Category: General Law


The First Branch

In this post I want to start a discussion of an observation made about twenty years ago by Garry Wills.  Wills is one of my favorite authors, and a significant portion of his scholarship is devoted to the Constitution.  Here is the claim:  The three branches are not co-equal.  As a textual and as an original matter, Congress is the preeminent branch.  How do we know this?

1.  Congress is discussed first (Article I).

2.  Article I is the longest and most detailed of the articles.

3.  Congress wields the power of impeachment over the other two branches.  The other two branches cannot, by contrast, remove a member of Congress.

4.  Congress controls (albeit with some limitations) the salaries and staff of the other two branches.  They, though, cannot control Congress’s pay and staff.

5.  Congress can override a presidential veto.  He has no recourse if that happens.

These are just some of Wills’ examples.  Now the obvious response is that many of these points are formalistic.  In practice, the President or the Supreme Court is more powerful because Congress does not wield many of its weapons, can’t act in a unified way, and so on.  True enough, but how relevant is that for a court addressing a separation-of-powers question such as Zitovsky?  If you start with the premise that the constitutional text made Congress the leading branch, then shouldn’t that usually outweigh subsequent practice if you’re an originalist or a structuralist?

Anyway, I’ll have more to say about this next week.




Vanderbilt Law Review, Volume 68, Number 4

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


Samuel L. Bray, The Supreme Court and the New Equity, 68 Vand. L. Rev. 997 (2015).

Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. 1055 (2015).

W. Kip Viscusi, Pricing Lives for Corporate Risk Decisions, 68 Vand. L. Rev. 1117 (2015).


Jeremy Johnston, Putting an End to False Claims Act Hush Money: An Agency-Approval Approach to Qui Tam Prefiling Releases, 68 Vand. L. Rev. 1163 (2015).


The Wright Brothers and the Patent System

240px-Kitty_hawk_grossI just finished David McCullough’s new book on the Wright Brothers.  While McCullough is a wonderful storyteller, he does tend to paint a rosy picture of his biographical subjects.  John Adams, in particular, came off much better than he looks if you read the accounts of his contemporaries.

I think that the same is true in this book.  The narrative ends in 1909 with the Wright Brothers winning acclaim around the world.  There is an Epilogue that describes what happened afterwards, but what that leaves out is the fact that the Wrights (and then only Orville after Wilbur died in 1912) spent the next several years engaged in patent litigation.  From the secondary literature on that part of the story, one gets the impression that the Wrights were prickly about asserting their originality in achieving flight and were not that open to collaboration.  This helps explain why the United States fell behind Europe in aeronautics, which the government addressed in 1917 by creating (or coercing) a patent pool for airplanes.  It’s a cautionary tale for patents and their relationship to innovation.


FAN 60 (First Amendment News) — Mohammed-Cartoon Controversy Continues — Liberals Divided

We defend the First Amendment for everybody because there is no other way to defend it for ourselves.Ira Glasser (December 1977)

Intolerance is a human tragedy and must be addressed. But if there’s one cardinal rule in America, it’s that we err on the side of counter-speech, not censorship, when we hear things we don’t like but that don’t directly hurt us. — Gabe Rottman (August 12, 2013)

It’s axiomatic: Give it enough time and any irksome First Amendment issue will resurrect, albeit in new cultural garb but similar enough to be more than a distant cousin. The Mohammed-cartoon controversy is only the latest example of an old issue remerging to once again test the steel of our commitment to free speech. And with a firebrand like Pamela Geller — the  who promoted the “Draw the Prophet” contest in Texas — fanning the flames, some find the need to back away from the speech-protective tradition of the First Amendment. Predictably, rationalizations are tendered and excuses offered while exaggerations are served up in bountiful plenty. Why? Simple: Whenever speech really offends us (particularly when the speaker is over-the-top provocative), there is a strong tendency to default to a censorial mindset. Then again, the true greatness of our First Amendment is our constitutional commitment to default in a different direction — to ratchet  towards freedom.

