The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
The Lesson From Supreme Court Justices Changing Their Minds
For all of the commentary West Virginia Bd. of Ed. v. Barnette has received over the years, perhaps one of the more stunning aspects of that case was two Supreme Court Justices changing their minds.
The following is an excerpt from Chapter 6, "Be Open to Change," of my book Habits of a Peacemaker:
In the introduction, I mentioned the 1943 Barnette case, in which the Supreme Court ruled that school districts could not force Jehovah's Witness children to say the Pledge of Allegiance. I return to that now to illustrate an important principle. The case is remarkable for a number of reasons. It represents the foundation and, arguably, the founding of our modern understanding of freedom of speech and thought. It included what is often considered to be some of the most powerful language regarding the limits of government action in the modern era. In addition to what I shared in the introduction, it includes some of these important gems:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
Or this, when talking about our constitutional system and how it limits government from having power in certain areas of our lives:
Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it makes for its better support. Without promise of a limiting Bill of Rights it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government…. Observance of limitations of the Constitution will not weaken government in the field appropriate for its exercise.
And, finally, this sentence, explaining the purposes of the Bill of Rights:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
It may come as a shock to those not trained in the law, but the above quotations were not well established as part of the American experience until around the time of the Barnette decision, in the middle of the twentieth century. Prior to that, government, and particularly state and local governments, enjoyed tremendous power over people's lives. The primary reason we don't often hear about that is because lawmakers for the first one hundred years of our country's existence were less inclined to pass as many laws as they do today.
The Barnette decision represented an important shift in American constitutional law and one that paved the way for much of the success and growth—with its accompanying discomfort—of the twentieth century.
But it was almost not to be.
Today in Supreme Court History: September 10, 1949
9/10/1949: Justice Wiley Rutledge dies.
Monday Open Thread
What's on your mind?
Court Lets Plaintiff Suing Over "Pro-Hamas Demonstrations at Northwestern" Proceed Pseudonymously
Plaintiff had alleged that being publicly identified would put him at risk of physical harm.
From the plaintiff's argument in Doe v. Northwestern Univ. (N.D. Ill.); Judge John Robert Blakey has granted the motion, without a detailed explanation, but likely because he agreed with its general argument:
Plaintiff [John Doe 3] is a Jewish student at Northwestern University … who has been subjected to threats of physical violence while on campus and is the victim of retaliation and false accusations by individuals that attended pro-Hamas demonstrations at Northwestern. Other Jewish students on campus have been physically assaulted and have similarly faced severe and pervasive hostility on campus as a result of their Jewish identity. The perpetrators of these acts of intimidation and violence have acted with impunity and are waiting for Plaintiff on campus when he returns this Fall quarter. Plaintiff thus brings this motion to proceed pseudonymously in order to protect his identity and avoid further victimization.
Northwestern has adopted various policies designed to ensure the privacy of victims of discrimination and other wrongs. Not only does Northwestern claim to protect victims, but the university has also stated that it will protect the very individuals that are responsible for the harassment and threats of violence Plaintiff endured on campus. Northwestern recognizes the potential harm Plaintiff would face if his identity was exposed and does not oppose Plaintiff's request for anonymity. Nevertheless, because the Seventh Circuit disfavors the use of pseudonyms by litigants, the Court must engage in an exacting independent analysis of Plaintiff's request.
The Seventh Circuit has long rejected the use of a rigid test for determining whether the harm to the plaintiff from public identification exceeds the likely harm from concealment of their identity. Rather, the Seventh Circuit requires district courts to engage "in the careful and demanding balancing of interests required in making this determination," which includes consideration of, inter alia, whether a victim or wrongdoer seeks anonymity, whether disclosure risks retaliation to the victim, whether the public interest is served by anonymity, and whether a defendant will suffer any prejudice. The Seventh Circuit's recent decisions in Doe v. Trs. of Ind. Univ. (plaintiff John Doe sued Indiana University after he was expelled for physically abusing female student), and Doe v. Loyola Univ. Chi. (plaintiff John Doe sued Loyola after he was expelled for nonconsensual sexual activity with female student), do not change this analysis, because (as discussed below) neither sets forth a rigid test to be applied to victims of discrimination who are at risk of further violence and retaliation for their religious identity.
