Free Minds & Free Markets


Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

#IlyaConfusion - A Guide for the Perplexed

For partly understandable reasons, I often get confused with Ilya Shapiro of the Cato Institute. Here is the definitive guide to how to tell the two libertarian Ilyas apart.

Earlier today, I was on a Federalist Society-organized press call on the travel ban case currently before the Supreme Court. The moderator introduced me as "Ilya Shapiro of the Cato Institute." This is very, very far from the first time I have been confused with Ilya Shapiro. The same mistake has been made by law students, journalists, bloggers, academics, Twitter posters, and even federal judges. In one case, a Federalist Society chapter accidentally invited both of us to speak, even though they actually meant to invite just one (one of their organizers forwarded the invitation to the other one), with the result that we had to split the speaking time - and (far worse) divide the honorarium. "Ilya Confusion" is common enough that the phenomenon even has its own Twitter hashtag: #IlyaConfusion. The situation has gotten so far out of hand that my wife, Alison, has even been confused with Shapiro's wife Kristin, even though the two of them don't look much alike.

Clearly, the time has come for a blog post to set the record straight by explaining the many differences between the two Ilyas that you can use to tell us apart!

But, first, we have to ask how it is that #IlyaConfusion got started in the first place. In some ways, it's understandable. Most obviously, both of us are named Ilya, and both our last names start with S. We are both Russian Jewish immigrants from the former Soviet Union, and both are libertarians who write extensively about constitutional law issues. We probably agree on 80-90 percent of the issues we write about. We are among the very small group of people who filed Supreme Court amicus briefs against both laws banning same-sex marriage and the Obamacare individual mandate. Though it didn't happen in either of those cases, we have several times joined the same amicus briefs in other Supreme Court cases. Furthermore, both of us have affiliations with the Cato Institute: Shapiro as a senior fellow, and me as an adjunct scholar (though only Shapiro actually works for Cato; adjunct scholar is just an unpaid external affiliation).

We also both blog (me right here at the Volokh Conspiracy, and Shapiro at Cato at Liberty), both give numerous talks at Federalist Society chapters and law schools, and both write many op eds including at some of the same publications (e.g. - we have both written for CNN, USA Today, and the Wall Street Journal). Shapiro is the editor of the Cato Supreme Court Review (for which I have written several articles), and I was a longtime co-editor of the Supreme Court Economic Review (for which Shapiro, perhaps fortunately, has never written).

Worst of all, people just simply don't expect there to be two libertarian legal commentators named "Ilya" who write about many of the same issues. If we were both named Tom, Dick, or Harry, there probably wouldn't be any problem!

But despite these similarities, there are big differences between the two Ilyas. Once you know about them, you will never get us confused again!

1. Opposing Views on Major Legal Issues.

While we agree on a lot, we have some big disagreements. And nowhere more so than on constitutional issues involving immigration. I believe that Obama's DAPA and DACA policies were constitutional, while Trump's travel ban is very much not. Shapiro believes the exact opposite. We have even publicly debated both issues. Here is a video of our 2016 Reason Foundation debate over DAPA. We also published dueling op eds on the subject, right here at the Reason website: Shapiro's and mine. In February, we debated the travel ban at Fordham Law School (an event sponsored by the Fordham Federalist Society):

We also have opposing views on two of the three issues at stake in Jeff Sessions' lawsuit against California's sanctuary policies (see my take here, and Shapiro's here).

Back in 2009, at the very first panel where we appeared together, Shapiro said he thought that Boumediene v. Bush is one of the worst Supreme Court decisions ever. I think it was probably rightly decided, and certainly no great outrage even if wrong.

2. Different Origins.

We may both be Russian Jews. But Shapiro is from Moscow, while I am from St. Petersburg. The two cities have a longstanding historic rivalry. St. Petersburg is historically associated with liberal westernizing tendencies in Russian society, while Moscow is the traditional home of authoritarian Russian nationalism (though, today, both cities are far more liberal and cosmopolitan than the Russian hinterland). Readers can decide for themselves whether it accounts for our differences on other issues!

3. Different Types of Writings.

I have authored five books, while Shapiro has (as far as I know) not written any. I also write many more articles in academic journals (especially non-law journals) than he does. On the other hand, Shapiro writes many more amicus briefs and op eds (though I do some of both also). If you see a book or academic article on law or public policy by someone named "Ilya," it's probably me. An amicus brief or op ed is more likely to be Shapiro.

Shapiro also writes on a far wider range of legal issues than I do. He has a truly amazing range. I mostly focus on property rights, federalism, constitutional theory, and a few issues in discrimination law and separation of powers. An article by an Ilya on other legal issues is likely to be by Shapiro. On the other hand, I write far more articles on non-legal questions.

Also, I write extensively about the politics of science fiction and fantasy. To my knowledge, Shapiro has never written in either of these exciting fields!

4. Different Types of Speaking Engagements.

We both do many speaking engagements. But I have done them in nineteen foreign countries, while Shapiro gives talks abroad far less often. I also give far more talks at non-law departments at US universities and think tanks. On the other hand, he has spoken in more US states (50 to my 36), and more law schools. If you saw an Ilya speak on law and public policy in China, Japan, or Korea, or at a non-law event in the US, it was probably me. Ditto if you saw an Ilya speak on topics related to science fiction or fantasy.

Things are much less clear if it was a law school in the US. But if it was one in a relatively out of the way location, Shapiro is the more likely culprit. Similarly, Shapiro appears on US TV news programs far more often than I do, but I do more foreign TV.

5. Different Views on the Ethics of Sports Fandom.

At the risk of shocking the sensitive audience here at the Volokh Conspiracy, I must point out that Shapiro is a notorious sports bigamist. The Washington Post once ran an article about how he came to a Washington Capitals-Toronto Maple Leafs playoff game in order to root for both teams at the same time! I would never stoop to such sacrilege. I only root for two types of professional sports teams: Boston teams, and whoever is playing against the New York Yankees on days when they aren't playing the Red Sox.

So, there you have it: a definitive guide to how to avoid #IlyaConfusion! But if you are somehow still confused, you can fix the problem by following the example of Fordham and the Reason Foundation and arranging an Ilya vs. Ilya debate at your university or research institute. I think I can speak for both Ilyas when I say we would be happy to have the chance to spread our views - and collect your speaker fees!

Pure Foolishness

Eight years ago, the Volokh Conspiracy pointed out that the Chair of the Vermont State Advisory Committee to the U.S. Commission on Civil Rights had made ridiculous, racially inflammatory statements. Today the Commission evidently decided that's just what Vermont needs and brought him back for a second stint as Chair.

On October 19, 2010, our fearless leader Eugene Volokh posted a piece entitled "When I Hear 'Pure Vermont,' Racial Purity Is the First Thing that Comes to Mind."