Frank Collin demonstrating in Chicago

Frank Collin demonstrating in Chicago (1978)

You hear the words a lot these days in the news: hate speech / incendiary speech / fighting words / and much more as the battles lines draw around the Texas controversy. If you turn the free-speech clock back 38 years and situate the First Amendment in Illinois, you will soon enough discover a similar conflict with people throwing around similar epithets. Remember Skokie? Remember the Nazi campaign to march there, in that predominately Jewish community with many Holocaust survivors? (See YouTube clips here and here — see also here)

Before and after the matter was resolved in 5-4 in a per curiam opinion by the Supreme Court (with liberals siding with the claims of the National Sociality Party) and later in a cert. denial in 1978, there was considerable and heated debate among liberals. And nowhere was that debate more heated than in the ranks of the American Civil Liberties Union, which through its Illinois affiliate defended the First Amendment claims of Frank Collin — the lead party in the suit to permit the Nazis to march in Skokie.

The story of this contentious moment in our free-speech history is ably set out in Philippa Strum’s When the Nazis Came to Skokie: Freedom for Speech we Hate (1999). Part of that history is the enormous price the ACLU paid to defend the First Amendment even if it meant risking the group’s own financial survival. (In those days, the New York Times editorial board stood with the ACLU in its time  of peril.) Years later, that sacrifice came to be seen by many as a badge of honor. In some ways there was even a Shakespearean quality to the fight fought back then by the ACLU:

This day is call’d the feast of Crispian. He that outlives this day, and comes safe home,Will stand a tip-toe when this day is nam’d, And rouse him at the name of Crispian. He that shall live this day, and see old age, Will yearly on the vigil feast his neighbors  And say “To-morrow is Saint Crispian.”Then will he strip his sleeve and show his scars, And say “These wounds I had on Crispin’s day.”

National ACLU Weighs in on Cartoon Controversy

Lee Rowland

Lee Rowland

Meanwhile, a new fight emerges as liberals once again battle over how much free-speech freedom they can tolerate. Though up to now the national ACLU has not been very vocal on the cartoon controversy, when I inquired I received the following reply from Lee Rowland, the Staff Attorney for the Speech, Privacy & Technology Project: “I just wanted to let you know that the ACLU unequivocally believes that Ms. Geller and AFDI’s speech was protected, and that frankly, it’s not even a tough question. Our First Amendment protections mean nothing if they do not extend to speech that many find objectionable and provocative.”

The Draw-MohammedCartoon Controversy — Seven Views

 Real Time with Bill Maher: In Defense of Free Speech (HBO): “This is America. Do we not have the right to draw whatever we want? . . . Do we have to accept that Muslims are unable to control themselves the way we would ask everyone else in the world?  To me that’s bigotry; that’s the soft bigotry of low expectations.”

Bret Stephens

Bret Stephens

Bret Stephens, “In Defense of Pamela Geller,” Wall Street Journal, May 11, 2015: Ms. Geller is hammering home the point, whether wittingly or not, that the free speech most worth defending is the speech we agree with least. That’s especially important when the enemies of free speech—in this case, Muslim fanatics—are invoking the pretext of moral injury to inflict bodily harm. A society that rejects the notion of a heckler’s veto cannot accept the idea of a murderer’s veto simply because the murderer is prepared to go to greater extremes to silence his opponents.”

Editorial, “Free Speech vs. Hate Speech,” NYT, May 6, 2015: “the Muhammad Art Exhibit and Contest in Garland, Tex., was not really about free speech. It was an exercise in bigotry and hatred posing as a blow for freedom.”

Eugene Volokh, “No, there’s no ‘hate speech’ exception to the First Amendment,” Volokh Conspiracy, May 7, 2015: “there is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn Islam — or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens — as one is to condemn capitalism or Socialism or Democrats or Republicans.”

 Kathleen Parker, “Use and abuse of First Amendment,” Yakima Herald, May 10, 2015: “I take a back seat to no one when it comes to defending free speech — even that of the worst sorts. We let neo-Nazis and the Ku Klux Klan march and protest because the true test of free speech is that unpopular speech is tolerated.That said, we needn’t embrace or celebrate people like Geller, who intentionally try to provoke a confrontation.She’s welcome to sponsor a cartoon contest, but we don’t have to attend. If Geller wants to stand on street corners and shout her views, no one has to listen.”

