is to learn how to measure buildings and calculate areas and distances; when they study astronomy it is to learn how to make a calendar or determine holidays." Most of the price problems, he observes, concern textiles.

Compared to scholastic geometry, the abacus manuscripts, with their problems about trading cloth for pepper, are indeed down to earth. But they don't scorn abstraction. Rather, they wed abstract expression to the physical world. The transition from physical counters to pen-and-ink numerals is in fact a movement toward abstraction. Symbols on a page represent bags of silver or bolts of cloth and the relationships between them.

Students learn to ask the question, How do I express this practical problem in numbers and unknowns? How do I better identify the world's patterns—the flow of money in and out of a business, the relative values of cloth, fiber, and dyes, the advantages and disadvantages of barter over cash—by turning them into math? Mathematics, the abacists taught their pupils, can model the real world. It does not exist in a separate realm. It is useful knowledge.

12/3/1996: Printz v. U.S. argued.

[UPDATE: I didn't know this at first, but apparently Jason Miller is the Jason Miller who was an adviser to the 2016 and 2020 Trump campaigns; Arlene Delgado was a political commentator; Miller was to be President Trump's White House Communication Director but withdrew when his affair with Delgado came to light. This wasn't mentioned in the opinion—I saw the opinion just because it came up on my daily Westlaw search for new First Amendment cases—and doesn't affect the legal questions; but I thought I'd note it, because it helps show how such restraining orders affect speech about political players as well as about purely private citizens.]

From today's Florida Court of Appeal decision in Delgado v. Miller, written by Chief Judge Kevin Emas and joined by Judges Ivan Fernandez and Eric Hendon:

Petitioner Arlene Delgado (the Mother) and Respondent Jason Miller (the Father) are the parents of W.L.D., born in July of 2017. What began as a paternity action and progressed to remaining issues of timesharing and child support, has devolved into escalating rounds of pugilistic litigation. Given the antagonism displayed over the course of the proceedings below, we can only be sympathetic to the sincere efforts of the trial court and general magistrate to reduce the level of discord. There are, however, limits to the exercise of the trial court's broad discretion….

The order at issue arose in the context of the Mother's motion to compel production of certain documentation from the Father in advance of a scheduled final hearing. Although the recommended order (and the trial court's order adopting same) essentially granted the Mother the relief she requested, the general magistrate included three paragraphs at the end of the recommended order which are the subject of this petition:

13. Neither party shall disclose or reveal to any 3rd party, directly or indirectly, through any social media or otherwise, the details of any financial information, including but not limited to income or employment information, of any nature, of the other party.
14. Neither party shall contact, directly or indirectly, the other party's existing clients and/or employers and/or contractors or potential clients and/or employers and/or contractors, other than through the legitimate discovery process provided by the Rules of Civil and Family Procedure.
15. Neither party shall engage in any social media of any nature which comments, directly or indirectly, on the other party's emotional or mental health or personal behavior….

Paragraph fifteen, in particular, commonly referred to as a gag order, represents a classic example of a prior restraint on speech: one that prohibits free speech before it is spoken…. Where a trial court imposes such restrictions on a party's free speech rights, it must make findings that support the need for these limitations, and the order must be "narrowly tailored to preclude only extra-judicial statements which are substantially likely to materially prejudice the trial."

Neither the trial court nor the general magistrate made findings of necessity, nor did they engage in any tailoring to narrow or limit the scope to those extrajudicial statements substantially likely to materially prejudice the trial. Indeed, paragraph fifteen of the order, which purports to prohibit either party from "engag[ing] in any social media of any nature which comments, directly or indirectly, on the other party's emotional or mental health or personal behavior," is so overbroad as to render its boundaries indiscernible.

Paragraphs thirteen and fourteen, though less sweeping in degree than paragraph fifteen, and arguably less onerous in their resulting burden on free-speech rights, nevertheless suffer infirmities similar in kind to paragraph fifteen. These paragraphs also contain terms that are vague and undefined, creating confusion in their meaning and the potential for inconsistent or arbitrary enforcement.

Further, the restrictions contained in all three paragraphs were imposed sua sponte by the general magistrate in its recommended order, and adopted thereafter by the trial court without a hearing. Neither party moved for the imposition of such restrictions, and while the general magistrate informally raised the topic and inquired whether the parties might consent to such restrictions, no such consent was given, nor were the parties placed on notice before the hearing that the imposition of such restrictions would be considered in addressing the merits of the Mother's motion to compel production of documents….

Very much the right result; Florida appellate courts have had several decisions in the last several years that have rightly struck down such overbroad injunctions (e.g., Logue v. Book and David v. Textor).

Lawfare has published my new essay, titled "The Statutory Authority for Barr's Appointment of Durham as Special Counsel." (I previewed some of these arguments yesterday). In many regards, Barr's appointment of Durham tracks Rosenstein's appointment of Mueller. The huge question, of course, is whether President Biden's Attorney General tries to remove Durham. I address that issue here:

There is a significant distinction between a special counsel appointed pursuant to the regulations and a special counsel appointed pursuant to the attorney general's statutory authority, but to whom some of the regulations apply. 28 C.F.R. § 600.7 imposes an important constraint on the executive branch: "The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies." Therefore, if Durham was not actually appointed pursuant to these regulations, the next attorney general could argue that the removal protections are not applicable to Durham.

Writing on Twitter, Lawfare's Benjamin Wittes speculated about two possible paths the next attorney general could take. First, he wrote, the "attorney general could simply amend this order and make clear that the entire slate of special counsel regulations apply—and then remove Durham on grounds that his appointment is not, in fact, compatible with those regulations." I'm not sure this option would work through a simple clarification. Subjecting Durham to new requirements could be viewed as a new appointment altogether, which could amount to removing him from his old position. And that removal would not be made in light of any misconduct. Durham could plausibly claim that the tenure protections for his initial appointment–including 28 C.F.R. § 600.7–were violated. And, in theory at least, Durham could sue the Attorney General to collect lost wages. It isn't clear whether Durham could challenge his termination based on the loss of his salary. This issue was vigorously debated during the Mueller investigation, but never tested. The attorney general could also try to moot any potential litigation by keeping Durham on the payroll, but denying all of his requests to expand the investigation. The attorney general, however, would have to disclose these actions to Congress.

Wittes offers a second option: the next attorney general could "rescind this Barr order applying the special counsel regulations" to Durham. This step, Wittes wrote, would terminate the investigation. I think this approach would stand on a stronger footing. But the attorney general might hesitate to take this step because of external and internal pressures. To the general public, after all, the rescission of Barr's order would be indistinguishable from firing the special counsel. Most people will not grasp the subtle nuance of this move. And given the fact that Barr never removed Mueller from his position as special counsel, there will likely be public pressure to allow Durham to complete his task.

The attorney general may also face internal pressures in this direction. The Department of Justice has, historically at least, adhered to certain institutional principles. One of those norms is that investigations should be allowed to proceed to completion without undue influence. Recall that Attorney General Janet Reno gave Independent Counsel Kenneth Starr full support throughout his investigation of President Bill Clinton. If Durham crosses a line and engages in misconduct, Biden's attorney general will have to decide if termination is appropriate. ut if the attorney general preemptively removes the special counsel without any cause, the Department of Justice may set a harmful precedent. After all, perhaps Durham will play by the books, and his investigation will turn up bupkis. A premature termination would foreclose that outcome. Moreover, removing Durham threatens to undermine, and potentially delegitimize future special counsel appointments. In theory, a Republican administration in 2025 could simply terminate any ongoing special counsel investigations, citing the Biden administration's precedent. Keeping Durham on board gives the department flexibility to appoint and protect other, more controversial special counsels in the future.

There are thus a number of institutional reasons to let this investigation run its course. If Durham falters, the attorney general can use a tighter leash. Unless a new attorney general announces otherwise, however, the presumption should be that Durham is protected from at-will removal.

My conclusion offers a preview of what lies ahead:

Soon enough, many of the fights from the Mueller investigation may be rekindled, but with the roles reversed. Congressional Democrats will criticize the Durham investigation as a partisan proceeding. Congressional Republicans will celebrate the investigation as a way to uncover illegal conduct. After a few years, the report will be completed, and the next attorney general will be under pressure to release as much of the report as possible. Afterwards, Congressional Republicans will sue to un-redact confidential grand jury materials. And, throughout the process, the press will receive a never-ending drip-drip-drip of allegations. Here we go again.

And I'll flag one final point. Durham may ask current President, and former Vice President Biden to sit for a deposition to discuss an important meeting held in the waning days of the Obama administration. Everything is old is new again.

[Before industrial production, textiles could make excellent currency.]

In pre-industrial economies, textiles have many of the characteristics essential to a good currency. They're durable, portable, and divisible. Bolts can be produced in standard sizes and uniform quality. The quantity is limited, since cloth takes a long time to produce and it flows out of the money supply as it's transferred to everyday use, thereby avoiding inflation.

We tend to think of money as something established by central authorities, and sometimes cloth currency was just that. (In The Fabric of Civilization I discuss how China's Tang dynasty, short on coins, defined silk bolts as legal tender.) But that need not be the case. Elsewhere in the world, textile money emerged out of commercial usage, supported but not created by law.

Set in the mid-eleventh century, the Icelandic tale of Audun begins in the early summer, when a Norwegian merchant name Thorir arrives on the island's northwestern Westfjords peninsula. Living in a land inhospitable to forests or farming, Icelanders relied on imports for timber and grain. They paid for these goods in the same currency they used locally: a woolen twill cloth called vaðmál (or wadmal). Thorir could sell his goods in Iceland and return with a ship laden with textiles. But there was a problem. The customers didn't have enough cash—vaðmál— on hand.

"If the Norwegian was to get paid for his flour and timber, the Icelandic buyer was unlikely to have enough cloth woven until later in the summer at best," explains William Ian Miller, a legal historian and Icelandic saga scholar. "The merchant would have to wait until you literally made your money to pay him and not infrequently the merchant had to stay the long winter to get his payment." Meanwhile, the grain might go bad.

Fortunately for Thorin, the story's Icelandic hero Audun identifies creditworthy customers. If Thorin gives them grain now, he can reliably expect cloth in time to set sail in the late summer. As a reward for his credit-reporting services, Audun gets passage on the ship, setting in motion the tale's events.

Iceland's vaðmál wasn't just a commodity. Woven to specific standards, it was a legally recognized medium of exchange and store of value, the primary form of money during Iceland's Commonwealth Period (930–1262 CE). As a unit of account, the third function of money, a piece of vaðmál two ells wide and six ells long (about a yard by three yards) was, writes anthropological archaeologist Michèle Hayeur Smith, "ubiquitous as a measure and medium of exchange in Icelandic legal texts, sales accounts, church inventories, and farm registers into the seventeenth century." (This image, from an Icelandic manuscript, depicts measuring out an ell of vaðmál.)

The archaeological evidence backs up the written records. Microscopically examining more than 1,300 archaeological textile fragments, Hayeur Smith found clear indications of cloth becoming money. The material from the Viking Age, before 1050, includes many different weave structures and widely varied thread counts. Medieval fragments, by contrast, are much more uniform—overwhelmingly the dense twills recognized as legal money. The analysis, she writes, reveals "such degrees of standardization and ubiquity that one can only conclude that cloth truly had become a unit of measure, a type of 'legal cloth currency' produced and circulated among households of all ranks across the island." In the Middle Ages, "Icelanders were weaving money in abundance."

In West Africa, too, merchants at least as far back as the 11th century used textiles to create the currency they needed to conduct trade. For many West African fabrics, narrow strips are sewn together to form a larger textile, which is worn as a single piece. (Kente cloth is one example.) Unlike colorful textiles for apparel, a strip intended as currency would be left undyed and wound into a tight, flat coil as it came off the loom. Merchants could roll such coils on the ground, sling them on either side of a pack animal, or carry them flat on the head with other goods added on top. Since weaving widths varied from place to place, if a market attracted more than one type, traders established a standard rate of exchange. A given strip length, usually that of a woman's wrapper, would be the primary monetary unit, with a full cloth forming a larger denomination.

Although African currency cloth functioned primarily as money, it did have a consumer market among the poor and desert dwellers to the north, who had no cotton. Going north, therefore, a unit of cloth bought more; going south, it bought less. Traders adjusted their travel expenditures accordingly. "A merchant from Upper Volta, for example, going to Timbuctu to buy salt with cloth produced in his home area, would use cloth to pay his way on the northward journey," writes historian Marion Johnson, "but on the return journey he would prefer to use salt which appreciated in value as it moved southward, even if he had first to sell it for local cloth money.

The same was true of silver and gold flowing from the Americas, where it bought less, to Europe and Asia, where it bought more. Cloth money was actually more self-regulating and less prone to shortages or inflation than metallic currencies. When its value rose, weavers would make more. If it became less valuable, consumers would take more. The result was a fairly constant value over time, set by the cloth's price as a commodity.

Money is a self-perpetuating social convention, a token that we trust will be valuable in future exchanges. If buyers and sellers, courts and tax authorities, accept textiles as payment, they are money.

On October 19, 2020, Attorney General Barr appointed John Durham, the U.S. Attorney for the District of Columbia as special counsel to investigate "certain intelligence and law-enforcement activities surrounding the 2016 presidential election." I have seen the letter Barr sent to Congress, but I have not seen the letter Barr sent to Durham.

#Durham #NewEvidence READ: Letter to House + Senate Judiciary committees obtained @CBSNews AG Barr says he expected Durham to complete his criminal investigation by Summer 2020 but it was delayed due to COVID-19 + "additional evidence (Durham) uncovered."  Barr said Special pic.twitter.com/Y4BPLyN0id

— Catherine Herridge (@CBS_Herridge) December 1, 2020

The appointment was made pursuant to 28 C.F.R. § 600.4-600.10. I am having awful flashbacks to the Mueller appointment in 2017. (I wrote about those regulations here, here, and here).