In it, he brought attention to an utterly silly statement made by Curtis Reed Jr., the Chair of the Vermont State Advisory Committee On Civil Rights. Reed was upset with the Brian Dubie for Governor "Pure Vermont" advertising campaign and argued the slogan would have sinister connotations to many voters:

[F]or many Vermonters, these words denote racial, religious and cultural oppression. They imply that Vermont is a place reserved for white Christians….

Vermont's population is becoming increasingly diverse. Over the past decade, nearly 95 percent of the state's new residents were racial and ethnic minorities. The "pure" brand perpetuates the "native" verses "flatlander" divisive wedge for the 60 percent of us who were born someplace other than this great state. Tens of thousands of Vermonters today come from non-Christian religious traditions whose recent histories recount public humiliation, persecution and genocide under the rule of oppressive regimes.

Dubie's brand resurrects the horror of the Eugenics Survey and the 1931 passage of An Act for Human Betterment by Voluntary Sterilization. This measure codified the practice of racism, harassment, and the sterilization of the Abenaki people. "Pure Vermont" raises the specter of Hilter's Aryan Nation and the Khmer Rouge where the purifying agent was genocide.

And the slogan is a bitter reminder of the bigotry and racial segregation experienced by blacks under slavery and Jim Crow. The precipitous drop of Vermont's black population in the early 20th century was no doubt partially due to the Klan's efforts to keep Vermont pure….

The brand [also] turns a deaf ear to the sensitivities of students of color and LGBT students….

The "Pure Vermont" brand is pure invalidation of the fastest growing segment of our population. And the brand's handlers have been dishing out a healthy dose of avoidant behavior or, optimistically, benign neglect. The inherent challenges and opportunities of a more multicultural Vermont should not be ignored or buried in the polite discourse of denial. Failure to authentically affirm our presence today will prove, in years to come, to be the Achilles heel of Vermont's economic recovery, prosperity, and a sense of community free of prejudice and discrimination of all kinds.

"Pure Vermont" does nothing to bring Vermonters together. Vermont deserves inclusive, decisive, self-aware leadership with the 21st century skills to negotiate the oncoming changes within and beyond our borders.

Eugene wrote at the time:

"That's right — "'Pure Vermont' raises the specter of Hitler's Aryan Nation and the Khmer Rouge where the purifying agent was genocide." Unintentional self-parody at its finest.

Here's the rest of the story: At its monthly meeting held this morning (by telephone), the Commission voted to bring back Curtis Reed as Chair of the Vermont State Advisory Committee for an additional term. The vote was 6-2 with Peter Kirsanow and me in dissent. Everyone on the Commission knew about Reed's statement. Indeed, I read large portions of it into the record. They wanted him anyway. They apparently want State Advisory Committee members who are prone to make over-the-top statements of this kind.

CUNY Law Fed Soc co-president: Disruption of Blackman can be a "learning moment"

As regular readers are aware, Professor (and occasional VC guest-blogger) Josh Blackman was invited to CUNY Law School by the law school's Federalist Society to give a talk about free speech on campus. Before his talk, the CUNY administration sent out an email warning students not to disrupt the talk. Blackman was met with student protesters who seemed intent on disrupting the talk. An administrator dropped in, warned the students not to disrupt, and then left. The student protesters disrupted Blackman for about ten minutes, and then departed. Dean Mary Lu Bilek of CUNY Law made it clear that the disruptive students would not be penalized, warned, or even investigated. She stated: "This non-violent, limited protest was a reasonable exercise of protected free speech, and it did not violate any university policy."

In response, I noted that disruption could not possibly be consistent with university policy, and indeed I pointed to two provisions of the student handbook that were pretty clearly violated. I suggested that Dean Bilek was unfit to be dean, and should be fired. I stand by that. But I should have clarified at the time, for those not familiar with the law school academic setting, that being "fired" as dean means that you are relieved or your dean title and administrative responsibilities and return to the regular faculty, not that you lose employment.

In any event, Justin Kilborn, co-president of the CUNY Law Federalist Society, asked me to publish his response to my post. I won't comment on it, other than to note that Professor Blackman does not seem to share Mr. Kilborn's sanguine perspective, as expressed in the first two paragraphs of Kilburn's response, that the disruption should be seen as "learning moment" that ultimately worked out okay because Blackman had a "productive" conversation with the students who came to see his lecture. Blackman told "It absolutely disrupted what I wanted to do. I wasn't able to give the speech I wanted. I didn't have enough time to give it, or the energy to give it because I had to deal with all these other factors. These students were deliberately trying to interfere with my ability to exercise my constitutional rights." He told Tucker Carlson, "I tried to come on campus to talk about free speech, and I was shouted down. They yelled at me, they screamed at me, they called me a fascist, a white supremacist, a Nazi.... This was not a reasonable protest."

Here is Kilborn's full, unedited response to my post:

On April 16, David Bernstein, a professor at the George Mason University School of Law wrote, in the Volokh Conspiracy, that Mary Lu Bilek, dean of the City University of New York (CUNY) School of Law, needs to be fired. As a student at CUNY Law and the co-president of the CUNY Chapter of the Federalist Society, I feel obligated to make a statement in response to this.

To be sure, I am disappointed in my fellow students' unwillingness to partake in civil debate. I was happy to invite Josh Blackman, professor at South Texas College of Law, to our campus and I was taken aback at the reaction to our flyers. However, I cannot fully condemn my fellow students. The CUNY Chapter of the Federalist Society cannot claim to be advocates of free speech and then get mad when fellow students use their freedom of speech to protest ideas they dislike. Do I think my fellow students over-stepped their bounds in shouting down Professor Blackman? Yes. But if addressed properly this can be a learning moment for everyone at the school.

I fully appreciate Professor Blackman's willingness to work with us through the last-minute topic changes as we were unable to find any other professors willing to partake in a conversation regarding different theories of constitutional interpretation. I appreciate his patience in dealing with the protesters on campus and, while I was looking forward to hearing his prepared remarks about freedom of speech and having a diversity of ideas on campus, I believe that the conversation had with the students was productive. Ironically, while I could not persuade any other professors to speak with Professor Blackman on the topic of constitutional interpretation, a fair amount of the questions proposed by students at the event were about originalism.

Having said that; Dean Bilek's statement about the event is the same statement, I believe, any other dean of a law school would give if they found their school the center of this kind of attention. And, while Professor David Bernstein is more than welcome to wax poetic about how Dean Bilek's statement does not align with the rules stated in CUNY's policy and what happened in the video, that is about all that can be done at this point. With all due respect, Professor Bernstein is not aware of anything that might be taking place outside of the public view to address what happened at the event. I would never expect the dean of our school to throw her students under the bus just to please people that have no vested interest in the school community.

