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If you missed this great column by James Taranto in the Wall Street Journal, here’s your chance to read it.
I had my own run-in with university kangaroo justice, fortunately much less serious than what Taranto describes. Just before I was going to graduate college, a friend with whom I had a falling out chose to escalate a minor personal dispute (involving, trust me, nothing remotely approaching illegal conduct) into a complaint with the university judicial process. I was told that no lawyer could be present, that there were no precedents that could be relied upon, and that my fate rested in the hands of the random students who sat on the judicial committee.
I pointed out to the associate dean in charge that the rules allowed him to dismiss the charges on the equivalent of summary judgment. He acknowledged that he could. I added that the charges were absurd, that even the strictest, most literal interpretation of the rules wouldn’t cover the alleged conduct. He agreed. I continued that nevertheless, the standards of behavior in the school manual were so broad and vague, and the discretion given to the student board so broad, and the lack of any governing rules of interpretation so glaring, that they could still “convict” me, really for any reason or no reason–they wouldn’t even have to issue an opinion. He nodded. I therefore asked him to exercise his authority to dismiss the charges. He refused, stating that he’d rather let the process play itself out, at which point he might or might not choose to intervene. Oh, and meanwhile I wouldn’t be allowed to graduate until the “case” was resolved.
Well, I didn’t want to deal with this nonsense, but I was at a loss as to how to proceed. Finally, an idea [...]
Eight years after the Supreme Court ruled in Kelo v. City of New London that private property can be taken and transferred to other private owners in order to promote “economic development” because such development qualifies as a “public use” under the Fifth Amendment, the Kelo condemnation site still lies empty. But New London Mayor Justin Finizio, who previously apologized for the original Kelo condemnations, has proposed devoting the property for a true public use:
The 2005 Supreme Court decision in New London v. Kelo [sic], in which the court by a 5-4 majority constitutionally validated the New London Development Corp.’s use of eminent domain to purchase and raze the homes of Fort Trumbull residents who refused to sell, remains a “black stain” on the city, said its mayor
NLDC wanted to clear the site to attract large corporate development and expand the city’s tax base. Its judicial triumpth proved a pyrrhic victory, the decision widely despised for interpreting “public use” to include the government taking the property of citizens to turn over to private developers. Count the New London mayor among the despisers. He characterized the Kelo decision as a “corruption of the constitutional interpretation of public use.”
Fort Trumbull has seen no new construction since the bulldozers departed the flattened neighborhood.
Mayor Finizio said he would like New London to symbolically overturn Kelo by undertaking a true “public use” of the seized private properties. He offered as an example a parking garage, under discussion recently as a means of meeting the parking demands generated by Electric Boat’s offices in the former Pfizer buildings, the one major project resulting from NLDC’s corporate development vision.
This would not be any municipal parking garage, but one with solar panels to power it, landscaping and design to fit it into
So concludes today’s Silvester v. Harris (E.D. Cal. Dec. 9, 2013). The analysis (some paragraph breaks added):
The WPL [the Waiting Period Law] prohibits every person who purchases a firearm from taking possession of that firearm for a minimum of 10 days. That is, there is a period of at least 10 days in which California prohibits every person from exercising the right to keep and bear a firearm.
There can be no question that actual possession of a firearm is a necessary prerequisite to exercising the right keep and bear arms. Further, there has been no showing that the Second Amendment, as historically understood, did not apply for a period of time between the purchase/attempted purchase of a firearm and possession of the firearm.
Although [Attorney General] Harris argues that the WPL is a minor burden on the Second Amendment, Plaintiffs are correct that this is a tacit acknowledgment that a protected Second Amendment right is burdened. Therefore, the Court concludes that the WPL burdens the Second Amendment right to keep and bear arms.
The next step is to analyze the WPL under either strict or intermediate scrutiny. As indicated above, Harris advances two rationales in defense of the WPL — it provides a “cooling off period” for those who may have an impulse to commit violence and it provides time for California to conduct a background check. It is unnecessary for the Court to determine at this time which scrutiny to apply because, even under the lesser “intermediate scrutiny,” summary judgment is not appropriate.
