A Painful Death

Justice Breyer’s dissent this summer in Glossip v. Gross, has sparked much-needed commentary about the death penalty’s future. Declaring his belief that capital punishment is likely unconstitutional under the Eighth Amendment “in and of itself” (meaning separate from challenges to state methods of execution), Justice Breyer outlined what he called the death penalty’s “fundamental constitutional defects”—unreliability, arbitrariness, and “unconscionably long delays” that undermine its penological purpose. He challenged defense lawyers to bring a case to the Court testing his thesis. Perhaps understandably, this pivotal dissent has eclipsed critical analysis of the Court’s 5-4 decision in Glossip, which upheld Oklahoma’s lethal injection protocol under the Eighth Amendment. But the majority opinion in Glossip says some troubling things about state violence that warrant closer examination. Thus, in this post, I focus not on the death penalty’s vulnerability, but rather on the implications of Glossip’s disastrous test for assessing methods of execution under the Eighth Amendment and its potential implications for constitutional doctrines applicable to state uses of force more broadly.

As I sketch out below, Glossip, provides that a State’s method of execution may be constitutional even if it creates a substantial risk of severe pain, so long as an alternative less painful measure is not readily available at the time of a challenge. This analysis ignores that, as a practical matter, foregoing an execution until it can be accomplished without a “substantial risk of severe pain” is necessarily always an option available to the State. It thus incorporates a de-facto exigency consideration within Eighth Amendment jurisprudence and allows the State to carry out painful deaths. I provide some initial thoughts about this issue, but first provide necessary background on Glossip.

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FAN 86 (First Amendment News) Court may rule on occupational-speech petition soon

The United States Supreme Court has said that “the constitutional right of free expression is powerful medicine.” Powerful and essential, and it needs to be administered to everyone, including physicians and those regulating their practice. Laurence Tribe

Most occupational licensing laws – at least those involving professions that have traditionally been subject to significant regulation – should not trigger rigorous review under the First Amendment, even if these laws regulate on the basis of the content of the speaker.Vikram Amar

The case is Hines v. Alldredge and the issue in the case is whether restrictions on occupational speech are subject to First Amendment scrutiny, or only rational-basis review. The case was considered by the Justices in their Conference yesterday.

Dr. Ronald Hines

Dr. Ronald Hines

Facts: Texas requires veterinarians to conduct a physical examination of an animal on its premises before they can practice veterinary medicine on that animal. That law gave rise to a First Amendment challenge owing to the fact that Ronald Hines, a retired Texas-licensed veterinarian, launched a website and posted articles about pet health and care. As the Fifth Circuit noted when the case was before a three-judge panel, “these general writings soon turned to more targeted guidance . . . . [whereupon Dr. Hines] began ‘to provide veterinary advice to specific pet owners about their pets.’ This advice was given via email and telephone calls, and Hines ‘never physically examine[d] the animals that are the subject of his advice,’ though he did review veterinary records provided by the animal owners. . . . Hines charged a flat fee of fifty-eight dollars for his veterinary advice, though he would waive this fee if a pet owner could not afford to pay. He did, however, refuse to give advice if he felt that a physical examination was required, and he did not prescribe medication.”

“In 2012, the Texas Board of Veterinary Medical Examiners informed Hines that by providing veterinary advice without a physical examination, he had violated Texas law.” Thereafter, he was placed on one year probation, received a stayed suspension of his license, and had to pay a $500 fine. He was also required to  retake the jurisprudence portion of the veterinary licensing exam.

Dr. Hines challenged the Texas law and sought declaratory and injunctive in federal court. He challenged the physical examination requirement as applied to him as a violation of his rights under the First Amendment Fourteenth Amendments (Due Process and Equal Protection).

Circuit Court ruling: In an opinion by Judge Patrick Higginbotham, the Fifth Circuit denied those challenges.  In that regard, Judge Higginbotham declared: “Whether Hines’s First Amendment rights are even implicated by thisregulation is far from certain. In defining the permitting practice of veterinary medicine for which its license is required, Texas only imposes a narrow requirement upon the veterinarian. But surely, if this restriction on the veterinarian’s medical practice is within its scope, it is but incidental to the constraint, and denies the veterinarian no due First Amendment right.”