To call for Dean Bilek to be fired over this singular event is myopic and displays the difference between being a lifelong professor that is tasked with simply writing about school policy as opposed to an upper level administrator tasked with finding a proper balance in enforcing school policy.

Short Circuit: A roundup of recent federal court decisions

Loafing about, fishing for a lighter, and standing on the porch.

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

This week, the Wisconsin Supreme Court heard argument on whether there is a rational basis for a law that prohibits joint operation of both a cemetery and a funeral home. Should the state have to point to specific facts showing the law protects the public from harm—or should it just have to show that the law could arguably have been intended to protect the public, irrespective of whether it actually does? The former, argues an IJ amicus brief.

  • Asked if he has a gun, man flees D.C. police on foot. Police shoot him in the back, killing him. A broken BB gun is recovered nearby. (The man's fingerprints aren't on it; DNA swabs are taken but apparently not processed.) Jury: It wasn't excessive force. Man's mother: Could be the police planted the BB gun. The trial judge should have delayed the trial and sanctioned the defense for failing to turn over evidence during discovery. D.C. Circuit: No errors here.
  • Two physicians, a labor union president, and many others help Long Island Rail Road workers obtain fraudulent disability benefits. It's an "epidemic" of fraud; nearly 80 percent of LIRR workers retire on disability—compared to 20 percent at a comparable railroad. Defendants: The scam was so blatant that regulators must have known what we were doing, and they didn't try to stop us. Second Circuit (2015): Convictions affirmed. Defendants: Okay, but it wasn't such an epidemic after all; most retirees' were indeed disabled and have since had their benefits reinstated. We shouldn't have to pay so much restitution. Second Circuit (2018): The restitution isn't a sufficient deprivation of your liberty to permit collateral review.
  • After "Pharma Bro" Martin Shkreli increases the price of a brand AIDS drug by 5,000 percent, Maryland legislators ban "price gouging" of "essential" generic drugs. Drug companies: Which is unconstitutional. The Commerce Clause limits the power of states to control conduct outside their own borders. Fourth Circuit: Just so. Maryland is directly controlling prices charged outside Maryland, so the law must go.
  • Executing a warrant to arrest a man suspected of credit card fraud, Biloxi, Miss. police approach man's RV in the dark, draw guns, enter without knocking, and order man to exit RV. Within 30 seconds, the man has been shot and tased while fishing for a cigarette lighter in his pocket. Fifth Circuit: He shouldn't have done that; qualified immunity.
  • May Ohio prohibit the state health department from offering federal health funds (unrelated to abortion) to any organization that provides or promotes abortion? No, says the Sixth Circuit, because the law places an unconstitutional condition (agreement with the state's message) on receiving otherwise available funds.
  • Were volunteers at a church-owned Cuyahoga Falls, Ohio restaurant "coerced" into working (and therefore entitled to minimum wage) because the church's pastor ominously warned them that failing to do so might be a mortal sin? Sixth Circuit: No! Judge Kethledge, concurring: The gov't's position, that it is entitled to regulate the spiritual dialogue between pastor and congregation, "assumes a power whose use would violate the Free Exercise Clause of the First Amendment."
  • Ohio state trooper pulls over African-American motorist because he was driving under the speed limit (less than a mile after exiting a reduced-speed construction zone) and because the wheel of his car touched a lane marking. After a sobriety test and drug-doggie sniff turn up nothing illegal, a search of the car reveals some counterfeit gift cards. Sixth Circuit: Suppress the evidence. "While the law allows pretextual stops based on minor traffic violations, no traffic law prohibits driving while black."
  • Responding to a domestic violence call, 320-lb. Lenawee County, Mich. police officer tackles a man on his porch—fracturing his pelvis and breaking multiple ribs. Uh oh! Turns out the police had the wrong address. Sixth Circuit: A jury could find that the officer acted unreasonably and used excessive force. A second officer, who simply watched the events unfold, is entitled to qualified immunity.
  • Since 2016, Indiana has banned abortion providers from providing abortions when a woman seeks one because of the fetus's race, gender, or diagnosis of a disability. Seventh Circuit: Unconstitutional. Partial dissent: A separate provision requiring abortion providers to treat fetal remains like human remains should have been upheld.
  • Suspected murderer is so drunk/stoned that he literally falls out of his chair during interrogation. While he is in this state, Peoria, Ill. police tell him that, as a young black man, he is unlikely to receive a fair trial; falsely tell him that multiple witnesses saw him do it; and generally pressure him to confess. He's convicted of first-degree murder and sentenced to 65 years, though the conviction is later overturned. Can he sue the cops? Seventh Circuit: Yup.
  • After Congress fails to pass legislation to address so-called sanctuary cities, President Trump exercises the power of the pen and the phone to withhold federal funding from municipalities that don't cooperate with federal immigration officials. Seventh Circuit: Congress didn't give the President that power, and he can't take it for himself. Partial concurrence/dissent: That's true, but the district court didn't have the power to enter a nationwide injunction.
  • A man identifying himself as psychiatrist Julian Lopez Garcia purports to treat patients for various mental illnesses at a Chicago medical clinic for several months. Plot twist! The good doctor is neither a doctor nor, in fact, Julian Lopez Garcia. (He is instead high-school dropout Scott Redman.) A sophisticated fraud for which, says the Seventh Circuit, he received an appropriately long sentence.
  • President Trump ended the contempt prosecution of Maricopa County, Ariz. Sheriff Joe Arpaio by granting a pardon. Arpaio then asked that his conviction be vacated. After the district court refused, Arpaio appealed, and the United States announced that it would not defend the ruling. By a vote of 2–1, the Ninth Circuit holds that a special prosecutor should be appointed to defend the ruling. In dissent, Judge Tallman bemoans "undoubtedly political attacks on Presidential authority."
  • Walter Leroy Moody Jr. sent four package bombs, killing an Eleventh Circuit judge and a civil rights attorney. A federal court sentenced him to life in prison, and then a state court sentenced him to die. Moody: You can't execute me yet—or ever—as I haven't yet served my federal life sentence. Eleventh Circuit: Petition denied. The feds get to decide which sentence you serve first, and they are fine with Alabama retaining custody. (Note: He was indeed executed last night.)
  • And in en banc news, the Fifth Circuit will not reconsider its holding that Austin, Texas' campaign contribution limits are constitutional. In his first opinion on the bench, Judge Ho dissents: "If we're going to ask taxpayers to devote a substantial percentage of their hard-earned income to fund the innumerable activities of federal, state, and local government, we should at the very least allow citizens to spend a fraction of that amount to speak out about how the government should spend their money."
  • Though not spelled out in the Bill of Rights, "Americans have the right to wander, to stroll, and even, if they wish, to loaf about without purpose or object." So says a federal judge in the Southern District of Ohio. (H/t: Brad Heath.)
  • Texas' Twelfth Court of Appeals strikes down a "revenge porn" statute, under the First Amendment, because the law unjustifiably restricts the content of speech and prohibits more speech than necessary.

