benrleeusa

[benrleeusa]

[Eugene Volokh] The Trial Court “Did Not Consider American Law and Fundamental Precepts of Due Process”

Tanveer Basith and Abuzaffer Basith were married in India in 1979. In September 2017, Tanveer sought a divorce, in Illinois court; she says that the parties are Illinois residents. (All the facts and quotes here are drawn from In re Marriage of Basith, decided last week.)

Abuzaffer moved to dismiss the divorce petition, "assert[ing] that the parties' marriage had already been dissolved in India on May 10, 2017, and that Tanveer had accepted a financial settlement of … about $447. Because she had accepted the financial settlement, Abuzaffer argued that Tanveer's action was barred by res judicata." Tanveer responded, "assert[ing] that she was never properly served with notice of the petition for dissolution filed in India, nor did she consent to the entry of that judgment."

… Abuzaffer filed a reply. He asserted that Tanveer had requested a divorce. Therefore, pursuant to their culture and religion, he went to India in order to grant her request and obtain a divorce.

Abuzaffer further stated that as he and Tanveer were pious Muslims, his actions complied with sharia law that governs aspects of Islamic life for pious Muslims. As the trial court had the right to consider sharia law, Abuzaffer requested that the Indian divorce decree be upheld and Tanveer's action be dismissed….

Abuzaffer's attorney acknowledged that Tanveer "didn't have formal notice that we talk about in our country [i.e., the United States]" regarding the dissolution proceedings in India. Nonetheless, Abuzaffer's attorney argued that Tanveer's petition should be dismissed anyway. The trial court [Lake County Judge Raymond D. Collins] agreed and dismissed Tanveer's petition. The trial court made the following comments that reflected its reasoning:

"Well, when they were married in India, are there certain restrictions and guidelines that they need to follow? That's what I don't know. If [and] when they get married there, the marriage is valid if they follow certain rules, and I'm assuming they're religious about getting divorced, then they would have jurisdiction, if she accepted the jurisdiction of the country when they got married there….

"But my question is, when they got married in India, there were certain things that they signed and agreed to when it comes to getting divorced. And, again, I'm assuming that's religious in nature that they have to agree to, then they would have jurisdiction. So because it's inequitable, that's not a reason to dismiss it….

"[T]hey were following strict Muslim religion when they got married and he was following it when they got divorced[.]

"Well, it may be egregious in that the disposition of property may not have been equitable, but I don't think I have any choice but to dismiss under 2-619 [presumably the part providing that a case should be dismissed if "the cause of action is barred by a prior judgment"-EV]."

The Appellate Court reversed:

Comity has been defined as the "recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to the international duty and convenience and to the rights of its own citizens who are under the protection of its laws." Under the doctrine of comity, Illinois courts may choose to recognize orders issued by foreign courts, although recognition may be withheld where the foreign court lacked jurisdiction over the cause and the parties….

Here, the trial court abused its discretion in granting comity to the Indian divorce decree. This was because Tanveer was never afforded the opportunity to appear, present her case, and be heard before the Indian tribunal. Thus, that tribunal never obtained personal jurisdiction over her.

Moreover, the trial court's decision constituted an abuse of discretion because the Indian tribunal's decision violated the laws and public policy of this state. The Illinois Marriage and Dissolution of Marriage Act provides that marital property must be divided in "just proportions" considering all relevant factors. The Act also provides that maintenance should be awarded if it is just and equitable. Here, the Indian tribunal awarded all of the marital assets to Abuzaffer except for approximately $447 that it awarded Tanveer. The Indian tribunal also did not award Tanveer any maintenance despite Tanveer earning substantially less than Abuzaffer during the parties' more than 37 years of marriage. As the Indian tribunal's decision was inconsistent with Illinois concepts of fairness and equity, the trial court should not have granted it comity….

Finally, we note that we find the trial court's ruling troubling. The trial court's comments reflect that, in dismissing Tanveer's petition, it did not consider American law and fundamental precepts of due process such as the right to notice and the right to defend one's interests. Rather, the trial court's reasoning indicates that its decision was based on what it assumed the law was in India for pious Muslims…. We therefore strongly encourage the trial court to be more cognizant of the parties' fundamental rights and controlling case law before dismissing an action….

Sounds right to me; for more on this general topic, see Religious Law (Especially Islamic Law) in American Courts and Foreign Law in American Courts. Note also that under American law a divorce must be obtained in the jurisdiction in which the parties are domiciled, rather than in the jurisdiction where the parties were married (often decades ago).

[benrleeusa]

[Ilya Somin] Will Connecticut Finally Enact Meaningful Eminent Domain Reform?

Susette Kelo's famous "little pink house,"which became an iconic symbol of the Kelo case.

Some fourteen years after a controversial Supreme Court decision upheld the use of eminent domain to seize homes for transfer to private developers, the state where the case originated may finally pass a law that curtails such abuses.

In 2005, the Supreme Court ruled in Kelo v. City of New London that the government can take private property and transfer it to a new private owner for purposes of promoting "economic development." Although the Takings Clause of the Fifth Amendment mandates that the government can only take property for a "public use," a narrow 5-4 majority reaffirmed the rule that virtually any potential benefit to the public counts as a public use. The government does not even have to prove that the supposed benefit will  ever actually materialize. As a result, the New London Development Corporation—a private entity authorized by the City of New London—was able to condemn fifteen residential properties in the Fort Trumbull neighborhood of New London. One of them was Susette Kelo's "little pink house," pictured above.

Perhaps even worse, the ill-conceived development project that led to the comdemnation fell through. Even today, almost fourteen years after the litigation ended, nothing has been built on the condemned land. Feral cats are the only regular users of the properties where homes once stood.

The former site of Susette Kelo's "little pink house", 2014. Nothing has been built. (photo by Ilya Somin).

  Feral cat on the site of one of the properties condemned in the Kelo case, 2011 (photo by Jackson Kuhl).

The Kelo decision sparked a massive public backlash. Polls showed that over 80% of the public opposed the decision, with opposition coming from such unlikely allies as the NAACP, Ralph Nader, Rush Limbaugh, libertarian property rights advocates, and even Bernie Sanders. Widespread revulsion against the Court's ruling led 45 states to enact new eminent domain reform laws. Some of these reforms provide strong protection for property owners. But many others are ineffective, imposing few or no real constraints on the use of eminent domain to seize property for influential private interests.

Despite being the state where the Kelo case originated, Connecticut enacted one of the weakest post-Kelo reform laws in the entire nation. I summarized it in my book on the Kelo case and its aftermath:

The new Connecticut law merely forbids the condemnation of property "for the primary purpose of increasing local tax revenue…." This restriction does not prevent condemnations for either economic development or blight alleviation [an alternative mechanism for seizing property for private development interests]. Connecticut law allows local governments to condemn property for both purposes…. Even the goal of increasing tax revenue can still be pursued so long as it is part of a more general plan for local "redevelopment." In practice, it is likely impossible to prove that a given property is being condemned primarily for the purpose of "increasing local tax revenue" as distinct from the goal of promoting economic development more generally.

