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

"Antifa" as Antipasto

I get it -- we've just been interpreting the word "antifa" wrong!

Maybe the "anti-" in "antifa" doesn't really mean against, but is just the Italian prefix for "before," as in "antipasto" (or, it turns out, "anticipate"). It comes before the planned fascism, as a way of paving the way for fascism, as antipasto makes us anticipate the pasta.

I mean, yeah, that prefix is usually rendered "ante-" in English, but fascism comes from Italian, so that must be it .... After all, it so well explains the many incidents we've seen; here's Avi Selk (Washington Post) writing yesterday about the most recent one, involving attacks on reporters (real physical attacks, not just verbal criticism) in D.C. over the weekend:

[Y]ou might expect that when Antifa can't find any fascists, it has nothing to fight. That seemed to be the situation this weekend, when a long-planned rally for far-right extremists fizzled into a paltry gathering of a few dozen white supremacists, unapproachable and nearly invisible behind a police blockade as they met without incident in a Washington D.C. park.

And yet Antifa still managed to fight — not fascists this time, but reporters....

A few blocks [from the rally and counter-rally], several dozen masked Antifa members marched up 13th Street in the early afternoon. They carried the movement's red-and-black flag, and some wore makeshift body armor even though no fascists were anywhere in sight.

When a Washington Post reporter tried to interview the antifascists, they refused to speak. When he followed them up the street with his cellphone camera, one of them shoved a black umbrella into his lens and several shouted: "No photos!"

"This can harm us," one of the protesters said, just before someone swatted the reporter's iPhone out of his hand and threw it into the middle of the street.

The reporter and camera were fine, but the incident was hardly isolated. Throughout the day, journalists covering the rally shared stories of cameras being yanked and reporters accosted by members of the same movement that claims it is protecting free society.

At the same event, NPR reporter Tim Mak watched Antifa protesters lob fireworks and bottles at the police separating them from the white supremacists.

Then he ducked as someone whipped an egg at his head....

Robyn Urback (CBC) has a similar story from Toronto:

A member of the news media was assaulted by a protester in Toronto this past weekend.

The altercation happened on camera, in front of police, with dozens of people standing by. The incident in which a journalist was struck by an activist — ironically, at an anti-hate rally — seemed entirely unprovoked: a pathetic attack on someone who was just there to do his job.

Every Canadian who respects the role of the news media (and knows that grown-ups aren't supposed to hit each other) ought to be outraged. Though, at a guess, at least a few readers are only learning about this incident now.

The encounter happened Saturday, when a number of anti-fascism groups assembled to counter a planned protest by the Calgary-based Worldwide Coalition Against Islam (WCAI) organization at Nathan Phillips Square, outside Toronto City Hall. The WCAI protest was actually cancelled ahead of time, but the counter-protest was held anyway, and it was there that a Toronto Sun photographer was attacked by a still-unidentified protester.

Forgive me for employing a lazy rhetorical technique here, but it's perhaps still the best way to emphasize the point: if that protester were an alt-right fanatic, and the journalist worked for a more centrist news organization, this column — written days after the incident — would be old news....

I'm telling you, antipasto.

Plaintiff Dropping Case in Which He Got Order to Google to Vanish Photo from Search Results

This will lead the order to be vacated; and the parallel case seeking removal of a Chicago Tribune post has also been dropped.

As I wrote on Aug. 3, a New Jersey state court (in Malandrucco v. Google) issued an order requiring Google to remove the photograph of the plaintiff from its search results. Also, in a parallel case (Malandrucco v. Chicago Tribune), the plaintiff was seeking an order requiring the Chicago Tribune to take down a blog post about the plaintiff that also included that photograph. The judge orally stated at the hearing that he was indeed ordering the Tribune to do so, but the written order didn't reflect that.

You can read more details about that order (including links to the underlying documents) here. The short version of the legal analysis is "the order was clearly unconstitutional." The short version of the facts is that the photo was a picture of plaintiff after he had been beaten by the police in 2010; he then sued the city, successfully, and became an anti-police-brutality activist, but around 2016 concluded that he wanted the stories about him, as well as the photo, removed.

Late on Aug. 6, Google and the Tribune removed the case to federal court, as they are entitled to do because they are citizens of a different state from the plaintiff and the plaintiff's lawsuits seek damages that could reach $75,000 or more, the jurisdictional threshold for removal to federal court. And now, the plaintiff is dropping the cases: An official stipulation signed by all parties agreeing to the dismissal of the case and the vacating of any orders has been filed in the Tribune case, and I expect the same to be filed in the Google case shortly.

Here is plaintiff's letter to the court about the Tribune case explaining his reasoning; it was apparently submitted last Thursday, but I think it wasn't placed on the docket until today:

My wedding is scheduled for a date in less than two months and my family has been highly distressed as a result of my graphic crime victim photo populating the top of Google search results of my name, as it is hosted by the Chicago Tribune.

Thus, I was seeking relief in this matter through my local state court in Hudson County, New Jersey, pursuant to Google's policy stating that a court order would help us attain said relief from this graphic image. We do not wish to proceed with this matter in federal court.

Google stated that upon receipt of a court order it would de-index third party content. Though we received and served a court order on Chicago Tribune, with notification submitted to Google, Google still did not de-index the content.

I had decided this past weekend (August 4, 2018} that I would be withdrawing the case from the Superior Court of Hudson County in New Jersey, where it was filed, and began to take steps toward that end.

On Tuesday, August 6, 2018, I wrote Chicago Tribune counsel to notify that I had a filed a Motion of Voluntary Dismissal to Hudson County New Jersey Superior Court Chancery Division Justice Jeffrey R. Jablonski. At that time, Chicago Tribune counsel told me that a Notice of Removal had already been submitted to have the case moved into Federal Court.

Had I received any information to this end, I would have conveyed that I was planning to voluntarily dismiss the case in New Jersey Superior Court on Tuesday, August 7, 2018 once I was able to ascertain the necessary and proper protocol for this action. I pray that the judge assigned to this case will permit me to voluntarily withdraw my case without prejudice.

And here are portions from the letter to the court about the Google case (submitted today); I exclude the material repeated from the letter about the Tribune case:

Though we received and served a court order against Chicago Tribune in this matter, Google still did not de-index the content.

Google stated in a telephone conversation on Tuesday, July 31, 2018 that a remedy could be achieved without proceeding through the court process. Thus, we attempted to continue dialogue with Google on multiple occasions, including on Thursday, August 2 and Friday, August 3, 2018, to see if a remedy could be agreed upon prior to withdrawal, but we were met with no response....

On Monday night, August 6 at 10:53 pm, Google counsel in New York City notified us [plaintiff and his fiancee, who was also listed as a co-plaintiff in the Google suit] via email a "heads up" (in attorney Brian M. Willen's words) that a Notice of Removal would be submitted to have the case moved into Federal Court. Then, at 11:24 pm on the same night, Google's counsel in New Jersey Patricia M. Graham, sent an email stating that the documents had been filed.