28 C.F.R. § 600.3 requires that "The Special Counsel shall be selected from outside the United States Government."

Did Durham quietly step down as U.S. Attorney? Perhaps he had to quietly resign so as not to raise hackles about being appointed as special counsel? Has Durham signed any indictments, or other criminal proceeding documents over the past month? Certainly, a defendant could challenge this dual-office holding. As of November 24, his office was issuing a press release with his name on it.

In any event, it is time for everyone to switch sides on the special counsel regulations. Now, Democrats will favor Durham's removal to end a partisan witch hunt. And the Democratic Attorney should decline to release the entire Durham report–a summary should suffice. Plus, confidential grand jury materials should be redacted. And Republicans in Congress will sue to see the redacted materials. Keep calm and carry on.

Update: Ah, Barr did not rely on 28 C.F.R. § 600.3. He cited. 28 C.F.R. § 600.4-600.10. Barr relied on other statutory authority to make the appointment: 28 U.S.C § 509, § 510, and § 515. (Still trying to track down the memo, but I have been reliably informed of these citations). The last statute is the most relevant:

Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney.

Update 2: Here is the memo

#Durham READ: Order Establishing Special Counsel. Language matters. Criminal. Scope FBI + Mueller team  "The Special Counsel is authorized to investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, pic.twitter.com/FNp5LyIWDM

— Catherine Herridge (@CBS_Herridge) December 1, 2020

Update 3: I have published an essay on Lawfare, titled The Statutory Authority for Barr's Appointment of Durham as Special Counsel.

Michael Balsamo of the Associated Press reports:

In an interview with The Associated Press, Barr said U.S. attorneys and FBI agents have been working to follow up specific complaints and information they've received, but they've uncovered no evidence that would change the outcome of the election.

"To date, we have not seen fraud on a scale that could have affected a different outcome in the election," Barr told the AP. . . .

"There's been one assertion that would be systemic fraud and that would be the claim that machines were programmed essentially to skew the election results. And the DHS and DOJ have looked into that, and so far, we haven't seen anything to substantiate that," Barr said. . . .

"Most claims of fraud are very particularized to a particular set of circumstances or actors or conduct. They are not systemic allegations and. And those have been run down; they are being run down," Barr said. "Some have been broad and potentially cover a few thousand votes. They have been followed up on."

These comments reflect what careful observers of the 2020 election have already concluded. The various viral claims of widespread voter fraud are bunk. The only think surprising about AG Barr's comments is that he is willing to contradict so directly the wild election frauds claim made by President Trump. While AG Barr may be willing to take the President's direction about what matters and which people to investigate, he is not wiling to make up facts or discredit the electoral process.

Jonathan Adler's post sets out some of the legal problems with a purported self-pardon by the President. (For more, see the arguments that Andrew Hyman laid out here.)

Those arguments make sense to me, but there's also a practical problem involved. An attempt at self-pardon might also be self-defeating: it might encourage precisely the federal prosecution it's intended to prevent.

Winning candidates usually don't try to jail the losers. That's for good reason: you want the incumbents to leave office peacefully, and you want the challengers to seek office peacefully.

Many people objected to the chant of "Lock Her Up" in 2016. It wasn't because—or wasn't just because—they believed Secretary Clinton to be factually innocent of any infraction of federal law whatsoever. It was also because a world in which elections determine who goes to prison is a world in which you can expect even more electoral mischief than we might see today.

Prosecuting former presidents is, in general, a bad precedent to set. That's one reason why it's important to deny the office to those whose conduct might force the issue. Whatever its virtues, the system of criminal law enforcement is not that great at handling crimes by those in high office. There's a good deal of discretion and rough-justice inherent in the system, and when high officers are in the crosshairs, that can reallocate political power to the wrong people. (Cf. why J. Edgar Hoover was bad.)

Normally, the real checks on presidential lawbreaking aren't criminal prosecutions and prison sentences. Rather, a presidential lawbreaker will face election losses, damage to their political party, and the undermining of a broader policy agenda. (Which is another reason why it's important to deny the office to those who are relatively indifferent to such things.)

An attempted self-pardon, though, threatens to set precedent in the other direction. If future Presidents think they can get away with it, they might try all sorts of unusual things while in office, secure in their ability to self-pardon before they leave.

So, if President Trump claims to issue himself a pardon, the Department of Justice in a Biden Administration might see the balance as pointing the other way. They might see it as crucial to restore a consensus that such pardons are invalid. And the only effective way to do that, once a President has challenged the consensus publicly, would be to bring such a prosecution and to have the pardon tested in court.

In other words, an attempt by President Trump to grant a pardon to himself could well result in the very prosecution that the Biden DoJ might otherwise forgo.

(It's yet another way in which the current administration can be both a symptom of the decay of crucial norms of behavior, and a cause of further such decay.)

For the rest of my playlist, click here. Past poems are:

1. "Ulysses" by Alfred, Lord Tennyson
2. "The Pulley" by George Herbert
3. "Harmonie du soir" by Charles Baudelaire
4. "Dirge Without Music" by Edna St. Vincent Millay
5. "Clancy of the Overflow" by A.B. "Banjo" Paterson
6. "Лотова жена" ("Lotova zhena", "Lot's wife") by Anna Akhmatova
7. "The Jumblies" by Edward Lear
8. "The Conqueror Worm" by Edgar Allan Poe
9. "Les Djinns" by Victor Hugo
10. "I Have a Rendezvous with Death" by Alan Seeger
11. "When I Was One-and-Twenty" by A.E. Housman
12. "Узник" ("Uznik", "The Prisoner" or "The Captive") by Aleksandr Pushkin

There's a good new article on hendiadys in the Constitution, and it suggests that this hendiadys thing is getting out of hand already. As the title of the article puts it, Hendiadys in the Language of the Law: What Part of "and" Don't You Understand?. The article is by Elizabeth Fajans and Mary R. Falk, and is published in Legal Communication & Rhetoric.

(What is hendiadys, you ask? A figure of speech in which two terms separated by a conjunction work together as a single unit of meaning. The examples I discuss in "Necessary AND Proper" and "Cruel AND Unusual": Hendiadys in the Constitution range from the colloquial, as in Julia Child's "good and dry"; to the literary, as in William Shakespeare's "law and heraldry"; to the legal, as in "necessary and proper.")

The argument by Fajan and Falks is thoughtful, clear, generous, and not about trivialities but first principles. It is a model critique, and I'm delighted to have seen it. They also discuss synecdoche and metaphor, which they do think have some place in legal interpretation. Perhaps more on that in time, but I will focus in this post on their argument about hendiadys.

The gist of the argument is that hendiadys is a literary figure that emphasizes "doubt, self-deception, multiplicity, complexity, and ambiguity." Those characteristics make this figure of speech "sit uncomfortably in legal texts or, for that matter, in instructional materials on assembling an IKEA couch." But it is not merely unlikely that hendiadys appears in legal texts. Fajans and Falk conclude that it should be a priori excluded from the interpretive options:

Beginning our research, we found sparse mention of hendiadys—until Professor Bray's article was published, eliciting considerable comment and other explorations of hendiadys in law. We soon became convinced that not only was it unlikely that many, if any, binomial expressions in the law are hendiadys, but even if some are, that its use as an interpretive strategy is inappropriate. Hendiadys can only serve legal interpretation by betraying its own essence, which is multiplicity and complexity. . . . Our takeaway is therefore simple: some literary devices, like hendiadys, have no proper place in the language of the law or in its interpretation . . . .

Let me mention three points of agreement and three points of disagreement between me and Fajans and Falk.

Agreement 1: Hendiadys is often used in literary contexts as a means of unsettling language and expressing ambiguity. In such contexts, the effect produced by hendiadys can be to make the author's words and phrases like the shattered pieces of two small whaling boats in Moby Dick: "the odorous cedar chips of the wrecks danced round and round, like the grated nutmeg in a swiftly stirred bowl of punch."

Agreement 2: plain speech is an aspiration in the law, and in our culture of legal production it would be inappropriate to include such self-conscious literary pyrotechnics in a constitution, statute, or rule.

Agreement 3: in the places where I argue a hendiadic reading is best, a non-hendiadic reading is possible. That is, we could read "cruel and unusual" and "necessary and proper" as each offering distinct requirements, as each expressing a tautology, as each being a hendiadys, and so on.

Disagreement 1: I see no reason to rule out, as a matter of definition, all the non-literary uses of hendiadys. Here is the key move by Fajans and Falk (footnotes omitted):

Once that move is made, the rest of the argument follows. But the premise is contestable. There is debate about how broadly or narrowly to define this figure of speech (as discussed by Fajans and Falk and by me). And although our figures of speech may seem sharply defined, that is a bit illusory, for they are our ways of demarcating phenomena that are much more overlapping and spectral (in spectral's two senses).

Nevertheless, hendiadys pervades oral and colloquial speech (e.g., "tried and true" and many other examples in my article). And I also don't think we can draw such a sharp line between the literary and the "everyday." It is especially at the oral, the ritual, the poetic, and the proverbial that the separation of "literary" and "everyday" is most likely to mislead us. Consider the Book of Common Prayer, and its "general confession" (which would have been said by George Washington and John Marshall and others every time they attended church services). In this prayer the worshipper says to God: "We have erred and strayed from thy ways like lost sheep." "Erred and strayed" is a hendiadys, not quite a tautology, and it can be subjected to the multiplicity and ramifying meanings that are common with this figure in literary texts. But it is also everyday. In fact, twice-a-day: it is part of daily Morning and Evening Prayer. It is because the Founders were steeped in a literary and oral culture in which this figure appeared–"pervasively" would be too strong, but still the point is that it appeared with some frequency and was not marked as only "literary"–I think we should be unsurprised if the Founders would have used the figure instinctively, as a way to get close to what was meant, rather than for conscious artistry.

Disagreement 2: although plain speech is good in a law, it is not as easy as it seems. Fajan and Falk are alert to this, recognizing that the search for "fixed meaning" in legal texts may be "[q]uixotic[]." But I would go further. No matter what the skill or good intentions of the drafters, law will pervasively have an edge (and maybe an interior) of indeterminacy. This is so because, as Aristotle recognized, circumstances arise that are unforeseen by the lawmaker. But it is also so, even on day 1 after the passage of a statute, because of the slipperiness of language itself. (This is one reason I think interpreters should consider pragmatics as well as semantics–see The Mischief Rule–but I digress.) If you think law is going to have a non-trivial amount of indeterminacy, at least law when it is at issue in not-subject-to-Rule-11-sanctions litigation, then we should be alert to how figures of speech can help us to understand or misunderstand, resolve or create, ambiguity.

Disagreement 3: To understand whether a phrase should be read as a hendiadys, we need other interpretive resources, including (for the Constitution) the ratification debates and early practice and judicial interpretation. Fajans and Falk note that they are not offering a rejoinder on those fronts. But I don't think the question of whether or not to adopt a hendiadic reading can be settled by the text. The text can be interpreted hendiadically and non-hendiadically. So when Fajans and Falk point out that non-hendiadic readings are possible, I agree. But the next step–unless one excludes hendiadys a priori–is to consider which of the readings is most consonant with the modalities and other resources of interpretation in our legal tradition.

If hendiadys were limited to literary texts like Hamlet, Fajans and Falk are right that it would be out of place in statutes and constitutions. But it appears in many kinds and registers and genres of speech. We should not be surprised that it appears in law.

First, some background: Early this year, the Ninth Circuit decided a case called Park v. Barr, involving a woman who had illegally overstayed her visa:

Woul Park, a Korean citizen, married Byung Gug Choi in Korea in 1988. Park came to the United States on a B-2 tourist visa in 2003. Park overstayed her visa and has resided in California ever since. Park and Choi jointly filed a Request for Divorce at the Korean Consulate in California, and the divorce became valid and final under Korean law as of May 12, 2009. Following the divorce, Park married James Yong Park, a United States citizen, in California. Park applied for and received lawful permanent residency based on this putative marriage. Park then applied for naturalization in 2014.

USCIS denied Park's application for naturalization because it determined that Park's divorce from Choi was invalid under California law, thus invalidating her marriage to James Yong Park. USCIS found that both Park and Choi were California domiciliaries when their Korean divorce decree was executed. The agency then concluded that Park's purported 2009 divorce would not have been recognized under California law because California Family Code § 2091 bars the state from recognizing a foreign divorce when both parties are California domiciliaries.

This finding set off a cascade of legal consequences. If Park's divorce from Choi was invalid under California law, then Park's marriage to James Yong Park was similarly invalid. Park's application for permanent residence was dependent on her lawful marriage to a United States citizen. Since Park's marriage was invalid at its inception, USCIS reasoned, Park could never have been lawfully admitted for permanent residency. And finally, since Park had to show that she had been lawfully admitted as a permanent resident in order to naturalize, see 8 U.S.C. § 1427(a)(1), USCIS denied her application for naturalization….

We [disagree] and hold that Park, as a B-2 nonimmigrant whose lawful status had lapsed, was precluded from establishing lawful domicile in California by operation of federal law. Her divorce and subsequent marriage were therefore valid under California law, she was properly admitted for permanent residency based on her marriage to a United States citizen, and she is entitled to naturalization.

So Ms. Park won, because federal law preempted state law, and this made her Korean divorce (and thus her later California marriage, which doesn't require California domicile) valid. But a few months later, a Nevada court applied the same reasoning against a noncitizen lawfully present on a student spouse visa, in Senjab v. Alhulaibi (Nev. Dist. Ct. Clark Cnty. June 17, 2020):

Ahed Said Senjab and Mohamad Abulhakim Alhulaibi … are citizens of Syria. They married in Saudi Arabia on February 17, 2018. The parties have one minor child, Ryan …, who was born on February 16, 2019.

[Alhulabi] obtained an F-1 [student] Visa and came to the United States to attend graduate school at UNLV in 2018. Mr. Alhuliabi alleged that [Senjab] applied for an F-2 Visa [for spouses and dependent children of F-1 student visa holders] in August, 2018, and that an F-2 Visa was granted to her and the parties' child at the end of 2019….