A bill currently under consideration by the Connecticut state legislature could change that:

Now there's a legislative push in Connecticut to finally reform the state's eminent domain laws to prevent another situation like Kelo's. HB 5123, introduced by Rep. Tami Zawistowski (R-Suffield) would stop the state and its municipalities from using eminent domain to take property that would be used for any project that generates income for a private commercial purpose….

The bill passed the House's Planning and Development Committee, 15-6, but does not yet appear to be scheduled for a full House vote.

The text of the bill would ban the use of eminent domain in redevelopment areas "for any purpose that produces income from such real property for a private entity." This would forbid takings for privately owned "economic development" (as in the Kelo case) and probably also for the alleviation of "blight" broadly defined as anything that potentially constrains economic growth. It would not, I think, forbid takings for privately owned public utilities.  But such condemnations are both more defensible and less prone to abuse than takings for "economic development," which are easily captured by powerful interest groups and routinely fail to produce the promised economic benefits—as happened in the Kelo case itself.

Although there is some political momentum behind the bill, its passage is not a done deal. HR 5123 faces potential opposition from key members of the state legislature,  some local governments, and private interests who benefit from having governments condemn property for their businesses. State Rep. Zawistkowski, the bill's sponsor still expects "an uphill battle." But hopefully the political obstacles will be overcome, and Connecticut will finally get some real eminent domain reform.

In my view, the Kelo decision is based on a serious misinterpretation of the Constitution. I hope the Supreme Court will eventually overrule it. But, in the meantime, state governments should not act to curb such abuses without waiting for federal judges to do it for them. Even if "economic development" takings are not unconstitutional, they are still harmful and unjust.

[benrleeusa]

California DAs assail Gov Newsom's execution moratorium

Four California district attorneys, Anne Marie Schubert, Michael Hestrin, Lisa Smittcamp and Gilbert Otero, have this notable new CNN commentary under the headline "California Gov. Gavin Newsom's death penalty moratorium is a disgrace."  Here is how it gets started:

Gov. Gavin Newsom's blanket moratorium on California's death penalty is a slap in the face to crime victims and their families who have waited years for justice.  With the stroke of his pen last month, Newsom single-handedly undermined our state's democratic values and our criminal justice system.

Democracy embodies a government where the people hold the ruling power either directly or through elected representatives.  In California, the people have exercised their power repeatedly in voting to keep the death penalty for the state's most horrific killers.  In fact, less than three years ago, California voters made this clear when they rejected an initiative, supported by Newsom, to abolish the death penalty and instead passed an initiative to ensure its fair and efficient implementation.

When Newsom campaigned for governor, he explicitly asserted that he would respect the will of the voters regarding the death penalty.  So much for that promise.  Instead, Newsom disregarded the voters in favor of his personal opinion and granted leniency to those facing the death penalty, including serial killers, cop killers, mass shooters, baby killers and sexual sadists.

In doing so, Newsom damaged the very fabric of our criminal justice system -- trial by jury -- where community members, not just one person in a position of power, make decisions affecting life and liberty.  Newsom's unilateral decision to ignore jury verdicts imposing the death penalty is not just an arbitrary exercise of power, it is a gross miscarriage of justice.

In support of his moratorium, Newsom also made broad sweeping statements, often cited by the American Civil Liberties Union and other death penalty opponents, including cautions about racism and claims that some on death row may be innocent.  If Newsom has concerns about specific cases, he should examine those cases individually rather than granting mercy to everyone on death row.  After all, Newsom has the powers of clemency and commutation as a remedy if he sees actual proof that someone was wrongfully convicted.

But looking at the facts of cases isn't something Newsom seems to want to do.  Why?  It could be because the facts are so horrific that one cannot justify leniency to these killers.

Prior related posts:

New California Gov to order moratorium on executions in his state 

California Gov Newsom, on heels of execution moratorium order, now talking up halt to any capital prosecutions

[benrleeusa]

[Keith Whittington] On Volume Two of the Mueller Report

Over at the Niskanen Center, I have posted some thoughts on volume two of the report by special counsel Robert Mueller. The second volume addresses President Trump's response to the investigation of Russian interference with the 2016 presidential election and whether any of those actions constituted criminal obstruction of justice. As I told Vox, "If this is what complete and total exoneration looks like, I'd hate to see a damning report." Quite simply, the president behaved very badly, and his administration seems to have been saved by the willingness of his subordinates to ignore his rants and directives. This look inside the Trump White House is disturbing and should not let anyone rest easy, confident that the office of the presidency is in good hands. Unfortunately, we already knew that.

Once you get past the description of the dysfunctional workplace that is the Trump White House, you find a very interesting set of legal arguments. Mueller's obstruction investigation faced a variety of serious legal challenges, including whether presidential actions to impede the investigative work of an executive branch officer can constitutionally or statutorily amount to obstruction of justice and what the appropriate role is of a special counsel who can not bring a criminal indictment against the target of his investigation. Mueller's legal analysis is best read alongside the analysis offered by William Barr when auditioning for the thankless role of Trump attorney general. I'm more sympathetic to Barr's formalism than Mueller's functionalism, but these are interesting and difficult issues.

To the disappointment of some, Mueller made the right call to lay out his factual findings and the legal issues as he understood them and let others—the attorney general, Congress, and the voters—decide how best to respond to the results of the special counsel investigation. I think Barr made the right call as well in determining that this presidential misconduct should not give rise to criminal charges. Unfortunately, the president has through his own words and deeds strengthened the hand of his opponents who would like to see him impeached and removed from office. He ignored the first law of holes, and when he found himself in one he just kept digging.

You can read my extended discussion of volume two here.

[benrleeusa]

[Keith Whittington] On Volume One of the Mueller Report

Over at the Niskanen Center, I have posted some thoughts on volume one of the report by special counsel Robert Mueller. The first volume addresses Russian interference in the 2016 presidential election and the extent to which the Trump presidential campaign participated in that interference. The good news is that the campaign did not actively conspire with Russian operatives to influence the election and that the Russian efforts at interference were not terribly effective. The bad news is that Russian operatives clearly did try to influence the election and that the Trump campaign was at best unconcerned about Russian meddling and at worst would have been happy to encourage and benefit from it. You can read the whole thing here.

From the conclusion of the Niskanen Center post:

One need not deny the reality or legitimacy of Trump's electoral victory to recognize that the Russian threat should be addressed. The significance of the findings in volume one of the Mueller report should not be a partisan issue. Though the report might support the conclusion of "no collusion," it thoroughly undermines the president's own favored narrative that American intelligence agencies were worried over nothing in 2016. Both Russia and the Trump campaign created plenty of reasons for national security professionals to worry and to see the need for a more thorough investigation. That only one of Trump's campaign managers found himself imprisoned in the aftermath of the election or that Donald Trump's son-in-law thought it was a "waste of time" when a meeting failed to deliver the promised incriminating Russian government files is no cause for celebration.

[benrleeusa]

[Eugene Volokh] Delaware Government Refusing to Allow “Illegal Pete’s” as Corporate Name

Illegal Pete's is a Colorado-based Mexican restaurant chain; starting several years ago, the name has drawn controversy because some view it as an insulting reference to illegal aliens. (The restaurant owners disagree, and say the name was chosen "to convey the unique, countercultural atmosphere [the founder] wanted to foster" and was an homage to the founder's father, who was "a bit of a good-natured hell-raiser.")