As a victim of severe hostility and discrimination based on his Jewish identity, Plaintiff reasonably fears further harm and retaliation from disclosure of his identity. As explained below, this harm is not speculative but grounded in the calls for violence against Jews on campus, and indeed, actual acts of violence. Moreover, Plaintiff reasonably fears retaliation because his perpetrators remain on campus and, over the course of the summer, have continued their efforts to harass and threaten Jews out of hatred….
My New Article "The Presumptive Case for Organ Markets"
t makes case that enormous benefits of organ markets create a strong presumption in favor of legalization that standard objections don't even come close to overcoming.
My new article "The Presumptive Case for Organ Markets," is now available for download on SSRN. It will be part of a forthcoming Routledge volume on organ markets edited by James Stacy Taylor and Mark Cherry. Here is the abstract:
The debate over legalizing organ markets has gone on for years, and the basic arguments are well-known. This chapter recasts the issue by emphasizing not just the nature, but the enormous magnitude of the considerations weighing in favor of legalization: saving tens of thousands of innocent lives, preventing prolonged suffering for many thousands more people, and enhancing bodily autonomy. That magnitude creates a strong presumption in favor of legalization, at least in some substantial form. Any countervailing argument must not only be valid in and of itself, but also sufficiently weighty to overcome the presumption. Standard arguments based on the risks of kidney donation, concerns about the "exploitation" of the poor, and dangers of "commodification" and moral corruption, fall short of that standard. Recent evidence on the number of lives that can be saved by legalizing organ markets and the diminishing risks of donating kidneys further accentuate the enormous magnitude of the gap between the benefits and costs of legalization
Part I provides an overview of the kidney shortage in the United States and the immense potential gains of legalizing organ sales. Doing so would save tens of thousands of lives every year, and also save many thousands more kidney failure patients from the pain and suffering of enduring many months or years of kidney dialysis. It would also enhance rights of bodily autonomy for both sellers and users of kidneys put on the market. These enormous benefits create a strong presumption in favor of legalization. Part II goes over several standard objections and explains why they fail to meet that demanding standard. These include claims that organ markets would lead to "exploitation" of the poor, arguments that they would lead to the commodification of the body, and concerns that they impose too great a risk on sellers. Each of these arguments lacks the necessary weight. In addition, to the extent objections are valid, they can be addressed by steps short of banning organ sales entirely.
Ruth Shalit Barrett's Defamation Lawsuit Against The Atlantic Survives in Part
The opinion includes some interesting discussion of defamation by implication.
From Judge Loren L. AliKhan's opinion today in Shalit Barrett v. Atlantic Monthly Group LLC:
Ms. Barrett began working as a reporter for The New Republic magazine in the early 1990s after graduating from Princeton University. At that time, she used her maiden name, Ruth Shalit, as her byline. Within her first few years on the job, she published many feature-length stories and was hired to write political stories for The New York Times Magazine and GQ.
In 1994 and 1995, Ms. Barrett came under fire for plagiarism in two articles in The New Republic. First, Ms. Barrett had written a story "in which three sentence[s] of biographical information and a quote" had been taken, without attribution, from a Legal Times article. The second article, a profile of Steve Forbes, "contain[ed] 29 words from a National Journal article" that were also unattributed to the original author…. Also in 1995, a factual error was discovered in an article Ms. Barrett had written for The New Republic about The Washington Post. The error was addressed "using the standard practice of … a post-publication correction." Ms. Barrett worked at The New Republic for four more years until she departed in 1999. None of Ms. Barrett's articles from 1996-1999 were found to contain factual errors and The New Republic did not issue any corrections to her work in this time span.