The parties and their child arrived in Las Vegas, Nevada, on January 13, 2020. On February 14, 2020, [Senjab] filed an Application for Protective Order …. The court granted the request and extended the protective order until February 14, 2021. The Extended Protective Order [basically gives Senjab custody during the week and Alhulaibi on weekends].

[Senjab] filed a Complaint for Divorce on March 24, 2020. Ms. Senjab seeks a divorce, child custody and support orders, and spousal support….

For this Nevada court to have subject matter jurisdiction to grant a divorce, one of the parties must be a bona fide resident of the state of Nevada [for at least 6 weeks before the suit was brought]…. Residence is synonymous with domicile. Physical presence, together with intent, constitutes bona fide residence for divorce jurisdiction. Aldabe v. Aldabe (Nev. 1968)….

This court finds that pursuant to state law, undocumented immigrants who physically live in Nevada have been able to access Nevada courts to obtain a divorce so long as they have been physically present in Nevada, and so long as they establish a subjective intention to make Nevada their home.

[But t]he Ninth Circuit Court of Appeals, in Park v. Barr, held that federal law has preempted state law. The holding in Park bars nonimmigrants who come to the United States on a visa issued pursuant to Title 8 of the United States Code [such as these parties] from establishing the subjective intent that is required to give this Nevada court subject matter jurisdiction to grant a divorce….

The federal law, prohibiting a nonimmigrant from establishing domicile, continues even if a visa is overstayed. In Park, Woul Park, a nonimmigrant, came  to the  United  States on a B-2 Visa, and stayed in the United States after the lawful status had lapsed. The Ninth Circuit Court of Appeals held that Woul Park was precluded from establishing lawful domicile in California by operation of federal law….

Under federal law, nonimmigrants that come to the United States through F-1 and F-2 visas are required to maintain a residence in their country of citizenship with no intention of abandoning it. [Senjab] and [Alhulabi] were permitted to enter the United States on an express condition not to abandon the foreign residence. Congress has not permitted [Senjab] and Mohamad Abulhakim Alhulaibi to lawfully form a subjective intent to remain in the United States….

[Senjab]'s subjective intent to make Nevada her home is precluded by Congress' definition of the nonimmigrant classification. This court concludes that Nevada lacks subject matter jurisdiction to grant a divorce….

The case is now on appeal to the Nevada Supreme Court. Immigration law isn't my area of expertise, so there may be something I'm missing here, but this seems to be practically quite significant.

[Giving Tuesday is an appropriate time for me to begin carrying out my pledge to donate 50% of the royalties generated by my book "Free to Move" to charities benefiting refugees.]

Back in January, I pledged to donate 50% of all royalties generated by my book Free to Move: Foot Voting, Migration, and Political Freedom to charities benefiting refugees. Today is Giving Tuesday, and therefore as good a time as any for me to begin to implement my pledge.

As of a few days ago, Oxford University Press indicates that we have sold some 1100 copies of the book, since it went into print in late May (after a delay caused by the Coronavirus crisis). By my admittedly rough calculations, 50% of the royalties for that number of sales amounts to about $1200.

I am therefore donating that amount to HIAS, one of America's oldest, largest, and most respected refugee-assistance organizations. That choice is partly guided by HIAS' high status and record of success in the refugee assistance field, and partly by the fact that other donors have promised to double any donations up to $21,000 given to HIAS during Giving Tuesday. Thus, the donation will have twice its "normal" effect.

I have consulted about other potential recipients for donations with leading experts on immigration and refugee policy, and will be giving future donations to some of those organizations, as well. I will announce those donations in due course. I should have additional funds available as more copies of the book are sold, and the publisher gives me more detailed data on how many copies of which type have been purchased (as the royalty amounts are slightly different depending on the format of the book, and we have hardcover, digital, and audio versions). My pledge also covers royalty income from potential foreign-language translations, which I am in the process of exploring.

For those interested, I will note that among the other organizations currently on my radar screen are Freedom For Immigrants and the Florence Project (both of which provide services to immigrants and refugees trapped in our awful immigration detention system), and Second Tree (which provides integration assistance and other services to refugees  from the Syrian Civil War and other recent conflicts in the Mediterranean region).

The Covid-19 pandemic and associated economic crisis have made the plight of refugees even worse than usual. So whether or not you ever read or buy my book, I urge those who have the means to do so to consider contributing to charities assisting refugees. Perhaps my admittedly modest donation can play a role in stimulating efforts by others.

[When there's business to be done over long distances, you don't want to depend on a scribe.]

One of the many interesting scholars I met while researching The Fabric of Civilization was Cécile Michele, a French Assyriologist who has translated many of the 23,000 cuneiform tablets excavated from a site in Turkey. Here she is teaching us the basics of how to write in cuneiform.

The tablets, known as the Old Assyrian private archives, are about 4,000 years old. They were found in the homes of expatriate merchants in the city of Kanesh, now the archaeological site called Kültepe. These letters and legal documents preserve the practices and personalities of a thriving commercial culture. They are our oldest records of long-distance trade.

Capturing dilemmas and decisions still faced by commercial businesses, these ancient records testify to the central role of textiles in the innovations that enable economic exchange. Here, the inventions aren't material artifacts or physical processes but "social technologies": the records, agreements, laws, practices, and standards that foster trust, ameliorate risks, and allow transactions across time and distance. Four millennia later, we can still hear the voices they record.

Lamassī was doing her best to keep up with the demand for her fine woolen cloth, fickle though the requirements seemed to be. First her husband asked for less wool in the fabric, and then he asked for more. Why couldn't he make up his mind? Maybe it was his customers in that distant country. Maybe they didn't know what they wanted. At any rate, her latest batch of cloth, or most of it, would soon be on its way. She wanted Pūsu-kēn to know it was coming. She wanted him to know she was doing her job. She wanted a little appreciation.

Lamassī rolled a small ball of damp clay between her hands, then flattened and smoothed it into a neat, pillow-shaped tablet, which she cupped in her left palm. She picked up her stylus and began to write, pressing wedge-like characters into the wet clay.

Say to Pūsu-kēn, thus says Lamassī

Kulumāya is bringing you nine textiles. Iddin-Sîn is bringing you three textiles. Ela refused to take any textiles and Iddin-Sîn refused to take another five textiles.

Why do you always write to me, "The textiles that you send me each time aren't good!" Who is this person living in your house and denigrating the cloth that I send to you? For my part, I do my best to make and send you textiles so that for every trip at least ten shekels of silver can reach your house.

Her message completed, Lamassī dried the tablet in the sun. She then wrapped it in a gauzy fabric, which she coated with a thin layer of clay. She ran a cylindrical seal along the clay envelope to mark the letter as hers. A messenger would take it to her husband, 750 miles away in the Anatolian city of Kanesh.

Lamassī lived in Aššur, on the Tigris river near Mosul in modern-day Iraq.  It was a city of middlemen who purchased tin and textiles and exported them, along with their women's weaving, to Kanesh. Twice a year, caravans of donkeys made the six-week journey. A single caravan might include wares from eight different merchants, with thirty-five donkeys carrying more than a hundred pieces of cloth and two tons of tin. Some of the wares went for taxes in the two cities and in kingdoms along the way that guaranteed safe passage. The rest were traded for silver and gold.

By the time Lamassī picked up her stylus, cuneiform script was a thousand years old. For most of that time, however, writing had been the monopoly of a small class of specially trained scribes, probably a mere one percent of the population. Throughout most of human history, in fact, literacy belonged to the few, mostly men working for state or religious institutions.

Not so in Aššur.

For its people, letters were a critical technology. They needed to send instructions between Aššur and Kanesh and between Kanesh and the surrounding towns, where their agents sold textiles and tin. They needed to record orders, sales, loans, and other contracts. They needed the flexibility and control that come with literacy.

Over time, these pragmatic merchants simplified the cuneiform script, making it easier to learn and write. They invented new punctuation that let them skim documents quickly. Some wrote well, others poorly. But in this society of long-distance traders, most men and many women were literate.

Trade requires clear communication, particularly if the business owner doesn't conduct every negotiation personally. Consider Pūsu-kēn. He first went to Kanesh as the agent of an older merchant in Aššur and, even as his own ventures grew, he continued to work on behalf of various traders back home. When their textiles and tin arrived in Kanesh, he needed to know what to do with the goods. Should he sell them in the city's marketplace, sacrificing profits for immediate cash? Or should he seek a higher price by selling them on credit to an agent who worked the outlying towns? Letters came with the goods, telling him what to do.

Letters are such an old technology that we take them for granted. But they were crucial to long-distance trade. When commerce stretched over time and distance, written correspondence—and the literacy it required—came with it.

On Tuesday, December 1, there is free four-hour continuing legal education program on "Firearms Litigation: Liability, Regulation, and the Constitution." The program is co-sponsored by the Center on Civil Justice at NYU School of Law, the Duke Center for Firearms Law, and the Solomon Center for Health Law and Policy at Yale Law School. It will run from 1 to 5 p.m., Eastern Time. Free registration is available here. The event will be transmitted via Zoom.

Panel 1 is "Liability Litigation: Products, Preemption, and the PLCAA." The Protection of Lawful Commerce in Arms Act (PLCAA) is a 2005 federal statute that bans many tort lawsuits against firearms manufacturers and retailers. The PLCAA does not restrict lawsuits about firearms that are actually defective–for example, a handgun that fires when it is accidentally dropped.

As my 2016 post describes, the federal statute, like 34 prior state statutes, resulted from numerous lawsuits organized by gun control groups and certain government officials (including Andrew Cuomo). The coordinated suits aimed to present the firearms business with a stark choice: 1. Cede control of the industry to a supervisory committee run by anti-gun advocates; 2. Be bankrupted by litigation costs from many simultaneous cases in different courts.

The PLCAA regulations on lawsuits include what is called the "predicate exception." A business can be sued if it "knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm."

Panel 1 will mainly examine the "predicate exception." The discussion is timely. In 2019, the U.S. Supreme Court denied cert. for a 4-3 Connecticut Supreme Court decision in Remington v. Soto. The Connecticut majority held that Connecticut's general statute against Unfair Trade Practices had been violated because Remington's advertising was too militaristic in tone. Further, the statute against bad advertising in general qualified for the predicate exception. This post describes the amicus brieff I filed in support of the cert. petition; the brief addresses First Amendment doctrine and history, and was on behalf of, inter alia, VC writers Eugene Volokh and Randy Barnett.

Panel 1 will be moderated by Abbe Gluck (Yale). The panelists are Mark Lanier (Lanier Law Firm), Alla Lefkowitz (Everytown), Timothy Lytton (Georgia State), and William Tong (Connecticut Attorney General). None of them would exactly be called a PLCAA supporter.

Panel 2 is Constitutional Litigation. This panel will be wide-ranging. The moderator is Adam Skaggs (Giffords). In addition to me, panelists will be:

Joseph Blocher (Duke). His remarks may include his recent article Why Regulate Guns? The article suggests that in the gun control debate, non-owners' "fundamental freedoms—to travel, to speak, to learn, to pray, and to vote without fear or intimidation—are at stake."

Bob Cottrol (George Washington). He will discuss the similarities of Second Amendment litigation today with litigation on the Fourteenth and Fifteenth Amendments in the early twentieth century. Cottrol is co-author of The Second Amendment: Toward an Afro-Americanist Reconsideration, cited by Justice Thomas in his concurrences in Printz v. United States and McDonald v. City of Chicago.

Mary Anne Franks (Miami). She will discuss constitutional firearms litigation as a manifestation of fragility. Franks is author of The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech.

Deepak Gupta (Gupta Wessler). The well-known appellate advocate, who often represents Everytown, will discuss some of his recent litigation.

David Kopel (U. of Denver, Independence Inst., Cato Inst.). I too will talk about some of my cases. Additionally, I will present some history Second Amendment litigation, as described in my article Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer.

Panel 3: The Future of Litigation Strategies

Moderated by Darrell Miller (Duke), this panel examines litigation strategy and practice, as well as statutory reforms affecting litigation–perhaps including the long-running effort to get rid of PLCAA or eviscerate it.

Panelists are Hannah Shearer (Giffords, Litigation Director), Christopher Boehning (Paul Weiss, brief writer in some recent leading cases), Evan Chesler (Chairman of Cravath), Troy McKenzie (NYU), and Erin Murphy (Kirkland & Ellis, Second Amendment litigator since 2015, often representing the NRA).

In today's Mandel v. Hafermann, Magistrate Judge Jacqueline Scott Corley (N.D. Cal.) dismissed the great bulk of the claims brought by Todd Mandel, Grey's ex-husband and ex-manager. (Grey is apparently a songwriter of considerable talents and success; she has cowritten with Eminem, and has written songs that were performed by Christina Aguilera, Celine Dion, Nick Jonas, and others. She has also performed guest vocals on songs by Dr. Dre, Nicki Minaj, and Macklemore.)

Mandel had sued for, among other things, defamation, based on statements made when Grey got a temporary restraining order against him, accusing him of "stalking her, hiding recording devices in her home, tracking her with a private investigator, and threatening her with violence." That case and many related ones were thrown out; but the court allowed the alienation of affections claim to proceed, applying the law of Utah, one of the few states that still recognizes the tort:

[Mandel alleges as follows:] Mr. Taylor met Ms. Hafermann [Skylar Grey is her professional name -EV] and Mr. Mandel in 2016, and the three developed a friendship. After meeting them, Mr. Taylor, a California resident, would visit Mr. Mandel and Ms. Hafermann in Utah. Sometime between late 2016 and mid-2017 Mr. Taylor and Ms. Hafermann began having an extramarital affair. In May 2017, Ms. Hafermann moved from the residence she shared with Mr. Mandel in Park City, Utah to St. Helena, California, where she began to live with Mr. Taylor. On June 12, 2017, Ms. Hafermann filed for divorce to end her marriage with Mr. Mandel….