The owners of Illegal Pete's wanted to make it a Delaware limited liability company, but the Delaware Secretary of State's office rejected the application, allegedly on the grounds that the name "has a negative connotation," and that

Title 8 [of the Delaware Code] permits this office to reject a filing if the use of a corporate name by a corporation "might cause harm to the interests of the public or the State as determined by the Division of Corporations in the Department of State". As it stands, the document will be rejected unless a modification is made to the name of the corporation in the certificate of conversation [sic] and in its certificate of incorporation.

Yesterday, Illegal Pete's sued the Secretary of State, arguing that the denial was unjustified by statute—which on its face applies only to names containing the word "bank"—and violates the Due Process Clause and the First Amendment.

And indeed, given the Supreme Court's decision in the Slants case (Matal v. Tam), the denial does violate the First Amendment. Matal holds that the government can't deny trademark registration to allegedly racially offensive marks. It follows that the government likewise can't deny certificates of incorporation (or LLC status) to business names that allegedly offensively refer to illegal aliens (or, for that matter, to marks that seem to praise illegal conduct, if that's the Secretary of State's objection).

The case reminds me of Kalman v. Cortes (E.D. Pa. 2010), which struck down a Pennsylvania ban on corporate names that contain "[w]ords that constitute blasphemy, profane cursing or swearing or that profane the Lord's name" (applied in that case to the name "I Choose Hell Productions"). But following Matal, the matter is even clearer.

[benrleeusa]

:@WilliamBaude: Grounding Originalism Published

My frequent co-author (and now co-blogger) Steve Sachs and I have a new article out in the Northwestern Law Review, in a symposium issue devoted to "Originalism 3.0." Our contribution, "Grounding Originalism," tries to provide philosophical grounding for our approach to originalism, one which emphasizes that originalism is a theory of law, under which our law is the Founders' law, plus all lawful changes enacted since then.

The piece responds in part to criticisms raised by Richard Primus, Mark Greenberg, Mikołaj Barczentewicz, and Charles Barzun, among others (and Eric Segall is publishing a response here). Here is the abstract of our piece:

How should we interpret the Constitution? The "positive turn" in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system's official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we've argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided—or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it?

This Essay offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual social practice, including the aspects of legal practice we describe. This positive focus really can resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn't the official story of our law. Stripped of their jurisprudential confusion, though, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders and to the changes over time that their law has recognized.

Because this piece is the latest in a line of five or six pieces that Steve and/or I have written advancing this theory, it doesn't provide all of the arguments or evidence for our view. But we do provide (p. 1491) what I hope is a helpful summary of how past and present law relate:

As a theoretical matter, positivists like us figure out today's law based on today's social facts.

As a contingent, empirical matter, today's social facts happen to incorporate the Founders' law by reference.

As a historical, legal matter, the Founders' law allowed for various kinds of changes, including both formal enactments and the incorporation by reference of various kinds of customary law

As well as (p. 1477-78) another hopefully helpful summary of the evidence we've amassed in previous pieces that we think supports our view:

We treat the Constitution as a legal text, originally enacted in the late eighteenth century.

This constitutional text regulates the selection of legal officials, even when such regulations are unpopular or contrary to tradition.

Actors in our legal system don't acknowledge, and indeed reject, any official legal breaks or discontinuities from the Founding.

We rely on technical domesticating doctrines, themselves rooted in preexisting law, to blunt the practical force of novel originalist arguments.

Original meaning sometimes explicitly prevails over policy arguments in constitutional adjudication, but the reverse doesn't seem to be true.

Our treatment of precedent makes sense if original sources determine the Constitution's content but not if precedent does.

More generally, there are no clear repudiations of originalism as our law in the current canon of Supreme Court cases, even in situations where the Justices must have been sorely tempted.

As always, if this provokes further productive criticisms or a counter-argument about theory better describes our law, we'd love to see it! Meanwhile, Steve and I are at work on two more pieces aimed at more specialist literatures, one in history and one in philosophy, which I'll look forward to sharing here later this year.

[benrleeusa]

[Eugene Volokh] Beyond the First Amendment: Anti-Libel Injunctions and Prosecutorial Discretion

[I'm continuing to serialize my forthcoming Penn Law Review article on Anti-Libel Injunctions.]

I've argued that criminal contempt prosecutions for violating anti-libel injunctions are similar to criminal libel prosecutions. But they are missing one important feature of most prosecutions—the normal prosecutor.

In criminal libel prosecutions, a prosecutor exercises discretion about whether to prosecute. In criminal contempt proceedings, a judge would normally refer the case to the prosecutor's office, but if that office declines to act, the judge may appoint a special prosecutor. And in some states, the litigants could initiate the criminal contempt prosecution them­selves, or move for contempt and ask for the court to appoint their lawyers as the prosecutors. [In the federal system, the judge may not appoint the plaintiff's lawyer as prosecutor, Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. 787 (1987), which may make it hard to find a lawyer willing to take the task. But that is a principle of federal contempt procedure, not a constitutional mandate.]

Indeed, in states that still have criminal libel laws, the injunction's cutting out of the prosecutor is especially vivid. Why, after all, would a person who is being libeled seek an anti-libel injunction in that state? Why not just ask the prosecutor to threaten the defendant with a criminal libel prosecution? After all, an injunction only works because the target is worried about the threat of a criminal contempt prosecution; why wouldn't a prosecutor's threat of a criminal libel prosecution work as well?

Presumably the defamed person would opt for spending the time and money to get an injunction precisely because the prosecutor is not inclined to act. Maybe prosecuting libels is a low prosecutorial priority, compared to violent crimes, property crimes, or drug crimes. Or maybe the prosecutor thinks the criminal libel law is archaic, and that people shouldn't be jailed merely for lying about people. Or maybe the prosecutor wants to prosecute only the most egregious libels (such as the ones that most threaten reputation), and this libel isn't one. The prosecutor is thus using prosecutorial discretion to choose not to prosecute a particular kind of crime. And the injunction bypasses that prosecutorial decision.

The question for judges, then, is whether they see prosecutorial discretion as an advantage or a disadvantage in such cases.

Prosecutorial discretion is sometimes touted as an important protector for liberty: Before a person goes to jail for something, the theory goes, all three branches must agree—the legislature must criminalize the action, the executive must prosecute, and the judiciary must convict. In the words of then-Judge Kavanaugh,

The Executive's broad prosecutorial discretion … illustrate[s] a key point of the Constitution's separation of powers. One of the greatest unilateral powers a President possesses … is the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior … . The Framers saw the separation of the power to prosecute from the power to legislate as essential to preserving individual liberty.

Judge Kavanaugh was speaking of prosecutorial discretion as a check on the legislative power, but it could equally be seen as a check on the judicial power. Indeed, such a check may be especially necessary to rein in criminal contempt prosecutions, in which judges might be unduly skewed by the sense that the violation of an injunction is a personal affront to their own authority. Justice Scalia's concurrence in Young v. United States ex rel. Vuitton et Fils SA, for instance, argued that federal contempt prosecutions must always be initiated by the Executive Branch, partly because Justice Scalia saw a threat to liberty in "judges' in effect making the laws, prosecuting their violation, and sitting in judgment of those prosecutions."