Twenty years later,
The Atlantic hired Ms. Barrett to write a long-form investigative article detailing the "efforts of affluent parents to use niche sports to give their already-privileged children further advantages in the competitive admissions process at elite colleges and universities." The eventual article, titled "The Mad, Mad World of Niche Sports Among Ivy League-Obsessed Parents" sparked the controversy that led to this lawsuit.
That controversy chiefly involved the description of a confidential source as having four children rather than three, which was apparently intended to help conceal the source's identity. That was uncovered and led to public criticism, followed by a retraction that Barrett says was libelous. Here's the heart of the court's analysis of the defamation claims:
Ms. Barrett raises four claims of defamation per se based on the following groups of statements: (1) accusations that she acted dishonestly with respect to the article; (2) accusations that she was fired from The New Republic in 1999 for misconduct; (3) statements alleging that she tried to disguise her identity by using "Ruth S. Barrett" in her byline; and (4) statements that she is a dishonest journalist with a history of fabricating facts….
Journal of Free Speech Law: "Speech Regulation and Tobacco Harm Reduction," by Jonathan H. Adler & Jacob James Rich
The final article from the Information as Medicine symposium.
Here is the Introduction; the full article is here:
Regulatory constraints on the provision of truthful information to consumers about tobacco products may be having deadly consequences. Different types of tobacco products present different degrees of risk, yet a substantial proportion of consumers are unaware of these differences. Existing regulations governing tobacco products limit the ability of manufacturers to address these misperceptions. As a consequence, well-intentioned public health regulations may be undermining the protection of public health.
Regulation of commercial speech is a major component of federal regulation of tobacco products. Even before the enactment of the Family Smoking Prevention and Tobacco Control Act ("Tobacco Control Act"), Congress authorized cigarette warning labels and the regulation of cigarette advertisements. In 2009, this legislation expanded the regulation of speech, imposed a permitting regime for comparative health claims of alternative tobacco products and subjected cigarette alternatives, such as electronic nicotine delivery systems (ENDS) and other vaping products, to the same regulatory regime as cigarettes.
Federal regulation of tobacco company speech was adopted to counteract tobacco industry misinformation and manipulation of consumers. Controlling the advertisement, promotion, and labeling of tobacco products was embraced as a central element of reducing smoking rates and youth initiation in particular. While the regulation of tobacco advertising and labeling was considered an important public health measure, it was nonetheless subject to First Amendment scrutiny.
Since the adoption of federal tobacco legislation, the Food and Drug Administration (FDA) has asserted regulatory authority over ENDS and other vaping products as "tobacco products," subjecting them to the same regulatory regime as cigarettes and other traditional forms of tobacco products. This includes labeling requirements and regulations governing tobacco product advertising. It also includes restrictions on providing consumers with truthful, and potentially life-saving, information about the relative risks of competing products.
"How Different Are the Trump Judges?"
A new empirical study assesses the "quality" of Trump's judicial nominations.
A new paper by Stephen Choi and Mitu Gulati, "How Different Are the Trump Judges?" seeks to evaluate the quality of Trump's judicial appointments as compared to their colleagues on the bench. It produces some interesting results. Here's the abstract.
Donald J. Trump's presidency broke the mold in many ways, including how to think about judicial appointments. Unlike other recent presidents, Trump was open about how "his" judges could be depended on to rule in particular ways on key issues important to voters he was courting (e.g., on issues such as guns, religion, and abortion). Other factors such as age and personal loyalty to Trump seemed important criteria. With selection criteria such as these, one might expect that Trump would select from a smaller pool of candidates than other presidents. Given the smaller pool and deviation from traditional norms of picking "good" judges, we were curious about how the Trump judges performed on a basic set of measures of judging. One prediction is that Trumpian constraints on judicial selection produced a different set of judges. Specifically, one that would underperform compared to sets of judges appointed by other presidents. Using data on active federal appeals court judges from January 1, 2020 to June 30, 2023, we examine data on judges across three different measures: opinion production, influence (measured by citations), and independence or what we refer to as "maverick" behavior. Contrary to the prediction of underperformance, Trump judges outperform other judges, with the very top rankings of judges predominantly filled by Trump judges.