Turning to the relevant choice-of-law factors, the injury occurred in Utah, where Mr. Mandel lived while Mr. Taylor and Ms. Hafermann conducted their extramarital affair and where Ms. Hafermann ultimately divorced Mr. Mandel. See Williams v. Jeffs (Utah 2002) (determining that under the "most significant relationship test" that Arizona was "situs of the marriage" and state where the plaintiff felt injury because it was where "he would have experienced the alienation of his wife's affections"). Regarding the conduct causing Mr. Mandel's injury, the [operative Complaint] alleges that Mr. Taylor had "conversations" with Ms. Hafermann in which he encouraged her to end her marriage, but … does not specify whether these conversations occurred during his trips to Utah, virtually over text message, or in Mr. Taylor's St. Helena, California recording studio. It is these conversations that Mr. Mandel alleges "poison[ed]" Ms. Hafermann's affections, as well as her extramarital affair whose place of occurrence the [Complaint] similarly fails to allege.

The [Complaint] makes general allegations that Mr. Taylor's Utah visits "started" his campaign to end Ms. Hafermann's marriage, but provide[s] no specific allegations regarding where any conduct that caused Mr. Mandel's injury occurred. Given the allegation as to the start of the campaign in Utah, the [Complaint] supports a slight inference that at least some of the complained-of conduct occurred in Utah…. Mr. Mandel and Ms. Hafferman were domiciled in Utah during Mr. Taylor's alleged misconduct. While Mr. Taylor resides in California, the formerly married couple's domicile "is the more relevant situs." Relatedly, Mr. Mandel and Ms. Hafferman's marital relationship was centered in Utah. Accordingly, Utah law applies to Mr. Mandel's alienation of affection claim….

To make out a claim for alienation of affection, a plaintiff must establish: "(a) the fact of marriage, (b) that the defendant willfully and intentionally, (c) alienated the wife's affections, (d) resulting in the loss of the comfort, society and consortium of the wife, and (e) (to justify punitive damages) a charge of malice." … [Mr. Taylor] argues that applying Utah law would violate the "fundamental principle of comity" because advancements in social acceptance of alternatives to traditional marriage "provide a substantial basis to conclude that Utah would no longer recognize the tort." Mr. Taylor, however, cites no case in support of this contention….

If Mr. Taylor's lament is that Mr. Mandel's complaint lacks sufficient factual allegations to plausibly support an inference that Mr. Taylor is liable, he should have made such argument in his 12(b)(6) motion. But he did not. The motion to dismiss the alienation of affections claim is therefore denied.

Alienation of affections used to be recognized throughout the U.S., but now appears to endure only in North Carolina (where it is thriving, with over 200 filings per year on average from 2000 to 2007) as well as in Mississippi, South Dakota, and Utah, where it appears to be litigated less often, and in Hawaii and New Mexico, where it appears to be very rare. (Illinois was also on this list until recently, but abolished the tort in 2016.) For a sample recent appellate case on the subject, see Cedar v. Johnson (S.D. 2018); for a leading modern opinion on whether the tort should be retained, see Fitch v. Valentine (Miss. 2007).

In principle, the tort could apply to supposedly meddling in-laws, and has sometimes been applied that way, though if the in-laws are looking out for their married child's best interest such behavior might not be "wrongful." In practice, it has generally been applied to people who supposedly seduce away one spouse from the other (if it can be shown that they caused the alienation, rather than that a preexisting alienation of the spouses caused one spouse to be interested in the defendant's attentions).

The related tort of "criminal conversation" (which is neither criminal nor involves conversation) basically consists of a defendant's having adulterous sex with plaintiff's spouse, though of course such conduct may also often lead to an alienation of affections claim. (The complaint's reference to Taylor's "conversations" with Hafermann/Grey apparently does not refer to the "criminal" variety.) The torts don't apply to "open marriages": consent of the plaintiff-spouse is a full defense.

Note that, where the tort is available, it is equally available to ex-wives as to ex-husbands; a brief review of recent North Carolina appellate cases shows plenty of cases brought by exes of both sexes (plus see these $5.8 million and $9 million verdicts in ex-wife vs. mistress cases, both from 2010).

Last week, a lame-duck President pardoned a turkey, as is traditional for the Thanksgiving holiday, and then pardoned a former agent of Turkey, which is not. Could the most untraditional of pardons—a self-pardon—be next? If so, then what?

Article II, Section 2 of the Constitution provides that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." This power, the pardon power, is among the broadest and least constrained of presidential powers. It has been described as "plenary," and faces no real limits other than those indicated in the text: It only applies to federal crimes ("offenses against the United States") and may not be used to overturn an impeachment conviction. Further, pardons must be for acts already committed–that is, the "offense" must have occurred–but it need not have been investigated or previously disclosed, let alone charged. (For those interested, here's a good CRS report on the pardon power.)

The President may offer a pardon to whomever the President wants, and for whatever reason. This is one reason the inclusion of a pardon power was controversial at the founding, and why some Anti-Federalists, such as George Mason, were upset about it (and why some folks, like my co-blogger Keith Whittington have urged its reform). Fortunately, throughout the nation's history the pardon power is relatively rarely used to excuse corruption or protect a President's cronies. Those few instances–such as President Clinton's pardon of Marc Rich–are controversial precisely because they have been the exception, rather than the rule.

Some have urged Congress to enact legislation to curb the pardon power, but I doubt such legislation would be constitutional. The pardon power is the President's alone, and Congress lacks the power to constrain it. Congress might have the authority to require federal agencies that assist with the administration and execution of pardons and clemency to disclose information, but it is unlikely such legislative oversight could reach the President himself. As the Supreme Court made clear in Trump v. Mazars, Congress does not have free-standing authority to investigate the President for potential wrong-doing, and in the absence of any power to enact substantive legislation concerning the use of the pardon power, it is not clear what legitimate constitutional purpose legislative oversight or mandated disclosure concerning the President's use of the pardon power would serve.

President Trump has (thus far) been particularly stingy in his issuance of pardons. He has also been particularly self-interested, granting pardons and commutations to his political allies. Thus the pardon of Michael Flynn may have departed from historical practice, but it was not much of a surprise. Recall that President Bush did not pardon Scooter Libby (though Trump did). Some commentators have tried to argue that self-serving pardons of presidential allies and cronies are somehow constitutionally suspect, but I do not think these claims hold water. Dicta in lower court opinions noting the potential for constitutional constraints on the pardon power's use concerned conditions placed on offers of clemency, and should not be taken to signify a broader anti-corruption limit on how the pardon power may be used or abused.

Given the number of investigations into Trump's financial and other dealings, there is widespread speculation that the President might try to pardon himself. But can he do that? He thinks so. Most academic commentators and (more importantly) the Department of Justice disagree. A 1974 Office of Legal Counsel memorandum concluded that self-pardons were not within the pardon power because it is inappropriate for the President to be a judge in his own case. The memo is thin, but represents the official position of the Department of Justice. In my view, Brian Kalt makes a more persuasive case against the legitimacy of self-pardons (and at greater length here). Tim Sandefur offers a contrary view, but I am not convinced by it. As I see it, the language, history, usage and understanding of the nature of a pardon all point in the opposite direction. [For more, see this "smorgasbord of views on self-pardoning" collected by Jack Goldsmith.]

While I believe a self-pardon would not actually be a pardon and would be invalid, my opinion is unlikely to hold sway at 1600 Pennsylvania Avenue. So what happens if the President were to try and issue a self-pardon? It is an interesting question.

Recall that the power only extends to federal crimes, so a self-pardon would not have any effect on potential state proceedings against Donald Trump once he leaves office. If Manhattan DA Cyrus Vance is inclined to pursue charges against Trump (or any of his relatives or associates, for that matter), a federal pardon will not stand in the way.

As for federal crimes, note that the initial opportunity to weight the self-pardon's validity would fall to the Department of Justice in weighing whether to bring federal criminal charges in the first place. As already noted, DOJ does not believe self-pardons are valid, and it is inconceivable that the Biden Administration would revise this view. So if the Justice Department were to conclude that Donald Trump committed federal offenses worthy of prosecution, the existence of an attempted "self-pardon" would not stand in the way of an indictment.

No doubt any federal indictment would be met with an effort to dismiss the charges on the grounds that Trump was pardoned. Trump's attorneys would no doubt raise this claim at the earliest opportunity. I suspect this claim would be met with skepticism, however, as it would contradict the longstanding and well-established view of the Justice Department. While OLC opinions are not binding on federal courts, they are taken seriously, and particularly so where (as here) they run counter the executive branch's interests. OLC opinions typically embrace robust conceptions of executive power. Thus an OLC opinion counseling restraint is more notable, and is likely to get extra consideration as a result. [As an aside, it is still possible that OLC could reverse its position between now and January 20. Were that to occur, I suspect any resulting memo would be recognized as a last ditch effort to shore up the President's position, and not a neutral, dispassionate analysis worthy of judicial respect, but that could depend on what any such memo says.]

This is a long way of saying that if Trump tries to pardon himself, he could have a hard time making the pardon stick. It is certainly possible the Justice Department may have no interest in pursuing the former President, whether because it concludes there are no offenses worth pursuing, a sense of political comity, or a prudential judgment that state courts should get the first shot. But should there be such a prosecution, I doubt a self-pardon will offer ex-President Trump much protection in federal court.

Our interview in this episode is with Michael Daniel, formerly the top cybersecurity adviser in the Obama NSC and currently the CEO of the Cyber Threat Alliance.  Michael lays out CTA's mission. Along the way he also offers advice to the Biden cyber team – drawing in part on the wisdom of Henry Kissinger.

In the news roundup, Michael joins Jamil Jaffer and Nate Jones to mull the significance of Bruce Reed's appointment to coordinate technology issues in the Biden White House.  Reed's tough take on Silicon Valley companies and section 230 may form the basis of a small-ball deal with Republicans on things like child sex abuse material, but none of us thinks a broader reconciliation on content moderating obligations is in the offing.

When it comes to regulating the tech sector, Brussels is a fount of proposals. The latest, unpacked by Jamil and Maury Shenk, is intended to build on the dubious success of GDPR in jumpstarting the EU's technology industry. If it reminds you of the brilliant success of European regulation in creating a large certification authority industry, you won't be far wrong.

Maury and I puzzle over exactly how a Russian divorcee won a court order allowing access to her estranged son's Gmail account. Our guess: the court stretched a point to conclude that the son had consented.

Another day, another China-punishing measure from the Trump administration: Jamil explains the administration's vision of a bloc of countries that will unite in resistance to China's punitive trade retaliation against inconvenient Western countries, most notably Australia, now getting hit hard by China.

Meanwhile, Maury reports that the administration has identified nearly 90 Chinese companies that are closely tied to the Chinese military for purposes of export control licenses. The only good news for US exporters is that the list eliminates some ambiguity about the status of some companies.

Maury also gives an overview of what most of us think is an oxymoron: Privacy in China. In fact, there is growing attention to protecting privacy at least from commercial companies. But harsh penalties, as always, are going to make observers wonder "who did that company piss off?" before they wonder "what did that company do wrong?"

Maury also reports on the effort to revive Privacy Shield – and on just how little the negotiators have to work with.

Jamil comments on the ever-rising cost of cybersecurity, and the possible implications for bank consolidation.

Nate reviews privacy and security doubts about Amazon's Sidewalk feature, which turns Alexa devices into neighborhood WiFi networks.

Maury and I note that the deadline for a TikTok sale is a week away and maybe always will be.

Jamil wonders why ZTE asked the FCC to reconsider its exclusion of the company from the US telecoms infrastructure. The FCC order denying the request was not exactly a marketing triumph.

Jamil and I have fun asking how much snooping will go on in a proposed new fiber-optic network linking Saudi Arabia and Israel. Biggest loser? Egypt.

Nate is not surprised that France is pushing its tax for the (US) tech sector, but we debate whether the timing will turn out to be good for France or bad. I claim that White House ADHD will be France's best friend.

Maury and I try to figure out whether there's a public policy case in favor of the Rivada plan to take over a bunch of DoD spectrum and rent out whatever is excess to DoD needs. Maybe there is, but we can't find it.

Download the 340th Episode (mp3)

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From today's decision by Judge Robert Pitman (W.D. Tex.) in National Press Photographers Ass'n v. McCraw, in which plaintiffs brought a First Amendment challenge (among other challenges) to the Texas statute limiting drone photography (note that this doesn't deal with normal trespass law, which might cover certain drone usage that is physically over private property):

The Surveillance Provisions [Sections 423.002, 423.003, 423.004, and 423.006] declare it unlawful to "capture an image of an individual or privately owned real property in [Texas] with the intent to conduct surveillance on the individual or property contained in the image." …

Plaintiffs are challenging the use of UAVs for the purpose of newsgathering and recording, "which is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording." ACLU of Ill. v. Alvarez (7th Cir. 2012). Plaintiffs have plausibly alleged that the surveillance provisions are burdening expressive conduct—taking photos and video for newsgathering purposes. To the extent that Defendants argue that "surveillance" is distinguishable from photography and therefore the surveillance provisions are not prohibiting protected expressive conduct, that argument only highlights the dispute over the vagueness of the term "surveillance."

Content-based restrictions on First Amendment protected activity "are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." A regulation of speech is content-based if it either "applies to particular speech because of the topic discussed or the idea or message expressed," or discriminates between speakers in a way that "disfavors" certain speakers from exercising their First Amendment rights.

Plaintiffs have sufficiently pled that the Surveillance Provisions apply speaker-based discrimination and are thus content-based. Plaintiffs argue that because the Surveillance Provisions exempt certain speakers from liability, other speakers such as journalists face liability because of the type of speaker they are. Certain individuals are permitted to capture UAV images under the Surveillance Provisions, such as professors,students,professionalengineers,andinsurancecompanyemployees.