With respect to the rationale of providing time to perform a background check, Heller indicated that some laws or regulations presumptively do not offend the Second Amendment, including laws that prevent felons and mentally ill persons from possessing firearms. If a state presumptively
Here’s one more brief that the UCLA First Amendment Amicus Brief Clinic has filed in the last few weeks. This one is on behalf of the Thomas More Society, in SNAP v. Joyce (8th Cir.) (the link is to the decision that is being appealed). My students Tess Curet, Nathan Davis, and Michael Smith worked on the brief. I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here. The plaintiffs, whose position we are supporting, are represented by the ACLU of Missouri.
Please note that, in all Clinic cases, the students and I act as advocates for the clients. We are making the best arguments we can for the position we are taking; we are not necessarily endorsing it as the position that we think the law ought to take. (Sometimes you can tell from past posts of mine that I do personally agree with that position, but you should not draw such an inference simply from the filing of the brief.) I should also note that the amicus briefs are designed to be read alongside the parties’ briefs, so they naturally omit much of the factual and procedural background that the parties’ briefs make clear; my apologies if, as a result, some of the material is therefore opaque to other readers.
Missouri Revised Statutes § 574.035 (the Missouri House of Worship Protection Act), in relevant part, criminalizes behavior that
(The statute also prohibits excessive noise and physical intrusion into the church, but [...]
It is the holiday season! And if you happen to be looking for gifts for the VC readers in your life, books by VC bloggers might be a good choice. Among my favorite books by VC authors are Randy Barnett’s Restoring the Lost Constitution (now available in a new edition), David Bernstein’s Rehabilitating Lochner, Dale Carpenter, Flagrant Conduct: The Story of Lawrence v. Texas, and Eugene Volokh, Academic Legal Writing.
Randy’s book is one of the best recent works on originalism and constitutional legitimacy; Rehabilitating Lochner explodes numerous myths about one of the Court’s most reviled decisions; Flagrant Conduct is a great account of a milestone in the history of gay rights; and Academic Legal Writing is filled with useful advice, while also making a generally boring subject seem interesting. This list is not intended to slight important books by Ken Anderson, Orin Kerr, David Kopel, David Post, and others, which I have not discussed only because their subjects are further from my areas of expertise than the above.
In the spirit of shameless self-promotion, I will also mention my own recently published Democracy and Political Ignorance: Why Smaller Government is Smarter, and A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (coauthored with VC-ers Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, and David Kopel). Democracy and Poitical Ignorance explains why widespread political ignorance is a serious problem for democracy, and strengthens the case for limiting and decentralizing government power, and for judicial review. Conspiracy Against Obamacare focuses on the VC’s role in the Obamacare litigation, and is the only book that includes contributions by six different VC bloggers. VC-reading Obamacare mavens may also want to check out The Health Care Case, which includes chapters by Jonathan [...]
Last week I wrote about the Boycott, Divestment, and Sanctions movement against Israel and the tenuous foothold it is getting in the American academy. I also happened to read an article that led me to think about how some individuals are so convinced that Israel is obviously evil that he believes that something must be amiss with “the Jews” if so many of them not only can’t see what he sees, but actively defend the evil state. Whether the fact that it doesn’t occur to him that a reasonable person might disagree with his understanding of Israel is itself a reflection of preexisting latent anti-Jewish prejudice or is simply the hallmark of a dogmatic ideologue who is not immune to anti-Jewish feelings assumedly depends on the individual in question.
Roger Waters (of Pink Floyd fame) has helpfully pulled the two things I was thinking about together. Waters is perhaps the most outspoken Western artist who supports the BDS movement, and is very active in attempts to get others to boycott Israel.
Given some controversial imagery he has used at his concerts, has been at pains to deny that he is at all motivated by anti-Semitism. Here he is in September, in an interview with the Israeli newspaper, Yediot Ahoronot:
“I absolutely defend my right to express myself in my artwork in the way that I find the most appropriate and fitting. The Star of David is the symbol of the state of Israel. If you start to throw around the term “anti-Semite” at everyone who criticizes Israel – and that’s what they’re actually doing – that weakens your next attack on people who really are anti-Semites, ones that really don’t like Jews or Judaism or anything connected with it. I’m not an anti-Semite.”