Some of the data Choi and Gulati compile is quite interesting, in particular some of the rankings of the most productive and most-cited judges.
Here, for instance, is the list of the most productive circuit judges, adjusted for circuit court norms.
- Michael Scudder—7th Circuit (Trump)
- Amy St. Eve—7th Circuit (Trump)
- Andrew Oldham—5th Circuit (Trump)
- James Ho—5th Circuit (Trump)
- David Barron—1st Circuit (Obama)
- Kevin Newsom—11th Circuit (Trump)
- Jennifer Elrod—5th Circuit (G.W.Bush)
- Steven Menashi—2nd Circuit (Trump)
- Stuart Duncan—5th Circuit (Trump)
- Daniel Bress—9th Circuit (Trump)
- Lawrence VanDyke—9th Circuit (Trump)
And here is a list of the circuit court judges that are most cited by judges in other circuits.
- Eric Murphy—6th Circuit (Trump)
- Amy St. Eve—7th Circuit (Trump)
- Kevin Newsom—11th Circuit (Trump)
- John Nalbandian—6th Circuit (Trump)
- Cheryl Krause—3rd Circuit (Obama)
- David Porter—3rd Circuit (Trump)
- Chad Readler—6th Circuit (Trump)
- Stuart Duncan—5th Circuit (Trump)
- Britt Grant—11th Circuit (Trump)
- James Ho—5th Circuit (Trump)
These results may be more surprising to some than to others.
(Hat tip: Legal Theory Blog)
Amicus Brief Urging Supreme Court to Hear Pseudonymity Case
Profs. Benjamin Edwards, Jayne S. Ressler, Joan Steinman, and I—who are among the few academics who have written on the American law of pseudonymous litigation—have just filed an amicus brief in Doe v. Trustees of Indiana Univ., supporting a petition that asks the court to consider this case, and help guide lower federal courts about when pseudonymity should be available. Here's our Summary of Argument; you can also read the whole brief (and I expect to post some excerpts from it as well):
[1.] In more than a thousand federal cases each year, plaintiffs endeavor to file under a pseudonym. Sometimes, courts explicitly permit this. Sometimes, they do not. Sometimes, they do not address the issue at all.
Decisions about whether to permit pseudonymity are important. They affect the public's right to monitor and supervise the work of the federal courts. They affect the incentives to bring or not bring a case, and to defend or settle it. They affect the accuracy and efficiency of the judicial process. They may cause unfairness to the parties.
[2.] Yet this Court has never decided whether or when pseudonymity is appropriate. At times it has allowed pseudonymous cases to come before it, but without setting forth any test for when courts should allow pseudonymous litigation. Left adrift, twelve circuit courts developed different tests that have led to different results for similarly situated litigants.
Petitioners correctly identify a circuit split. But because many of the factors under the various circuits' tests are so vague, courts also routinely disagree on how to apply those factors, thus often producing inconsistent results. Courts do not agree, for instance, on when pseudonymity should be allowed in cases involving alleged sexual assault, mental illness, or copyright-infringing use of pornography. They do not agree on whether pseudonymity should be available to protect a plaintiff's reputation and employment prospects. And the list goes on.
[3.] This inconsistency is likely to endure, unless this Court steps in. Every circuit reviews pseudonymity determinations for abuse of discretion, which usually leads to the trial court's determination being upheld: Both a decision to grant pseudonymity and a decision to deny it, on the same facts, could easily be viewed as within the district court's discretion.
As a result, circuit courts generally will not set precedents that harmonize lower court decisions about pseudonymity. Similarly situated litigants will continue to be treated differently. And practitioners and prospective litigants will remain in the dark about whether pseudonymity will be available. This Court should grant certiorari to provide at least some guidance to lower courts on these important matters.
Thanks to Stanford Law School students Charles Edward Power, Andrew P. Thompson, and Olivia Morello, who worked on the brief with me.
Journal of Free Speech Law: "Freedom of the Test," by Prof. Alex Tabarrok
An article from the Information as Medicine symposium.