Defendants argue that these exemptions are not speaker-based discrimination because the same person could be permitted to use a UAV for an academic purpose, but not for newsgathering—regardless of that person's identity. The Court disagrees that Defendants' distinction means the Surveillance Provisions are not speaker-based. The regulation is not speaker-neutral just because one person may simultaneously fall into multiple categories of speakers under the Surveillance Provisions. Instead, the Surveillance Provisions are discriminating based on the type of speaker someone is at the time they are using a UAV because of the exceptions listed in Section 423.002….

{Plaintiffs also argue that the Surveillance Provisions are content-based because they include exemptions based on the purpose of the images captured with a UAV, such as "professional or scholarly research," operations and maintenance of utility or telecommunications facilities," and "mapping." Defendants argue that because the same image can be prohibited or allowed under the Surveillance Provisions based on how it is being used, the content of the image is not the discriminating factor. Because there is also speaker-based discrimination requiring the application of strict scrutiny, the Court does not reach this issue.}

As a result, the Court should apply strict scrutiny. See Sorrell v. IMS Health Inc. (2011). Even assuming that Defendants will demonstrate a compelling government interest, Plaintiffs have plausibly argued that the Surveillance Provisions are not narrowly tailored to protect this interest in light of the numerous exceptions included in the Surveillance Provisions. Plaintiffs question why government interests in privacy and public safety are implicated for journalists using UAVs, but not for other individuals exempted under the Surveillance Provisions. The Court agrees that some of these exceptions leave open the question of whether the Surveillance Provisions are narrowly tailored. As a result, Plaintiffs' complaint has plausibly alleged that the Surveillance Provisions impermissibly impose content-based restrictions….

I'm inclined to agree that the speaker classification here is content-based, because the only explanation for the preference for certain speakers is that the government expects them to produce content that it sees as more valuable than the content produced by other speakers.

The court also concluded that the Surveillance Provisions were "impermissibly vague because they do not define the term 'surveillance'":

[A]t no point do Defendants attempt to define the term "surveillance" or point to any authority or evidence that outlines what type of UAV use is prohibited under "surveillance." They argue that Plaintiffs have not shown their actions would violate the Surveillance Provisions, but never take a stance on whether the activities at issue would be prohibited by the Surveillance Provisions.

Defendants instead argue it is a factual inquiry as to whether Plaintiffs' conduct is prohibited by the Surveillance Provisions, not a question of whether the provisions are themselves vague. However, Defendants never indicate what interpretation of the Surveillance Provisions should govern such a factual inquiry, and instead only assert that "[o]rdinary persons are perfectly capable of understanding the meaning of the word 'surveillance.'" With multiple possible broad dictionary definitions from Plaintiffs, and  no clarity offered from Defendants, the Court finds that Plaintiffs have plausibly pled that the Surveillance Provisions are unconstitutionally vague.

The court then turned to the No-Fly Provisions, which ban the use of drones "over a correctional facility, detention facility, or critical infrastructure facility" or "over a sports venue," and ban "drones from 'mak[ing] contact with' such a facility or to allow it 'to come within a distance … that is close enough to interfere with the operations of or cause a disturbance to the facility'":

Plaintiffs plead that the No-Fly Provisions violate the First Amendment as an unconstitutional restraint on expressive conduct. In the alternative, Plaintiffs also plead that the No-Fly Provisions impose an incidental restraint on protected conduct, in which case intermediate scrutiny applies. Under intermediate scrutiny, regulation is only permissible if the government has the power to enact the regulation and the regulation (1) "furthers an important or substantial government interest" that is (2) "unrelated to the suppression of free expression" and (3) narrowly tailored to advance that interest. Plaintiffs have sufficiently pled facts to plausibly allege the No-Fly Provisions are unconstitutional under intermediate scrutiny.

Even assuming the No-Fly Provisions further an important government interest and that interest is unrelated to the suppression of free expression, which the parties dispute, Plaintiffs have adequately pled the No-Fly Provisions are not narrowly tailored. While Defendants have pointed to government interests that may be sufficient to meet the first requirement of an important or substantial government interest, Plaintiffs allege that the exemptions for commercial interests in the No-Fly Provision undercut the purported importance of these government interests.

The Court agrees that Plaintiffs have plausibly raised questions as to how these government interests could be threatened by newsgathering but not by commercial activities. This inconsistent prohibition of UAVs indicates that the No-Fly Provisions are restricting more speech than necessary to achieve the government's alleged interests.

Plaintiffs have also plausibly pled that the No-Fly Provisions are vague and overbroad because "commercial purpose" is not defined in the exemptions from the No-Fly Provisions and is often construed to exclude newsgathering. Plaintiffs cite multiple dictionary definitions of "commercial" that do not provide clear guidance on whether photojournalism is included. For instance, "the buying and selling of goods" seems less likely to include photojournalism. Whereas Plaintiffs assert that other dictionaries define "commercial" to mean any moneymaking enterprise, seemingly more likely to include photojournalism within the definition.

But the court rejected the plaintiffs' claims that the No-Fly Provisions were preempted by the federal scheme for regulating aviation safety.

This matter comes before the Committee on Grievances for the Southern District of New York … to consider the imposition of discipline against respondent Richard Liebowitz … based upon charges brought against him by the Committee on August 5, 2020 …. Given the current status of the investigation as confidential, both the Charges and the investigation underlying their imposition are referenced without detail in this Order.

The full Committee [on Grievances for the Southern District of New York] (consisting of Chief Judge McMahon, Judges Castel, Daniels, Nathan, Stanton, Vyskocil, Magistrate Judges Aaron, Cott, and McCarthy, and the undersigned as Chair) has now reviewed [Respondent Richard Liebowitz's] submission, as well as the record developed during the Committee's investigation. After careful deliberation, the Committee is unanimously of the view that the Charges are strongly supported by the record. What is more, the Committee is unanimously of the view that interim disciplinary measures against Respondent must be put in place immediately….

The record in this case—which includes Respondent's repeated disregard for orders from this Court and his unwillingness to change despite 19 formal sanctions and scores of other admonishments and warnings from judges across the country—leads the Committee to the view that recurrence is highly likely. In short, in light of the nature and seriousness of the Charges, the strength of the record supporting those Charges, and the risk and danger of recurrence, the Committee concludes that an interim suspension of Respondent from the practice of law before this Court pending final adjudication of the charges against him is warranted.

In the exercise of its discretion, the Committee will defer the final adjudication of the charges against Respondent currently pending before this Committee, as well as any other charges this Committee sees fit to bring against Respondent in the future as part of these disciplinary proceedings, until after Respondent has had an opportunity to present his defense to the Charges at an evidentiary hearing before a Magistrate Judge of this Court.

Accordingly, for the reasons set forth above, Respondent is hereby suspended from practicing law in the Southern District of New York, effective the date hereof, pending the outcome of these proceedings and  until further order of this Court. It is further ordered that Respondent is commanded to desist and refrain from the practice of law in the Southern District of New York in any form, either as principal or agent, clerk or employee of another; that Respondent is forbidden to appear as an attorney or counselor-at-law before any judge or Court in the Southern District of New York; that Respondent is forbidden to give another an opinion as to the law or its application or advice in relation thereto as to any matter in the Southern District of New York, all effective the date hereof, until such time as disciplinary matters pending before the Committee have been concluded and until further order of this Court.

This decision may have been related to the June 26 referral by Judge Jesse Furman in Usherson, in an opinion that began thus:

Richard Liebowitz, who passed the bar in 2015, started filing copyright cases in this District in 2017. Since that time, he has filed more cases in this District than any other lawyer: at last count, about 1,280; he has filed approximately the same number in other districts. In that same period, he has earned another dubious distinction: He has become one of the most frequently sanctioned lawyers, if not the most frequently sanctioned lawyer, in the District. Judges in this District and elsewhere have spent untold hours addressing Mr. Liebowitz's misconduct, which includes repeated violations of court orders and outright dishonesty, sometimes under oath.

He has been called "a copyright troll," McDermott v. Monday Monday, LLC, No. 17-CV-9230 (DLC), 2018 U.S. Dist. LEXIS 184049, at *9-10 (S.D.N.Y. Oct. 26, 2018); "a clear and present danger to the fair and efficient administration of justice," Mondragon v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *13 (D. Colo. May 11, 2020); a "legal lamprey[]," Ward v. Consequence Holdings, Inc., No. 18-CV-1734 (NJR), 2020 WL 2219070, at *4 (S.D. Ill. May 7, 2020); and an "example of the worst kind of lawyering," id. at *3. In scores of cases, he has been repeatedly chastised, warned, ordered to complete ethics courses, fined, and even referred to the Grievance Committee. And but for his penchant for voluntarily dismissing cases upon getting into hot water, the list of cases detailing his misconduct—set forth in an Appendix here—would undoubtedly be longer.

But as the opening paragraph notes, the precise charges are not currently public.

For more on the Richard Liebowitz saga, see some of these posts.

2. On May 19, 2020, Plaintiff filed a Complaint with Jury Demand [ECF No. 01] in
this matter.

3. On November 17, 2020, the Parties entered into a Confidential Settlement
Agreement and General Release ("Agreement") in the above-captioned matter.

4. On November 20, 2020, the Parties filed a Joint Stipulation of Dismissal with
Prejudice [ECF No. 32].

5. As part of the consideration described in the Agreement, the Parties agreed to file
a joint motion requesting that the Court restrict access to the records in this lawsuit. Additionally, the public has no valid interest in the contents of these records.

6. Pursuant to D.C.COLO.LCivR 7.2, the parties request that entire proceeding related
to the above-captioned matter be deemed a Level 1 Restriction, allowing only access by the parties and the Court….

No, Judge Daniel D. Domenico held today:

The parties request that this case be restricted, but they have failed to (1) show that a private interest in restriction outweighs the presumption of public access to court filings; (2) identify a clearly defined, serious injury that will result if access is not restricted; and (3) explain why there is no less-restrictive means available than complete restriction of the case. See D.C.COLO.LCivR 7.2.

Seems quite right to me, even when the case went no further than the filing of the complaint and then the settlement, as the Second Circuit held in Bernstein v. Bernstein Litowitz Berger & Grossmann (2016):

The fact that a suit is ultimately settled without a judgment on the merits does not impair the "judicial record" status of pleadings. It is true that settlement of a case precludes the judicial determination of the pleadings' veracity and legal sufficiency. But attorneys and others submitting pleadings are under an obligation to ensure, when submitting pleadings, that "the factual contentions [made] have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery."

In any event, the fact of filing a complaint, whatever its veracity, is a significant matter of record. Even in the settlement context, the inspection of pleadings allows "the public [to] discern the prevalence of certain types of cases, the nature of the parties to particular kinds of actions, information about the settlement rates in different areas of law, and the types of materials that are likely to be sealed." Thus, pleadings are considered judicial records "even when the case is pending before judgment or resolved by settlement." IDT Corp., 709 F.3d at 1223 (citations omitted); accord Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 n.* (4th Cir.1988); Laurie Doré, Secrecy by Consent: The Use and Limits of Confidentiality in the Pursuit of Settlement, 74 Notre Dame L. Rev. 283, 378 (1999).

We therefore hold that pleadings—even in settled cases—are Judicial records subject to a presumption of public access.

FantasySCOTUS for OT 2020 continues to chug along. You can now make predictions for cases argued during the December and January sittings.

[Many of the justices seem intent on avoiding the substantive issues at stake in a case challenging the legality of Trump's plan to exclude undocumented immigrants from the apportionment count for congressional representation.]

This morning, the Supreme Court heard oral argument in Trump v. New York, a case brought by 22 state and 15 local governments challenging the legality of Donald Trump's plan to exclude undocumented immigrants from the population counts that will determine the allocation of seats in the House of Representatives. Unfortunately for those who want to get a sense of where the Court stands on the substantive legal issues, the justices spent most of their time asking the lawyers for the parties about various ways in which they might be able to avoid deciding those issues. The Census Bureau recently indicated they may not be able to get the president the data on undocumented immigrant populations he would need to submit apportionment numbers that exclude them from the total population count, before his term runs out on January 20. Many of the justices seem interested in using this fact to find a way to dismiss the case for not being "ripe," or on some other procedural ground.

Chief Justice John Roberts' very first question for acting Solicitor General Jeffrey Wall set the tone for most of the rest of the argument:

Roberts: We expedited this case in light of the Dec. 31 deadline for the secretary [of Commerce] to transmit the Census to the President. Is that date still operative? Do you still need a decision by that date?

Wall answered that "the situation is fluid," and that it is still possible that the Census Bureau might get the president at least "some" of the data he needs before time runs out. That answer didn't seem to satisfy Roberts. It didn't satisfy several of the other justices, either. Justice Stephen Breyer, for example, followed up by asking whether "can you not provide us with any more information than what you provided in your answer to the Chief Justice, which is basically 'we are working  on it'?" Wall again hedged in response.

Various justices asked whether the Census Bureau would actually be able to do much more than give Trump numbers on the 60,000 or so undocumented immigrants currently in ICE detention, plus perhaps a few others (which would not be enough to meaningfully change the allocation of congressional seats between states). Wall continued to hedge.

Justice Elena Kagan made the excellent point that the federal government does in fact already have information on the number and residence of at least some substantial categories of undocumented immigrants, such as the roughly 700,000 DACA recipients, among others. Trump could potentially exclude these groups, even if he will not have the state-by-state figures for the full population of over 10 million undocumented immigrants. Once again, Wall hedged on the question, and even declined to commit on whether Trump plans to exclude the DACA recipients or not.

There was also some discussion of exactly what remedy a court could order, given precedent making it difficult to issue an injunction against the president. Plaintiffs' lawyers argued, persuasively in my view, that the injunction can simply bind the Secretary of Commerce (whose department includes the Census Bureau) to avoid including state-by-state numbers on undocumented immigrants in the report to be used for apportionment purposes, and the president would be expected to honor the injunction by not trying to use those figures to adjust population counts for apportionment purposes in his own later submission to Congress. Wall appeared to concede that the president would have to honor such an injunction. But this issue could potentially provide an alternative basis for getting rid of the case on procedural grounds.

