University of Toronto Law Journal – Volume 65, Number 4, Fall 2015


University of Toronto Law Journal – Volume 65, Number 4, Fall 2015

The lawyer as fiduciary: Defining private law duties in public law relations Alice Woolley

Panel selection on high courts Benjamin Alarie, Andrew Green, and Edward M Iacobucci

Tribunal administration and the duty to consult: A study of the National Energy Board Sari Graben and Abbey Sinclair

Middle Income Access to Justice Benjamin H Barton, Helen Lockett, and Charles Lockett

Full text of the University of Toronto Law Journal is available online at UTLJ Online, Project Muse, JSTOR, HeinOnline, Westlaw, Westlaw-CARSWELL, LexisNexis and Quicklaw.


The 12th Amendment

While we’re on the subject of the Presidency and Vice Presidency, here’s another thought that recently occurred to me.  We commonly say that presidential electors are free to vote their conscience.  It is only a custom, though a well-established one, that they instead vote as state law dictates (with the occasional quirky exception).

But what about this thought.  The Twelfth Amendment substantially changed the Electoral College.  By 1804 (when the amendment was ratified) it was already clearly understood that electors would not vote their conscience and would vote as state law dictated.  Could you say, therefore, that the Twelfth Amendment actually removed the discretion of electors and that they are acting unconstitutionally if they vote in a non-ministerial way?


Vice Presidential Disability

There are many criticisms that can be lodged against the Twenty-Fifth Amendment, and one of them is that there is no process for removing a disabled vice-president short of impeachment.  If you think about it, this presents a serious problem.

Suppose the VP suffers a stroke.  He or she cannot be fired by the President, unlike other significant executive officials. We can do without a functioning Vice President, but what if the President dies or resigns?  Presumably the disabled VP would become President and then would be sidelined under the 25th Amendment.  Then the Speaker of the House would become President (possibly from the other party).  That Acting President could nominate his or her own Vice President (otherwise the next person in the succession would be the President Pro Tempore of the Senate), which in turn could mean that the disabled President (if he or she recovered) could wind up with a new VP not of his or her own choosing.

You could solve this by impeaching and removing a disabled VP without naming a replacement.  Then if that VP recovered, the President could name the old VP as the new one.  But would being ill constitute a “high crime and misdemeanor?”  Some members of Congress might be reluctant to set a precedent like that.

Sooner or later, the idiocy of the Presidential Succession Statute, along with the flaws are the Twenty-Fifth Amendment, are going to cause a constitutional crisis.


Social Capital and Compromise

A column in the Washington Post by Dana Milbank and some comments I heard at a recent conference lead me to wonder if we should think differently about concerns about undue partisanship.

The argument was that one reason why Congress is dysfunctional is that few members (let alone their families) now live in Washington.  Members basically go home on Thursdays to be in their districts and states, and their families typically remain at home.  (Paul Ryan is a high-profile example).  What is the result of this?  Members do not socialize together as they once did.  The theory is that if people lived near other each, knew each other’s kids, etc, they would be more able to find common ground at work.

Now I am somewhat skeptical of this explanation, but there are some precedents that fit this paradigm.  The unanimity of the Marshall Court is credited in part to the fact that the Justices all lived together in the same boardinghouse when they were in DC.  They are together, drank together, and decided cases together.  When this living arrangement broke down in the 1820s, the number of separate opinions and dissents increased (though there were still few by modern standards).  John Marshall was (as we all know) a clever politician, and he may have realized that socialization=more agreement or compromise.


In some recent research, I was struck by the decline in formal social events that bring together leading figures in DC.  The Justices used to go to the White House once a year for dinner, and there was much more hobnobbing among members of Congress, the Cabinet, and the Justices.  I don’t mean to suggest that some additional rounds of golf between President Obama and John Boehner would have solved all of our problems, but the point deserves more attention.


FAN 84 (First Amendment News) Can newspapers publish truthful information disclosing police officers’ personal information? — Cert. petition pending

It’s been almost 15 years since the Court last heard a First Amendment case involving the press — Bartnicki v. Vopper (2001). That was during the Rehnquist Court era and four of the Justices that sat on that case (Rehnquist, Stevens, Souter, and O’Connor) have been replaced (by Roberts, Alito, Kagan, and Sotomayor). What does that portend for the institutional press? Media lawyers are asking just that question in light of a cert. petition pending before the Court.