When we saw this email on Tuesday morning we were completely shocked, as we were not given any reasonable amount of notice of this next step, and contrary to defense counsel statements last week (both via phone and email), Google did not respond to our request for discussion, despite telling us that they would be amenable to negotiation if we "immediately withdrew our Motion for Contempt" --- which we immediately did. Please note that we withdrew our Motion for Contempt in good faith as per Google's statement that it would enter discussions after that point. Google's next course of action was rather to notify us that the case was being removed to federal court.

Had we received Google's "heads up" during regular business hours or at some point during the day, we would have conveyed that we were planning to voluntarily dismiss our case upon learning the necessary and proper protocol for this action....

I can't speak to what communications the plaintiff might have had with Google, but I should note that:

  1. Google's general policy, as I understand it, is to often voluntarily deindex material in response to a court order addressed to the author finding it libelous -- but to aggressively fight any attempts to order Google itself to deindex material, attempts that they view as legally unsound and often unconstitutional.
  2. There is no general requirement to give people notice that you are removing their case against you to federal court, and indeed litigants who sue out-of-state entities in state court should generally expect (at least when the lawsuit claims unspecified but possibly quite large damages) that the defendants will remove it to federal court, though I realize that many self-represented litigants may not be aware of that.
  3. The New Jersey state court docket does not contain any entry showing that the motion for contempt (i.e., the motion filed by the plaintiff to have Google fined for not complying with the court's earlier deindexing order) was ever withdrawn, though perhaps there was some attempt made that didn't make its way into the docket because of a glitch somewhere in the process.
  4. The stipulation in the Tribune case states that the parties agree to have the case dismissed "with prejudice," which is to say in a way that keeps the plaintiff (or his fiancee) from refiling the case in the future; I expect the same to happen in the Google case.

UPDATE: Late last night, the signed stipulation to dismiss the Google case was indeed filed, and it provided for dismissal with prejudice and for vacating the order against Google.

FURTHER UPDATED: As expected, the court has dismissed the lawsuits with prejudice, and vacated the orders.

The Pro-Lesbian Anti-Transgender "Pussy Church of Modern Witchcraft" Recognized by IRS as Church

"The IRS recognized it as a 501(c)(3) organization and went the extra step of recognizing PCMW as a church, the most enviable of all tax statuses. exempt not only from income tax but also from the transparency that filing Form 990 creates. A church does not have to apply for exempt status, but it is a prudent step particularly for an innovative organization like PCMW."

A very interesting post by Peter J Reilly (Forbes), quoted also by Dean Paul Caron (TaxProf Blog); I'm not an expert on this area of the law, but Dean Caron is. The Reilly post is chock full of details both on the underlying political controversy between pro-transgender and anti-transgender radical feminists and on the tax issues; read the whole thing. Note also that an organization doesn't have to be recognized as a church to be tax-exempt, or for donations to it to be tax-deductible for the donor—many ideological organizations are tax-exempt 501(c)(3)'s; but, as the post points out, being recognized as a church does give one some extra benefits.

I would quibble a bit with one item in the post:

So a cynical bastard might think that this enterprise is a clever way to end run around existing and proposed anti-discrimination laws, because religious liberty trumps those sorts of things which the Supreme Court recently confirmed in Masterpiece Cakeshop v Colorado Civil Rights Commission.

Masterpiece Cakeshop decided only that deliberate targeting of people because of their religiosity violates the Free Exercise Clause, and that the particular facts in the case sufficed to show such deliberate targeting. The case that holds that religious institutions—both churches and other institutions, such as schools—have a First Amendment right to discriminate in choice of leaders (and others, such as teachers, who are closely involved in propagating religious beliefs) is Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012). But beyond that, though Hosanna-Tabor does focus on the Religion Clauses, nonreligious ideological groups are also entitled to exemptions from antidiscrimination laws when their discrimination in choice of leaders and speakers (and likely in choice of members as well) is closely tied to their ideological belief system; that's what Boy Scouts of America v. Dale (2000) held. That, though, is just one detail; again, the rest of the post struck me (and, more importantly, Caron) as very interesting.

UPDATE: Reilly also has a follow-up post.

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Overturning Chevron Would Not Gut the Administrative State—but It Would Strengthen the Rule of Law

Eliminating judicial deference to administrative agencies' interpretations of federal law would not destroy the administrative state, or even significantly reduce the amount of regulation. But it would have some real benefits, nonetheless.

The Chevron Corporation was a party to the famous Supreme Court precedent increasing judicial deference to administrative agency's interpretations of federal law.The Chevron Corporation was a party to the famous Supreme Court precedent increasing judicial deference to administrative agency's interpretations of federal law.

Judge Brett Kavanaugh, Donald Trump's latest Supreme Court nominee, is a critic of the Chevron doctrine - the legal rule requiring federal judges to defer to executive branch agencies' "reasonable" interpretations of federal law in situations where Congress has not clearly addressed the issue in question. Neil Gorsuch, Trump's previous Supreme Court appointee, is an even more thoroughgoing Chevron skeptic. This has led some on the right to hope and many on the left to fear that Kavanaugh's confirmation will lead to the gutting of Chevron, which in turn would strike a major blow against the "administrative state." For the most part, neither the hopes nor the fears are justified.

Kavanaugh's appointment may well continue (or even accentuate) the Court's growing tendency to cut back on Chevron deference - though it is not clear that Kavanaugh's Chevron skepticism is greater than that recently expressed by Anthony Kennedy, the justice Kavanaugh would replace. But even if the Court imposes tighter limits on Chevron deference or eliminates it entirely, that would not put much of a dent in the administrative state

In discussing this issue, many people tend to forget that the Supreme Court only decided the Chevron case in 1984, and we had a large and active administrative state long before then. Somehow, the powerful agencies established in the Progressive era, the New Deal, the Great Society, and the Nixon administration managed to survive, thrive, and regulate without Chevron.

Pre-Chevron administrative agencies did enjoy the benefit of less extensive forms of judicial deference, such as "Skidmore deference." Those would likely persist even if Chevron were to be severely limited or overruled. But even if the Supreme Court were to completely eliminate judicial deference to administrative agencies' interpretations of federal law (thereby treating them the same as any other litigant), the latter would still wield enormous discretionary power. In a world where there are far more federal laws than any administration could hope to effectively enforce, they would still have broad discretion to determine which violators to go after, and how aggressively. They would also retain control over a broad array of technical questions related to enforcement rules, scientific standards for regulation, and other issues.

Even on the specific question of interpretation of statutory law, the elimination of formal deference probably would leave in place a good deal of deference in practice. Across a wide range of issues, generalist judges seeking to manage large case-loads may still give special weight to the views of supposedly expert agencies, even if they are not formally required to do so. This is especially likely to happen when it comes to questions that are highly technical and not ideologically controversial. Deference would be weakened, but far from completely eliminated.