I doubt, however, that there will be a majority on the Court for that approach, because it would open up the possibility of widespread presidential malfeasance in future cases, where the president could evade court decisions by claiming that no judicial injunction could restrict his personal actions. It seems more likely that a majority of justices might either dismiss the case based on ripeness, or simply wait to see what happens over the next few weeks, before issuing a decision.

To be clear, both Wall and counsel for the plaintiffs emphasized that they would prefer the Court to decide the issue sooner rather than later. Many of the justices, however, seem much more reluctant. The conservatives, especially, seem interested in finding some way to avoid the substantive issues in the case.

Perhaps for that reason, there was very little discussion of those issues. A few justices—including newly appointed Justice Amy Coney Barrett—raised the point that no previous president had ever tried to systematically exclude undocumented migrants from the apportionment count. Barrett noted (correctly) that "a lot of the historical evidence and longstanding practice really cuts against your position." Wall gave the predictable answer that this is all a matter of presidential discretion, and that the fact that previous presidents didn't use it, doesn't mean Trump cannot. Still, Barrett's comments were among the few that touched on the substantive issues, and what she said suggests that the administration may not be able to count on her vote should the Court ever decide these questions.

There was almost no discussion of the fact that the text of Article I of the Constitution and of the Section 2 of the Fourteenth Amendment requires apportionment based on the total number of "persons" in each state, with the sole remaining exception of "Indians not taxed" (who at the time were not citizens of the United States). As University of Texas law Prof. Sanford Levinson and I explain in our amicus brief, this text clearly indicates that undocumented immigrants and other non-citizen residents must be included in the count, based on the normal meaning of the word "persons" and the fact that any other plausible approach would render the exclusion of "Indians not taxed" superfluous. The administration's claim that undocumented immigrants are not really residents or "inhabitants" of a state makes little sense, given that most have lived there for years and have no other home. That latter fact also distinguishes them from diplomats and tourists (who historically have not been counted).

At this point, however, it's far from clear that there is a majority of justices who actually want to decide these issues. At the very least, they may want to sit on the case unless and until it becomes clear that they really have to deal with the merits. Even Barrett indicated that it might be best for the Court to wait until the Trump administration comes up with some more definitive numbers on exactly which people they plan to exclude.

Surprisingly, in my view, there was also little discussion of the issue of whether the plaintiff state and local governments have standing to pursue the case, even though this is one of the questions the Court explicitly flagged when they granted the petition for writ of certiorari to hear the case. Some of the discussion of data availability can be seen as relevant to the standing issue, however. If the administration cannot get the data needed to exclude more than a small number of undocumented immigrants from the apportionment count, then perhaps there will be no effect on the number of House seats each state gets, and therefore no "injury" to base standing on.

CNN Supreme Court reporter Ariane de Vogue similarly concludes that many of the justices might prefer to avoid deciding the case. Her impressions are much the same as my own.

In sum, this was one of the least informative oral arguments I have ever seen in a major Supreme Court case. The one thing we learned is that many of the justices may prefer to avoid deciding the substantive issues at stake. Whether they will be able to do so remains to seen.

In February, several Ninth Circuit judges complained to the Los Angeles Times about the Trump appointees. Now, three, or possibly four Ninth Circuit judges have talked to the Times again–this time about members of the Court taking senior status with a Democrat in the White House.

The article begins:

For the last four years, some federal judges postponed retirement plans rather than give President Trump the opportunity to name more conservatives to the nation's powerful appeals courts. . .  .All eyes are now on nine active 9th Circuit judges appointed by President Clinton. They are in their 60s or 70s, and some have been waiting for a Democratic president so they can take senior status.

The first judge told the Times:

"I anticipate quite a few people doing things to enter senior status," said one of several 9th Circuit judges who predicted turnover.

The judge, however, added a caveat. "They might want to wait for a Democratic Senate, although I don't know whether that ever will happen."

That judge and others who spoke about possible turnover declined to be identified by name, saying they were unauthorized to speak for the court or their colleagues.

There is a dilemma. If the Republicans win one or two of the Georgia seats, then any vacancy could remain open for 2 years. If the Republicans win the Senate in 2022 the vacancy could remain open for 4 years. A judge could take senior status, contingent upon the confirmation of their successor. But that confirmation could happen with a Republican president. I suppose a judge could withdraw their notification to take senior status. Such a move would be brazenly political. But we are talking about the Ninth Circuit here.

The second judge told the Times:

A 9th Circuit judge noted in an interview that "Clinton judges across the country have just been holding on" for a Democratic presidency. They should make taking senior status contingent on Senate confirmation of a successor if Sen. Mitch McConnell (R-Ky.) remains majority leader, the jurist advised.

The judge expressed concern about McConnell "in light of his treatment of Merrick Garland's nomination, which I thought was a travesty."

The third judge told the Times:

A third 9th Circuit judge said politics may determine the number of Clinton appointees who take semi-retirement. "The real issue is going to be the Senate," the judge said. If Republicans retain the majority, the jurist said, moderate nominees may get through but liberals won't.

"And it is entirely possible that they [Senate Republicans] may go back to the blocking tactics they applied previously with Obama," the judge said.'

The article quotes another judge, who may be a fourth judge, but it isn't clear:

Among the Clinton appointees qualified to take senior status are 9th Circuit Judges Richard A. Paez, William A. Fletcher and Marsha S. Berzon.

"Would the Republicans let someone replace them with people similarly liberal?" a 9th Circuit judge asked. "I don't think so."

And, Erwin Chemerinsky is quoted:

Whatever the judges' inclinations, the outlook for an exodus will depend on which party controls the Senate, said Erwin Chemerinsky, dean of UC Berkeley's law school.

"I have certainly heard from some of the Democratic appointees that they would be inclined to take senior status with Biden winning," he said. "But if the Republicans control the Senate, they will want to make sure that the Republican senators will confirm Biden nominees."

James Phillips and I are writing an article about judges who strategically time their taking of senior status. By our count, there are eight Clinton appointees on the Ninth Circuit who are eligible for senior status. Six of them were eligible during the Obama administration, but held on. The other two became eligible in 2017 and 2018, respectively.

1. Judge Richard Paez (eligible on 5/5/2012)
2. Judge William A. Fletcher (eligible on 6/6/2012)
3. Judge Marsha S. Berzon (eligible on 4/7/2013)
4. Judge Ronald M. Gould (eligible on 11/22/2013)
5. Judge Susan B. Graber (eligible on 7/4/2014)
6. Judge M. Margaret McKeown (eligible on 5/11/2016) [Update: I forgot to include Judge McKeown on an earlier version of this list]
7. Judge Johnnie B. Rawlinson (eligible on 12/16/2017)
8. Judge Sidney Thomas (eligible on 8/14/2018)
9. Judge Kim McLane Wardlaw (eligible on 12/26/2019) [Update: I forgot to include Judge McKeown on an earlier version of this list]

Three W. Bush-appointed judges on the Ninth Circuit are eligible, who did not take senior status during the Trump administration:

1. Judge Milan Dale Smith Jr (eligible on 5/18/2016)
2. Judge Consuelo Callahan (eligible on 5/28/2017)
3. Judge Sandra Segal Ikuta (eligible on 6/24/2020)

One Obama-appointed judge will become eligible in 2022:

1. Judge Andrew D. Hurwitz (eligible on 10/1/2022).

And in case you are curious, Trump's appointees to the Ninth Circuit will be eligible to take senior status between 2037 and 2044.

We hope to share our research, at least in a preliminary form, before the inauguration.

Over the weekend, Prof. Thomason dropped this lawsuit, which I had written about when it was filed a year ago. As I understand it, there was no settlement; the suit was just dropped. Since free speech about legal cases and the lawyers who litigate them is likely important to many readers of blogs such as ours, I thought I'd note this latest development. Here are the details of the lawsuit, from my original Dec. 2019 post. (Note also that there has since been a Federal Circuit opinion in the underlying SFM, LLC v. Corcamore, LLC litigation, affirming the decision against Corcamore, though not opining in detail on the TTAB's "delaying tactics" conclusion)

[* * *]

[1.] In the Dec. 2018 SFM, LLC v. Corcamore, LLC decision, the Trademark Trial & Appeal Board had some harsh things to say about Corcamore's litigation tactics, including:

It is obvious from a review of the record that Respondent has been engaging for years in delaying tactics, including the willful disregard of Board orders, taxing Board resources and frustrating Petitioner's prosecution of this case. In view thereof, Petitioner's motion for sanctions in the form of judgment against Respondent also is granted pursuant to the Board's inherent authority to sanction.

Corcamore's lawyer in the case was Charles L. Thomason (listed in the docket as being in Columbus, Ohio), who was a clinical professor at Ohio State University Moritz College of Law until his recent retirement. The TTAB's decision is now on appeal to the Federal Circuit.

[2.] A few days later, the TTABlog, written by trademark lawyer John L. Welch, posted an item summarizing the case (though not mentioning Prof. Thomason's name), and adding (as an exhibit to the Prof. Thomason's Complaint notes), "TTABlog comment: What about a sanction against counsel?" This led to three comments, which I quote from another exhibit to the Complaint:

[3.] Last week [i.e., in December 2019], Prof. Thomason sued the three commenters for libel; but it seems to me that his legal theory is not sound.

[A.] The Dreitler comment began with what seems to be a correct statement of two facts—that Corcamore's lawyer was an Ohio State law professor, and that the client was sanctioned. It seems to err in saying that the "case [was] dismissed"; rather, it was the client's opposition to the cancellation proceeding that was effectively dismissed, and the other side prevailed. But that mischaracterization of the procedural situation wouldn't be damaging to Prof. Thomason's reputation; the implication of "case [was] dismissed" is that the client lost, and that is correct. (Note also that Prof. Thomason has apparently retired, and the last class I could find him teaching was in Spring 2018, so it's possible that the Dreitler comment was slightly imprecise in its tense; but any error as to that wouldn't be damaging to Prof. Thomason's reputation, either, and Thomason's Complaint more generally speaks of Thomason as a law professor, in the present tense.)

The Dreitler comment then turned to an inference that the lawyer is responsible for the result and the litigation tactics, followed by an opinion about what should happen, and what the lawyer allegedly deserves: "the Board certainly ought to sanction" the lawyer. But such opinions, however derogatory they may be, aren't actionable libel.

Now libel law recognizes that "a statement in the form of an opinion" may be actionable "if it implies the allegation of undisclosed defamatory fact as the basis for the opinion." (That's from the Restatement (Second) of Torts § 566, which the Kentucky Supreme Court has expressly adopted.) But "where the commentator states the facts on which the opinion is based, or where both parties to the communication know or assume the exclusive facts on which the comment is clearly based," there can be no liability. And that seems to be what happened here: The initial TTABlog post summarized the court opinion (in a way that Thomason's Complaint doesn't claim is defamatory); the comment accurately stated a further fact (that Thomason was a law professor) and then expressed an opinion based on those facts.

Thomason's Complaint says,

[31.] Defendant Joseph Dreitler's comments defamed plaintiff, in particular, plaintiff's professionalism, legal ability, as well as his standing as a full-time faculty member teaching at the College of Law of The Ohio State University.

[32.] Defendant Joseph Dreitler's comments stated or indicated that plaintiff was unfit for his job and duties as a law professor.

But this doesn't explain why Dreitler's comment contained any false factual allegation, as opposed to derogatory opinions. Later, the Complaint asserts (in ¶ 63) that, "each defendants' comments imply or give the impression that they have knowledge of other false and defamatory facts, on which they relied when writing the comments they published on non-party Welch's blog." But I don't see how that's so: Rather, the comments appear to just refer to the original post and the opinion cited in it, plus, in Ms. deWolf's case, the other opinion that she cites.

[B.] The Reidl comment likewise seems to be opinion: An overt "guess" that Thomason, as the lawyer, was responsible for the party's filings (an inference from the disclosed facts), followed by an inference about Thomason's mental state coupled (that he is one of those "lawyers who think this is all a game that they … 'win' by being jerks"). "[A]nyone is entitled to speculate on a person's motives from the known facts of his behavior." Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993); see also Scholz v. Delp, 473 Mass. 242, 251, 41 N.E.3d 38, 46 (2015); Gacek v. Owens & Minor Distribution, Inc., 666 F.3d 1142, 1147-48 (8th Cir. 2012).

The Complaint asserts,

[37.] The comments defendant Paul Reidl published to non-party Welch's blog post were defamatory and directed at the plaintiff, and were defamatory per se under Kentucky law….

[38.] Defendant's comments stated or indicated that plaintiff was unfit for his job and duties as a law professor, and separately as an IP litigation attorney….

[63.] The defendants' comments include false assertions about the plaintiff "teaching at the Ohio State law school," false reference to attorney-client privileged communications about "TTAB procedure" and false assertions about the client not "being advised" but un-advised and so knowing "nothing" about such procedures, malicious comments that plaintiff is a "lawyer who thinks" adjudicative procedures are "a game," and is a "jerk," and that the plaintiff is "unprofessional" even though that word never appears in the Cancellation decision referenced in non-party Welch's blog post.

But again it doesn't explain how the comments contained false factual assertions, as opposed to pejorative characterizations and opinions.

[C.] The deWolf comment correctly points out that Thomason had "been called out for unprofessional conduct" by the Thomason v. Lehrer opinion (issued Aug. 21, 1998); that opinion begins,

In what has unfortunately become a far too frequent occurrence in this era of "scorched-earth" litigation tactics, an errant attorney has lost sight of his professional obligations to his client, his profession, and this Court.

And it continues,

The circumstances of this case, however, present the unhappy picture of a lawyer who has crossed the boundary of legitimate advocacy into personal recrimination against his adversary. Lawyers are not free, like loose cannons, to fire at will upon any target of opportunity which appears on the legal landscape. The practice of law is not and cannot be a "free fire zone." While I will impose these sanctions pursuant to the authority conferred upon me by Rule 11, I join with those who urge the legal profession to return to the standards of professionalism which have characterized the bar throughout the history of our nation.