The case is Sun-Times Media, LLC v. Dahlstrom. Here are the issues before the Court:

  1. Whether, under the First Amendment to the United States Constitution, police officers may sue a newspaper for publishing truthful information relating to matters of public concern if a judge determines that the information on balance was unworthy of constitutional protection;
  2. whether, in cases where information was allegedly unlawfully supplied to a newspaper by authorized government sources, the government may punish the acquisition and ensuing publication;
  3. whether the First Amendment to the United States Constitution permits an interpretation of the Driver’s Privacy Protection Act (DPPA) that allows local police officers to sue a newspaper for publishing information provided by the Illinois Secretary of State; and
  4. whether public officials can invoke the DPPA’s restrictions on “disclosure” of “personal information” that “identifies an individual” to censor a newspaper’s investigative report on a questionable police lineup because the report contained descriptive information supplied by the state government (e.g., height, weight, eye and hair color) that is not listed in the DPPA’s definition of “personal information.”

In his cert petition on behalf of Petitioner, Damon Dunn offered the following First Amendment arguments:

  1. “The Seventh Circuit Destabilized Decades of First Amendment Jurisprudence by Allowing the Press to be Sanctioned for Truthful Reporting on Matters of Public Safety”

a. “The Seventh Circuit adopted a balance that chills speech by allowing a judge to limit First Amendment     protections to the passages deemed most important”

b. “The Seventh Circuit unnecessarily answered the Bartnicki question and got it wrong by shifting the verification burden from the government to the press”

c. “The DPPA cannot withstand constitutional scrutiny if it can be utilized to chill investigative reports on public officials that pose no safety risk to them,” and

d. “The Seventh Circuit undercut constitutional protections for news gathering.”

 → In its brief in opposition, the Solicitor General’s Office argued that

  1. “the doctrine of constitutional avoidance . . .  has no application here. Petitioner’s statutory interpretation is not a plausible one.”
  2. The government also argued that “[t]he only constitutional claim petitioner raises in this Court is an alleged First Amendment right to disseminate information that it unlawfully obtained. As the court of appeals recognized, that claim lacks merit. . . . Each of the decisions that petitioner cites . . . is one in which the information was obtained lawfully by the entity that disseminated it (although the disseminating entity’s source may have originally obtained the information through unlawful behavior in which the entity was not involved). And the cited decisions indicate that the government has strong and legitimate justifications for preventing the dissemination of information by a person who acted unlawfully in obtaining it—including an interest in effectively deterring ‘the initial unlawful acquisition of that same information.'”
Katie Townsend

Katie Townsend

According to Katie Townsend, litigation director for the Reporters Committee for Freedom of the Press, “what is particularly troubling about this case is that the 7th Circuit concluded that a newspaper could be held liable under the DPPA both for obtaining information in violation of the DPPA and for publishing that information. From our perspective, this case raises very real concerns about the possible limits of Bartnicki in cases involving the publication of information that a newspaper knows (or in a Court’s view should know) was obtained unlawfully.”

[ht: Tony Mauro]

Floyd Abrams Defends (Most) Donor Disclosure Laws

In a letter to the Wall Street Journal contesting its editorial opposition to donor disclosure laws, Floyd Abrams wrote:

[Y]our opposition to disclosure requirements as reflected in your editorial “Show Us Your Donors” (Nov. 5) is not only at odds with Citizens United but with virtually all Supreme Court rulings in this area and the views of all but one of the present members of that Court. . . .

It is true that if a showing can be made that the effect of disclosure in a particular case would be, as the Court put it in Citizens United, that a “group’s members would face threats, harassment or reprisals if their names were disclosed” that a serious constitutional issue might be raised. But that is the exception, not the norm, and there is no basis to conclude that since disclosure might lead to public criticism, that is reason enough to avoid the obligation to disclose, let alone to hold it unconstitutional. . . . 

 See FAN 83.2 (First Amendment News) “Court Declines to Hear Compelled Disclosure Case”

Quote of the Week . . . from Justice Kennedy re Citizens United Read More


Summary Reversals and Oral Argument

The first per curium opinion of the Term came out today, an 8-1 reversal on a qualified immunity ruling involving a police officer.  This leads me to ask the following question:  What is the Court’s internal norm on what is required to set a case for oral argument?

If the Justices unanimously think that they should engage in error correction, I can see why they would do so without the full range of briefing and argument.  If they are not unanimous, though, then why wouldn’t the dissenters ask that the case be set for argument?  And is that a decision that occurs via a majority vote, a “rule of four” as with certiorari, or the desire of just one Justice?

Perhaps the answer is that when a case involves error correction the Justices have a tacit agreement that nobody will ask for argument.  (Why they are engaged in error correction at all is another matter.) But what if somebody does not agree that the case is an example of error correction? Moreover, calling for argument internally could result in a denial of certiorari if the other Justices thought that the case did not deserve maximum attention, and that might be a goal of the dissenter.

A Review of The Black Box Society

I just learned of this very insightful and generous review of my book, by Raizel Liebler:

The Black Box Society: The Secret Algorithms that Control Money and Information (Harvard University Press 2015) is an important book, not only for those interested in privacy and data, but also anyone with larger concerns about the growing tension between transparency and trade secrets, and the deceptiveness of pulling information from the ostensibly objective “Big Data.” . . .