To the extent that ending Chevron would put agencies on a tighter leash, it is far from clear that this would necessarily benefit the political right more often than the left. As my VC co-blogger (and leading administrative law scholar) Jonathan Adler points out in a New York Times article, a reduction in judicial deference could stymie deregulatory policies as readily as those that increase regulation. The Chevron decision itself deferred to a Reagan administration policy that shifted air pollution regulation in ways decried by environmentalists.

In policy areas such as immigration and drug prohibition, most conservatives - especially since the rise of Trump - actually favor more regulation than most of the left does. Pereira v. Sessions, one of the Supreme Court's recent decisions cutting back on Chevron deference strikes down a policy that sought to make it easier to deport immigrants. The same is true of then-Judge Gorsuch's most famous lower court opinion criticizing Chevron.

Ending Chevron deference would not gut the administrative state, or even systematically advance the cause of deregulation. It would, however, have some important beneficial effects. It would put an end to what then-Judge - and future liberal Supreme Court justice - Stephen Breyer, writing in 1986, called an "abdication of judicial responsibility." Neil Gorsuch expressed similar views more recently, calling Chevron "a judge-made doctrine for the abdication of the judicial duty." The Constitution gives judges, not agency bureaucrats, the power to interpret federal in cases that come before the courts. Getting rid of Chevron would help restore the proper constitutional balance in this area.

The elimination of Chevron would also increase the stability of legal rules, and make it harder for administrations to play fast and loose with the law. As Gorsuch pointed out in a well-known opinion he wrote as a lower court judge, Chevron deference often enables an agency to "reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail [in court]." When the meaning of federal law shifts with the political agendas of succeeding administrations, that makes a mockery of the rule of law and undermines the stability that businesses, state governments, and ordinary citizens depend on to organize their affairs. A new administration should not be able to make major changes in law simply by having its agency appointees reinterpret it. Such power is even more dangerous in an age of severe polarization and widespread partisan bias.

Conservatives suspicious of liberal bureaucrats have good reason to oppose Chevron. But the same is true of liberals who believe (often correctly) that GOP administrations appoint agency heads who bend the law in order to advance partisan agendas. If you don't trust the likes of Jeff Sessions or Scott Pruitt to interpret the law objectively, you should be happy to see a judiciary that defers to them as little as possible.

"US Court Authorizes Service By Twitter on Wikileaks"

A very interesting post by Ted Folkman (Letters Blogatory).

Folkman is a leading expert on (among other things) international service of process, a technical but tremendously important field of civil procedure; read his post for more details on this issue, but here's the introduction:

The Democratic National Committee has obtained leave of court to serve process on Wikileaks via Twitter in its lawsuit against Russia, Wikileaks, Julian Assange and others. I have written previously about the FSIA [Foreign Sovereign Immunities Act] issue in the case and the issues about serving process on Mr. Assange in the Ecuadoran embassy in London. But serving process on Wikileaks poses difficulties, too.

The DNC's motion gives several reasons for seeking leave to serve process by Twitter rather than by a more traditional means. Wikileaks, it says, is an "organization of unknown structure" that has "more of a virtual than a physical presence." It has post office boxes in California and in Australia, but it is unclear to the DNC whether Wikileaks uses them for business. Lawyers who have represented Wikileaks in prior US litigation have said they no longer represent the organization or are not authorized to accept service. And Wikileaks, or someone purporting to act on its behalf, does have an active Twitter presence....

Jack Rakove Reviews Democracy in Chains

A noted historian looks at Nancy Maclean's work (and cites the VC).

Noted historian Jack Rakove of Stanford University reviews Nancy Maclean's Democracy in Chains in Critical Inquiry, and the Volokh Conspiracy makes a cameo appearance.

Here's a taste of the review:

Once MacLean forges the Koch-Buchanan connection, Democracy in Chainsbegins to read more like Ramparts-style journalism than academic history. . . .

MacLean's journalistic turn gives her book an admirable polemical vigor that makes it fun to read—especially for anyone who has never read Ayn Rand and is free from libertarian leanings or radical-right credentials. But as a serious intellectual history of public choice ideas or (more to the point) of Buchanan's own substantial oeuvre, Democracy in Chainsis disappointing. . . .

Nancy MacLean has been taking numerous hits ever since her book appeared in June. (Everyone knows how to google these responses, but one finder's clue would be to use "Volokh Conspiracy Nancy MacLean.") Serious charges about her misuse of sources have already been made, which I will not discuss because they lie beyond my scholarly competence and knowledge. At some point there should be a thorough scholarly review of these points, and one suspects that MacLean will have to make a more concerted effort to justify her argument than she has yet provided. Any reader of Democracy in Chains must keep these concerns in mind. Yet her questions remain important and well worth pondering. . . .

As longtime VC readers know, there is a standing offer to post any response Maclean cares to offer to her critics. I made this offer well over a year ago (when this blog was still hosted at the Washington Post) and it still stands. To date, neither Maclean nor her publisher has offered any reply (and I made efforts to contact both directly), nor have etierh offered a substnative response elsewhere. Perhaps that failure to address serious charges of false and misleading claims and misuse of sources is itself worth pondering.

Is Supreme Court Limiting Chevron's Domain?

The justices show little interest in deferring to agency interpretations.

The Chevron doctrine has been controversial since its inception. In 1986, then-Judge Breyer criticized Chevron deference as an unwise "abdication of judicial responsibility." More recently, then-Judge Neil Gorsuch characterized Chevron as "a judge-made doctrine for the abdication of the judicial duty." With such views on the Surpeme Court, is Chevron deference at risk?

Last term, the Supreme Court addressed the question of Chevron deference in five cases. In all five cases, a majority of the Court refused to defer to the agency's interpretation of the relevant statutory provisions. (And, in a sixth case, Encino Motorcars v. Navarro, the Court rejected the statutory interpretation advanced by the agency, having previously determined that the agency's interpretation was not eligible for Chevron deference.) Of potential note, Justice Gorsuch was in the majority in each one of these cases and wrote for the Court in two of them.

I reviewed these cases, and their handling of Chevron, for The Regulatory Review, a website run by the Penn Program on Regulation. You can find my full analysis over there, but here's my conclusion:

Overall, nothing in the past term casts express doubt on Chevron's vitality. The relevant opinions all proceeded on the assumption that Chevron remains good law, and there were few suggestions to the contrary.

At the same time, these decisions suggest that most of the justices, most of the time, are not particularly interested in how agencies interpret federal statutes. Statutory interpretation, after all, is something judges do quite often, so the justices may be excused if they do not think the agencies do it quite as well. If there is a message to lower courts in these decisions, it is that courts should not be too quick to think they must defer to federal agencies. The gaps for Chevron deference to fill, in this view, may be few and far between. Time will tell whether this pattern holds

Reviews of Genesis 1-11

Reviews in New Blackfriars and the Journal of Northwest Semitic Languages

Last year John F. Hobbins and I published Genesis 1-11: A New Old Translation for Readers, Scholars, and Translators. Readers of the Volokh Conspiracy may remember the seven-part series I did on the translation at the Washington Post. The academic reviews are now coming in. But before getting to those, a brief word on the three aims of the translation.