Thomason's complaint objects (¶ 45) that "Defendant deWolf's comment omitted mentioning that a later decision of the U.S. Court of Appeals for the Third Circuit abrogated the Lehrer case." Indeed, the Third Circuit decision in U.S. Express Lines, Inc. v. Higgins, did reverse one of the legal conclusions in a later (Oct. 27, 1998) opinion in Thomason: The District Court in Thomason had rejected Thomason's abuse of process claim, on the grounds that alleged misconduct in a federal case should be dealt with within that case, rather than through a new lawsuit; the Third Circuit in U.S Express Lines rejected that position. But the heart of the Aug. 21, 1998 Thomason opinion pointed to by deWolf seems to me to have been unaffected by U.S. Express Lines; the court wrote in that opinion,

Thomason's section 1983 claim, specifically, the allegation that Lehrer acted under color of state or federal law by representing Absolute and Knight in asserting counterclaims against Thomason, is sanctionable under, inter alia, Rule 11(b)(2) because it is not warranted by existing law or nonfrivolous arguments for an extension or expansion of existing law….

As I have already held, Thomason's allegations that Lehrer acted under color of state or federal law in representing Absolute and Knight when Absolute and Knight named Thomason as a Defendant to their counterclaims, are wholly without merit. Even a casual investigation, let alone the reasonable inquiry required by Rule 11, see Fed.R.Civ.P. 11(b), would have revealed to Thomason that much more participation by the state and invocation of state powers and procedures is required to transform the attorney representing the client who merely alleges those claims into a state actor for the purposes of section 1983. Count I of the Second Amended Counterclaim was not "warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law."

And that "call[ing] out" of Thomason, to my knowledge, had not been reversed by the Third Circuit.

[4.] I'm also skeptical that the federal court in Kentucky has personal jurisdiction over the commenters, who seem to be in Ohio, California, and New York. The caselaw on Internet libel jurisdiction is complicated, but the most on-point Sixth Circuit case seems to cut against Thomason here. (That decision is unpublished and therefore only persuasive precedent rather than binding precedent, but it has been cited over 40 times by federal district courts in the Sixth Circuit.) In that case, the Sixth Circuit held that there was no jurisdiction in Ohio over Internet commenters who spoke about an Ohioan:

[W]hile the "content" of the publication was about an Ohio resident, it did not concern that resident's Ohio activities. Furthermore, nothing on the website specifically targets or is even directed at Ohio readers, as opposed to the residents of other states. Appellant argues that if [defendant's] goal was only to reach Massachusetts readers, then he should have used only local media, not the internet. The law does not require that people avoid using the internet altogether in order to avoid availing themselves of the laws of every state. See Revell v. Lidov, 317 F.3d 467, 473 (5th Cir.2002) (finding that Columbia University's maintenance of a website and internet message board, on which one of its professors posted an article that criticized the Texas plaintiff, was insufficient to confer personal jurisdiction in Texas over the university or the professor, because the "article written by Lidov about Revell contains no reference to Texas, nor does it refer to the Texas activities of Revell, and it was not directed at Texas readers as distinguished from readers in other states"). Additionally, although Appellant claims that [defendant]'s website links to a class action form and thereby solicits litigants, there is nothing in this form that targets Ohio, let alone mentions [plaintiff], and there is no allegation that [defendant] used this form to make repeated online contacts with Ohio residents. Consequently, because the website was not directed toward Ohio in its content or in its target audience, the case is closer to Revell and Reynolds than Calder.

Change Ohio here to Kentucky (the state in which Thomason sued), and the quote fits well: The commenters weren't speaking about Kentucky, deliberately addressing Kentucky residents, or opining about some Kentucky-specific activities on Thomason's part.

So my guess is that defendants can quickly get the case dismissed on personal jurisdiction grounds, or, if necessary, on a 12(b)(6) motion to dismiss for failure to state a claim. I'll try to keep our readers posted as to any substantive developments.

It is nearly a month since election day and yet discredited and debunked claims of election fraud or "irregularities" continue to go viral on social media platforms. Even some otherwise reputable commentators seem to get sucked in. What is particularly frustrating is that so many of these claims are easy to check, and yet so few bother to make the effort.

So, for example, various sites breathlessly report about thousands of absentee ballots in Pennsylvania and Michigan that were returned on the same day they were requested. How could this be?!? In both states, voters were allowed (and often encouraged) to request and return absentee ballots in person at local election offices. Indeed, in both states early in-person voting was conducted just this way. The voter goes to their local election office, requests an absentee ballot, receives it and fills it out on the spot, and then returns it, all in one visit (as both the PA and MI Secretary of State sites make clear). These were technically "absentee" ballots—and recorded as such—though used for early in-person voting.

Powerline posted on an allegedly anomalous voter turnout spike in Wisconsin that vanishes upon examination: The spike was caused by comparing turnout as a percentage of eligible voters for 2016 with turnout as a percentage of registered voters in 2020. The apples-to-apples comparison shows turnout increased slightly—as one would expect given the stakes of the election and how much easier early and absentee voting was this year—and the alleged spike disappears.

These are hardly the only easy-to-check claims that got spread before folks bothered to check the facts. Through a link on Instapundit, I found this American Thinker piece that is emblematic of the claims that purport to show "election theft"—and illustrative of how weak these claims are.

The article starts off with the "stunning fact" that Pennsylvania sent out 1.8 absentee or mail-in ballots, logged the return of 1.4 million mail-in ballots, but counted 2.5 million mail-in ballots. This claim was made by Rudy Giuliani at the Pennsylvania "hearing" on election irregularities. And it turns out this "stunning fact" is not true. As the American Thinker piece concedes in an update, "contemporaneous data completely contradicts Giuliani's statement." Whoever fed Rudy this claim confused primary and general election data. 1.8 million mail-in ballots were sent out in the primaries, but 3 million were sent out for the general election.

Continuing through the piece things don't much improve. There are various versions of purportedly anomalous "vote spike" claims (which ignore how vote tallies are reported in batches that, depending on the location, often swing heavily for one candidate or the other), and a credulous cite to the Ramsland affidavit, which purports to show vote fraud in Michigan by accidentally confusing Michigan and Minnesota county level data. (Practice tip: MI and MN signify different states.) And so on.

That batches of absentee ballots from deep blue precincts would swing heavily to Joe Biden should not surprise anyone. For weeks leading up to the election Democrats and media commentators urged people to vote early, while Trump surrogates dismissed the reliability of mail-in voting. Thus it was entirely predictable that mail-in vote totals in deep blue precincts were significantly bluer than election day tallies. [And, as Dan McLaughlin details here, claims that Biden only improved on Clinton's vote totals in four swing-state cities are simply false. Some other election irregularities are actually an artifact of "bad data cleaning," and the failure to note that precincts may move, merge, or shift between elections.]

Conservative commentator AG_Conservative has a useful round up and debunking of other viral election fraud claims (with lots of links) on his Patreon page. Or, if you prefer an MSM outlet, USA Today has its own index of election fraud fact checks. And then there are the silly statistical claims, such as the contention that "Benford's law" somehow shows Biden's vote totals were too improbable to be believed. [For more, see this excellent interview with Christopher Krebs, Trump's Director of the Cybersecurity and Infrastructure Security Agency in the Department of Homeland Security.]

Conspiratorial claims about election theft are hardly new to 2020. We saw outrageous claims about the 2016 Presidential election and 2018 gubernatorial race in Georgia. Partisans do not like to believe that their candidate lost and often grasp at straws to show that their loss was "illegitimate."

As an Ohio resident, I still remember all the ridiculous claims made about Ohio in 2004, many of which were based upon ridiculous claims of statistical anomalies or concerns that vote totals didn't correlate closely enough to the exit polls. Substitute "Diebold" for "Dominion voting Systems" and you'll get the idea of the sorts of claims that were made. In the end, a few dozen members of the House and one Senator voted against certifying the election results in January 2005.

The claims Ohio was stolen spread more slowly, in part, due to the lack of viral social media channels. More importantly, political leaders and commentators showed more principle and character. John Kerry quickly conceded the election, and party leaders (with the exception of Rep. John Conyers) fell into line, throwing cold water on claims of a Buckeye State conspiracy.

The contrast to 2020 is striking. Kerry put country over party and personal interest. Trump has not. Instead, the President has refused to concede and party officials (encouraged and magnified by online grifters and media personalities) have stoked and spread bogus election fraud claims and pretended as if there is a way to overturn the election results in court.

We've learned not to expect any better from Trump. It is disappointing we cannot expect better from others who claim to act on principle and to care about truth.

[Note: Material in brackets was added after I initially published this post.]

Over my many years of blogging, I've heard from quite a few VC readers who live and work in the D.C. area and were interested in getting a law degree at George Mason Law (Scalia Law), but (a) didn't want to give up their current job; and (b) due to work and family obligationscouldn't swing the 5(!) nights of in-person class a week we required.

So I thought it was worth mentioning that the law school has a new "flex" JD program, in which students can attend classes in person as few as two nights per week, and still receive their part-time JD in the standard four years.

[But any sufficiently familiar technology is indistinguishable from nature.]

I was flattered but also surprised when Eugene Volokh kindly invited me to contribute a week of guest posts, since my new book, The Fabric of Civilization: How Textiles Made the World, is not about the law. It examines the central role textiles have played in the history of innovation, from pre-history to the near future. Fortunately, Eugene and his fellow conspirators are as guided by intellectual curiosity as by legal reasoning, and mixing it up, he assured me, would make the blog "fun and eclectic."

In this post, drawn from the book's introduction, I start with an insight from the influential computer scientist Mark Weiser, writing in 1991. "The most profound technologies are those that disappear," he wrote. "They weave themselves into the fabric of everyday life until they are indistinguishable from it."

Do you see what he did there?

We hairless apes co-evolved with our cloth. From the moment we're wrapped in a blanket at birth, we are surrounded by textiles. They cover our bodies, bedeck our beds, and carpet our floors. Textiles give us seatbelts and sofa cushions, tents and bath towels, bandages and duct tape. They are everywhere.

But, to reverse Arthur C. Clarke's famous adage about magic, any sufficiently familiar technology is indistinguishable from nature. It seems intuitive, obvious—so woven into the fabric of our lives that we take it for granted. We no more imagine a world without cloth than one without sunlight or rain.

We drag out heirloom metaphors—"on tenterhooks," "tow-headed," "frazzled"—with no idea that we're talking about fabric and fibers. We repeat threadbare clichés: "whole cloth," "hanging by a thread," "dyed in the wool." We catch airline shuttles, weave through traffic, follow comment threads. We speak of lifespans and spinoffs and never wonder why drawing out fibers and twirling them into thread looms so large in our language. Surrounded by textiles, we're largely oblivious to their existence, and to the knowledge and efforts embodied in every scrap of fabric.

Cloth-making is a creative act, analogous to other creative acts. It is a sign of mastery and refinement. "Can we expect, that a government will be well modelled by a people, who know not how to make a spinning-wheel, or to employ a loom to advantage?" wrote philosopher David Hume in 1742. The knowledge is all but universal. Rare is the people that does not spin or weave and rare, too, the society that does not engage in textile-related trade.

The global story of textiles illuminates the nature of civilization itself. I use this term not to imply moral superiority or the end state of an inevitable progression but in the more neutral sense suggested by Mordecai Kaplan's definition: "the accumulation of knowledge, skills, tools, arts, literatures, laws, religions and philosophies which stands between man and external nature, and which serves as a bulwark against the hostility of forces that would otherwise destroy him." This description captures two critical dimensions that together distinguish civilization from related concepts, such as culture.

First, civilization is cumulative. It exists in time, with today's version built on previous ones. A civilization ceases to exist when that continuity is broken. Minoan civilization disappeared. Conversely, a civilization may evolve over a long stretch of time while the cultures that make it up pass away or change irrevocably. The Western Europe of 1980 was radically different in its social mores, religious practices, material culture, political organization, technological resources, and scientific understanding from the Christendom of 1480, yet we recognize both as Western civilization.

The story of textiles demonstrates this cumulative quality. It lets us trace the progress and interactions of practical techniques and scientific theory: the cultivation of plants and breeding of animals, the spread of mechanical innovations and measurement standards, the recording and replication of patterns, the manipulation of chemicals. We can watch knowledge spread from one place to another, sometimes in written form but more often through human contact or the exchange of goods, and see civilizations become intertwined.

Second, civilization is a survival technology. It comprises the many artifacts—designed or evolved, tangible or intangible—that stand between vulnerable human beings and natural threats and that invest the world with meaning. Providing protection and adornment, textiles are themselves among such artifacts. So, too, are the innovations they inspire, from better seeds to weaving patterns to new ways of recording information.

Along with the perils and discomforts of indifferent nature, civilization protects us from the dangers posed by other humans. Ideally, it allows us to live in harmony. Eighteenth-century thinkers used the term to refer to the intellectual and artistic refinement, sociability, and peaceful interactions of the commercial city. But rare is the civilization that exists without organized violence. At best, civilization encourages cooperation, curbing humanity's violent urges; at worst, it unleashes them to conquer, pillage, and enslave. The history of textiles reveals both aspects.

Every scrap of cloth  represents the solution to innumerable difficult problems. Many are technical or scientific: How do you breed sheep with thick, white fleeces? How do you maintain enough tension to spin fibers together without breaking them? How do you prevent dyes from fading? How do you construct a loom that can weave complex patterns?

Some of the trickiest, however, are social: How do you finance a crop of silkworms or cotton, a new spinning mill, or a long-distance caravan? How do you record weaving patterns so someone else can duplicate them? How do you pay for textile shipments without physically sending currency? What do you do when the law forbids the cloth you want to make or use?

In the posts that follow, I'll concentrate on some of the institutions and practices—"social technologies"—that addressed these types of questions.