 John Costa, “Testing the First Amendment,” The Bulletin, May 10, 2015: “The question for those of us who value the First Amendment is easy to state but painfully difficult to answer. Are there limits we should impose on ourselves?In fact, newspapers that have standards of publication do it every day, which I know doesn’t answer the question of whether to publish the images of Charlie Hebdo or the cartoonists in Texas. I wholly support their right to their choice, but for me the answer is a resounding, ‘It would depend.'”

Stuart Anderson, “Have Mormons Become America’s Best Advocates For Freedom Of Speech?,” Forbes, May 7, 2015:”A worldwide debate has emerged over religion and freedom of speech. And who, by example, has become America’s best advocate for free speech? The surprising answer may be the Church of Jesus Christ of Latter-day Saints.”

Yale Law Professors see Blueprint for Campaign Reform in Williams-Yulee Read More


New Private Law joins the blogosphere

Great news for fans of private law — John C.P. Goldberg and Henry Smith, along with a great group of contributors, just launched the New Private Law blog. If you have any interest in private law, you should definitely check it out. (And if you’re not sure exactly what private law means, see these links for some short explanations from the blog founders.)

Welcome to the legal blogosphere, New Private Law!


Thoughts on the British Election

The Tory victory in Thursday’s election raises several points that are worth discussing in the UK context and globally.

1.  The British constitutional system is gradually moving towards a parliamentary/direct democracy hybrid.  Referenda are now increasingly seen as necessary or desirable to resolve major issues.  There was a referendum about proportional representation in 2011, another on Scottish independence last year, and now one is promised in 2017 on EU membership.  Parliamentary sovereignty remains, but in more formal terms.

2.  More Scottish autonomy is inevitable, as Scotland now looks more like Quebec (a region with its own culture and own political party within a larger state).  I wonder what this will mean for Scottish law.  Scottish law still possess some unique characteristics, and there are many attributes of that law that influenced the Framers and resonate today.  (I’ve always thought “Not Proved” should be a possible verdict in a criminal case, for instance.)  How would a more autonomous Scottish law develop?  Would, for example, Scotland end up with a written constitution?


FAN 59.3 (First Amendment News) Floyd Abrams & Yale Law School — Friendly Foes

Pressures on freedom of expression and all too often the actual suppression of free speech comes not from outside the academy but from within it— Floyd Abrams, “Liberty is Liberty” (March 16, 2015)

I wasn’t surprised by what seems to have been the general disapproval of [Citizens United]. . . What I was less prepared for was the fury of critics of the opinion and the fierceness of their criticism. The ruling was treated as a desecration. –– Floyd Abrams, Yale Law Journal Forum (2010)

In no First Amendment case that I have been involved in has the position I have articulated been the subject of more condemnation . . . . — Floyd Abrams, Friend of the Court (2013)

There was a time when championing the cause of free speech was applauded by liberals. No more.

There was a time when rallying to the defense of controversial First Amendment issues made one the darling of liberals. No more.

There was a time when liberals automatically and heartedly approved whenever the Supreme Court sustained a First Amendment right. No more.

In more ways than these, the times they are a changin’.

* * * *

It is a sign of Yale Law School’s tolerance that it is the site of the Floyd Abrams Institute for Freedom of Expression. Why? Because so many of the First Amendment cases and causes Mr. Abrams defends are antithetical to the beliefs of so many of the liberal faculty at Yale. Though few speak it publicly, the irony is unmistakable: On the one hand, Yale Law School has become the hub of the New Left’s attack on free speech, especially as proclaimed by the Roberts Court. On the other hand, Yale’s most distinguished defender of free speech champions the very causes his Yale critics abhor. No need to name names here — just follow the scholarly trail of articles critical of commercial speech, corporate speech, political speech in the form of campaign contributions, and more.

On October 24th, Mr. Abrams will receive Yale’s Award of Merit, the highest award given by the Law School. “The recipients of the Award are recognized for having made a substantial contribution to public service or to the legal profession.” 