In Minnesota, if you want to sell wine directly to the public from your vineyard, state law requires a majority of your grapes be grown in state—a mandate that benefits only the state's grape industry. For vintners, the law raises costs and limits their ability to expand their businesses. So last year two Minnesota wineries joined with IJ to challenge the law. This month, a federal judge dismissed the case on procedural grounds without deciding whether the law is constitutional. And now the wineries are appealing to the Eighth Circuit to vindicate their rights to free trade in both interstate and foreign commerce. Click here to read more.

The Seventh Circuit splits on the national injunction

National injunction upheld 2-1 in Chicago sanctuary city case

Yesterday a panel of the Seventh Circuit upheld a national injunction in the Chicago sanctuary city case, Chicago v. Sessions. The decision has already been discussed in posts by my co-bloggers Jonathan Adler and Ilya Somin.

For the majority, national injunctions should be "rare[]" (p. 30). A judge deciding whether to give one should "weigh[] the appropriate factors while remaining cognizant of the hazards of forum shopping and duplicative lawsuits" (p. 30). The difficult question, for those who think national injunctions are permissible, is always about limiting principles--what, in the Seventh Circuit's words, are "the appropriate factors" and how do they get weighed against "the hazards"? Oddly, after framing this as a matter of balancing, the court led with a categorical distinction.

On one side there are situations in which "different factual scenarios will better inform the legal principle" (p. 31). National injunctions would (the court implied) be inappropriate in those situations. That, we might say, is the domain of percolation. On the other side there are situations that call for "a determination as to the plain meaning of a sentence in a statute" (p. 31), situations that involve "purely a narrow issue of law" (p. 30). In this class of cases we are not concerned with percolation and national injunctions are appropriate. The court treated this case as belonging in the latter class.

That was in essence the court's limiting principle. It tried to add a bit more. It appealed to the balance of equities, but that can't support a national injunction: the district court found the balance of equities favored neither side, and the balance of equities is focused on the parties themselves, not third parties. The court also invoked the public interest, which it said "would be ill-served here by requiring simultaneous litigation of this narrow question of law in countless jurisdictions" (p. 33). That too, doesn't support a national injunction: again the district court found that this consideration favored neither side, and the court's public interest argument collapses into the legal/factual distinction. And the court's notion that one judge can decide to dispense with "simultaneous litigation . . . in countless jurisdictions" is at odds with a common law system, where the judicial power is used to resolve cases brought by parties. And we do have exceptions that allow broader litigation--class actions and MDLs--but why do we have them if one judge can make this call to avoid "simultaneous litigation" as a matter of policy? Finally, the court threw in an argument about "the structure of the Byrne JAG program itself," which involved some ill-defined "ripple effect" on other recipients.

The main innovation in the Seventh Circuit decision, then, is a strong law/fact distinction. For questions of law, we have national injunctions (or at least they are an appropriate choice for the district court). For questions of fact, or more precisely questions in which factual settings shape the legal rule--the court's examples are "reasonableness of searches" and "the excessiveness of force" (p. 31)--we should eschew national injunctions in favor of percolation.

Judge Manion concurred in the judgment as to the city of Chicago but dissented from the part of the judgment upholding the national injunction. The key point of dispute was over the majority's main limiting principle. Judge Manion responded with United States v. Mendoza, which rejected nonmutual offensive collateral estoppel against the government because it would "substantially thwart the development of important questions of law" (quoted at pp. 42-43 of Judge Manion's opinion).

At this point Judge Manion made the argument that the majority's limiting principle was in effect no limit at all:

"if a lack of factual differentiation is all that is needed to distinguish Mendoza, then a nationwide injunction is appropriate in every statutory-interpretation case. That cannot be the law. If anything, the opposite is true. Different parties litigating the same issues in different forums will likely engage different arguments, leading to diverse analyses and enhancing the likelihood of the strongest arguments coming to the fore. Courts faced with difficult statutory questions are the ones who benefit the most from the existence of multiple well-reasoned decisions from which to draw" (p. 43).

Judge Manion made other points, including that "[r]equiring a class action has the benefit of dealing with the one-way-ratchet nature of the nationwide injunction" (p. 46), and that there are cases where the injunction seems to go broader than the parties but really "the relief to non-parties could be called a side-effect of the relief given to the plaintiffs" (p. 47). He also criticized the majority's arguments about the balance of hardships, public interest, and the structure of the program. He also conceded that the national injunction was appropriate in Trump v. IRAP (cf. pp. 47 and 48). That concession was entirely unnecessary, however, given Judge Manion's other arguments, especially about class actions and the possibility that an injunction directed solely at the conduct of the parties may have "a side-effect" on non-parties.

The judges also disagreed about the implication of the Supreme Court's decision in Trump v. IRAP to narrow the preliminary injunction but not to stay it as to all non-parties. For the Seventh Circuit majority, the key implication was that the Supreme Court had rejected all of the arguments that national injunctions were categorically unavailable (pp. 26-28). By contrast, Judge Manion emphasized that the Supreme Court had not "directly address[ed] the merits of why the injunction should be nationwide" (p. 48).

Judge Manion is correct that the Supreme Court did not address the merits of the national injunction, even though it clearly recognizes that this is a major question--one that it granted certiorari on in Summers v. Earth Island Institute and that it has now granted certiorari on again in Trump v. Hawaii. Indeed, the grant of certiorari on this question in Trump v. Hawaii shows that the justices themselves do not think that they decided the permissibility of national injunctions when they refused to narrow the injunction further.

And one more thing about how to read Trump v. IRAP: there is a deep problem with conventional standards for preliminary injunctions and stays of injunctions, because they force the justices to decide before they decide--to tip their hand, with all of the psychological effects that come from taking a public position on likelihood of success on the merits. That is probably why the justices have recently sometimes just ignored the likelihood of success on the merits element. It would therefore be a regressive move, a move toward heightening the precedential stakes of interlocutory decisions, to read Trump v. IRAP as deciding the national injunction question. Perhaps if there were a string of cases where the Court was asked to narrow national injunctions and refused to do so, those actions would be precedential; they might recognize a certain state of affairs as being "the law." But given the unusual posture of a motion to stay a preliminary injunction, and the abundant practical reasons not to force the Court to prematurely decide a major question about injunction practice on such a motion, we should not consider its "non-stay" a decision about the merits.

At bottom the majority and the dissent in the Seventh Circuit offer competing visions of the judicial power and the scope of a case. Behind the majority's decision lies a conception of the judicial power that emphasizes efficiency. There is a problem: duplicative cases. There is a solution: national injunctions. Behind the dissenting opinion lies a quite different idea that is about the power of courts, but also the duty of courts, to decide cases. We could overstate the point slightly by saying there are no duplicative cases. Even if they both involve the same legal question, your case is your case and my case is my case.