→ Cert. Petition: A petition for certiorari was filed by Jeffrey Rowes, counsel of record, along with Dana Berliner and Matt Miller, all from the Institute for Justice. In their brief they argue:

Jeffrey Rowes

Jeffrey Rowes

“This Petition raises a matter of first impression in this Court about occupational speech. While such speech is widespread, this Court has never squarely addressed its constitutional status. The Fifth Circuit below held that restrictions on veterinary-medical advice are not subject to First Amendment scrutiny. There is now a direct, outcome-determinative split of authority between the Fifth and Eleventh Circuits on the one hand, and the Third and Ninth Circuits on the other, over whether the First Amendment protects medical advice. More generally, the decision below also deepened intractable splits of authority over whether restrictions on occupational speech are ever subject to First Amendment scrutiny.” Thus, they argue:

  1. “Occupational speech cannot be classified as conduct and stripped of First Amendment protection because the distinction between general speech and occupational speech is itself a content-based distinction,” and
  2. “The government’s motive in regulating occupational speech does not remove that speech from the First Amendment.”

Amicus briefs have been submitted by:

Supporting Petitioner

Related Scholarly Works

→ Recent Blog Posts 

First Amendment Salon: Abrams & Post on Reed v. Gilbert Read More


Vanderbilt Law Review, Volume 68, Number 6

The Vanderbilt Law Review is pleased to announce the publication of our November 2015 issue:


Alan K. Chen & Justin Marceau, High Value Lies, Ugly Truths, and the First Amendment, 68 Vand. L. Rev. 1435 (2015)

Dina Mishra, An Executive-Power Non-Delegation Doctrine for the Private Administration of Federal Law, 68 Vand. L. Rev. 1509 (2015)

Yesha Yadav, How Algorithmic Trading Undermines Efficiency in Capital Markets, 68 Vand. L. Rev. 1607 (2015)


Victor Fleischer, Curb Your Enthusiasm for Pigovian Taxes, 68 Vand. L. Rev. 1673 (2015)

Brian Galle, In Praise of Ex Ante Regulation, 68 Vand. L. Rev. 1715 (2015)


Christopher J. Climo, A Laboratory of Regulation: The Untapped Potential of the HHS Advisory Opinion Power, 68 Vand. L. Rev. 1761 (2015)

Tomi Mendel, Efficiency Run Amok: Challenging the Authority of Magistrate Judges to Hear and Accept Felony Guilty Pleas, 68 Vand. L. Rev. 1795 (2015)


Delegating the Dark Side of the Force

With Cass Sunstein working on a book about Star Wars and the new movie soon to drop, I thought I’d take the bait and write about the constitution of the First Galactic Empire.

If we use constitution in the British sense to describe the way in which a government works, then the most interesting feature of the Empire is its decentralized structure and breathtaking delegations of power. This is established early on in Episode Four, following the dissolution of the  Senate and (presumably) the end of Jar Jar Binks’s career.

In response to the dissolution, one of the Death Star officers asks, “How will the Emperor maintain control without the bureaucracy?” Grand Moff Tarkin replies, “The regional governors now have direct control over their territories.”  (I would think that governors would also have a bureaucracy, but anyway.). The power of these imperial governors was nothing, though, compared to the authority delegated to the Grand Moff himself, who could destroy entire planets without the need for consultation.  No wonder the commander of the Second Death Star is shocked in Episode Six when he learns that the Emperor conducting an inspection (“The Emperor is coming here?”)  After all, he never does anything in person.

Yet there were costs to an administrative design that placed so much trust in subordinates.  First, Darth Vader was free to hand the plans to the Death Star to the rebels with disastrous consequences.  Second, the commander chosen to lead an entire legion of the Empire’s best troops was incompetent and defeated by a bunch of teddy bears.  Third, the Empire only narrowly avoided a succession crisis, as it was not clear whether Vader or the Grand Moff was second-in-command (arguably Tarkin ordered Vader to release a choke-hold on his colleague and Vader complied (“As you wish.”).

Of course, centralized evil empires also have flaws.  See Sauron v. Frodo, 56 M.E. 875 (3rd Age, Mordor).