First, it is very close—in colloquial or Nabokovian terms, it is "literal." We tried to carry over from the original its repetition, its emphasis, its wordplay, and even its moments of archaism. We of course did not fully succeed; imperfection always attends translation. But we aimed to be very close—closer than Robert Alter, closer than major Jewish, Catholic, and Protestant translations (e.g., JPS, NABRE, ESV).

Second, we were consciously working within a long tradition of English Bibles (especially those of William Tyndale and his conscious successors, such as the KJV), and a long tradition of interpretation, both Jewish and Christian. We were not trying for "what might an early reader have understood this to mean?" but instead tried to translate in a way that left open, rather than closed down, the range of options within that long tradition of interpretation.

Third, we were attentive to the demands of reading aloud. This meant care for rhythm, pacing, and euphony.

Of course these aims sometimes conflict. And there were other aims that we were not even pursuing—we were not trying to make the text sound like a work newly written in the twenty-first century.

As always, the proof is in the pudding. And when authors send a book out into the world, just as when a chef sends a pudding out of the kitchen, one never knows exactly how it will be received.

On that front I have good news. This week two reviews of the book were published, one by Ernst Wendland in The Journal of Northwest Semitic Languages and the other by Marco Settembrini in New Blackfriars. There are critical notes. Wendland faults us for presenting the English text in paragraph form instead of showing the clause structure of the Hebrew. Settembrini hints that we leaned too far towards the subsequent tradition of translation and interpretation when we translate tannimas "whales" (with KJV); many recent translations have "sea monsters." We do have a note arguing for our translation choice, but it did not persuade.

On the whole, however, both reviews praise the work. And both understand what it does and does not try to achieve. Here is Wendland:

This interesting and informative work, which is of special interest to those engaged in the fields of Old Testament and Translation Studies, has already attracted significant academic attention in the United States. . . . [I]t is much more than a translation . . . [and is] undoubtedly a most valuable resource for "Scholars and Translators". The complementary "Notes" offer a precise, learned commentary on the Hebrew original and its proposed English rendering – a version that readers may not always agree with, but one by which they will be variously instructed as they follow the accompanying perceptive argumentation provided by the translators.

And Settembrini:

This fine book published by GlossaHouse offers good contributions to biblical translations. Its authors, a law professor at the University of California at Los Angeles and a Reformed pastor and scholar of classical Hebrew, seriously engage with contemporary exegetical literature in order to provide their readers with a good English rendering of the Hebrew text of Genesis 1:1 – 12:9, accompanied by comments upon selected phrases. . . . [T]he newly crafted translation is aimed at public reading and private worship, is conceived in a substantial continuity with the Tyndale Bible and the King James Version, is willing to mirror the Semitic original albeit highly mindful of the style and pace of the English text.

Settembrini concludes:

A tannin is not a whale, but readers will certainly have a whale of a time with this volume by Bray and Hobbins in their hands.

Don't Trust the Defendant -- He's a Novelist!

An odd line of prosecutorial argument.

From McKinney v. State (Ala. Ct. Crim. App.), released last month but just mentioned in the Westlaw Bulletin; McKinney was convicted of murder, and there seemed to be a good deal of real evidence against him, but here's one exchange with the prosecutor to which he objected:

Q [prosecutor]. Okay. Now, what I was getting to a few minutes ago about these bags—now, you had another bag, too, didn't you?
A [McKinney]. Yes, sir.
Q. That's the one that had your books in it?
A. Yes.
Q. Now, when you say 'books,' are you talking about books that you read that somebody else wrote?
A. I mean, I'm not exactly sure what you mean.
Q. Well, didn't you have a book or maybe more than one book that you were trying to write, yourself?
A. Inside that book bag, I'm pretty sure my book was in it maybe.
Q. Okay. Now, so you were writing your own book, right?
A. Well, I had written a book, yes....
Q. And it was a work of fiction, I assume?
A. Yes, sir.
"Q. So you at least considered yourself a writer?
[McKinney's counsel]: Judge, objection. What's the relevance of this?
THE COURT: Overruled.
Q. Did you consider yourself a writer? Writer of fiction? ...
A. I wouldn't call myself a writer, no, sir....
Q. But this book of yours is a work of fiction. But everything you're testifying here—now, you're telling us the truth today, aren't you?
A. Yes, sir.
Q. You know you're under oath and you're looking at these folks and you're going to tell them what happened that day, right?
A. Yes, sir.

Yes, the prosecution's theory—which the court seemed to endorse as at least plausible—was that, "[t]he obvious inference the prosecutor was trying to draw was that, if McKinney writes novels or other fiction, then his account of the murder of Mr. Jackson [was] also fiction." Really? Doesn't sound to me like a sensible inference. To be sure, it's perfectly plausible that McKinney was lying, just as it's plausible that anyone else is lying; but I don't think that would-be novelists are any more likely to lie on the stand than anyone else, or even any better at lying (unless perhaps they are novelists of proven and substantial gifts).

Now I'm skeptical that the question was particularly likely to prejudice the jury; McKinney's appellate brief labels this "nothing short of a character assassination," but I don't think a prosecutor can assassinate anyone's characters with this wet noodle of an argument. (Note that there was no evidence of what kind of book McKinney was writing, though the brief says it was a romance novel.) The evidence was irrelevant, I think, and shouldn't have been admitted, but I think the error was harmless, and thus not a basis for a reversal. Still, the appellate court's analysis strikes me as mistaken.

Here is the entirety of the court's analysis on this point:

McKinney is not entitled to relief on this issue. As the State notes, "[t]he obvious inference the prosecutor was trying to draw was that, if McKinney writes novels or other fiction, then his account of the murder of Mr. Jackson [was] also fiction .... Whether McKinney was telling the truth was very relevant and a proper subject for cross-examination." See generally Wiggins v. State (Ala. Crim. App. 2014) ("'Counsel is given wide latitude and has the right and duty to cross-examine vigorously a defendant who takes the stand in his own defense. "A [prosecutor] may ask a defendant ... questions tending to discredit [his] testimony, no matter how disparaging the question may be."'").

UPDATE: I revised the post slightly to add the "or even any better at lying" clause in the first paragraph following the long block quote.

Short Circuit: A Roundup of Recent Federal Court Decisions

Prolonged hostilities, threatening to complain about the police, and officers who don't turn on their recording equipment.

Today the Puerto Rican Supreme Court overruled a 20-year-old precedent and rejected a challenge to a program that will allow up to 10,000 students a year to obtain gov't scholarships to use at private and public schools. Read more here.

More news from Puerto Rico: Puerto Rico saca "F" en sus leyes de expropriación. Which is to say that an IJ report on Puerto Rico's eminent domain laws finds serious shortcomings that give officials vast power to seize private property for virtually any reason. Click here to read it (in English or Spanish).