The majority and the dissent also offer competing attitudes about judicial epistemology. The majority offers confidence; its opinion embraces judicial certitude. The dissent offers a position in which many minds considering a question--even a legal question--is a good thing. This is the judicial spirit "which is not too sure that it is right."

Article Thumbnail

Trump Suffers Yet Another Defeat in a Sanctuary Cities Case

The US Court of Appeals for the 7th Circuit affirms a district court ruling against the administration's efforts to deny federal grants to sanctuary jurisdictions.

As co-blogger Jonathan Adler notes, the US Court of Appeals for the Seventh Circuit just issued a ruling in City of Chicago v. Sessions upholding a lower court decision against the Trump administration's plan to cut federal funds from "sanctuary cities" - jurisdictions that refuse to assist federal government efforts to deport undocumented immigrants. Attorney General Jeff Sessions had sought to cut Byrne Memorial Justice Assistance Grant funds to jurisdictions that refuse to meet three conditions:

1. Prove compliance with federal law that bars cities or states from restricting communications between the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) about the immigration or citizenship status of a person in custody.

2. Allow DHS officials access into any detention facility to determine the immigration status of any aliens being held.

3. Give DHS 48 hours' notice before a jail or prison releases a person when DHS has sent over a detention request, so the feds can arrange to take custody of the alien after he or she is released.

In September, a federal trial court issued an injunction barring enforcement of the second and third conditions, because they were never authorized by Congress, which has exclusive authority to control federal spending and attach conditions to federal grants to state governments. Yesterday, the Seventh Circuit upheld that ruling on much the same basis:

Our role in this case is not to assess the optimal immigration policies for our country; that is not before us today. Rather,the issue before us strikes at one of the bedrock principles of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government—the separation of powers.

The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken. The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor.... did Congress authorize the Attorney General to impose such conditions. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever‐vigilant in that endeavor.

In addition to undermining separation of powers, executive attempts to add new conditions to federal grants without congressional authorization, also threaten federalism. If the president is able to usurp such authority, he could use it to coerce state and local governments on a wide range of issues. Conservatives who may be happy to see Trump and Jeff Sessions use it to punish sanctuary cities may be less thrilled when a liberal Democratic president uses the same power to coerce states to adopt left-wing policies on education, gun control or transgender bathroom access.

Yesteday's ruling is just the latest in a long string of defeats for Trump in cases challenging his efforts to cut federal grants to sanctuary cities. Courts have repeatedly invalidated both the Sessions policy at issue in the Seventh Circuit ruling, and Trump's January 2017 executive order mandating a much broader cutoff of federal funds from sanctuary jurisdictions. Significantly, these losses have come at the hands of both Democratic and Republican-appointed judges. Judge Ilana Rovner, author of yesterday's Seventh Circuit opinion, was appointed by President George H.W. Bush (and previously appointed as a district court judge by Ronald Reagan). Judge Daniel Manion, who agreed with the majority's analysis of the conditional spending issue, is generally considered one of the most conservative appellate judges in the country.

The Seventh Circuit did not review the trial court's upholding of the requirement that jurisdictions receiving Byrne grants must comply with 8 U.S.C. Section 1373, which mandates that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual." This is Trump's sole win in any of the sanctuary city cases so far. In my view, the trial judge got this issue wrong, for reasons I summarize here. The statute authorizing the Byrne program nowhere requires recipients to comply with Section 1373. In addition, Section 1373 is unconstitutional because it violates the Tenth Amendment. The Seventh Circuit is likely to review that ruling in the future, and hopefully they will reverse it. In Philadelphia v. Sessions, another case challenging the Sessions policy, a federal trial judge ruled against the administration on the Section 1373 issue, and his ruling is better-reasoned than the one in Chicago v. Sessions.

As Jonathan Adler points out, all three judges on the Seventh Circuit panel agreed that the Sessions' conditions are unconstitutional, but Judge Manion dissented on the issue of whether a nationwide injunction is appropriate. In my view, contrary to that of some of my co-bloggers, nationwide injunctions are an appropriate and necessary tool in cases where the government violates the Constitution nationwide in ways that do not depend on variations in local conditions or the details of individual cases. Judge Ilana Rovner's majority opinion in yesterday's decision offers a good summary of the reasons why. As she puts it, "for issues of widespread national impact, a nationwide injunction can be beneficial in terms of efficiency and certainty in the law, and more importantly, in the avoidance of irreparable harm and in furtherance of the public interest." This is particularly true in a case, like the present one, which "a narrow issue of law [that] it is not fact‐dependent and will not vary from one locality to another." Ultimately, a nationwide violation of the Constitution requires a nationwide remedy.

The Seventh circuit ruling and other conditional grant decisions should not be confused with Sessions' recent lawsuit against California's sanctuary policies. While I believe California deserves to prevail on all three issues raised in the latter litigation, the questions involved are different from and more difficult than those at stake in the spending cases.

UPDATE: I have made a few minor additions to this post.


Apparently all carnivorans (not quite the same as carnivores) are either doggy or catty.

I learned this from my brother Sasha some time ago, but I was reminded of it on our Galapagos trip, where the sea lions reminded my boys of our dog. The order Carnivora -- which includes many but not all carnivorous (and some omnivorous) mammals -- is apparently broken down into the doggy carnivorans and the catty ones. The doggies are in the Caniformia family, which includes sea lions and bears, along with the usual suspects. The catties are, naturally, in Feliformia; these include, surprisingly to me, hyenas (who I had thought were more related to dogs).

And if a sea lion feels like there are bugs crawling all over it, that's called caniformication.

Seventh Circuit Upholds Injunction in Sanctuary City Case

The Trump Administration loses its appeal in Chicago v. Sessions, but one judge dissents on the appropriateness of a nationwide injunction

Last night, the U.S. Court of Appeals for the Seventh Circuit upheld the district court injunction against the Department of Justice's effort to deny federal funding to so-called "sanctuary cities" -- those local jurisdictions that refuse to cooperate in federal immigration enforcement. In Chicago v. Sessions, a three-judge panel concluded the Justice Department lacked the authority to require such cooperation as a condition of receiving funds from a federal grant program. While all three judges on the panel agreed that DOJ had over-reached, one judge dissented on whether it was appropriate to enter a nationwide injunction against the federal government.

Judge Ilana Rovner wrote the opinion for the court, joined by Senior Circuit Judge William Bauer. Senior Circuit Judge Daniel Manion wrote a separate opinion concurring-in-part and dissenting-in-part.