 In 2016 Yale University Press will publish Mr. Abrams’ next book, Why the First Amendment Matters.  

UnknownOf course, for the New Yalees the worst of all sins is to defend Citizens United and its progeny. And on that score, there is no sympathy for the devil who was one of the lawyers who successfully argued that case. Even so, the 78-year-old Abrams takes it in stride as he strolls the halls of his beloved alma mater where he once studied under the likes of Alexander Bickel with whom he later served as co-counsel in the Pentagon Papers Case (1971).

Admittedly, there is some agreement between the two camps — take, for example, their mutual reservations about the Roberts Court’s rulings denying First Amendment claims in cases such as Holder v. Humanitarian Law Project (2010) and Garcetti v. Ceballos (2006). Beyond that, however, the bond tends to relax in varying ways and for various reasons.

The charge: Those who defend corporate speech, commercial speech, and Citizens United are the modern-day proponents of Lochnerism, that evil of yesteryear that is an anathema to every self-respecting liberal. Here again, the charge manifests itself in various ways and in varying degrees of explicitness. Still, that is the general sentiment and it is one very much alive at Yale Law School and very much so when it comes to the Roberts Court and its many of its First Amendment free expression rulings.

Dismissing First Amendment claims in the commercial speech context as “Lochnerism” seems to have become the new cliche du jour. There was a time, not many years ago, when liberal and conservative jurists joined together to support an expansive view of commercial speech rights as a way of assuring that the public received more information. Indeed, the first commercial speech case and first First Amendment victory in this area dealt with an effort to limit the public revelation of drug prices in the supposed service of avoiding drug price wars.

Now, sadly, the instinctive reaction of too many is to bemoan any such efforts and to turn to government as a sort of speech police. The Amerin case [see below] is one in which only truthful and non-misleading speech is sought to be protected. That’s a pretty modest notion in a First Amendment case, one that should — but I fear won’t — offer a bit of reassurance to those who seem to be more often uttering the words “New Lochner” than “First Amendment.” Floyd Abrams (May 7, 2015)

Justice Stephen Breyer: He is the liberal hero of liberal Yale Crowd, the champion of “collective speech.”

Floyd Abrams: Cross the ideological divide and you will find him there registering a spirited dissent to such collective notions of free speech — this despite his longstanding liberalism.

While Breyer the balancer is winning at Yale, Abrams the nuanced absolutist is winning in Court.

* * * * 

It is all too easy to forget: First and foremost, lawyers represent clients. By that professional measure, a lawyer with First Amendment expertise is expected to make the best arguments he or she can. Or as Professor Rebecca Eisenberg wrote in a 1993 article: “The role of advocate calls for constructing persuasive arguments that will generate favorable outcomes for clients.” That’s why clients (corporate and individual) seek out a renowned lawyer like Mr. Abrams. But Floyd Abrams is more than a lawyer: He is the public figure par excellence of free speech freedom. He is also the author of numerous scholarly articles and two books. Where, then, to draw the line? Are lawyers (including those with a scholarly publishing bent) to held to public account and even condemnation for the clients they represent? (Now there is a topic worthy of a law school conference, perhaps even at Yale?) (Consider Tim Wu, “Did Laurence Tribe Sell Out?,” The New Yorker, May 6, 2015); Michael Tigar, “Lawyering at the Edge: Unpopular Clients, Difficult Cases, Zealous Advocates: What Lawyers, What Edge?,” Hofstra Law Review (2007); and Stephen Jones, “A Lawyer’s Ethical Duty to Represent the Unpopular Client,” Chapman Law Review (1998).)

Before I leave that topic, however, let me say a few things about one of Mr. Abrams’ latest clients and the First Amendment claims he is raising on its behalf. To be sure, it is certain to be the object of critical comments by Yale’s liberal establishment.

UnknownMr. Abrams has been retained by Amarin Pharma in an action against the Food and Drug Administration. Here is how his complaint filed in the Southern District Court of New York begins: “This Complaint presents an as-applied First Amendment challenge to FDA regulations that prohibit Amarin, a pharmaceutical company, from making completely truthful and non-misleading statements about its product to sophisticated healthcare professionals, including Doctor Plaintiffs.”