One of the most important aspects of The Black Box Society builds on the work of Siva Vaidhyanathan and others to write about how relying on the algorithms of search impact people’s lives. Through our inability to see how Google, Facebook, Twitter, and other companies display information, it makes it seem like these displays are in some way “objective.” But they are not. Between various stories about blocking pictures of breastfeeding moms, blocking links to competing sites, obscurity sources, and not creating tools to prevent harassment, companies are making choices. As Pasquale puts it: “at what point does a platform have to start taking responsibility for what its algorithms go, and how their results are used? These new technologies affect not only how we are understood, but also how we understand. Shouldn’t we know when they’re working for us, against us, or for unseen interests with undisclosed motives?”

I was honored to be mentioned on the TLF blog–a highly recommended venue! Here’s a list of some other reviews in English (I have yet to compile the ones in other languages, but was very happy to see the French edition get some attention earlier this Fall). And here’s an interesting take on one of those oft-black-boxed systems: Google Maps.


FAN 83.2 (First Amendment News) Court Declines to Hear Compelled Disclosure Case

This morning the Supreme Court declined to hear Center for Competitive Politics v. HarrisThe issues in the case were twofold:

  1. Whether a state official’s demand for all significant donors to a nonprofit organization, as a precondition to engaging in constitutionally-protected speech, constitutes a First Amendment injury; and
  2. whether the “exacting scrutiny” standard applied in compelled disclosure cases permits state officials to demand donor information based upon generalized “law enforcement” interests, without making any specific showing of need.

UnknownThe case involved a California law that requires tax-exempt charitable organizations to file reports with the state Registry of Charitable Trusts. Pursuant to that law, California Attorney General Pamela Harris required such charities to submit a list of the names and addresses of its major donors. Thus, all charities soliciting donations in California must provide the state A.G. with a copy of their IRS 990 form, which contains such donor information. That information is not made public but is used by the state A.G. to ensure compliance with the law and to safeguard against fraud and illegality.

The California law was challenged by the Center for Competitive Politics (a 501(c)(3) that works on election law). Pursuant to 42 U.S.C. § 1983, the Center sought to enjoin the California Attorney General from requiring it to disclose the names and contributions of its “significant donors.”

A panel of the Court of Appeals for the Ninth Circuit rejected the Center’s claims that such compelled disclosure violated its First Amendment associational rights.

Today the Supreme Court denied the Center’s petition for a writ of certiorari, which had been filed by the Center’s legal director Allen Dickerson.

Amicus briefs in support of the Petitioner were filed by the Cato Institute (Ilya Shapiro), American TargetAdvertising, Inc. and 57 Nonprofit and Other Organizations (Mark Fitzgibbons), Institute for Justice (Diana K. Simpson), Pacific Legal Foundation (Timothy Sandefur), Center for Constitutional Jurisprudence (John. C. Eastman), The Philanthropy Roundtable (Allyson N. Ho), and the States of Arizona, Michigan, and South Carolina (John R. Lopez, IV).


  1. George Will, “The Supreme Court’s opportunity to tackle sinister trends,” Washington Post, November 4, 2015 (urging review)
  2. Editorial, “Show Us Your Donors,” Wall Street Journal, November 4, 2015 (urging review)
  3. Lyle Denniston, “Group seeks privacy for donor list,” SCOTUSblog, May 15, 2015
  4. Edward Pettersson, “Koch Group Gets to Keep Donors Secret in California Lawsuit,” Bloomberg Business, February 17, 2015 (discussing District Court ruling by Judge Manuel Real in favor of Petitioners).

Highly Recommended: Chamayou’s The Theory of The Drone

robocop1924_02Earlier this year, I read a compelling analysis of drone warfare, Gregoire Chamayou’s The Theory of The Drone. It is an unusual and challenging book, of interest to both policymakers and philosophers, engineers and attorneys. As I begin a review of it:

At what point do would-be reformers of the law and ethics of war slide into complicity with a morally untenable status quo? When is the moralization of force a prelude for the ration­alization of slaughter? Grégoire Chamayou’s penetrating recent book, A Theory of the Drone, raises these uncomfortable questions for lawyers and engineers both inside and out of the academy. Chamayou, a French philosopher, dissects legal academics’ arguments for targeted killing by unmanned vehicles. He also criticizes university research programs purporting to engineer ethics for the autonomous weapons systems they view as the inevitable future of war. Writing from a tradition of critical theory largely alien to both engineering and law, he raises concerns that each discipline should address before it continues to develop procedures for the automation of war.

As with the automation of law enforcement, advocacy, and finance, the automation of war has many unintended consequences. Chamayou helps us discern its proper limits.

Image Credit: 1924 idea for police automaton.