Judge Rovner summarized her opinion as follows:

This appeal is from the grant of a preliminary injunction in favor of the City of Chicago (the "City") and against Jefferson Beauregard Sessions III, the Attorney General of the United States, enjoining the enforce‐ ment of two conditions imposed upon recipients of the Edward Byrne Memorial Justice Assistance Grant Program (the "Byrne JAG program"). See 34 U.S.C. § 10151 (formerly 42 U.S.C. § 3750). The Byrne JAG grant, named after a fallen New York City police officer, allocates substantial funds an‐ nually to provide for the needs of state and local law en‐ forcement, including personnel, equipment, training, and other uses identified by those entities. The Attorney General tied receipt of the funds to the grant recipient's compliance with three conditions which the City argued were unlawful and unconstitutional. The district court agreed with the City as to two of the three conditions—the "notice" condition mandating advance notice to federal authorities of the release date of persons in state or local custody who are be‐ lieved to be aliens, and the "access" condition which required the local correctional facility to ensure agents access to such facilities and meet with those persons. Compliance with those conditions in order to receive the funding award‐ ed under the Byrne JAG grant would require the allocation of state and local resources, including personnel. The district court granted the preliminary injunction as to those two conditions, applying it nationwide. The court subsequently denied the Attorney General's motion to stay the nationwide scope of the injunction, and this court denied the stay on appeal. The Attorney General now appeals that preliminary injunction.

Our role in this case is not to assess the optimal immigra‐ tion policies for our country; that is not before us today. Rather, the issue before us strikes at one of the bedrock princi‐ ples of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government—the separation of powers.

The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a sepa‐ ration of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authori‐ zation or even acquiescence of elected legislators, that check against tyranny is forsaken. The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforce‐ ment. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigra‐ tion policies. Nor, as we will discuss, did Congress authorize the Attorney General to impose such conditions. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever‐vigilant in that endeavor.

Judge Manion agreed with the majority that the Department of Justice lacked proper authority to require recipients of Byrne JAG grants to cooperate with federal immigration enforcement efforts. Yet Judge Manion disagreed with the majority that it was proper for the district court to enter a nationwide injunction against the Justice Department. Rather, Judge Manion argued, the scope of injunctive relief should have limited to the parties.

Judge Manion writes:

because I agree that the Attorney General does not have the authority to impose the Notice and Access conditions, and because that is all the Attorney General challenges concerning the propriety of an injunction, I concur in the judgment of the court affirming the entry of a preliminary injunction prohibiting the Attorney General from im‐ posing those conditions on Chicago.

But a simple preliminary injunction protecting Chicago (the only plaintiff in this suit) is not all the district court en‐ tered. Instead, the district court announced as follows: "This injunction against imposition of the notice and access conditions is nationwide in scope, there being no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction." City of Chicago, 264 F. Supp. 3d at 951.

This was a gratuitous application of an extreme remedy. This court now upholds the district court's overreach because "[t]he case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors nationwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief." Maj. Op. at 30. In doing so, the court bypasses Supreme Court precedent, disregards what the district court actually concluded concerning the equities in this case, and misreads the effect of providing relief to Chicago only.

In response, Judge Rovner acknowledges "the possible hazards of the use of nationwide injunctions" (citing the work of Conspirator Samuel Bray), but argues that such an injunction is appropriate in this case.

As the Seventh Circuit's opinion indicates, the Justice Department's substantive legal position is rather weak. However reasonable it may be to withhold specific Justice Department grants from cities that refuse to cooperate with federal immigration enforcement, Congress has not authorized the imposition of such a condition on federal funding, nor does the Justice Department have the inherent authority to impose such conditions on the receipt of such grants. As a consequence, I am not sure there will ever be a circuit split on this question that would justify Supreme Court review.

Whether nationwide injunctions are appropriate in cases such as this are another matter. As my co-blogger Samuel Bray has noted, there are good reasons to believe that nationwide injunctions are over-used and have been issued too frequently by district courts over the past ten years. Once extremely rare, nationwide injunctions have become rather common. During both the Obama and Trump Administrations, politically motivated litigants have filed cases in friendly jurisdictions and then sought nationwide relief. As Assistant Attorney General Beth Williams noted in a recent speech:

Before 1963, no court in this country had issued such a broad injunction, and they were exceedingly rare until President Reagan took office. Even after that, by Justice Department estimates, courts issued an average of only 1.5 nationwide injunctions per year against the Reagan, Clinton, and George W. Bush administrations, and 2.5 per year against the Obama administration. In President Trump's first year in office, however, judges issued a whopping 20 nationwide injunctions—an eightfold increase. This matches the entire eight-year total of such injunctions issued against President Obama during his two terms. This enormous increase should draw alarm.

While the underlying merits question in Chicago v. Sessions may not justify certiorari, the divide over the propriety of a nationwide would. If the Court is looking for a vehicle to explore this question, this case could fit the bill.

"D.C. lawmaker who said Jews control the weather visits Holocaust Museum but leaves early"

Not an Onion headline (but maybe subconsciously influenced by one).

The Washington Post (Peter Jameson) has the headline, and the story (for more on the Council member's earlier "Rothschilds controlling the climate" "to own the cities" incident, see here):

The photo, taken in 1935, depicts a woman in a dark dress shuffling down a street in Norden, Germany. A large sign hangs from her neck: "I am a German girl and allowed myself to be defiled by a Jew." She is surrounded by Nazi stormtroopers.

D.C. Council member Trayon White Sr. (D-Ward 8) studied the image. "Are they protecting her?"

Lynn Williams, an expert on educational programs at the U.S. Holocaust Memorial Museum and White's tour guide for the day, stared at the photo.

"No," she said. "They're marching her through."

"Marching through is protecting," White said.

"I think they're humiliating her," Williams replied.

(Pointer via InstaPundit.)


The Gorsuch story reminded me of a law professor friend of mine noting, a few years ago, that pressure for ideological conformity often comes through the threat of disdain: Go along with liberal positions on these various issues, or feel your colleagues' contempt and hostility.

Of course, the threat of disdain can be good, and can keep us honest and careful, if it's a threat of disdain for factual errors or logical fallacies. But if the threat is just motivated by ideological disagreement, that can stultify serious debate. And if you give in, and trim your sails to the prevailing winds in order to avoid the disdain, ...


Fatwa Against ... Buying Facebook "Likes"

From Egypt's top mufti.

AP reports:

Egypt's top mufti has issued a fatwa, or a religious decree, saying that buying Facebook "likes" is prohibited under Islam because it's a form of fraud and deception.

Grand Mufti Shawki Allam regularly issues all sorts of fatwas, usually in response to questions by Muslims seeking religious guidance ....

First Opinion by James Ho (a Recently Appointed Fifth Circuit Judge)

It's a dissent from denial of rehearing en banc, joined by Judge Edith Jones, in a case that upheld a $350 cap for contributions to Austin City Council races.