Here is an excerpt; the full article is here:
At-home testing—DNA testing, for example—is one of those personalized medicine advances that would have been unthinkable not too long ago. DNA tests can tell us about our ancestry, which diseases we may be especially prone to, and which drugs might work especially well or poorly for our body.
Personalized medicine can adjust medications not only to DNA which is unchanging but also to the dynamic response of RNA, proteins, and metabolites. Chen et al. describe how a patient was treated via a "personal omics profile (iPOP), an analysis that combines genomic, transcriptomic, proteomic, metabolomic, and autoantibody profiles from a single individual over a 14-month period." Studies like this point to a future in which we will be able to measure a disease or an infection and a body's response across many different variables in close to real-time. A personal omics profile could thus optimize healthcare strategies not just to a particular person but to a particular person at a particular time and place.
And we do have a history of making use of some aspects of personalized medicine in the United States. While the most advanced tests and devices are not yet integrated with the medical mainstream, pregnancy tests and AIDS tests have been common for years. The recent COVID pandemic also illustrated the value of real-time, at-home tests for viral antigens. Popular wearables like Fitbit are relatively simple medical devices that provide real-time measurements for things such as blood oxygen levels, skin temperature, and heart rate. Much more will be possible as sensors become cheaper, more refined, and more integrated with our bodies….
Personalized medicine, however, has advanced at a far slower rate than the underlying data and technology. U.S. Food and Drug Administration (FDA) regulation has slowed adoption and increased costs for tests and devices that inform patients about their own bodies. In fact, the FDA has a long-standing fear and antipathy towards personalized medical tests.
In 1972, the FDA confiscated thousands of home pregnancy tests, declaring that they were "drugs" meant to diagnose a "disease" and thus fell under the FDA's regulatory dominion. The case went to the U.S. District Court for the District of New Jersey, and Judge Vincent P. Biunno ruled that that the FDA had overstepped. "Pregnancy," he said, "is a normal physiological function of all mammals and cannot be considered a disease…. A test for pregnancy, then, is not a test for the diagnosis of disease. It is no more than a test for news." As a result of Judge Biunno's ruling, home pregnancy tests are today easily available from pharmacies, grocery stores, and online shops without a prescription….
Israel, Hamas, and the Need for Neutral Free Speech Principles
The Israel-Hamas war has sparked ideological swaps in many places regarding freedom of speech, confirming more than ever why we need neutral free speech principles.
With the launch of my new book Habits of a Peacemaker: Ten Habits to Change Our Potentially Toxic Conversations into Healthy Dialogues, I will be guest blogging here on some themes from the book. Its aim is to provide practical skills to help readers become the type of people who can use their free speech rights effectively to have productive conversations about hard topics.
One of those skills peacemakers engage in regularly is searching for the best argument against their position on any issue. They may not find that argument persuasive, but learning it and knowing it helps them nuance and strengthen their views.
Sadly, the Israel-Hamas conflict, and government and university reactions to speech around it, serve as a stark reminder that too often, too many are not committed to that norm. Rather, for certain topics they hold most dear, most people prefer to silence opposing views, instead of grappling with them. And that instinct is why we need neutral principles for the freedom of speech.
Pennsylvania Sen. Douglas Mastriano's Libel Claims Made Clear
Mastriano v. Gregory (W.D. Okla.) involves a lawsuit that's mostly about a controversy related to Pennsylvania state senator Douglas Mastriano's Ph.D. thesis (in military history). Some backstory, from the Canadian Broadcasting Corporation (Aidan Cox):
The University of New Brunswick has become the target of legal action by a Republican politician in Pennsylvania who's accusing the school of leaking his doctoral thesis and of participating in a scheme to discredit his research on a First World War hero.
Doug Mastriano, a U.S. Army veteran and state senator, is suing UNB and several of its faculty members following a wave of criticism directed at the thesis he wrote on Sgt. Alvin C. York that earned Mastriano a PhD from the university in Fredericton.