The McReynolds/Brandeis Picture

I want to draw your attention to a new article in The Journal of Supreme Court History (no link available right now) that debunks the famous story that Justice McReynolds refused to sit next to Justice Brandeis for a Court portrait in 1924 and thus there was no official photo taken in that year.

While the story sounds true because Justice McReynolds was a weird person and an anti-Semite, there is nothing to this particular claim.

  1. The Supreme Court did not sit every year for an annual photo in those days.
  2. Justices McReynolds and Brandeis are pictured together at other functions in the 1920s.
  3. The claim that McReynolds refused to sit next to Brandeis came from a book written in the 1960s. The scholar in question relied on a letter written by McReynolds to Chief Justice Taft, but the letter in question says nothing about Brandeis.

A New Book on The First Congress

In prior posts, I’ve commented that we could use a good book on the First Congress, which played a crucial role in shaping the Constitution and our basic institutions. Now I’ve learned that a book is coming out in February on this topic by Fergus Bordewich, which I’ve pre-ordered and wanted to flag for you.


FAN 85 (First Amendment News) “Is phone sex violent?” — Posner challenges lawyer in online classified advertising case

There’s no sex in your violence — Bush, “Everything Zen

Judge Richard Posner

Judge Richard Posner

Seventh Circuit Judge Richard Posner was in a plucky mood last week when Backpage,com v. Dart was argued before his panel, which included Judges Diane Sykes and Kenneth Ripple. ) More about Judge Posner (and sex) shortly, but first a few things about the case.

 FactsBackpage.com is the second largest online classified advertising website in the U.S., after Craigslist. Users post more than six million ads monthly in various categories, including buy/sell/trade, automotive, real estate, jobs, dating and adult. Users provide all content for their ads; Backpage.com hosts the forum for their speech. Thomas Dart, the sheriff of Cook County, wanted to eliminate online classified advertising of “adult” or “escort” services. And why? As the Sheriff saw it, such ads were little more than solicitations for prostitution. He also argued that these ads facilitate human trafficking and the exploitation of children. Last June the Sheriff sent letters to the CEOs of Visa and Mastercard to “request” that they “cease and desist” allowing their credit cards “to be used to place ads on websites like Backpage.com, which we have objectively found to promote prostitution and facilitate online sex trafficking.” It worked; the companies blocked the transactions.

→ District Court: Backpage.com went to federal court and first sought a temporary restraining order and later a  preliminary injunction based on First Amendment grounds. District Judge John J. Tharp Jr. presided over the case. “In arguing that it is likely to succeed on the merits,” said Judge Tharp, “Backpage contends that Dart’s actions constitute precisely the type of informal prior restraint condemned as a First Amendment violation in Bantam Books, Inc. v. Sullivan (1963).” Judge Tharp thus concluded: “The Court makes no judgment as to the merits of Backpage’s claims, and any factual findings it has made are preliminary only and not binding in any proceedings on the merits.” On August 21, 2015, the court denied Backpage.com’s motion for a preliminary injunction, thought it had previously granted a TRO in the case. In any event,  Backpage.com appealed.

 The Cato Institute filed an amicus brief as did the Center for Democracy & Technology (see here) in support of the Petitioner.

Excerpts from Oral Arguments in the 7th Circuit

Below are select excerpts, which I transcribed, from the oral arguments in the Seventh Circuit. The arguments began with a presentation by Robert Corn-Revere. Judge Posner did not pose any questions to Appellant’s counsel anytime during the arguments, though Judges Sykes and Ripple did ask a few questions. Ms. Hariklia Karis argued on behalf of Appellee Sheriff Dart. Her arguments, by contrast, were met at the outset and thereafter with vigorous questioning from Judge Posner as indicated by the excerpts below.

Judge Posner: “You know, a police official has to be very careful in what he says. This is not Tom Dart as a private citizen, writing a letter to a newspaper or something, saying he doesn’t like Backpage. This is all done, office of the Sheriff, official stationary  — well anybody receiving an offcial communication from a sheriff is going to feel there is an implicit threat to follow this up with legal action.”