Very interesting -- I've long known Jim and admired his work, and this opinion (Zimmerman v. City of Austin) shows his qualities well. I myself am more open to campaign contribution limits than he (or his former boss, Justice Thomas) is; I explain my thinking briefly in this article, which shows me to be one of the few people who thinks Buckley v. Valeo's upholding of sufficiently high contribution limits but striking down of independent expenditure limits is basically right as a constitutional matter. But the dissent makes a strong case that $350 limits are unconstitutionally low, given Randall v. Sorrell and notwithstanding Nixon v. Shrink Missouri PAC.

A funny coincidence: The panel opinion, which Judges Ho and Jones would have had the court reconsider en banc, was joined by Jim's other former judicial boss, Judge Jerry Smith.

I Doubt This Is the Right Way to Manipulate Justice Gorsuch

Capsule summary: "Vote the way we want you to, and maybe we'll have just a bit less contempt for you than we now do."

From a post (not by Michael Dorf) on Dorf on Law:

Just about everyone is expecting Justice Gorsuch to vote with the conservatives [in Janus v. AFSCME, the compulsory agency fee case], and overturn Abood [v. Detroit Bd. of Ed.]. But I am not so sure. He was uncharacteristically silent during the oral argument. Moreover, as I wrote here, there are strong stare decisis reasons not to overturn Abood. It would not be hard for Justice Gorsuch to say that he would have voted differently in the first instance but respect for precedent requires him to affirm Abood.But why would he do that?

Maybe Gorsuch would like to change the narrative that he is nothing but a Scalia/Thomas clone who always votes or almost always votes in lockstep with the conservatives and the Republican Party. Gorsuch just completed his first year on the bench and the reviews from conservatives have been uniformly sparkling while liberals, including this author, have been extremely critical. Criticizing everything from his bad writing, to his originalist hypocrisy, the expectation among left-of center and liberal media is that Gorsuch is an ideologue who will just be one more reliable right-wing vote.

There is of course also the problem that Justice Gorsuch is on this Supreme Court only because this Senate Majority Leader stole the seat from President Obama. Everyone knows that Merrick Garland would have voted with their liberals to reaffirm Abood. If Gorsuch sides with his conservative colleagues to reverse the case, there is no doubt that the decision will be deemed illegitimate by many on the left. Gorsuch could dramatically change the narrative of his career by voting not to reverse Abood.

I am not suggesting that he would do so if he was convinced the law required a different result, just as I am sure Chief Justice Roberts believed the position he espoused in NFIB was correct. But of course, the Justices have great discretion in deciding these difficult legal cases. Justice Gorsuch could easily and not controversially justify a vote for the states in Janus by relying on the doctrine of stare decisis. If he did that, he could write an opinion advocating for the rule-of-law values he claims to take so seriously. Additionally, there is no legitimate originalist argument to support shredding over 20 state laws imposing fees for bargaining-related activities. If Justice Gorsuch were to anchor his vote in originalism and stare decisis concerns, he would prove his critics wrong and do the right thing all at the same time.

Supreme Court Justices are people just like the rest of us. Although they hold their seats for life, they want to be considered good at their jobs and principled decision-makers. Don't be surprised if Justice Gorsuch uses the Janus case to demonstrate that he is not just a clone of the late Justice Scalia.

Will Baude and I filed an amicus brief supporting the AFSCME position in Janus, and I naturally hope Justice Gorsuch will agree with us. (We actually think Abood should indeed be overturned, but in the opposite direction from what many conservatives have argued.) I also think there are plausible stare decisis reasons for keeping Abood, despite its unsound reasoning and the vagueness and illogic of the line it draws between what uses of agency fees are allowed and what uses are not; questions about what to do with unsound precedents are always complicated.

But I would much rather that Justice Gorsuch disagreed with me, than that he voted with me because he "would like to change the narrative that he is nothing but a Scalia/Thomas clone," or that he is worried "that the decision will be deemed illegitimate by many on the left," or that he is worried about the "left-of center and liberal media," or that he wants to "dramatically change the narrative of his career" -- that is to say, the narrative as written by people who seem to have contempt for his views, and, basically, for him.

You're a hypocrite! You're a bad writer! You're in a stolen seat! But if you vote the way we want you to vote, maybe we just might like you! ... at least until you next cross us. What is this, Mean Girls: Supreme Court Edition?

From what I know of Justice Gorsuch, that's not the way to his heart (nor should it be the way to the heart of any self-respecting Justice, conservative or liberal). Still, hey, if I'm right, just keep on talking that way, folks -- good to see the tactic out in the open.

Why Aren’t Feminist Groups More Concerned that So Many Colleges and Universities Discriminate Against Women in Admissions?

Is it they don’t want to admit that females do so well relative to males in high school? They don’t want appear to be defecting from the left-of-center coalition that supports race-preferential admissions policies? Or is something else driving this?

This puzzles me. It is routine for many colleges and universities, particularly mid-level liberal arts schools, to discriminate against women in admissions. Believing that they have "too many women," these schools refuse admission to female applicants whose academic credentials would have been more than sufficient for a male applicant. Why don't we hear more complaints from feminist organizations?

Alison Somin and I wrote about this a few years back in a short essay entitled Affirmative Action for Men?: Strange Silences and Strange Bedfellows in the Public Debate Over Discrimination Against Women in College Admissions. We were motivated in large part by the fact that some feminists actually had opposed an empirical study by the U.S. Commission on Civil Rights on the subject (and as a result the liberals on the Commission cancelled the study).

In the case of a state school or a private professional or graduate school that receives federal funds, such discrimination violates Title IX. But some do it anyway. "We are, after all, the College of William and Mary, not the College of Mary and Mary," one state school admissions officer said.

For private colleges, Title IX is more lenient. It allows sex discrimination in admissions, but not once students are admitted. This was intended to allow single-sex colleges to receive federal funding, but it also allows liberal arts schools that don't want women to outnumber men by too much to have different admissions standards.

But legal or illegal, I would have expected feminist organizations to be at least concerned and to want a study conducted. There are so many things that get labeled sex discrimination that aren't really sex discrimination. It surprises and troubles me that honest-to-goodness sex discrimination gets ignored.

Maybe feminist organizations don't want to draw too much attention to how well females are doing these days in school, because it hurts the narrative that women are the underdogs. But women form a 56% majority of college students. And they are a majority of those in law, medical, and dental school.

Alternatively, maybe the leaders of feminist groups are reluctant to speak out for fear of undermining the case for affirmative action for racial and ethnic minorities. They may perceive themselves as part of a broad coalition of left-leaning activists first and advocates for women in particular only second.

One of the questions we address in the essay is whether the Department of Education's athletic-centric enforcement of Title IX is a contributing factor to discriminatory admissions policies. A time-honored way for a small liberal arts college to recruit male students used to be to offer them the opportunity to play varsity athletics--something they are less likely to qualify for at the big sports-powerhouse universities. But for reasons that we explain in the essay, complex Title IX enforcement policies make this strategy difficult and expensive for schools. Some schools would rather just discriminate outright in admissions. It's easier and cheaper.

