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Greve: Prosecuting with Dynamite

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by Publius
Posted November 04, 2014, 2:13 PM

Prosecuting with Dynamite | Library of Liberty and Law BlogAt the Library of Law and Liberty Blog, Michael S. Greve comments:

So here’s how this went down, supposedly: Mr. Yates, a commercial fisherman, tools around on his “Miss Katie” in the Gulf of Mexico. Along comes a vessel with government officials (state officials, but deputized by the feds to enforce federal fishing laws). The officials board Miss Katie and find suspicious red grouper: the fish look too small. They measure some of the fish and find that six dozen are below the legal size of 20 inches. They instruct Mr. Yates to keep the small fish in an ice box until docking, and depart. Mr. Yates instructs his crew to toss the offending fish overboard and to replace them with legal specimens.

He gets indicted and convicted (30 days in the slammer and three years supervised release)—under what law? 18 USC 2232(a) (destruction or removal of property to prevent seizure); and (drumroll!) the Sarbanes Oxley Act (SarbOx). Enacted in the wake on the Enron scandal to combat financial wrongdoing, SarbOx threatens up to 20 years in prison for anyone who

"knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States." [18 USC 1519]

The fish are “tangible objects” and so good night, says the government. Wrong, say Mr. Yates’ lawyers and numerous amici: the statute prohibits making a false entry [etc] in any record, document, or tangible object—like a computer. It’s aimed at punishing the destruction of information, and the fish had none.

Read the full article.

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SCOTUS Orders: No new grants, one original action, no action on King v. Burwell

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by Publius
Posted November 03, 2014, 10:35 AM

SCOTUS OrdersThere were no new cert grants today (though the Court did grant the filing of a complaint in an original action involving the states of Florida and Georgia, see below).  No action was taken on the latest Affordable Care Act case (King v. Burwell)--the Court may be waiting to see what the DC Circuit does en banc. The order list is here.

There were a few notable orders in pending cases:

1) Texas v. New Mexico (original action): A. Gregory Grimsal was appointed special master

2) Florida v. Georgia (original action): Florida's motion for leave to file a bill of complaint was granted.  The question presented is whether Florida is entitled to equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and appropriate injunctive relief against Georgia to sustain an adequate flow of fresh water into the Apalachicola Region.

3) Young v. UPS:  Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted.  The question presented in this case is whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

Notable cert denials included: The Episcopal Church v. The Episcopal Diocese of Fort Worth:  Questions presented: (1) Whether the First Amendment or Jones v. Wolf requires courts to enforce express trusts recited in general-church governing documents (as some jurisdictions hold), or whether such a trust is enforceable only when it would otherwise comply with state law (as others hold); (2) whether retroactive application of the neutral-principles approach infringes free-exercise rights; and (3) whether the neutral-principles approach endorsed in Jones remains a constitutionally viable means of resolving church-property disputes, especially in light of Hosanna-Tabor v. EEOC.

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The New Yorker: Is Social Psychology Biased Against Republicans?

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by Publius
Posted October 31, 2014, 1:46 PM

Photo by the Miller Center. Just in time for our Yale chapter's conference on "Achieving Intellectual Diversity," Maria Konnikova in The New Yorker writes about Jonathan Haidt's take on intellectual diversity: 

On January 27, 2011, from a stage in the middle of the San Antonio Convention Center, Jonathan Haidt addressed the participants of the annual meeting of the Society for Personality and Social Psychology. The topic was an ambitious one: a vision for social psychology in the year 2020. Haidt began by reviewing the field that he is best known for, moral psychology. Then he threw a curveball. He would, he told the gathering of about a thousand social-psychology professors, students, and post-docs, like some audience participation. By a show of hands, how would those present describe their political orientation? First came the liberals: a “sea of hands,” comprising about eighty per cent of the room, Haidt later recalled. Next, the centrists or moderates. Twenty hands. Next, the libertarians. Twelve hands. And last, the conservatives. Three hands.

Social psychology, Haidt went on, had an obvious problem: a lack of political diversity that was every bit as dangerous as a lack of, say, racial or religious or gender diversity. It discouraged conservative students from joining the field, and it discouraged conservative members from pursuing certain lines of argument. It also introduced bias into research questions, methodology, and, ultimately, publications. The topics that social psychologists chose to study and how they chose to study them, he argued, suffered from homogeneity. The effect was limited, Haidt was quick to point out, to areas that concerned political ideology and politicized notions, like race, gender, stereotyping, and power and inequality. “It’s not like the whole field is undercut, but when it comes to research on controversial topics, the effect is most pronounced,” he later told me. (Haidt has now put his remarks in more formal terms, complete with data, in a paper forthcoming this winter in Behavioral and Brain Sciences.)