  • In 2001, Congress authorized the president to detain enemy combatants without trial for as long as hostilities continue. Gitmo detainee captured in 2001: The war in Afghanistan has gone on so long that it's essentially a new, different war; the authority to detain me has thus lapsed. Also, the courts need to impose some kind of limits on these detentions. D.C. Circuit: Not so.
  • State police pull man over near Harrisburg, Penn. for staying in left lane longer than necessary to pass vehicles in right lane. He's driving a rental, and his name isn't on the rental agreement; police search the car without a warrant, telling him they don't need his consent. Third Circuit (2017): No need to suppress the evidence. SCOTUS (2018, unanimously): Reversed. Drivers have a reasonable expectation of privacy in such instances. Third Circuit (2018): But the officers complied in good faith with precedent in effect at the time of the search, so convictions affirmed.
  • Cigarette company buys tobacco distribution business, hires its former owners to continue running things. Yikes! The distribution business is something of a "Trojan Horse." The ATF funds part of it, and the former owners are longtime confidential informants (who helped nail over 100 cigarette traffickers and generate tens of millions of dollars in forfeitures). Cigarette company: The former owners overvalued their business's assets thanks to the ATF funds and otherwise violated their agreements with us in a bunch of ways. District court: The informants were de facto federal agents, so you have to sue the feds instead. District court (with new judge after original judge retires): Nah, you can sue the informants. Fourth Circuit: You can't reconsider a decision like that. The feds are indeed the proper defendants.
  • Last year, the Fish and Wildlife Service issued a permit for a new 600-mile natural gas pipeline project and authorized the pipeline to kill or otherwise harm several endangered or threatened species (including the clubshell, the rusty patched bumble bee, the Madison Cave isopod, the Indiana bat, and the northern long-eared bat). Also that year, the Forest Service authorized the pipeline to cross the Blue Ridge Parkway, which would affect the scenic view from the road. Fourth Circuit: Both approvals are rescinded.
  • Allegation: Man who feels he's being wrongly arrested threatens "to make lawful complaints" about Tangipahoa Parish, La. officers. He's charged with threatening, intimidating the officers. Charges dismissed before trial. Fifth Circuit: A state law that criminalizes threatening public employees—including threats to take lawful actions like calling the media, suing an officer, or running against an incumbent—is unconstitutionally overbroad, violates the First Amendment.
  • Man with no criminal record who's lived and paid taxes in the U.S. for 20 years is ordered deported in 2013, but ICE allows him to remain until 2017, when he's told to leave for good. His U.S.-citizen children sue ICE officials, alleging violation of their right to familial association and selective removal of their father because of his Hispanic origin. Fifth Circuit: We can't consider either claim.
  • Fifth Circuit: No need to reconsider convictions of Mexican drug cartel leader who, among many other crimes, dismembered a 6-year-old with an axe in front of her parents. (Click here for a news story.) Even though many of the crimes were committed abroad, U.S. law can be enforced because the cartel leader directed the flow of drugs into America.
  • In 2012, Detroit residents approve ballot measure increasing property taxes; the revenue is to go to schools. But wait! In 2016, officials reroute $56.5 mil of it to subsidize Detroit Pistons basketball team. Does Michigan law require the school district to put a new referendum on the ballot to give voters a chance to approve the change? Plaintiffs (one of whom is a prolific, vexing litigant who doesn't even live in Detroit) don't have standing to bring such a claim, says the Sixth Circuit.
  • Man tells Watford City, N.D. police his sister intentionally drove van over his foot. Police, who witnessed the event, say the man intentionally put his foot under a wheel and arrest the man for making a false statement. Allegation: During which, one officer grabbed him by the throat, and the other used a baton to pry him from a lawn chair, breaking his arm. Eighth Circuit (over a partial dissent): Video is inconclusive; a jury might decide it was an unlawful arrest and/or excessive force.
  • Drunk driving suspect declines to stand up for handcuffing. Video: A South Dakota state trooper, who has a sizable size advantage, pins the suspect's arms behind him, lifts him up, and smashes him face first into the ground. Eighth Circuit: Could be excessive force.
  • Cedar Falls, Iowa officer shoots man three times at close range. (He lives.) Officer: He punched me and tried to grab my gun. Man: I can't remember any of it. District court: The officer's testimony is unrebutted; qualified immunity. Man: It'd be rebutted if he'd turned on his recording equipment. Eighth Circuit: No court that we know of has adopted an evidentiary presumption against officers who fail to record; "we decline to adopt such a radical solution" here. Affirmed.
  • Hot Spring County, Ark. jail officer takes inmate who'd been fighting to ground, breaking the inmate's shoulder. Though the jail is liable for the inmate's medical expenses, officers present him with a form stating he would be liable for the expenses, and then, when he declines to sign it, refuse to take him to hospital for surgery. (He ultimately has the surgery after being transferred to prison.) Eighth Circuit: The inmate is entitled to compensatory damages because the jail refused to provide him the hydrocodone prescribed by the ER, leaving him in severe pain.
  • Bourbon, Mo. police officer attempts to pull over driver with reputation for fighting police, fleeing traffic stops. The driver flees, drives in the wrong lane even while rounding turns and cresting hills, and then crashes. Video shows him exit his vehicle and walk purposefully toward the officer, who shoots him dead. District court: No qualified immunity. Eighth Circuit: Reversed.
  • New semiautomatic handguns sold in California must have a pair of safety features (a chamber load indicator and a magazine detachment mechanism) meant to prevent accidental discharges. They must also be able to "microstamp" identifying information on cartridges or shell cases (so as to aid police investigations). Ninth Circuit: None of which offends the Second Amendment. Partial dissent: The microstamping requirement is an effective ban on new handguns, if, as manufacturers allege, they cannot comply with the requirement. Indeed, no new handgun has been sold commercially in the state since it was enacted, which, perversely, has kept guns with the two safety features off the market.
  • California has long banned individuals from bringing guns on school property—with exceptions for concealed carry permit holders and retired police officers. Recently, legislators removed the exemption for concealed carry permit holders but retained, after "potent" lobbying from law enforcement, the exemption for retired cops. Ninth Circuit: No equal protection violation here. Retired cops could run into an enemy at school and need to defend themselves. Moreover, they have special training in firearms safety.
  • Allegation: Without provocation, Border Patrol agent in Nogales, Ariz. shoots across the border, hitting teenager about 10 times, mostly in the back, killing him. (The agent is acquitted of murder. Retrial on manslaughter charge is pending.) Ninth Circuit: "Any reasonable officer would have known, even without a judicial decision to tell him so, that it was unlawful to kill someone—anyone—for no reason." The teen's family can sue the agent. Dissent: Courts shouldn't meddle in foreign affairs without direction from Congress, and Congress has consistently declined to fashion a remedy for aliens injured abroad.
  • Immigration judge orders asylum seeker removed to Mexico, but asylum seeker gets an emergency stay from federal court. Despite an automatic electronic notice of the stay, a faxed copy of the stay from the asylum seeker's lawyer, and a call from the lawyer to the deportation officer on the case, DHS removes the man to Mexico. Ninth Circuit: And he can sue for that.
  • Allegation: Denver detectives coerce confession they know to be false out of developmentally disabled eighth grader. He's convicted of murder and spends 13 years in prison before pleading guilty to lesser charge in exchange for release. Tenth Circuit: He hasn't shown he's innocent, so he can't sue the detectives for malicious prosecution. But his false arrest claim, alleging detectives misrepresented and omitted important details on the arrest warrant affidavit, can go forward. (Click here for a news story on the case.)
  • Miami taxicab medallion owners do not have a "property right to monopoly power in perpetuity," says the Eleventh Circuit, citing a trio of IJ cases. Thus, officials did not unconstitutionally take medallion owners' property by failing to block competition from Uber and Lyft. Nor did officials violate the Equal Protection Clause by regulating taxis and ridesharing differently. (Click here for commentary on the ruling.)