Screen Shot 2015-05-08 at 7.18.16 AMLater on in the 76-page complaint filed on May 7th, Abrams adds: “Amarin has conducted a double-blind, placebo-controlled clinical trial demonstrating that Vascepa® reduces triglyceride levels and has other favorable effects in adult patients with persistently high triglycerides. The FDA does not dispute the success of this trial, but has nonetheless recently advised Amarin that it refuses to approve the promotion of Vascepa® for use in treating this patient population. In light of FDA’s refusal, Amarin now finds itself in a bind. Using pharmaceuticals like Vascepa® in the treatment of patients with persistently high triglyceride levels is com- monplace in medical practice. However, because FDA has refused to approve Vascepa® for patients with persistently high triglycerides, Amarin may not freely communicate truthful and non-misleading information about Vascepa® to healthcare professionals such as the Doctor Plaintiffs without fear of criminal prosecution and civil liability. That is because FDA regulations forbid promotion of drugs for unapproved or ‘off-label’ uses, even if such promotion is entirely truthful and presented in a non-misleading manner.”

Floyd Abrams

Floyd Abrams

“FDA’s treatment of Vascepa® therefore operates,” he stresses, “to keep doctors, such as the Doctor Plaintiffs, and consequently their patients, in the dark about all of the options for drug therapy they are legally empowered to prescribe to treat persistently high triglyceride levels.”

In sum: “Plaintiffs seek a declaration that FDA regulations promulgated under the Federal Food, Drug, and Cosmetic Act (the ‘FDCA’) (including 21 C.F.R. § 202.1(l)(2), 21 C.F.R. § 202.1(e)(4)(i)(a), and 21 C.F.R. §§ 201.5 and 201.100), and FDA’s interpretations of the provisions thereof (including 21 U.S.C. § 352(a) and 21 U.S.C. § 352(n)), are unconstitutional, that Amarin has a First Amendment right to engage in truthful and non-misleading speech about Vascepa®, even if that speech is off-label promotion, and that the Doctor Plaintiffs have a First Amendment right to receive such truthful and non-misleading information about Vascepa® from Amarin, without fear of (a) criminal prosecution of Amarin or its directors, officers, employees, or agents through application of FDA regulations promulgated under the FDCA or (b) civil liability of Amarin or its directors, officers, employees, or agents under the False Claims Act.”

Joel Kurtzberg and Michael B. Weiss are Mr. Abrams’ co-counsel.

* * * *

Martin Redish, Floyd Abrams & Jack Balkin (L-R)

Martin Redish, Floyd Abrams & Jack Balkin (L-R)

To bring it all back to Yale: Last March the First Amendment Salon and the Floyd Abrams Institute hosted an event titled “Is the First Amendment Being Misused as a Deregulatory Tool?” Mr. Abrams moderated the discussion between Yale Law Professor Jack Balkin and Northwestern University Law Professor Martin Redish. Generally speaking, Professor Balkin argued that the First Amendment was being misused while Professor Redish took a contrary position (see video here). Most, if not all, of the questions and comments were highly critical of the position espoused by Professor Redish, which is very close to the one that Mr. Abrams advocates for on behalf of a number of his corporate clients. Read More


Structuring US Law

In 2013, the U.S. House Law Revision Counsel released the Titles of the U.S. Code as “structured data” in xml.  Previously the law had been available only as ordinary text.  This structuring of the law as data allows for interesting visualizations and interactions with the law that were not previously feasible, such as the following:


Click on image to launch Force Directed Explorer App


US Code Explorer Screen shot

Click on image to launch Code Explorer App


This post will discuss what it means for US law to be structured as data and why this has enabled increased analysis and visualization of the law. (You can read more about the visualizations above here and here)

Structuring U.S. Law

The U.S. Code – (the primary codification of Federal Statutory Law) – has always had an implicit structure. However, it now has had an explicit, machine-readable structure.

Read More