Read the full article.

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Anatomy of a Conspiracy: WSJ Reviews “Law of the Jungle”

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by Publius
Posted October 29, 2014, 8:40 AM

Anatomy of a Conspiracy: WSJ Reviews Bret Stephens at The Wall Street Journal recently reviewed "Law of the Jungle" by Paul M. Barrett, a book about the $19 billion legal battle between Ecuador and Chevron. He writes:

In March 2002, three Amazonian Indians paid a visit to New York. Dressed in palm skirts and sporting blow-dart guns, they had come from Ecuador as part of an environmental lawsuit-cum-publicity stunt organized by a charismatic American lawyer named Steven Donziger. After they walked down Broadway in near-freezing weather, Mr. Donziger took his barefoot clients to an East Village restaurant so they could sample “nouvelle Southwestern cuisine.”

“Given a choice,” writes journalist Paul M. Barrett in “Law of the Jungle,” his well-crafted account of the epic suit, “they would have preferred roast monkey.”

By the time Mr. Donziger hosted the Amazonians in Manhattan, the case was nearly a decade old. It had begun in 1993 as a $1.5 billion class-action against Texaco, which had operated a subsidiary in Ecuador from the late 1960s to the early ’90s. The plaintiffs alleged that the oil company (acquired by Chevron in 2001) had left behind a toxic dump in the jungle. Visitors to Ecuador’s Oriente region, where the wells had been drilled, could easily find open pits of gooey black oil. One expert witness hired by Mr. Donziger described the environmental damage as “larger than the Chernobyl disaster,” though he later recanted that testimony.

Read the full article.

And listen to our podcast on "Law of the Jungle" featuring the author, Paul M. Barrett. 

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The Postal Service’s Metadata Program

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by Publius
Posted October 28, 2014, 9:09 AM

The Postal Service's Metadata ProgramAt Lawfare Benjamin Wittes comments:

I’m very interested to watch how the political system responds to this New York Times story about the U.S. Postal’s Service very old, sort-of-bulk metadata program. The Times reports:

In a rare public accounting of its mass surveillance program, the United States Postal Service reported that it approved nearly 50,000 requests last year from law enforcement agencies and its own internal inspection unit to secretly monitor the mail of Americans for use in criminal and national security investigations.

The story goes on to clarify that this is not 50,000 requests to open people’s mail. These are what are called “mail covers”—which is basically an ongoing accounting of what is on the outside of the envelopes going to someone’s mailbox. It is, in other words, a metadata program. . . .

All of this raises the question: Will this program generate the sort of outrage, legal challenge, and feverish energy for legislative reform that the NSA program has? Or will it fall flat?

I have this feeling that the answer is the latter: The Postal Service’s looking at the outside of letters at the request of law enforcement just won’t have the same legs as does the big bad NSA looking at the routing information for telephone calls. The reason, I suspect, is not that there are profound legal differences between the two programs. . . .

Read the full post.

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Constitutional Challenge to NJ Quarantine Unlikely to Succeed

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by Publius
Posted October 27, 2014, 8:33 AM

Eugene Kontorovich at the Volokh Conspiracy writes:

Kaci Hickox, the nurse forcibly quarantined by New Jersey upon her return from West Africa, is threatening a legal challenge to her confinement. Her lawyers claim she is being deprived of her liberty in violation of the Due Process Clause of the 14th Amendment.

Due process cases are fact specific, and I am not privy to information NJ authorities had before them or their decision-making process. However, it is highly unlikely that she will prevail.

While the Supreme Court has long held quarantines to be constitutional, it has not ruled directly on the scope of permissible quarantines. However, in the famous case of Jacobson v. Massachusetts, the Court did uphold a blanket mandatory vaccination law, under which resisters were put in jail. The principle here is the same as with quarantine – that one’s normal rights to bodily integrity are suspended by a general and serious public need, especially of an epidemiological variety.

Read the full article

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Opportunity for SCOTUS to Clarify Class-Action Law

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by Publius
Posted October 24, 2014, 1:45 PM

Opportunity for SCOTUS to Clarify Class-Action LawThe Wall Street Journal reports:

The 2010 Gulf Coast oil spill was a disaster for local businesses and the environment but also the best thing ever to happen to the trial lawyers who continue to exploit the accident for fun and profit. Now the Supreme Court has an opening to impose discipline on the class-action lawsuit industry by forcing the tort bar to prove its claims.

Two years after the Deepwater Horizon explosion, BP consolidated the 2,700 lawsuits that were then still outstanding after setting up a voluntary $20 billion fund to compensate shrimpers, hotels dependant on tourism and the like. The class as certified by New Orleans federal district Judge Carl Barbier became entitled to a settlement pool estimated to be $7.8 billion, and he appointed an old trail lawyer friend Patrick Juneau as claims administrator.