On the other hand, prosecutorial discretion is sometimes seen as unduly favoring those victims who have the prosecutors' ear—indeed, one criticism of criminal libel laws has been that they are disproportionately used to punish speech critical of political officials and law enforcement. And people sometimes fault prosecutors for being not attentive enough to particular crimes that are seen as too hard (or too unglamorous) to prosecute; that, for instance, was part of the criticism of prosecutors in domestic violence cases, which led many states to enact statutes specifically authorizing injunctions against continued domestic violence.

More broadly, injunctions are available in many other contexts where torts are also crimes. The occasional assertion that "equity will not enjoin the commission of a crime" means simply that equity "would not enjoin violation of … criminal law as such," but would only enjoin acts that harmed the particular plaintiff in some legally cognizable way. Injunctions against trespass are issued without concern that this will undermine prosecutorial discretion not to prosecute trespasses as crimes; likewise with injunctions against copyright infringement, even though willful copyright infringement for commercial gain is also criminal.

And perhaps the availability of criminal contempt proceedings in such cases, even without the opportunity for prosecutorial discretion, might be especially justified by the need to vindicate a particular victim's interest. The Third Circuit, for instance, has taken the view—expressed, to be sure, as to administrative enforcement proceedings rater than as to criminal contempt of court prosecutions—that "the doctrine of prosecutorial discretion[] should be limited to those civil cases which, like criminal prosecutions, involve the vindication of societal or governmental interest, rather than the protection of individual rights."

I don't think that the availability of prosecutorial discretion should be seen as a necessary First Amendment protection that renders invalid injunctions that cut out such discretion. Indeed, prosecutorial discretion may introduce an extra risk of viewpoint discrimination, and enforcement of injunctions without a prosecutorial veto would decrease this risk.

Judges in injunction cases often write opinions explaining why they exercise their discretion a particular way, which constrains their discretion in some measure; prosecutors don't. Judges' decisions not to issue injunctions are reviewable on appeal (even if under the relatively deferential abuse-of-discretion standard); prosecutors' decisions not to prosecute are generally not reviewable. Prosecutorial discretion cannot save an overbroad law. The absence of prosecutorial discretion should not invalidate a narrowly crafted injunction.

This having been said, though, courts might still choose to consider whether separation of powers concerns should counsel against injunctions that evade prosecutorial discretion, especially in those states where criminal libel statutes exist. The Court has spoken of its "cautious approach to equitable powers," especially when the powers involve "substantial expansion of past practice"; state courts may choose to take a similar approach. Such caution may be reason to avoid an end-run around prosecutorial judgment, especially with a remedy that has historically been frowned on—which makes anti-libel injunctions different from, for instance, anti-trespass injunctions—and in the absence of specific legislative authorization (which makes anti-libel injunctions different from, say, anti-harassment or anti-stalking injunctions issued pursuant to a specific statute).

[You might also read my earlier posts on the subject,

Anti-Libel Injunctions and the Criminal Libel Connection

The First Amendment and Criminal Libel Law

The First Amendment and the Catchall Permanent Injunction

The First Amendment and the Specific Preliminary Injunction

How Specific Anti-Libel Injunctions Underprotect Speech

The First Amendment and the Hybrid Permanent Injunction

Restricting Injunctions to Libels on Matters of Private Concern?

The Limited Role of Mens Rea in Hybrid Anti-Libel Injunctions

The First Amendment and the Hybrid Preliminary Injunction

Or you can read the whole article, which is forthcoming in the University of Pennsylvania Law Review, in PDF.]

[benrleeusa]

Relying on post-Miller legislation, Illinois Supreme Court rules any juve sentence over 40 years constitutes de facto life sentence

I just saw an interesting ruling handed down last week by the Illinois Supreme Court, Illinois v. Buffer, 2019 IL 122327 (Ill. April 18, 2019) (available here), which concerns what length of sentence should be considered a de facto life sentence triggering the Eighth Amendment sentencing limitations articulated by the Supreme Court in Miller and Montgomery.  For folks following closely debates over the reach and application of the Eighth Amendment to juvenile term-of-year sentences, all of Buffer is worth reading (including the extended concurrence). Here is a key passage from the court's opinion:

[In a legislative response to Miller,] the General Assembly has determined that the specified first degree murders that would justify natural life imprisonment for adult offenders would warrant a mandatory minimum sentence of 40 years for juvenile offenders.  The legislature evidently believed that this 40-year floor for juvenile offenders who commit egregious crimes complies with the requirements of Miller.

In determining when a juvenile defendant’s prison term is long enough to be considered de facto life without parole, we choose to draw a line at 40 years.  This specific number does not originate in court decisions, legal literature, or statistical data.  It is not drawn from a hat.  Rather, this number finds its origin in the entity best suited to make such a determination — the legislature.  The Supreme Court has made clear that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance” with eighth amendment mandates pertaining to juvenile sentencing.  Graham, 560 U.S. at 75.  As this court recognized long ago, “‘[g]reat constitutional provisions must be administered with caution. *** It must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’” People ex rel. Douglas v. Barrett, 370 Ill. 464, 467 (1939) (quoting Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 270 (1904)).

Extrapolating from this legislative determination, a prison sentence of 40 years or less imposed on a juvenile offender provides “‘some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’” Miller, 567 U.S. at 479 (quoting Graham, 560 U.S. at 75).  We hereby conclude that a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation of the eighth amendment.

[benrleeusa]

How could and how should a President push states to extend the franchise to all prisoners?

I have not been blogging all that much about some of the notable criminal justice positions and statements by the huge field of candidates seeking the Democratic Party's nomination to run for US President.  But this press piece about an exchange involving Senator Bernie Sanders at a town hall last night prompted the question that is the title of this post.  The headline of The Hill piece is catchy, "Sanders: Boston Marathon bomber should be able to vote from prison," and here is its account of the exchange:

Sen. Bernie Sanders (I-Vt.) argued Monday that all prisoners, including domestic terrorists such as the Boston Marathon bomber, should have the right to vote while they are incarcerated.

Speaking at a CNN town hall, Sanders was asked if he believes the right to vote should extend to serious criminals, such as Boston Marathon bomber Dzhokhar Tsarnaev, who is in prison and has been sentenced to death.  “If somebody commits a serious crime, sexual assault, murder, they’re going to be punished,” Sanders said.  “They may be in jail for 10 years, 20 years, 50 years, their whole lives.  That’s what happens when you commit a serious crime."

"But I think the right to vote is inherent to our democracy," he continued.  "Yes, even for terrible people, because once you start chipping away ... you’re running down a slippery slope. ... I do believe that even if they are in jail, they’re paying their price to society, but that should not take away their inherent American right to participate in our democracy.”

Earlier this month, Sanders called for more states to join Vermont and Maine in allowing imprisoned felons to vote.... “This is what I believe. Do you believe in democracy? Do you believe that every single American 18 years of age or older who is an American citizen has the right to vote?"

"Once you start chipping away at that ... that’s what our Republican governors all over this country are doing.  They come up with all kinds of excuses why people of color, young people, poor people can’t vote.  And I will do everything I can to resist that," he added.