In 2016, IJ sued Charleston, S.C. on behalf of three tour guides barred from giving tours because the city wouldn't give them a license. Each guide spent months memorizing the city's 490-page study manual (per officials' instructions) but then failed the licensing exam, which consisted of questions the would-be guides found picayune and irrelevant. But no more! A federal judge has ruled officials violated the First Amendment by imposing serious burdens on the would-be guides' ability to speak without first trying any less restrictive alternatives. Click here to learn more.

Will EPA Trump California's Clean Air Act Waiver?

The Trump Administration is seeking to roll back federal automotive fuel economy standards and prevent California from maintaining more stringent standards of its own.

Last week, the Department of Transportation and Environmental Protection Agency announced plans to roll back one of the Obama Administration's most significant climate change policies. Specifically, the Administration is proposing to freeze automotive fuel economy and greenhouse gas emission control requirements, setting aside Obama rules that would have imposed stringent requirements through 2025. At the same time, the administration is proposing to deny California's authority under the Clean Air Act to adopt its own more stringent requirements, refusing a waiver under the Clean Air Act and claiming preemption under the Energy Policy and Conservation Act. Under this proposal, not only would California be precluded from adopting more stringent greenhouse gas emission standards, it would be prohibited from maintaining its longstanding Zero Emission Vehicle (ZEV) requirements, even though these standards have been used to help the Golden State control address more traditional pollution concerns.

The Trump Administration proposal raises some interesting legal and policy issues. I have a summary and brief analysis over at NRO.

On the legal front, the Trump Adminsitration can make a reasonable case that California is not eligible for a Clean Air Act waiver for greenhouse gas emission controls. In short, this is because the relevant waiver criteria were crafted to enable California to address the state's longstanding and particularly severe urban air pollution problems. Greenhouse gas emissions, however, present different considerations because their effects are not localized in the same way. Thus it is not clear California can show that it needs such standards to control in-state air pollution, as the relevant CAA provisions require. For those interested, my article Hothouse Flowers: The Virtues and Vices of Climate Federalism goes into the legal and policy issues in greater depth.

The Trump Administration is on weaker ground insofar as it seeks to prevent California from requiring automakers to sell Zero Emission Vehicles (ZEVs, i.e. electric cars) in the state. While ZEVs reduce greenhouse gas emissions, they reduce emissions of traditional pollutants as well. Thus this requirement fits more comfortably into the relevant CAA criteria. For the same reasons, I think it is difficult to argue that the ZEV requirements are preempted under the EPCA as standards "related to" fuel economy too.

This Trump proposal also raises questionsa about the role of states in developing and implementing environmental policy. While the Trump Administration has proclaimed its support for "cooperative federalism," this proposed rule could significantly limit the ability of states to pursue their own environmental priorities, at least in the context of climate change.

From my NRO piece:

Allowing different jurisdictions to adopt different rules may well impose costs on nationwide firms, but that's a cost of doing business in a diverse compound public. The reality is that California has different environmental problems and different environmental preferences from other states. Just as California should not be able to impose its preferences on the rest of the nation, it should not be prevented from adopting the rules California voters are willing to accept — and if automakers were willing to let California consumers bear the costs of their state's own policies, that might temper their environmental appetites.

If there is a problem in federal environmental law, it is not that California is given too much autonomy to adopt its own environmental rules, but that other states are given too little. If anything, the CAA waiver provisions are too narrow, insofar as they apply only to one specific regulatory program within the broader federal regulatory monolith. A broader waiver provision that gave states more leeway to experiment with alternative approaches to environmental protection across the board would do more to encourage regulatory innovation and defuse political conflicts.

Alas, the Trump administration does not appear particularly interested in regulatory federalism when it comes to environmental protection. That is a missed opportunity. In its zeal to reduce regulatory burdens across the board, the Trump administration is inviting legal trouble and missing opportunities to make the case for broader reforms. California's waiver should not be the end of state-level environmental innovation. It should be the beginning.

Creativity and Copyright in the Data Age

Does the rise of data-driven authorship change our intuitions about intellectual property? Does it matter?

In our previous posts we have detailed how The Second Digital Disruption is transforming many content industries. In particular, it is changing the way content is organized, invested in, and even produced, not merely how it is distributed to the world (which is what the first digital disruption upended).

The evolution of data-driven authorship also raises many interesting questions about the theory and doctrine of intellectual property. In our final post, we offer a brief excerpt from the paper in which we speculate about how the moral intuitions that undergird copyright may shift if—as we believe—this phenomenon grows in importance:

"The traditional account of authorship—and the account that underlies copyright law—is Promethean: that is, the creator is viewed as bringing something from the heavens to man, as Prometheus brought fire, and, again like Prometheus, is envisioned as a lone genius and benefactor of humankind.

This Promethean account underlies the central feature that has characterized copyright systems since the first modern copyright statute, the British Statute of Anne of 1710. Copyright is a system of authors' rights. According to this account, copyright is not for publishers, or sponsors, or (at least primarily) readers. The law's focus is the author, and the author is the holder (at least initially) of the rights that the law creates.

The advent of data-driven authorship is likely to undermine the Promethean allegory. What may rise in its place—or at least alongside it—is something we'll call the "Panoptian" model of creativity. The label refers to Argus Panoptes, the hundred-eyed giant of Greek mythology who served as unsleeping watchman for Hera. And this gets to the heart of how data-driven authorship is likely to change popular impressions of the nature of creativity, and, as a consequence, popular intuitions about the moral standing of creators to claim property rights in their work.

In the Panoptian model, creators are no longer Promethean geniuses who bring something previously unknown from the heavens down to earth. Instead, they are unsleeping watchers. They are accessories to a system of surveillance—one that we, as consumers, have for the most part bought into willingly, but which we are nonetheless likely to understand as not entirely new and less than entirely beneficent.

Popular intuitions about the connection of authors to their work, the origin of the creative elements of a work, and the role of the community in the creative process are all relevant to public intuitions—however roughly-hewn they may be—about copyright law and policy. Public intuitions founded in a Promethean model of authorship undergird our current system of powerful copyright rights.