That compensation facility has since become a sink of self-dealing, according to a report by Special Master and former FBI director Louis Freeh , involving potential violations of “criminal statutes regarding fraud, money laundering, conspiracy or perjury” that “caused tangible harm to the integrity” of the fund. But the main offense is that Mr. Juneau has ignored the settlement’s language that defines the class as people who have suffered injuries such as lost income “as a result of” the spill, and he is applying more ambiguous language from elsewhere in the document.

Read the full article.

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Ramseyer: “Biases That Blind: Professor Hyman and the University”

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by Publius
Posted October 23, 2014, 9:38 AM

Ramseyer: Recently the Illinois Law Review published a response to Professor Hyman's article, "Why did Law Professors Misunderestimate the Lawsuits Against PPACA?" The response by Professor Ramseyer argues "that the statements made by law professors about the constitutionality of the PPACA often reflected partisan loyalty more than thoughtful legal analysis." He continues:

Not only was the Patient Protection and Affordable Care Act (PPACA; Obamacare) constitutional, they declared, but to suggest otherwise was foolish—at best. As David Hyman meticulously details, they declared the issue “obvious,” “open and shut.” Any claim to the contrary had “no legal merit.” It was “silly,” a “non-starter,” “if not frivolous, close to it," "completely bogus," and "beneath contempt." Anyone who questioned the Act's constitutionality was "simply crazy," a "wing nut," "deeply ignorant," "grandstanding in a preposterous way," a "proponent of slavery and segregation"—or maybe even a bit akin to Lee Harvey Oswald. 

Our constitutional law colleagues (with very few exceptions) described the PPACA as a valid exercise of the Commerce Power, and in this they were wrong. The statue straightforwardly violated the Commerce Clause, the Supreme Court explained. It could stand only in modified form and only as an exercise of the government's taxing power—the taxing power of a President who had adamantly assured voters that the statute was not a tax. . . .

Our colleagues obviously let their wish lists get ahead of their brains.

Read the full article

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Elon University School of Law: Revolutionary New Program?

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by Publius
Posted October 22, 2014, 9:47 AM

Elon University School of Law: Revolutionary New Program?The Winston-Salem Journal reports:

Elon University School of Law will be cheaper, shorter and — it hopes — more relevant to today’s evolving legal profession.

The law school announced Thursday that it will lower tuition by about $14,000 over three years and that students will earn their degrees a semester sooner.

Elon believes it’s the only law school in the nation with a baseline 21/2-year degree program for all students. Elon also says it’s the only law school in the country to require all students to hold an externship, a full-time legal apprenticeship, during the academic year.

“It seems like we should be the one to do something special,” law school Dean Luke Bierman said Thursday. “Leadership comes only if you apply it, and we thought this was a good opportunity to apply some leadership.”

Read the full article.

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Executive Orders: Measuring the Number and Content

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by Publius
Posted October 21, 2014, 11:42 AM

Mercatus Center studyThe Mercatus Center published an interesting report recently. They wrote:

As John Hudak of the Brookings Institution pointed out, “not all executive orders are created equal. Some are quite forceful, making dramatic changes to policy. Others are more routine, housekeeping issues. To say that one president issued more executive orders than another, tells us little about the scope of those orders or the impact they have on policy.”

While other analysts have examined the number of executive orders issued by different administrations, we have used RegData, a database producing statistics based on the Code of Federal Regulations, to examine some of the content of these executive orders and proclamations for the past six presidencies, through the end of Obama’s first term. In particular, we examine the usage of restrictions—words that create binding, legal obligations, such as “shall” and “must.” Although the current administration has issued fewer executive orders than other modern administrations, the figures below show that its total usage of restrictions in executive orders and proclamations exceeds that of any of the past six administrations, with the exception of Clinton’s first term. In fact, while the figures below show that Obama’s first term hardly stands out from other presidents with regard to the number of words published in executive orders and proclamations, both the Obama years and the Clinton years stand out for the restrictiveness of the text they produced, as measured by restrictions per 1,000 words.

Read the full report.

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Unaccompanied Minor Crisis Moves from the Border to the Courts

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by Publius
Posted October 16, 2014, 8:44 AM

The Unaccompanied Minor Crisis Has Moved From The Border To The CourtsFiveThirtyEight reports:

Stories about the influx of unaccompanied minors from Mexico and Central America into the United States have all but disappeared from the news. After dedicating “historic levels of personnel, technology, and resources to the Southwest border,” the White House reported last month that the border was “more secure than it has been in decades,” and that a sharp decrease in unaccompanied minors attempting to cross the border was recorded in July and August.