I've always much enjoyed the work of Virginia Postrel (who, among many other things, was once the editor-in-chief of Reason), and I'm delighted to report that she'll be guest-blogging this week about her new book, The Fabric of Civilization: How Textiles Made the World. From the publisher's description:

The story of humanity is the story of textiles—as old as civilization itself. Since the first thread was spun, the need for textiles has driven technology, business, politics, and culture.

In The Fabric of Civilization, Virginia Postrel synthesizes groundbreaking research from archaeology, economics, and science to reveal a surprising history. From Minoans exporting wool colored with precious purple dye to Egypt, to Romans arrayed in costly Chinese silk, the cloth trade paved the crossroads of the ancient world. Textiles funded the Renaissance and the Mughal Empire; they gave us banks and bookkeeping, Michelangelo's David and the Taj Mahal. The cloth business spread the alphabet and arithmetic, propelled chemical research, and taught people to think in binary code.

Assiduously researched and deftly narrated, The Fabric of Civilization tells the story of the world's most influential commodity.

And just part of the suitably electic collection of blurbs:

"We are taken on a journey as epic, and varying, as the Silk Road itself… [The Fabric of Civilization is] like a swatch of a Florentine Renaissance brocade: carefully woven, the technique precise, the colors a mix of shade and shine and an accurate representation of the whole cloth."
―New York Times

"From the Stone Age to Silicon Valley, textiles have played a central role in the history of the world. Virginia Postrel has an encyclopedic knowledge of the subject but she imparts it with a touch as light as Penelope's at the loom. Ambitious, erudite, and absorbing, The Fabric of Civilization is both an education and a pleasure to read."―Barry Strauss, author of Ten Caesars: Roman Emperors from Augustus to Constantine

"Virginia Postrel has created a fascinating history of textiles from their Palaeolithic beginnings to the present and future—from the earliest plant fibers plucked from weeds to synthetic fabrics with computer chips in the threads. And why, you say, should we examine mere cloth? Precisely because it fills more and more roles in our lives, yet we take it for granted…. Well researched and highly readable, the book is a veritable treat."
―Elizabeth Wayland Barber, author of Women's Work: The First 20,000 Years Women, Cloth, and Society in Early Times and Prehistoric Textiles

"A fascinating, surprising and beautifully written history of technology, economics, and culture, told through the thread of textiles, humanity's most indispensable artefacts. I loved it."
―Matt Ridley, author of How Innovation Works

"The story of technology is a story of human ingenuity, and nowhere is this more clear than in the story of textiles: the original technology, going beyond what we commonly think of as 'tech.' As with many technologies, we suffer an amnesia about them when we enjoy them in abundance, as Postrel observes; her book gives us back our memories about this technology that we use every day without even knowing it."
―Marc Andreessen, co-founder, Netscape and Andreessen Horowitz

"Cleanly written and completely accessible, this book opens up an entirely new world of textiles, explaining the most ancient archeological fabrics and the latest polymer blends that cool the body—not warm it as textiles have done for thousands of years—with equal verve."
―Valerie Hansen, author of The Year 1000: When Explorers Connected the World—and Globalization Began

"Postrel's brilliant, learned, addictive book tells a story of human ingenuity…. Her deep story is of the liberty that permitted progress. Presently the descendants of slaves and serfs and textile workers got closets full of beauty, and fabric for the cold, a Great Enrichment since 1800 of three thousand percent."
―Deirdre Nansen McCloskey, author of the Bourgeois Era trilogy

"Fascinating and wide-ranging… This is an engrossing and illuminating portrait of the essential role fabric has played in human history."
―Publishers Weekly

I very much look forward to Virginia's visit!

Earlier today, Eugene blogged about Kentucky ex rel. Danville Christian Academy, Inc. v. Beshear. The Kentucky Governor, a Democrat, prohibited in-person instruction at all public and private schools. The Kentucky Attorney General, a Republican, challenged the constitutionality of that order. The District Court ruled before Diocese, and found that the order violated the Free Exercise Clause. The District Court entered a Commonwealth-wide injunction that applied to all religious schools. On appeal, a panel of the Sixth Circuit stayed the injunction.

The sweetest sentence came on the penultimate page:

In determining that plaintiffs are unlikely to succeed on the merits of their Free Exercise claim, we also have no need to rely upon either South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Mem.) (Roberts, C.J., concurring), or Jacobson v. Massachusetts, 197 U.S. 11 (1905).

Amen. No court should have ever relied on those precedents. Earlier this week, I wrote that Diocese marked the end of the South Bay "Superprecedent." So far, so good.

The panel proceeded to distinguish this case from Diocese.

Moreover, the order at issue in Roman Catholic Diocese treated schools, factories, liquor stores, and bicycle repair shops, to name only a few, "less harshly" than houses of worship. 2020 WL 6948354 at *2; see also id. at *4 (Gorsuch, J., concurring). Similarly, the orders at issue in Roberts and Maryville Baptist Church excepted from their requirements airlines, funeral homes, liquor stores, and gun shops, again to name only a few. See Roberts, 958 F.3d at 414; Maryville Baptist Church, 957 F.3d at 614. No such comparable exceptions apply to Executive Order 2020-969. And the exceptions expressly provided for in the order—for "small group in-person targeted services" and "private schools conducted in a home"—are nothing like "the four pages of exceptions in the orders" addressed in Roberts, 958 F.3d at 413. The contours of the order at issue here also in no way correlate to religion, and cannot be plausibly read to contain even a hint of hostility towards religion. Cf. Roman Catholic Diocese, 2020 WL 6948354, at *1.

The panel also looked favorably to Justice Kavanaugh's concurrence.

Justice Kavanaugh has reasoned that, under Smith, 494 U.S. 872, we should look "not [to] whether religious worship services are all alone in a disfavored category, but why they are in the disfavored category to begin with." Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2614 (2020) (Mem.) (Kavanaugh, J., dissenting). Here, religious schools are in the category of "K–12 schools" because the reasons for suspending in-person instruction apply precisely the same to them. See Church of Lukumi, 508 U.S. at 543. Any burden on plaintiffs' religious practices is "incidental" and therefore not subject to strict scrutiny. See Roberts, 958 F.3d at 413. In Justice Kavanaugh's concurrence in Roman Catholic Diocese, he emphasized that, "[i]n light of the devastating pandemic, . . . the State[ has the] authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike." 2020 WL 6948354, at *8 (Kavanaugh, J., concurring). Executive Order 2020-969 does just that. Unlike in Roman Catholic Diocese, there is no evidence that the challenged restrictions were "targeted" or "gerrymandered" to ensure an impact on religious groups. Id. at *1. In addition, while many of the houses of worship in Roman Catholic Diocese could seat well over 500 people, they were subject to attendance caps of ten or twenty-five persons, while retail businesses were not. See id. at *2. There is no comparable harsh requirement aimed at religious institutions here.

The Governor drew a very favorable panel (Moore, Rogers, and White) given the Sixth Circuit's current makeup. I think Judge Moore was wise to cite Justice Kavanaugh. But she completely missed his "most favored" right methodology. She was trying to cert-proof her opinion. It won't work.

Perhaps the Attorney General could seek the equivalent of en banc review of the stay application. I'm not sure if the Sixth Circuit permits such an application for en banc. (The validity of that procedure is an open question in the Fifth Circuit.) Or the Attorney General could seek a stay application from the Supreme Court. I hope the Court can clarify, now or later, precisely what makes a law not neutral. And here we have a slightly different context: religious schools, rather than houses of worship.

On appeal, this case may shake out differently than Diocese. Here, the District Court granted an injunction. The Chief would not have to issue an injunction. He would simply decide whether to stay the Court of Appeals's stay.

"The claimants are right in saying that the measure is disproportionate in light of protecting the public's health … thus it is a serious and illegal infringement on the freedom of worship," the council said….

"No other activity is limited by such a limitation regardless of surface area," [the Conference of French Bishops] said.

Catholic organisations are proposing to allow churches to utilise 30% of their seating capacity.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Flash back to October 2016. Justice Scalia's seat was vacant. Hillary Clinton was almost President-elect. And a quasi-conservative majority would soon be a thing of the past. Forget Merrick Garland. The Court would now have a permanent liberal majority for a generation. And progressives were ecstatic. Conservative precedents like Heller, Citizens United, Shelby County, and others cases were on the chopping block. Originalism was dead. And then election day happened. Trump won and appointed Justice Gorsuch to the Court. Then, Justice Kennedy retired, and was replaced by Justice Kavanaugh.

Now, flash back to September 2020. Joe Biden was almost President-elect. He would be ushered into Congress by a blue wave. Large majorities in both houses of Congress would eliminate the filibuster, and pass "Court Reform" legislation. Nine is a good number, but eleven is better. Conservative precedents like Heller, Citizens United, Shelby County, and others cases were once again on the chopping block. But once again, things did not go according to plan. Justice Ginsburg passed away. President Trump filled the vacancy with Justice Barrett. Biden won the election, but there was no blue wave. The Democratic majority shrank. And, best case scenario, the Democrats will have 50 votes in the Senate. "Court Reform" is off the table, at least for the next two, and probably four years.

This loss must be so difficult, because victory was so close. For the second election cycle in a row, progressives counted their SCOTUS chickens before they hatched. I don't take joy in this loss–call it Garlandfreude. Instead, I take away an important lesson. Over the next two-to-four years, when progressives criticize the Court–as they certainly will–I will frame their criticism in terms of what could have been. Every Kagan dissent could have been a Kagan majority. Every Gorsuch concurrence could have been a Gorsuch dissent. Every conservative cert grant should have been a cert denied. Every circuit vacancy that remains vacant should have been filled with a shortlister. Every conservative circuit en banc opinion should have been a conservative dissental. And so on.

Conservatives can commiserate. Stevens. O'Connor. Bork. Ginsburg. Kennedy. Souter. Roberts. Victory was so close, they could taste it. And so on.

From Kentucky ex rel. Danville Christian Academy, Inc. v. Beshear, decided today by Judges Karen Nelson Moore, John Rogers, and Helene White (see here for the District Court order which this reverses):

This is an appeal from a preliminary injunction, primarily based on the Free Exercise Clause of the First Amendment, against enforcement of a COVID-19-related executive order by Governor Andrew G. Beshear prohibiting in-person instruction at all public and private elementary and secondary schools in the Commonwealth…. The order excepts from its requirements "small group in-person targeted services" and "private schools conducted in a home solely for members of that household." The order also excepts, by omission, both preschools and colleges or universities.

As the Governor explains, elementary and secondary schools pose unique problems for public health officials responding to the COVID-19 pandemic. Compliance with masking and social distancing requirements is difficult to maintain, and students receiving in-person instruction must in any event remove their facial coverings to eat. The Commonwealth is particularly vulnerable to these problems, as it "leads the nation in children living with relatives other than their parents—including grandparents and great-grandparents, who are especially vulnerable to the disease." …

"The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, provides that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….'" Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993) (alteration in original) (internal citation omitted). "On one side of the line, a generally applicable law that incidentally burdens religious practices usually will be upheld." Roberts v. Neace (6th Cir. 2020) (citing Emp. Div. v. Smith (1990)). "On the other side of the line, a law that discriminates against religious practices usually will be invalidated because it is the rare law that can be 'justified by a compelling interest and is narrowly tailored to advance that interest.'"

Executive Order 2020-969 applies to all public and private elementary and secondary schools in the Commonwealth, religious or otherwise; it is therefore neutral and of general applicability and need not be justified by a compelling governmental interest….

Recent binding and persuasive authority does not compel a contrary result. In Roman Catholic Diocese of Brooklyn v. Cuomo (2020), the challenged COVID-19 order restricted attendance at religious services. In Roberts and Maryville Baptist Church, Inc. v. Beshear (6th Cir. 2020), the challenged COVID-19 orders prohibited attendance at drive-in and in-person worship services. The orders at issue in those cases, applying specifically to houses of worship, are therefore distinguishable.

Moreover, the order at issue in Roman Catholic Diocese treated schools, factories, liquor stores, and bicycle repair shops, to name only a few, "less harshly" than houses of worship. Similarly, the orders at issue in Roberts and Maryville Baptist Church excepted from their requirements airlines, funeral homes, liquor stores, and gun shops, again to name only a few. No such comparable exceptions apply to Executive Order 2020-969. And the exceptions expressly provided for in the order—for "small group in-person targeted services" and "private schools conducted in a home"—are nothing like "the four pages of exceptions in the orders" addressed in Roberts. The contours of the order at issue here also in no way correlate to religion, and cannot be plausibly read to contain even a hint of hostility towards religion.

Justice Kavanaugh has reasoned that, under Smith, we should look "not [to] whether religious worship services are all alone in a disfavored category, but why they are in the disfavored category to begin with." Here, religious schools are in the category of "K–12 schools" because the reasons for suspending in-person instruction apply precisely the same to them. Any burden on plaintiffs' religious practices is "incidental" and therefore not subject to strict scrutiny. In Justice Kavanaugh's concurrence in Roman Catholic Diocese, he emphasized that, "[i]n light of the devastating pandemic, … the State[ has the] authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike." Executive Order 2020-969 does just that. Unlike in Roman Catholic Diocese, there is no evidence that the challenged restrictions were "targeted" or "gerrymandered" to ensure an impact on religious groups. In addition, while many of the houses of worship in Roman Catholic Diocese could seat well over 500 people, they were subject to attendance caps of ten or twenty-five persons, while retail businesses were not. There is no comparable harsh requirement aimed at religious institutions here….

We are not in a position to second-guess the Governor's determination regarding the health and safety of the Commonwealth at this point in time. See Roman Catholic Diocese ("Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area."). Because Executive Order 2020-969 is neutral and generally applicable, we also need not address the Governor's argument that the order is in any event narrowly tailored to advance a compelling governmental interest. That requirement applies only if the challenged restriction is not neutral and generally applicable. In determining that plaintiffs are unlikely to succeed on the merits of their Free Exercise claim, we also have no need to rely upon either South Bay United Pentecostal Church v. Newsom (2020) (Roberts, C.J., concurring), or Jacobson v. Massachusetts (1905).