A revised set of public intuitions based in a Panoptian model of authorship may nudge us toward a more limited copyright regime. Speaking more specifically, we suspect that the intuition of ordinary people about the strength of authors' ownership claims will weaken; data-driven authorship blurs the association between the work and its "author," and also complicates the question of what the "creative" elements of any particular work are and who is responsible for them.

This isn't to say that people will abandon the idea that there are individual authors, or that works of data-driven authorship are creative, or that the creative elements of a work are linked to an identifiable "author," or that, as a consequence, authors have a justifiable property claim in their works. But the strength of all of these entwined intuitions may well ebb.

First, to the extent that public intuitions about the justification for copyright have focused on the idea that works of authorship are stamped indelibly with the personality of their author, the rise of data-driven authorship blurs this "personality" justification for authorial property rights. Works of data-driven authorship reflect not just the personality of their putative "author". They also reflect the revealed preferences of the audience. While we may be hesitant to equate mere preferences with personality, it's nonetheless true that a work of data-driven authorship is likely to be perceived as reflecting as much about its audience as about its author.

The exact ratio is unlikely to matter. The point is that dat-adriven authorship cannot plausibly be described simply as the author impressing his personality upon the world—a conceit that, frankly, is contestable even for the most traditional works of authorship, but which retains little intuitive traction when a work is deeply shaped by data collection and analysis.

For these works, what we are likely to perceive is not the Promethean author impressing his personality on the world, but rather the watchful Panoptian "author" gathering cues from our preferences, and using those cues to construct a work that, in large part, re-transmits ourselves to ourselves. The difference between Promethean and Panoptian authorship is far from a simple binary—it is always a matter of degree. But the Panoptian model tends to complicate the account of how new works are created."

So this is the world that data-driven authorship might bring us. Is it good, or bad? That hasn't been our primary focus—our paper is partly a description and analysis of the early days of this new phenomenon, and partly a set of predictions about the road toward data-driven authorship that we expect many creative sectors will travel, sooner or later. We don't do much normatively in this paper. But this is your chance to fill in the normative space. Is a world of data-driven creativity something we should welcome? Or fear?

Impeachment Proceedings Against All Four West Virginia Supreme Court Justices

"The articles of impeachment charge Chief Justice Margaret Workman and Justices Robin Davis, Allen Loughry and Beth Walker with maladministration, corruption, incompetency, neglect of duty and certain high crimes." (The fifth Justice has already resigned.)

I don't know much about the controversy, but it seemed noteworthy; here's an excerpt of an article from the Charleston Gazette-Mail (Lacie Pierson) that my local correspondent recommended:

Each justice is charged with "unnecessary and lavish" spending of state taxpayer dollars to renovate their offices in the East Wing of the Capitol. All four of them also are charged with failing to develop and maintain court policies regarding the use of state resources, including cars, computers and funds in general.

Loughry faces additional charges related to his alleged use of state vehicles for personal travel, having state furniture and computers in his home, having personal photos, documents, photos and artwork framed on the state's dime, and handing down an administrative order authorizing payments of senior status judges in excess of what is allowable in state law.

Davis and Workman are charged with signing documents authorizing that senior status judges be paid in excess of what's allowable in state law....

Ketchum [the Justice who had resigned] agreed to plead guilty to one count of federal wire fraud, according to a plea agreement announced by U.S. Attorney Mike Stuart last week.

Loughry is the subject of a 23-count federal indictment charging him with 16 counts of mail fraud, two counts of wire fraud, three counts of making false statements to a federal agent, one count of obstruction of justice and one count of witness tampering.

The charges appear not to be focused on the Justices' substantive decisions, but there is a possible political dimension:

Delegate Mike Pushkin, D-Kanawha, also suggested the nature of grouping all of the justices into one set of articles of impeachment appeared to be an attempt to allow Republican Gov. Jim Justice an opportunity to appoint four of the five Supreme Court justices for at least two years on the bench.

Though any good Russian has to respect a man with that last name, I do not know what role partisan politics is playing in this process. (The current Justices are two Democrats and two Republicans.)

Thanks to Jeremy Cooper for the pointer.

Copyright and (Un)Human Creativity

What does the rise of data-driven authorship mean for the future of art, culture, and intellectual property rights?

In previous posts we have sketched out the rapidly-evolving world of streaming content. The rise of streaming has reordered power in Hollywood and in the music business, sometimes in dramatic ways. But as we describe at length in The Second Digital Disruption, it also has major implications for intellectual property law.

According to the consequentialist justification for copyright, which is the dominant justification in American law, strong copyright is viewed as necessary because creative production is by its nature a high-risk enterprise. The primary role of copyright is to protect against copying, so that the large up-front investment in creative work can be more safely made.

In the absence of such protections, the theory holds, the prospect of unrestrained competition from copyists will deter investment in the production of new creative works. The result will be a persistent undersupply of new works.

Yet in fact there are two chief risks for creative production. One is the risk of market failure -- i.e., risk that no one wants to read, or watch, or listen to, or use, the work that the author creates. The other is what we call the risk of market success -- i.e., that the work proves to be popular, and that popularity attracts pirates whose unauthorized copies steal away potential customers for the author's work.

Note that not all copying poses this sort of competitive threat -- copies that are low enough quality, for example, may be so undesirable that they fail to divert sales from the author. But so long as copies compete, either with the author's sale of copies of his work, or for substantial opportunities to license that work to others, then this "risk of success" is a threat to the author's incentives to undertake the often-costly enterprise of creation in the first place.

IP law, when properly designed and successfully implemented, can reduce the risk of success. Indeed, the basic premise of copyright law is that the protection afforded helps reduce the risk that copyists will divert away from authors the returns from a successful work.

But copyright (and IP rules generally) have no effect whatsoever on the risk of failure. And for most creative works, the problem is not piracy but a lack of market demand.

As a consequence, the risk of failure is at least as important to authors' creative incentives as the risk of success. Indeed, in economic terms, both types of risk drive down the return that the author expects ex ante on his investment in creation, whether that investment is understood in terms of the monetary cost of creativity or the opportunity cost of engaging in creative work versus some other work with a more predictable return.

And in the real world often it is the risk of failure that looms largest -- many more works fail in the market than succeed and are pirated. A work that is pirated is, in a sense, a successful work. No one wants to pirate works that no one wants.

The risk of failure was, until recently, thought of as something largely exogenous, unpredictable, and addressable only by hunches and market experience.

But what if something were to change such that consumer preferences can be readily discerned to a very high degree, and content better matched to consumer demand that produced at a lower level of risk, such that failure is less likely?

That is the world of data-driven authorship that we appear to be entering. In such a world, it may be that producers -- at least producers who have access to the massive quantity of consumer preference data that makes data-driven authorship possible -- are no longer investing with the same fear of market failure. They can invest with greater confidence.

Data-driven authorship does not guarantee that works will not fail in the market. But it makes failure less likely -- and this advantage is precisely why Time-Warner and AT&T fought so hard to merge in 2018 — Time Warner wanted access to the data that hitching up with AT&T (which runs a big ISP) would provide.