Regular readers likely know that I see no good reason to disenfranchise categorically any class of competent voters (and my basic thinking on this front was explained in this Big Think piece years ago headlined "Let Prisoners Vote").  But, in the context of discussions about the positions of potential candidates for President, anyone call for expanding suffrage ought to be asked about how the federal government can and should seek to push states into ensuring more people have the right to vote.  This can be done, of course, through a constitutional amendment or through various forms of federal legislation that might try to force or prod states into changing their voting eligibility rules. 

I would really like to know if Senator Sanders (or any other presidential contender) is prepared to move forward with a formal federal plan that would go beyond just "call[ing] for more states to join Vermont and Maine in allowing imprisoned felons to vote."   Because I am not a voting rights expert, I am not sure what might be the best ways, legally and politically, to make progress on this front.  But I hope the question in the title of this post might be further explored on the campaign trail over the next 18 months.

[benrleeusa]

"Justice Denied: The Harmful and Lasting Effects of Pretrial Detention"

The title of this post is the title of this notable new "evidence brief" from the Vera Institute of Justice.  Here is its overview:

The pretrial population — the number of people who are detained while awaiting trial — increased 433 percent between 1970 and 2015.  This growth is in large part due to the increased use of monetary bail.  But pretrial detention has far-reaching negative consequences.  This evidence brief presents information on the way that pretrial detention is currently used and summarizes research on its impacts.  These studies call into question whether pretrial detention improves court appearance rates, suggests that people who are detained are more likely to be convicted and to receive harsher sentences, and indicate that even short periods of detention may make people more likely to become involved with the criminal justice system again in the future.  The brief concludes by highlighting strategies that some jurisdictions have employed to reduce the use of monetary bail and increase pretrial release.

[benrleeusa]

[Eugene Volokh] The Ukrainian President’s Theme Song?

The new President of the Ukraine, Volodomyr Zelensky, is (as I noted in an earlier post) not a career politician, but a prominent actor and comedian. How did he become famous? By playing a non-career-politician who is unexpectedly elected the President of the Ukraine. Anything we can do, he can do meta. The only thing better would have been if his character in the show had been an actor and comedian. (The character was actually a history teacher who first studied law before switching to history; Zelensky is trained as a lawyer.)

For whatever it's worth, here's the theme song (which, I've just learned, is called "саундтрек" in Russian) to the show, which is called "Servant of the People," and which Zelensky apparently helped create. I think the song captures well the humor of the show; time will tell what it tells us about Zelensky the President rather than Zelensky the character and producer. Imagine it sung in a jaunty, carefree tone; also imagine it rhyming, which of course it does in Russian:

I love my country Love my wife Love my dog I am a member of everything Almost Superman But rarely spoil for a fight. Everyone knows What I'm sentenced to— "Servant of the people."

I have almost everything Dignity and honor And even shouts of "Bravo." The people issued me My personal airplane And why not? I have the right. On my belly—right here— I'll get a tattoo "Servant of the people."

The author is Dmytro Shurov (or Dmitriy Shurov in Russian) of the band Pianoбой.

[benrleeusa]

[Orin Kerr] Chalking Tires and the Fourth Amendment

In a new case, Taylor v. City of Saginaw, the Sixth Circuit has ruled that the common practice of parking enforcement officers "chalking" a tire to see if the car has been moved violates the Fourth Amendment.  I'm not sure the decision is correct.  But it's plausible on current law, and it raises some really interesting conceptual issues.

Here's an overview of the new case and some thoughts on whether it's right.

First, the facts.  Alison Taylor gets a lot of parking tickets, and she decided to make a federal case out of it.  Specifically, she sued the city of Saginaw in federal court.  She alleged that her constitutional rights were violated by practice of "chalking" her tire to figure out if she had overstayed the time she was permitted to park her car.

I don't know of any other cases in which "chalking" was alleged to violate the Fourth Amendment.  But the Sixth Circuit ruled that it did, in a decision authored by Judge Donald joined by Judge Kethledge and Judge Keith.  And the court's reasoning seems broadly applicable to all of our cars, not just Alison Taylor's.

Here's the court's thinking.  First, the court reasons that the chalking is a search of the car because it is a trespass on to the car to obtain information under United States v. Jones.  It's a trespass under Jones, the court says, because it satisfies the common law trespass test:

In accordance with Jones, the threshold question is whether chalking constitutes common-law trespass upon a constitutionally protected area. Though Jones does not provide clear boundaries for the meaning of common-law trespass, the Restatement offers some assistance. As defined by the Restatement, common-law trespass is "an act which brings [about] intended physical contact with a chattel in the possession of another." Restatement (Second) of Torts § 217 cmt. e (1965). Moreover, "[a]n actor may . . . commit a trespass by so acting upon a chattel as intentionally to cause it to come in contact with some other object." Id. Adopting this definition, there has been a trespass in this case because the City made intentional physical contact with Taylor's vehicle. As the district court properly found, this physical intrusion, regardless of how slight, constitutes common-law trespass. This is so, even though "no damage [is done] at all." Jones, 565 U.S. at 405 (quoting Entick v. Carrington, 95 Eng. Rep. 807, 817 (C.P. 1765)).

Next, it is an act conducted to obtain information, as Jones requires:

[O]nce we determine the government has trespassed upon a constitutionally protected area, we must then determine whether the trespass was "conjoined with . . . an attempt to find something or to obtain information." Id. at 408 n.5. Here, it was. Neither party disputes that the City uses the chalk marks for the purpose of identifying vehicles that have been parked in the same location for a certain period of time. That information is then used by the City to issue citations. As the district court aptly noted, "[d]espite the low-tech nature of the investigative technique . . . , the chalk marks clearly provided information to Hoskins." This practice amounts to an attempt to obtain information under Jones.

Having concluded that the chalking was a search, the court then concludes that it was unreasonable and therefore unconstitutional.   The basic idea here is that no exceptions to the warrant requirement apply, so by default the warrantless search is unlawful.  First, the automobile exception does not apply:

The automobile exception permits officers to search a vehicle without a warrant if they have "probable cause to believe that the vehicle contains evidence of a crime." United States v. Smith, 510 F.3d 641, 647 (6th Cir. 2007) (citation omitted). No such probable cause existed here. Thus, the automobile exception is inapplicable.

Next, the search was not reasonable under the community caretaker exception:

The City fails to carry its burden of establishing that the community caretaker exception applies in this instance. First, on these facts, the City fails to demonstrate how this search bears a relation to public safety. The City does not show that the location or length of time that Taylor's vehicle was parked created the type of "hazard" or traffic impediment amounting to a public safety concern. Nor does the City demonstrate that delaying a search would result in "injury or ongoing harm to the community." Washington, 573 F.3d at 289. To the contrary, at the time of the search, Taylor's vehicle was lawfully parked in a proper parking location, imposing no safety risk whatsoever. Because the purpose of chalking is to raise revenue, and not to mitigate public hazard, the City was not acting in its "role as [a] community caretake[.]" Id. at 287.