But the crisis is still causing havoc. The backlog of cases in immigration courts is the biggest it has been in 20 years and has been growing steadily since 2000 (including an uptick after the increased allocation of resources for border protection).

“Policies aimed at enforcing the removal of these immigrants have been funded to the tune of billions and billions of dollars,” said Vanessa Allyn, the managing attorney for refugee representation at Human Rights First. “But the courts haven’t been equally funded. There’s absolutely no parity in the resources for removal versus the resources for actually adjudicating these cases.”

There are 260 immigration judges in the United States, and each judge decides about 1,500 cases per year, Allyn said. But even at that rate, the judges can’t keep up with the number of cases.

Read the full article.

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Supreme Court Blocks Enforcement of Texas Abortion Law

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by Publius
Posted October 15, 2014, 8:39 AM

Supreme Court Blocks Enforcement of Texas Abortion LawPolitico reports:

The Supreme Court late Tuesday blocked enforcement, at least temporarily, of some of the controversial Texas abortion law that had shuttered most of the state’s remaining abortion clinics.

The Center for Reproductive Rights, which is leading the legal fight, said the clinics would be able to reopen as soon as Wednesday.

The court, in a 6-3 decision, said that Texas cannot immediately enforce the part of the law that requires the clinics to meet the standards of ambulatory surgical centers across the state. Texas argued that the upgrades were needed to protect women’s health. The abortion providers said that the requirements warranted costly upgrades that they felt were unnecessary and were aimed less at enhancing safety than limiting women’s access to abortion.

The Court of Appeals for the 5th Circuit on Oct. 2 had said that the provision could be enforced immediately. That led to the swift closure of more than a dozen clinics across the state.

Read the full article.

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Falsely Shouting “Ebola!” on a Crowded Bus

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by Publius
Posted October 14, 2014, 1:41 PM

Photo by m_ke (Flickr)At the Volokh Conspiracy, Eugene Volokh comments on a Los Angeles bus driver shouting, “Don’t mess with me, I have Ebola!” He writes:

The shouting is pretty clearly constitutionally unprotected, because it’s a knowing falsehood that has the potential to cause direct and substantial harm (seriously emotionally distressing fear of injury, the interference with daily activities caused by a quarantine, the cost needed to disinfect the bus, and so on). As I read United States v. Alvarez (2012), most knowing falsehoods can be restricted if the restriction passes “intermediate scrutiny,” and in this case a suitably crafted restriction on lies about communicable diseases would indeed pass such scrutiny.

But it would be interesting to see just which California statute would be used to punish such speech. . . .

Read the full post

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Wisconsin and Texas Voter ID Laws Blocked by Courts

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by Publius
Posted October 10, 2014, 8:48 AM

Wisconsin and Texas Voter ID Laws Blocked by CourtsThe Los Angeles Times reports:

The U.S. Supreme Court late Thursday blocked Wisconsin from enforcing its strict voter identification law in November’s election.

By a 6-3 vote, the justices granted an emergency appeal from civil rights lawyers, who argued it was too late to put the rule into effect this year.

Lawyers for the ACLU noted that the state had already sent out thousands of absentee ballots without mentioning the need for voters to return a copy of their photo identification.

It would be “chaos,” they said, for Wisconsin to have to decide whether to count such ballots now because voters had failed to comply with the new law.

Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas dissented. The six justices in the majority did not issue a written opinion to accompany the decision to lift an order by a lower court that would have allowed the law to take effect.

At nearly the same time, a federal judge in Texas struck down that state's new voter ID law on the grounds that it violated the constitutional right to vote and discriminated against racial minorities.

Texas Atty. Gen. Gregg Abbott said the state would appeal.

Read the full article

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Supreme Court Upholds North Carolina’s Voting Rules

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by Publius
Posted October 09, 2014, 8:25 AM

Supreme Court Upholds North Carolina's Voting RulesUSA Today reports:

For the second time in two weeks, the Supreme Court on Wednesday upheld a state law restricting voters' access to the polls.

The latest ruling affects North Carolina, scene of a tight Senate race that could help decide which party wins control of that chamber for the final two years of President Obama's term.

The justices reversed a federal appeals court's decision that would have allowed same-day registration and counted votes cast mistakenly in the wrong precincts. Those were among several other procedures eliminated by the state Legislature last year in what critics called the most restrictive voting law in the nation.

Two justices — Ruth Bader Ginsburg and Sonia Sotomayor — dissented from the decision. They wrote that the two voting restrictions "likely would not have survived federal preclearance" under the Voting Rights Act before a key section was struck down in a 5-4 decision by Chief Justice John Roberts last year.

Read the full article.

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