Data-driven authorship is thus likely to have an invigorating effect on creative incentives. By lowering the risk of failure, data-driven authorship lowers the overall risk of engaging in and investing in creative work.

As a consequence, viewed from the ex ante perspective, the overall expected return on any given investment in creative work is higher with the onset of data-driven authorship, even if the scope, duration, and enforceability of copyright is held constant. And that means that if we want to keep the same level of incentive to engage in creative work — that is, if we believe that our current level of incentive is roughly correct and want to preserve it -- we can afford to reduce the scope and/or duration of copyright rights.

This is especially likely to be true because the rise of data-driven authorship also helps reduce, albeit indirectly, the risk of success. So far, at least, the rise of data-driven authorship tends to be the domain of large digital distribution platforms offering big libraries of content and all-you-can-eat pricing. So long as the content is available at a price most are willing to pay, these features tend to drive down piracy rates.

As should be obvious by now, these trends are significant for our understanding how strong and broad IP rights need to be. In a data-driven world the scope or duration of IP rights likely could be substantially reduced with little impact on creative production.

In our next post, we'll think a bit about how that shift is likely to affect public intuitions about creativity, creators, and property claims in creative works.

Yet Another Federal Court Rejects Claims that Exposing Taxis to Competition from Uber and Lyft is a Taking

This is the latest in a series of federal court decision rejecting such arguments. The right to operate a taxi business does not create a "property" right in suppressing competition.

Over the last decade, traditional taxi cab company profits have taken a hit because of competition from ride-sharing services, such as Uber and Lyft. Some cab companies have tried to fight back by filing cases arguing that local governments that allow Uber and Lyft to compete with taxis have somehow violated the Takings Clause of the Fifth Amendment, which requires the government to pay "just compensation" when it takes "private property." On Monday, the US Court of Appeals for the Eleventh Circuit issued the latest in a long line of federal court decisions rejecting such claims. Nick Sibilla of the Institute for Justice has an excellent summary of the ruling and its significance, in Forbes:

In a resounding win for innovation and economic liberty, the 11th U.S. Circuit Court of Appeals unanimously ruled on Monday that taxi owners in Miami-Dade County have "no right to block competition" from ride-hailing firms like Lyft and Uber. By rejecting the notion that incumbent businesses are "entitled to…a competition-free marketplace," the 11th Circuit's decision should set an important precedent not just for the gig economy, but for reformers looking to crack open $400,000 on the secondary market....

But when Uber and Lyft entered the scene, they dramatically expanded the supply of available rides....

The rise of ride-hailing was facilitated by a drastic change in the regulatory environment. At first, county code enforcement officers conducted several undercover sting operations, ticketing drivers and even impounding their cars. But in 2016, Miami-Dade County approved an ordinance that legalized ride-hailing....

Facing greater competition, the value for a taxi medallion has since plunged by 90%, and now fetches $35,000 at auction. With a once lucrative business model now imploding, three taxi companies, Checker Cab, B&S Taxi and Miadeco, took the county to court and demanded a bailout. Echoing legal arguments that failed in Boston, Chicago, Georgia, and Philadelphia, the medallion owners argued that by legalizing Uber and Lyft, Miami-Dade County had "significantly devalued" their medallions....

In their view, deregulation was an unconstitutional "taking" that violated their Fifth Amendment rights.....

Writing for the majority, Judge Stanley Marcus meticulously dismissed their claim. Although the owners have an "intangible property interest" in their medallions, "the medallions conveyed only a property interest in providing taxicab services in Miami-Dade County—not in barring competitors," Judge Marcus explained. "Even the most cursory examination of the code reveals that the county did not give the medallion holders the right to enjoin competition," he added, while "the code furnished no basis for the medallion holders' assertion that they were entitled to, or could reasonably rely on a competition-free marketplace."

An earlier ruling on the same issue by Judge Richard Posner of the US Court of Appeals for the Seventh Circuit (which Judge Marcus cited in his opinion), provides a particularly good summary of why exposing businesses to competition does not qualify as a taking:

[T]he City [of Chicago] is not confiscating any taxi medallions; it is merely exposing the taxicab companies to new competition —competition from Uber and the other TNPs [Transportation Network Providers].

"Property" does not include a right to be free from competition. A license to operate a coffee shop doesn't authorize the licensee to enjoin a tea shop from opening. When property consists of a license to operate in a market in a particular way, it does not carry with it a right to be free from competition in that market... Indeed when new technologies, or new business methods, appear, a common result is the decline or even disappearance of the old. Were the old deemed to have a constitutional right to preclude the entry of the new into the markets of the old, economic progress might grind to a halt. Instead of taxis we might have horse and buggies; instead of the telephone, the telegraph; instead of computers, slide rules.....

Taxi medallions authorize the owners to own and operate taxis, not to exclude competing transportation services. The plaintiffs in this case cannot exclude competition from buses or trains or bicycles or liveries or chartered sightseeing vehicles or jitney buses or walking; indeed they cannot exclude competition from taxicab newcomers, for the City has reserved the right... to issue additional taxi medallions. Why then should the plaintiffs be allowed to exclude competition from Uber?

Judge Marcus and other judges who have ruled on such cases appropriately relied on the fact that city medallion laws did not include any guarantees against competition. As a legal matter, they only give holders the right to operate a taxi business themselves, not the right to suppress competitors. In my view, however, there would be no violation of the Takings Clause even if the medallion laws did include a legal right to block competition, which was then repealed by later legislation. I explained why in this post discussing an earlier taxi/takings case:

[E]ven if the laws conferring medallions did explicitly guarantee the holders protection against competition, that still would not be enough for courts to require compensation under the Takings Clause. The Clause does not require government to compensate businesses for any and all policies that reduce their profits. Compensation is only necessary if the government takes "private property." A state-created legal right to exclude competitors from a market is not private property. It goes beyond giving the holder control over his or her own property, and instead allows them to restrict the use of others' property (in this case, cars). Such a right is not private property as that concept is usually understood in Anglo-American law, and certainly would not have been considered such by the framers and ratifiers of the Fifth Amendment.

One could point to the example of intellectual property as a property right protected by the Takings Clause, despite the fact that it is in large part a legal right to constrain competition. But, as my George Mason University colleague Adam Mossoff argues in an important article, the Founders may have considered patent and copyright to be "natural" property rights, not merely government-created monopolies. If Mossoff is right, intellectual property is readily distinguishable from government-created cartels in conventional markets, including taxi medallion systems. If not, perhaps courts should rethink the status of intellectual property under the Takings Clause (though Congress would, of course, remain free to provide compensation to aggrieved intellectual property owners by statute).

In addition to rejecting the taxi companies' takings claim, Judge Marcus' opinion also ruled against their contention that deregulation of ride-sharing services violated the Equal Protection Clause of the Fourteenth Amendment because ride-sharing firms ended up less heavily regulated than traditional taxis. He does an excellent job of refuting this very weak argument. Similar arguments have also been rejected by other courts that have ruled on this issue.


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