And finally, the search was not justifiable based on a general interest in having an orderly parking system:

While the City is entitled to maintain efficient, orderly parking, the manner in which it chooses to do so is  not without constitutional limitation. As the Supreme Court explains, "the [Fourth] Amendment does not place an unduly oppressive weight on [the government] but merely . . . an orderly procedure. . . ." Jeffers, 342 U.S. at 51 (citation omitted).

The City does not demonstrate, in law or logic, that the need to deter drivers from exceeding the time permitted for parking—before they have even done so—is sufficient to justify a warrantless search under the community caretaker rationale. This is not to say that this exception can never apply to the warrantless search of a lawfully parked vehicle. Nor does our holding suggest that no other exceptions to the warrant requirement might apply in this case. However, on these facts and on the arguments the City proffers, the City fails to meet its burden in establishing an exception to the warrant requirement.

Here are a few thoughts on the case:

(1) From a practical perspective, this is a really important decision.  It concludes that a routine practice that wasn't thought to be illegal (if it was thought of at all) is actually unconstitutional. I'm not sure if the decision is correct.  And as I'll explain below, there are several plausible but debatable moves in the opinion.  But this decision is now binding in the Sixth Circuit and may also be followed elsewhere:  Traffic enforcement officers around the country should be paying attention to this.

(2)  Is the decision right?  As I said above, I'm not sure.  United States v. Jones introduced the idea of the trespass or physical intrusion test for searches in 2012.  As I've written before, Jones could mean a lot of different things. It's just not yet clear what the standard is or how it should apply.  Given that, I think the result in Taylor is plausible but that it's also subject to several plausible objections.

(3) Start with the question of trespass.  First, the court takes from Jones the idea that the test is "common law trespass."  Maybe that's the test.  But maybe it's not.  The Court in Florida v. Jardines notably did not describe the Jones test as a trespass test. Instead, Jardines described the test as "physical intrusion."  That's potentially pretty different.  And assuming the test is common law trespass, figuring out what kind of trespass test that meant is actually pretty tricky.  Maybe it's the Restatement test, but maybe it's something different.

(4) I'm also not sure of the court's  conclusion that the chalking was "to obtain information," needed to satisfy the search test from Jones.  That's certainly a possible result.  But it also strikes me as a somewhat awkward fit.

Here's the context.  In Jones, the officer installed the GPS device on a suspect's car and then obtained GPS info from it as the car was tracked for 28 days.  The majority ruled this a search in part on the ground that installing the GPS was done to obtain information—specifically, the stream of data from the GPS that would provide the location of the car to which it was attached.  Here's the most relevant discussion of the intent test from Footnote 5 of Jones:

Trespass alone does not qualify, but there must be conjoined with that what was present here: an attempt to find something or to obtain information.

Related to this, and similarly irrelevant, is the concurrence's point that, if analyzed separately, neither the installation of the device nor its use would constitute a Fourth Amendment search.  Of course not. A trespass on "houses" or "effects," or a Katz invasion of privacy, is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.

The Sixth Circuit in Taylor sees that element satisfied by the chalking.  And it is no doubt true that the officer chalked the car with the ultimate goal of finding out a fact—whether the car had moved.  That may be right under Jones.

On the other hand, it seems like a somewhat unusual application of the intent test.  I would think the Fourth Amendment idea of a "search" of a person's "effects" ordinarily implies intent to obtain information from the effect searched.  Normally, searching a box means getting information from inside the box.  Searching a home means getting information from inside the home.

In Taylor, however, the officer's plan is to place his chalk on the car and then come back later and see if the chalk moved—thus giving the officer a clue about whether the car moved.  That's information about the car, but it seems removed from a search of the car itself.  After all, the car is just out in public.  It is sitting on a public street for anyone to see.  And the officer is just looking at the chalk the officer placed.  Is it really a search of the car at Time A to see at Time B if the chalk moved between Time A and Time B?

Maybe yes.  Maybe the problem is that Jones itself was an awkward fit.  The obtaining of information in Jones was also just ultimately about the car and where it had been in public, as well. And the Supreme Court apparently found that sufficient.  But it's at least a question worth raising: Are there limits on what kind of information the government needs to want to obtain, and from what, and when, to satisfy the Jones test?

(5)  Assuming the chalking is a search, the next question is whether it is constitutionally reasonable.  I agree with the Court's analysis of the automobile exception and the community care-taking exception.  But I suspect some courts might disagree with the Sixth Circuit's reasonableness analysis on the ground that chalking is a de minimis search as part of a regulatory scheme.  It's just putting a temporary mark on a tire, it causes no damage, and it doesn't reveal anything.  Some courts have articulated doctrines that allow low-level searches as reasonable based on a balancing of interests without particularized suspicion.   I can imagine that as a possible path for other courts.  We'll see.

(5) I have to wonder how much this issue matters in a world of smart phones.  Everyone is now carrying around a camera.  Instead of chalking the tire, the parking folks can just take a picture of the car.  They can figure out if the car moved by comparing the pictures at Time A and Time B to see if the car is in the same place.  It may be more complicated or expensive than chalking, but it avoids the Fourth Amendment concern by just observing what is in public without any physical attachment to property.

(6) Finally, it's not at all clear what if any remedies may be applicable.  Chalking is common and hasn't been thought to be illegal.  Given that, qualified immunity should attach and civil suits against the officers won't work.  And it's not clear that there is any exclusionary rule available in an enforcement action to pay the parking ticket, as that is a civil proceeding and the exclusionary rule may not apply under United States v. Janis.

[benrleeusa]

[Samuel Bray] New on the Supreme Court docket: ERISA and “damages” in equity

One of the Supreme Court's cert grants yesterday was Putnam Investments, LLC v. Brotherston, a case about the burden of proving causation losses in ERISA suits. There is a 6-4 circuit split about whether the ERISA plaintiff or the fiduciary defendant has the burden of persuasion regarding whether the fiduciary defendant's breach caused the loss. Here is how the first Question Presented reads:

Whether an ERISA plaintiff bears the burden of proving that "losses to the plan result[ed] from" a fiduciary breach, as the Second, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits have held, or whether ERISA defendants bear the burden of disproving loss causation, as the First Circuit concluded, joining the Fourth, Fifth, and Eighth Circuits.

The cert petition presents the ordinary rule in U.S. law (i.e., outside of ERISA) as being that the plaintiff has the burden of showing causation. The cert petition notes, however, that the court below recognized "that it 'has long been the rule in trust law' that 'the burden of disproving causation [rests] on the fiduciary.' Pet. App. 32a-33a (citing Tatum v. RJR Pension Inv. Comm., 761 F.3d 346, 363 (4th Cir. 2014))."

How could it possibly be that the fiduciary defendant has the burden of disproving causation? With the caveat that I haven't yet explored this case in detail, there are at least three reasons to think the fiduciary defendant has this burden. (Note that these reasons aren't truly independent as much as overlapping and reinforcing.)

First, ERISA relies on, and in significant respects incorporates, the common law of trusts. (For a careful statement of this point, with qualifications, see John H. Langbein, What ERISA Means by "Equitable": The Supreme Court's Trail of Error in Russell, Mertens, and Great-West, 103 Colum. L. Rev. 1317, 1324-1329 (2003).) By "common law" in this paragraph I don't mean "common law vs. equity," since the law of trusts is and was equitable—rather, "common law" in the sense of law recognized, developed, and formulated by judges.