“Two years ago, I explained [...]
WHEN was there contract better driven by Fate,
Or celebrated with more truth of state?
The world the temple was, the priest a king,
The spoused pair two realms, the sea the ring.
-Ben Jonson (1613). The poem was apparently occasioned by comments by James I at the opening of Parliament in 1604, following the Union with Scotland: “What God hath conioyned then, let no man separate. I am the husband, and the Whole Isle is my lawfull Wife.” [...]
There’s a new poll by Harris Interactive taken on behalf of the Community Financial Services Association of America (CFSA), a payday lenders trade association. Some interesting results:
One interesting finding in this poll, which differs from the findings of other research on payday loans, is that when asked the reason for taking a payday loan the most common answer (49%) was to deal with an unexpected emergency, such as a car repair or medical emergency. 44% said that it was to meet expenses, 28% said it was to avoid paying a late fee on a bill, and 23% said it was to avoid bouncing a check. Remarkably, 19% said it was to help out a friend or relative who needed money.
While the survey was solicited by the payday lending industry and some of the details of the study differ from the findings of other research on payday loan usage, the findings are generally consistent with the findings of other studies as to why consumers use payday lending and their awareness of the product’s cost. [...]
Nick Sibilla of the Institute for Justice has a good article on the City of Philadelphia’s dubious efforts to condemn a successful artist’s studio in order to transfer it to a new private owner that would build a supermarket and parking lot on the site. This scheme isn’t quite paving paradise to put up a parking lot. But it’s almost equally egregious:
James Dupree has been celebrated around the world for his art. But now he is being condemned by the city of Philadelphia—literally.
His art has been shown at many museums, including the Philadelphia Museum of Art, the Pennsylvania Academy of Fine Arts…
But the city of Philadelphia has other plans for his property. In November 2012, the Philadelphia Redevelopment Authority (PRA) was authorized to acquire 17 properties to build a supermarket in Mantua. According to the redevelopment plans, the PRA wants to bulldoze Dupree’s studio to make room for the privately-owned grocery store and its parking lot. No tenant has been identified yet, but the supermarket project has received $2.75 million in state subsidies….
Dupree estimates professionally moving his oeuvre would cost at least a quarter of a million dollars. So just relocating his vast collection actually costs more than what he originally paid for the building.
Transforming a broken-down garage and warehouse into a top-notch art studio was no easy feat. “When I purchased the property, it was basically condemnable,” he said. The roof leaked when it rained. The plumbing and electrical were “next to nil.”
“I invested everything I owned into this property…I was basically broke,” Dupree remarked. The property itself cost a little under $200,000. Installing new electrical and plumbing: $60,000. Fixing the roof was another $68,000. Thousands more were spent on renovations, furnishings and appliances.
But Dupree sensed the property at 3617-21 Haverford
Whew. That was a lot of writing on Hobby Lobby last week, and a lot of reading. I hope it was helpful, interesting, or both. Now, fortunately, I’m finishing up, but I wanted to close with one broader thought, going beyond the purely legal RFRA question. (I should also note that this thought is even more tentative than some of the ones in the earlier posts, precisely because it’s about pragmatic and moral matters on which I’m not expert, rather than on legal matters.)
One common argument in favor of religious exemptions is that, if possible, people should be able to live full lives as Americans without having to violate their religious beliefs — even if that means that our legal system will change in some measure to accommodate those beliefs. In large measure, the American legal system has provided such accommodations. Indeed, at least throughout much of America’s history, it provided them far more than nearly all other countries.
This willingness, I think, has been a source of American strength. It has brought people of all religions to our shores, at a time when such immigration was vital to our prosperity. (I think immigration remains vital to our prosperity even today, but let’s set that debate aside for now.) It has helped America harness the energy of all its residents, minimizing the sense of alienation that religious minorities have felt.