These Title IX enforcement policies could be tweaked without causing women who want to participate in athletics to be denied equal opportunity. And doing so would reduce the incentive for schools to just discriminate against women outright in admissions. Such changes would also likely improve opportunities for women who prefer non-athletic extra-curricular activities, such as chorus or drama club. Alas, feminist organizations appear to resent any suggestion that these policies, which they advocated in the first place, may be backfiring.

"Little Pink House" Brings the Kelo Case to the Big Screen

An impressive new movie dramatizes the story behind the famous Supreme Court case about whether it is permissible for the government to condemn homes in order to promote private "economic development."

Catherine Keener as Susette Kelo in 'Little Pink House'Catherine Keener as Susette Kelo in 'Little Pink House.'

The soon-to-be-released independent film Little Pink House dramatizes the story behind Kelo v. City of New London, the notorious 2005 Supreme Court decision in which the justices ruled that it is permissible for the government to condemn homes in order to promote "economic development." Although the Fifth Amendment only permits the taking of private property for "public use," a narrow 5-4 majority ruled that a taking that transfers property to private developers is permissible. The Kelo case generated a massive public reaction, with over 80% of Americans opposing the ruling, and 45 states passing reform laws intended to restrict the use of eminent domain for private development. No other case united such disparate people and groups as the NAACP, libertarian property rights advocates, Ralph Nader, and Rush Limbaugh.

Little Pink House, loosely based on journalist Jeff Benedict's book of the same name, does an excellent job of portraying the human drama that led to Supreme Court decision. It shows how a group of lower-middle class New London, Connecticut homeowners found themselves steamrolled by a plan to take their land in order to facilitate a development project backed by powerful political forces, including Connecticut Governor John Rowland, the New London Development Corporation (the private organization that planned and conducted the takings on behalf of the City of New London), and Pfizer, Inc., a major pharmaceutical firm that hoped to benefit from the development project. The film depicts how Susette Kelo - owner of the iconic "Little Pink House" that became a nationally known symbol of the case - and her neighbors did all they could to resist the seizure of their land through the political process, but were overmatched by powerful opponents. It also portrays some (but by no means all) of the extralegal harrassment by which the NLDC sought to pressure owners to sell "voluntarily." These shenanigans included such tactics as menacing late night phone calls, dumping of waste on the resisting owners' property, and locking out tenants during cold winter weather.

Susette Kelo's famous 'Little Pink House'Susette Kelo's famous 'Little Pink House,' 2004. Photo by Isaac Reese.

The film movingly depics the pain and desperation of people faced with the loss of their homes, without any effective recourse. The multiyear legal and political battle over the takings was an excruciating ordeal for those involved. As Richard Beyer told me in an interview, he and the other property owners felt as if they were "living in our own prison" during the "whole period" of litigation.

The movie also effectively conveys the role of the Institute for Justice (IJ), the libertarian public interest law firm that represented the property owners on a pro bono basis, and took the case all the way up to the Connecticut Supreme Court and the federal Supreme Court. There is no better cinematic portrayal of how a public interest law firm like IJ, the NAACP Legal Defense Fund, or the ACLU operates: simultaneously litigating cases in both the courtroom and the court of public opinion.

The film even manages to accurately depict some key aspects of the main legal issue at stake in the litigation: is the correct definition of "public use" broad enough to encompass anything that might benefit the public in some way, or is it limited to publicly owned projects or private ones that have a legal duty to serve the entire public, such as a public utility? As the film shows, one of the key moments in the case came when Justice Sandra Day O'Connor asked New London's lawyer whether it would be permissible to condemn a Motel 6 in order to replace it with a Ritz Carlton simply because the latter might produce more tax revenue: he answered yes.

The movie necessarily omits or simplifies some key aspects of the Kelo story. Most of the property owners' side of the tale is seen through the eyes of Susette Kelo, whom IJ chose as the main public face of the case in part because she is charismatic and very effective in media appearances. As with other iconic Supreme Court cases, such as Brown v. Board of Education and Tinker v. Des Moines, the person whose name is listed first became nationally famous, while other participants are often overlooked.

The focus on Susette Kelo is understandable. But it comes at the cost of downplaying the stories of the others, some of whom probably suffered even greater anguish than she did. For example, Wilhelmina Dery, who was in her eighties, had lived in the same house her whole life, and adamantly refused to leave. The Cristofaro family were also strongly attached to their property, which they had purchased decades earlier after their previous home had been condemned as part of an urban renewal project. Both Wilhemina Dery and Margherita Cristofaro passed away during the course of the litigation. Relatives believe that their deaths may have been hastened by the stress of the ongoing legal battle.

The constitutional issues in the case were also unavoidably compressed. For example, the movie could not be expected to convey the ways in which Kelo built on real (and imagined) imagined prior precedent, and how the case looks through the lense of originalist and living constitution approaches to constitutional interpretation. The movie also only briefly touches on the dramatic political reaction generated by Kelo, and the resulting reform movement. I discuss both the legal issues in Kelo, and the dramatic aftermath of the case in my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.

For legal reasons, the names of most of the people involved on the NLDC and New London side of the litigation were changed in the movie. These individuals probably will not be happy about the way their analogues are portrayed. But I believe the film accurately portrays their genuine belief that they were acting to promote the public good. For the most part, these were not cackling villains, but people who honestly thought that forcibly displacing homeowners was the best way to revitalized an economically depressed community. The movie also, however, conveys their blindness to crucial flaws in the NLDC development plan, and inability to understand how their actions would be perceived by the public.

Sadly, the the ill-conceived NLDC development project fell through, and the condemned property remains empty to this day, occupied only by a colony of feral cats.

Feral cat on one of the properties condemned as a result of the Kelo case, March 2011. Photo by Jackson Kuhl.Feral cat on one of the properties condemned as a result of the Kelo case, March 2011. Photo by Jackson Kuhl.

The pain caused by the Kelo condemnations and litigation was far from entirely in vain, however. It led to valuable - even if incomplete - reforms in many states, and broke the seeming consensus in favor of a broad view of "public use." The Supreme Court might well overrule or limit Kelo in a future decision. In the meantime, it is hard to find a better cinematic dramatization of a famous Supreme Court decision than Little Pink House.

The film will be released this weekend, with showings scheduled at times and places listed here.

DISCLOSURE: I had a very minor role as an unpaid informal adviser to the producers of Little Pink House, offering a few suggestions based on my research on the case. I have also done pro bono legal work for the Institute for Justice on a number of property rights cases. I do not have any financial stake in the film. My view of the movie is, however, unavoidably influenced by personal knowledge of many of the people depicted.


Get Reason's print or digital edition before it’s posted online