Second, equity has different rules for "damages," i.e., loss-based monetary remedies. This is something I address in my Fiduciary Remedies chapter in the Oxford Handbook of Fiduciary Law (2019). Here is my discussion of "equitable compensation," minus the footnotes, and with emphasis added to highlight a point of relevance for Putnam:

Equitable compensation is a remedy that looks like damages. It even travels under names like "equitable damages" and simply "damages," as well as names more redolent of trusts, "surcharge" and "falsification."  This, too, is a frequently sought remedy when a beneficiary sues a trustee for breach of duty, especially for a breach of the duty of care.  Unlike accounting for profits and constructive trust, equitable compensation is loss-based. Instead of stripping gains from the defendant, it makes the defendant compensate the plaintiff (or the trust itself) for something that has been lost.

What name is used for this remedy may seem inconsequential. But there are reasons to avoid conflating it with legal damages.

First, damages is the central remedy in tort, and it expresses the remedial aspiration of tort law: to make the defendant restore the plaintiff to the position he was in before the defendant's wrongful act. Tort damages look back to the rightful position. But the focus of fiduciary remedies is not on loss. Their primary function is not to compensate.  They look forward to the rightful position.

Thus equitable compensation is not the paradigmatic remedy for a breach of fiduciary duty, as damages is in tort. Indeed, equitable compensation as a distinctive remedy emerged out of accounting. It was a shortcut: without going to the trouble of an accounting, a beneficiary could sue for what might be called the expected results on the negative side of the ledger.  According to its "traditional principles," equitable compensation "focused on the trustee's obligation to account for his or her stewardship of the trust property, and [t]he form of relief [was] couched in terms appropriate to require the defaulting trustee to restore to the estate the assets of which he deprived it."

There may be analytical advantages to separating "accounting for profits" from "equitable compensation," as well as advantages to thinking of them as profit and loss of a single remedy of accounting for what the fiduciary has done with the beneficiary's resources. Either way, the affinity between these remedies is a hint that "equitable compensation" is not the same as damages in tort.

Indeed, in some jurisdictions there are a number of fairly subtle differences between "damages" and "equitable compensation," though the extent to which these are recognized by courts will depend on their familiarity with equity. One is that a rigorous showing of causation is not required in equitable compensation, at least if it is seen as a kind of direct "negative accounting."  Another is that courts may allow offsets for services rendered by the fiduciary. This, too, is in keeping with the roots of the remedy in accounting, but is at odds with ordinary calculations of legal damages. Yet another difference, at least in some common law jurisdictions, is that a court awarding equitable compensation may choose to allow the plaintiff to recover the lost value as of the time of the decree, not as of the time of breach, on the theory that what the beneficiary is owed is a continuing obligation of prudent administration by the fiduciary—an obligation that, if performed by the fiduciary, would have obtained the assets' appreciation.  A further difference is that equitable compensation allows no recovery for non-pecuniary losses, such as emotional distress.  This limitation is consistent with the theory that equitable compensation is requiring a fiduciary to make up what is lacking, due to breach of a duty, in the trust corpus (or more generally in the beneficiary's resources that are in the hand of the fiduciary.)

The general principle is, as the U.S. Supreme Court put it, that for the remedy of equitable compensation "any requirement . . . must come from the law of equity."  Sometimes this remedy is more generous than legal damages, sometimes less so. These divergences are not random. They are due to the fact that equitable compensation is tied to the fiduciary's duties. In the words of one scholar, "If the fiduciary no longer has the original property, and cannot therefore specifically perform his or her obligation, the claim will be that he or she must perform by payment of a monetary equivalent."  In such a case, equitable compensation "does not extend to loss suffered beyond that which is mandated by the scope and purpose of the duty," yet it is "denied or reduced only in those circumstances where such denial or reduction is consistent with the reach of and expectations engendered by the duty."

By using distinctive terminology, such as "equitable compensation" rather than "damages," courts and scholars can show their awareness that what they are discussing is a distinctive monetary remedy. "Labels . . . shape the connotation of a legal principle and thus the way people think about it."

Second, the use of distinctive terminology helps avoid misunderstanding about this remedy's classification. A typical award of damages in tort or contract is a legal remedy. But when a court awards equitable compensation against a trustee for breach of fiduciary duty, the court is not giving a "legal" remedy.  The entire field of trust law was developed in equity; it is in equity's exclusive jurisdiction.

This conclusion that equitable compensation is equitable has a number of implications in U.S. law, including that a claim for this remedy should be subject to equitable defenses such as laches and unclean hands, and that the remedy should not be awarded by a jury.

Finally, there is a point I raise in a footnote in the passage just quoted. After saying that one difference between legal "damages" and equitable compensation "is that a rigorous showing of causation is not required in equitable compensation, at least if it is seen as a kind of direct 'negative accounting'"—a proposition for which I quote the world's leading equity treatise, Meagher, Gummow & Lehane—I then add this sentence: "The explanation for this may not be specific to equity, but instead may be due to the fact that the plaintiff is enforcing the primary right, rather than seeking damages for loss caused by a wrong."

[benrleeusa]

[Eugene Volokh] Ukrainian President-Elect and Prime Minister Are Both Jews

Indeed, according to an exit poll, Volodomyr Zelensky, the President-elect, won over 70% of the vote. Zelensky is a political novice; he is an actor and comedian, and the star of the popular Ukrainian (though Russian-language) TV show Servant of the People, where he plays a schoolteacher who unexpectedly becomes elected President of the Ukraine. In honor of his election, I watched the first episode of the show, which is actually not bad.

In any event, I have no deep connection to the land of my birth; I was seven when our family left, and the one real link I have to that part of the world—my native language—ties me more to Russian culture than to Ukrainian. I also have no reason to think that Zelensky will be a particularly effective public servant, though who knows? But I was happy to see that anti-Semitism in the Ukraine seems to have retreated so much that this could happen.

(Note that Jews are 1% of the population, so I doubt that his Jewishness won him many votes. And while there are occasional accounts of Jewish stereotypes cutting in favor of Jews among some non-Jews, for instance when it comes to Jewish doctors or lawyers, we Jews are not an ethnic group known for having a genius for self-government. "Elect a Jewish President and Prime-Minister, and you'll have as effective a government as Israel does" doesn't sound like a winning argument ….)

[benrleeusa]

[Stewart Baker] Sending our passports to Pornhub

In this episode, Nick Weaver and I discuss new Internet regulations proposed in the UK. He's mostly okay with its anti-nudge code for kids, but not with requiring proof of age to access adult material. I don't see the problem; after all, who wouldn't want to store their passport information with Pornhub?

Sri Lanka's government has suspended social media access in the wake of the Easter attack. As Matthew Heiman notes, the reaction in the West is more or less a shrug – far different from the universal contempt and rejection displayed toward governments who did much the same during the 2011 Arab Spring rebellions. What made the difference? I argue that it's Putin's remarkably successful 2016 social media counterattack on Hillary Clinton as payback for her social media campaign against him in 2011.

DNS hijacking is just getting more brazen, according to a new Cisco Talos report. Nick and I talk about why that is and what could be done about it.