Ms. Karis: “Your honor, both VISA and Mastercard have both established that they did not receive or perceive this an an offical threat. . . .”

Judge Posner: “You believe that?”

Ms. Karis: “I absolutely believe that, and the the evidence is undisputed –“

Judge Posner: “Well, that’s ridiculous. These people, these companies do not feel they can defy an official . . . There’s nothing, you know, that Dart has.”

Ms. Karis: “VISA has spoken and submitted an affidavit in this court, which the district court considered, in which their vice-president for global brand reputation specifically said [that] he did not view the letter –“

Judge Posner: “Well what do you expect them to say?”

Ms. Karis: “Your honor –“

Judge Posner: “We’re knuckling under to threats? . . . Look, the tone of [the Sheriff’s letters] is so unprofessional. He talks about a violent industry; is phone sex violent? . . . “

Ms. Karis: “It can be.”

Judge Posner: “Really?”

Ms. Karis: “It certainly can.”

Judge Posner: “How?”

Ms. Karis: “Depending on whether children are involved — “

Judge Posner: “We’re not talking about children here. . . . And all the adults are getting swept up with the children?”

Ms. Karis: “The adults are not getting swept up with the children.”

Judge Posner: “Well they are. Adults who participate [chuckling] in phone sex with each other are potential targets. And what about old people, old men [chuckling] who would like to be seen with a young woman. Right? That is an aspect of the escort service; it’s not all sex!”

Ms. Hariklia Karis

Ms. Hariklia Karis

Ms. Karis: “Sheriff Dart did not take down the content or propose to take down the content of Backpage’s webpage, which was not illegal conduct. MasterCard in particular, to your Honor’s question of the recipient receiving this and what can they say, MasterCard had already decided that they no longer wanted to be affiliated with Backpage one week before Sheriff Dart ever sent that letter out. That evidence is undisputed.”

 Judge Posner: “Well, I’m sure that VISA and MasterCard don’t want to spend their time fending off whacks from Sheriff Dart. Right? These companies make a decision. Right? They don’t want to be slandered by a high government official.” Read More


The Father of the Constitution?

203px-JamesMadisonA conclusion that is hard to avoid after reading Mary Bilder’s book on James Madison’s Notes on the Constitutional Constitution is that he does not really deserve the nickname “Father of the Constitution.” Much of what he wanted in the text was not adopted, and much of what was put into the document was the result of a collective effort that Madison (to some extent) obscured in the Notes.

Why, then, does Madison have this nickname?  My hunch, though I need to look into this further, is that when he ran for President in 1808 this slogan was coined for his campaign.  Something similar happened with Jefferson, as people enlarged his role in producing the Declaration of Independence when he ran for President to make it seem as if he wrote the whole thing himself.


Redefining the Bill of Rights

I am now writing the next book in earnest (midway though Chapter One and counting).  Hurray!

One puzzle about the Bill of Rights I’ve been thinking about lately is this:  If people think that the phrase refers to the most important parts of the Federal Constitution that protect individuals, then why wouldn’t people have argued that things other than what was in the first set of amendments were included?  We could argue about what should be included, but possible candidates include the Thirteenth Amendment, parts of the Fourteenth Amendment, and so on.

It turns out, upon close examination, that these sorts of arguments were made from time to time, though sometimes indirectly.  Take Justice Hugo Black, for example, who made this argument in his 1963 Madison Lecture on the Bill of Rights:

I prefer to think of our Bill of Rights as including all provisions of the original Constitution and Amendments that protect individual liberty by barring government from acting in a particular area or from acting except under certain prescribed procedures. I have in mind such clauses in the body of the Constitution itself as those which safeguard the right of habeas corpus, forbid bills of attainder and ex post facto laws, guarantee trial by jury, and strictly define treason and limit the way it can be tried and punished.  I would certainly add to this list the last constitutional prohibition in Article Six that ‘no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.’

State and imperial (Puerto Rico, the Philippines) bills of rights often included the Thirteenth Amendment, and Learned Hand once said that the Due Process Clause of the Fourteenth Amendment was part of the Bill of Rights.  Anyway, more on this I as I roll along, as I’m keen to see (especially at the state level) how the meaning of a bill of rights changed over time.