"Defendants embarked on a racketeering enterprise to deprive Col. Mastriano of his intangible property interests in his PhD, his books, and his speaking engagements," says the lawsuit, filed in Oklahoma by lawyer Daniel Cox….
The lawsuit says it was filed in that court because James Gregory …, one of the named defendants, lives in that jurisdiction….
The lawsuit also includes a libel claim, but the alleged libel at the heart of Mastriano's libel claim (one of several claims in the case) was sealed, and parts of an online article that is claimed to be the basis for the lawsuit was redacted. I successfully moved to intervene and unseal those exhibits (you can see them here and here), and it turns out that the libel claim isn't about the thesis after all. Rather, it stems from a letter sent in the name of UNB History Department faculty that condemns Mastriano on ideological grounds, e.g.,
Mastriano's public statements reflect an anti-2SLGBTQQIA+, Islamophobic, sexist, racist, anti-science, violently authoritarian ideology antithetical to our values.
Steven Collis Guest-Blogging About "Habits of a Peacemaker: 10 Habits to Change Our Potentially Toxic Conversations into Healthy Dialogues
I'm delighted to report that Prof. Steven Collis (Texas) will be guest-blogging this week about his new book. From the publisher's summary:
Learn the practical skills that can help you build bridges, heal relationships, and engage in productive conversation about even the hardest topics.
Most people have experienced the slippery slope of dialogue that descends into polarized argument. We yell at each other. We gaslight. We twist one another's words and meanings. We embrace facts that support our conclusions and ignore those that don't. Or we sit in silence, afraid to discuss anything of substance. If how you treat others matters to you, this book offers powerful new habits that can give you the confidence to engage in dialogue about hard topics while building and strengthening relationships.
Imagine turning what could be a contentious conversation with a family member, a friend, or a coworker into a fruitful exchange that enlightens everyone's minds and inches both of you toward a solution. Steven T. Collis, one of the world's leading experts on civil discourse, reveals ten practical habits that can help you navigate the potential minefields of hard topics and leave you and those you converse with feeling thoughtful and productive.
Today in Supreme Court History: September 9, 1806
A Conversation on Climate Change, Catastrophism, and Illiberalism
A panel discussion from the Liberalism for the 21st Century conference
Climate change seems to provoke illiberal reactions from both Right and Left. The former falls prey to know-nothingism in its efforts to deny the existence of a problem that would justify a governmental response. The latter's tendency to catastrophize climate change fosters support for illiberal responses. Neither is a productive response to a serious problem.
This concern was the focus of a panel on which I participated at the ISMA's inaugural Liberalism for the 21st Century conference this past July. Joining me on the "Climate Change: Liberal Solutions" panel was Nils Gilman of the Berggruen Institute, Joseph Majkut of CSIS, and Slow Boring editor Matt Yglesias. The video is below.
An edited transcript (omitting the Q&A) is also available here.
Today in Supreme Court History: September 8, 1953
Free Speech and the Educational Mission
Some of the hardest free speech issues arise when a university argues that restrictions are justified by its "educational mission."
Public colleges and universities are bound by the First Amendment. Their private counterparts are not (though a state might choose to apply the requirements of the First Amendment to them, as California has largely done). But if private universities choose to follow the First Amendment, they will make life a lot easier, and also a lot better, for faculty, administrators, and students alike.
One reason is that First Amendment principles make most cases easy.
The First Amendment does not protect plagiarism, sexual harassment, or true threats ("I will hurt you if I see you in the dining room again"). At the same time, the First Amendment protects a wide range of viewpoints, including those that many consider, or that just are, offensive, hurtful, insulting, or humiliating.
If someone on campus says, "Capitalism is racism," or "Israel should never have been created," or "Democrats are communists," or "January 6, 2021 should be a national holiday," or "Russia all the way," or "Affirmative action is the worst form of race discrimination," the First Amendment doesn't allow regulation.
Still, there are plenty of hard cases. Many of the hardest arise when a college or university claims that restrictions are justified by its educational mission.
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