Paul Rosenzweig, back from hiatus and feisty as ever, mocks the EU Commission for its on-again, off-again criticism of Kaspersky's security. Short version: The Commission wants badly to play in cybersecurity because it's the Hot New Thing, but it has no institutional competence there, in either sense of the word. Speaking of Kaspersky, someone is doing a bad job of trying to compromise its critics with ham-handed private investigator-imposters.

Naked Kitten? Nick and I have a good laugh at the doxxing of Iranian government hackers, including their tools (and, naturally, their girlfriends).

Man bites dog: The Trump Administration is taking interagency processes seriously, and doing a better job than Obama's team – at least when it comes to use of Cyber Command. Matthew dives into the repeal of PPD-20.

Paul brings us up to date on the Mar-a-Lago Thumb Drive Affair. Maybe it wasn't malware after all. My guess? Schizophrenia.

Remember that face recognition software that the NGOs said was so crappy it had to be banned? Now, the New York Times reports that it's so good it has to be banned. Not so fast, says Microsoft: Our face recognition software is still so crappy that it can't be sold to law enforcement, and it ought to be export controlled so that China can sell – and keep improving – its own face recognition tools.

Bet you thought we forgot the Mueller Report. Nope! In fact, I offer the one conclusion about the report that everyone across the political spectrum can agree on. Anti-climactically, Paul and I point out that the report throws sidelights on the "Going Dark" debate and Bitcoin anonymity. Nick points out that we already knew everything the Mueller Report tells us on those topics.

Finally, Nick and I wrangle over the lessons to be drawn from Facebook's privacy travails.

Download the 260th Episode (mp3).

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

[benrleeusa]

[Ilya Somin] What Elizabeth Warren Gets Wrong About Daenerys Targaryen

Daenerys Targaryen (played by Emilia Clarke).

Massachusetts Senator and Democratic presidential candidate Elizabeth Warren is a big fan of Game of Thrones character Daenerys Targaryen. So am I! It's one of the few things Warren and I have in common (other than support for marijuana legalization, a love of golden retrievers, and both having been law professors). Still, I have several bones to pick with this recent article Warren wrote in praise of the Dragon Queen. Dany is a lot more problematic than Warren suggests—sometimes in ways that reveal flaws in Warren's own worldview.

Before reading further, you should know the rest of this post contains spoilers for Game of Thrones. Yes, SPOILERS. Those who dare complain about the spoilers despite being duly warned will suffer a dire fate similar to that of the Dragon Queen's enemies: Dracarys!

Back to Warren and Daenerys:

Warren writes that Daenerys "doesn't want to be a slave owner or a dictator—and she definitely doesn't want to become her murderous father." One of these things is not like the others. It's too her credit that Daenerys opposes slavery, and has in fact freed many thousands of slaves during her time raising any army on the continent Essos. She isn't called the Breaker of Chains for nothing.  She also has a genuine desire to avoid repeating the horrific errors of her father,  "Mad King" Aerys.

But Daenerys pretty clearly does want to be a "dictator."As she herself notes in the most recent episode of the final season of Game of Thrones, the "one goal" of her life has been to retake the Iron Throne of Westeros. She doesn't seem to have any objection to the vast scope of powers of monarch's powers (it's an absolute monarchy), nor does she believe that the legitimacy of her claim to the throne is dependent on the will of the people. To the contrary, she's more than willing to use heavyhanded coercion to force resisters to "bend the knee." She also rules as a despot during her time governing the territories she conquers in Essos (though somewhat less so in the books by George R.R. Martin than in the HBO show based on them).

Perhaps Daenerys cannot be blamed too much for this. Almost everyone in Westeros favors authoritarianism of one kind or another. The cities of Essos are ruled by narrow oligarchies. But Dany is not an exception to the dominant worldview of her society in this respect. Moreover, she clearly does have a strong love of power, even though she is often able to impose some restraint on the selfish impulses that stem from it.

Warren is right to point out that Dany says she wants to "break the wheel" rather than just continue the same old struggle for power that has devastated Westerosi society. But it's also true she seems to have no notion that doing so requires institutional change, not merely replacing a bad monarch with a good one (preferably herself). I discuss this flaw in her thinking (another she shares with nearly all the other characters on the show) here:

Unlike most of the other rulers we see in the series, Daenerys has at least some genuine interest in improving the lot of ordinary people…

Nonetheless, it is not clear whether Daenerys has any plan to prevent future oppression and injustice other than to replace the current set of evil rulers with a better one: herself. The idea of "breaking the wheel" implies systemic institutional reform, not just replacing the person who has the dubious honor of planting his or her rear end on the Iron Throne in King's Landing. If Daenerys has any such reforms in mind, it is hard to say what they are.

Daenerys most recently restated her desire to break the wheel in episode 4 of season 7, when she announced it to a group of captured enemy soldiers. Immediately afterwards, she proceeded to execute two of the prisoners, Lord Randyll Tarly and his son Dickon, because they refused to swear allegiance to her. Daenerys orders one of her dragons to burn them to death.

Lord Tarly is a far from sympathetic character, one who has committed significant injustices…. Nonetheless, this is an example of Daenerys ordering a brutal execution of prisoners without any due process, primarily because they refused to "bend the knee" to her…. Life and death are still decided by the word of the king or queen, with no institutional safeguard against the abuse of such arbitrary power.

Daenerys' indifference to the need for institutional constraints on government power is, to a great degree, shared by Elizabeth Warren herself.  The latter advocates policies that would massively expand government power  over the economy and society, and over online speech, while imposing few if any new institutional constraints.

Warren's shortcomings in this respect are much less excusable than Daenerys'. Unlike the Dragon Queen, Warren has the benefit of centuries of political and economic theory outlining the need to impose limits on government power and explaining how it can be done.

Warren praises Daenerys' recognition of the threat to humanity from the zombie-like White Walkers and willingness to prioritize it over her personal goal of taking the Iron Throne. The praise is partly justified.  But in the most recent episode of GOT, Dany says she made this decision out of love for Jon Snow, the King of the North, who urges her to deal with the Night Walkers first. Making this sacrifice out of love for her new boyfriend is not quite the same thing as doing it out of a sense of duty to the people of Westeros (though, in fairness, the latter is probably not completely absent). One wonders whether Dany would have made the same decision if she was not attracted to Jon.

Finally, Warren is also right to note that Dany is a much better person, with more admirable motives, than Cersei Lannister, the current occupant of the Iron Throne. But that is damning with faint praise. It is a little like saying Warren herself deserves credit for being a better person than Donald Trump.  She is. But Trump and Cersei are ridiculously low standards of comparison.

Despite her flaws, I still think that Dany is probably the least bad plausible contender for the Iron Throne (assuming the institution of the monarchy continues). Jon Snow, the understandable favorite of many fans, is—to my mind—disqualified by his egregious incompetence as a political and military leader. In that sense, Warren is right to cheer Daenerys' bid for the throne. But, ultimately, we would do better to place our faith in institutional constraints on government power rather than in seemingly heroic leaders—or in politicians who promise to solve all our problems if only we bend the knee.

UPDATE: Reason's Robby Soave has some related thoughts on Warren and Game of  Thrones here.