And it has helped America largely avoid the religious conflicts of Europe, conflicts that the Framers were keenly aware could lead even to civil wars. The beneficiaries of such accommodations have been many and varied: Quakers, Catholics, Jews, and many more. I myself am not religious, but I think this tradition of accommodation is worth preserving (recognizing, of course, that not all practices should be accommodated, for the [...]
Yesterday the Department of Interior finalized a rule that allows wind farms to get 30-year permits allowing them to kill federally-protected eagles. Eagles are frequent accidental victims of power plants and wind turbines, and the government has long taken the position that it is a federal crime to kill an eagle even unintentionally. To get the permit, the farms have to take various conservation measures.
Apropos of Eugene’s blogging this week, there is also a RFRA connection. In 2008, the Tenth Circuit decided a case called United States v. Winslow Friday, in which Mr. Friday was prosecuted for killing a bald eagle to use in his tribe’s religious ritual. One of Mr. Friday’s arguments on appeal was that RFRA requires the federal government to treat tribal killings and power-company killings of eagles with parity. The Court did not disagree with this premise, but concluded, at the time, that “with respect to both religious and secular threats to the eagle, the government appears to take a similar approach.” [...]
[Please note the UPDATE below.] (For an introduction to this series of posts, see here.)
Today, I’m blogging about what I think should be the heart of the Hobby Lobby case: whether denying Hobby Lobby an exemption from the requirement of providing potentially implantation-preventing contraceptives is the “least restrictive means” of serving a particular “compelling governmental interest.” This post focuses on an interest that is little talked about in the briefing of the various employer mandate exemption cases, but that I think strikes a chord with many people who have expressed concern about the exemption requests. (The post also assumes that an objector compensatory assessment, of the sort described in the previous post, isn’t available; if it is available as a less restrictive means of protecting health, then it would also be available as a less restrictive means in protecting employee private rights, since it would provide employees with the same benefits as they would get under the unmodified employer mandate.)
1. Let me start by approaching the question indirectly. Say that someone feels religiously motivated to make a pilgrimage to a particular place — for instance, a supposed visitation of the Virgin Mary. And say that this place happens to be on an unimproved parcel of land you own somewhere. That would normally be a trespass, but the pilgrim sues for an exemption from trespass law under RFRA.
I take it that courts wouldn’t, and shouldn’t, create such an exemption. Indeed, the compelling interest test provides a means for courts to avoid creating such an exemption — the compelling interest would be in preventing intrusion on your property rights. And it doesn’t matter that the intrusion would actually cause only modest harm to you, or that allowing the intrusion would cause only modest harm to the social [...]
(For an introduction to this series of posts, see here.)
Today, I’m blogging about what I think should be the heart of the Hobby Lobby case: whether denying Hobby Lobby an exemption from the requirement of providing potentially implantation-preventing contraceptives is the “least restrictive means” of serving a particular “compelling governmental interest.” This post focuses on the interest in sex equality. (The post also assumes that an objector compensatory assessment, of the sort described in the previous post, isn’t available; if it is available as a less restrictive means of protecting health, then it would also be available as a less restrictive means in protecting sex equality, since it would provide women employees with the same benefits as they would get under the unmodified employer mandate.)
1. One version of this interest is in preventing intentional sex discrimination. When an employer refuses to cover contraceptives that can only be used by women, the argument would go, it is engaged in sex discrimination, just as if it paid women less — even only a bit less — than men. The Court would likely find the interest in preventing such sex discrimination in employment to be compelling. See Bob Jones Univ. v. United States (1983); Roberts v. U.S. Jaycees (1983).
The problem with this argument is that the Court has never treated regulations of abortion as tantamount to sex discrimination, even though only women can get abortions. (I don’t want to focus here on whether that’s right or wrong; I’m just speaking of what the majority view on the Court has been, and is likely to be.) Indeed, the Court rejected such an argument in Bray v. Alexandria Women’s Health Center (1993). It rejected an Equal Protection Clause challenge to the exclusion of abortion from federal funding in Maher v. [...]