4

The Travel Ban Case as a Per Curiam Opinion

There will be plenty of time to assess the arguments in the travel ban case that the Supreme Court will take up this Spring. Right now, I want to make a point about how the majority might style its opinion.

One thing we can say for certain is that IF the Court rules against the Trump Administration, the President will throw a tantrum. Knowing that is likely, you wonder if the majority in that scenario will choose to write its opinion as per curiam. There are two main reasons for leaving a lengthy appellate opinion unsigned. One is that the decision is genuinely the joint product of many members of the Court, thus no single person is truly the author. The other, as a judge explained to me long ago, is that in some cases involving the Mafia or other organized criminals judges would sometimes leave the opinion unsigned to avoid becoming targets. The latter might be something that the Justices in the majority will consider, unfortunately.

10

The Normalization of Government Shutdowns

One unfortunate feature of the current budget standoff  is that Democrats appear to have accepted the idea that threatening or causing a partial government shutdown is a valid tactic. While there are precedents for government shutdowns from the 19th century, the modern use of that plan was initiated by congressional Republicans in 1995. Since then, Democrats have routinely attacked the idea of shutting down the government to achieve some political end as illegitimate.

Not anymore. Sadly, this means that this will became standard operating procedure. Granted, the more partial you make the shutdown the more symbolic it becomes.  I do not understand, for instance, how the national parks can be kept open while the government is closed, as a national park is definitely not an essential service, but there are reports that the Administration may keep them open this time in the event of a shutdown.

Democracy means caring more about the rules than about the partisan results. Alas.

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FAN 174.2 (First Amendment News) Floyd Abrams Institute: Call for Abstracts for Scholars’ Conference

Call for Abstracts & Participants: Freedom of Expression Scholars Conference

The Floyd Abrams Institute for Freedom of Expression invites applications to participate in the sixth annual Freedom of Expression Scholars Conference (FESC).

 Conference Date: The conference will be held at Yale Law School in New Haven, Connecticut from April 27–29, 2018.

→ Response Date: All those interested in presenting a paper or commenting on a paper respond by February 23, 2018.

At FESC, scholars and practitioners discuss works-in-progress on the freedoms of speech, expression, press, association, petition, and assembly as well as on related issues of knowledge and information policy. FESC has become a fixture on the calendar of leading First Amendment thinkers and scholars nationwide.

The paper titles and attendees from prior conferences are available here:

→ Workshop Sessions: Each accepted paper is assigned to a discussant, who will summarize the paper for the workshop audience, provide feedback, and lead a discussion. Workshop sessions are typically lively discussions among authors, discussants, and participants. Sessions run from Saturday morning through Sunday afternoon, with a welcome dinner on Friday evening. Conference participants are expected to read the papers in advance and to attend the entire conference.

Papers are accepted on a wide array of freedom of expression and information policy topics. Although participation at the conference is by invitation only, we welcome paper proposals from scholars, practitioners, and free speech advocates all over the world. Please feel free to share this call for submissions widely.

→ Abstract Submissions & Due Date: Titles and abstracts of papers should be submitted electronically to Heather Branch no later than February 23, 2018.

→ For Additional Information: Those interested in attending the conference or acting as a discussant should also contact Heather Branch no later than February 23, 2018.

→ Due Date for Completed Papers: Workshop versions of accepted papers will be due on March 30, 2018, so that they can be circulated to discussants and other conference participants.

→ Travel & Accommodations: Participants will ask their home institutions to cover travel expenses. However, thanks to a generous donation from the Stanton Foundation, we are able to offer Abrams Travel Fellowships to cover some of the costs associated flights, lodging, and reasonable travel expenses for presenters and discussants who would not otherwise be able to attend. This fellowship is intended to encourage submissions from junior faculty and lawyers. Should you be invited to participate as an author or discussant, please inform us in your response whether you will require Abrams Travel Fellowship funding.

→ For Additional Information: Re questions: contact Heather Branch.

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Vanderbilt Law Review, Volume 71, Number 1

The Vanderbilt Law Review is pleased to announce the publication of our January 2018 issue:

ARTICLES

Andrew Keane Woods, The Transparency Tax, 71 Vand. L. Rev. 1 (2018).

Erik Encarnacion, Contract as Commodified Promise, 71 Vand. L. Rev. 61 (2018).

Yonathan A. Arbel, Adminization: Gatekeeping Consumer Contracts, 71 Vand. L. Rev. 121 (2018).

Jennifer Daskal, Borders and Bits, 71 Vand. L. Rev. 179 (2018).

ESSAY

Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, & Kenneth W. Simons, Decoding Guilty Minds: How Jurors Attribute Knowledge and Guilt, 71 Vand. L. Rev. 241 (2018).

NOTES

Zoe M. Beiner, Signed, Sealed, Delivered—Not Yours: Why the Fair Labor Standards Act Offers a Framework for Regulating Gestational Surrogacy, 71 Vand. L. Rev. 285 (2018).

Margaret Wilkinson Smith, Restore, Revert, Repeat: Examining the Decompensation Cycle and the Due Process Limitations on the Treatment of Incompetent Defendants, 71 Vand. L. Rev. 319 (2018).

 

 

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FAN 174.1 (First Amendment News) Text of Senator Jeff Flake’s Speech on Truth & Press Freedom

Text of remarks of Senator Jeff Flake of speech presented to the Senate on January 17, 2018.

C-Span video here (remarks begin at 23:01)

Mr. President, near the beginning of the document that made us free, our Declaration of Independence, Thomas Jefferson wrote: “We hold these truths to be self-evident…” So, from our very beginnings, our freedom has been predicated on truth. The founders were visionary in this regard, understanding well that good faith and shared facts between the governed and the government would be the very basis of this ongoing idea of America.

Senator Jeff Flake (C-SPAN)

 As the distinguished former member of this body, Daniel Patrick Moynihan of New York, famously said: “Everyone is entitled to his own opinion, but not to his own facts.” During the past year, I am alarmed to say that Senator Moynihan’s proposition has likely been tested more severely than at any time in our history.

It is for that reason that I rise today, to talk about the truth, and its relationship to democracy. For without truth, and a principled fidelity to truth and to shared facts, Mr. President, our democracy will not last.

2017 was a year which saw the truth – objective, empirical, evidence-based truth — more battered and abused than any other in the history of our country, at the hands of the most powerful figure in our government. It was a year which saw the White House enshrine “alternative facts” into the American lexicon, as justification for what used to be known simply as good old-fashioned falsehoods. It was the year in which an unrelenting daily assault on the constitutionally-protected free press was launched by that same White House, an assault that is as unprecedented as it is unwarranted. “The enemy of the people,” was what the president of the United States called the free press in 2017.

Mr. President, it is a testament to the condition of our democracy that our own president uses words infamously spoken by Josef Stalin to describe his enemies. It bears noting that so fraught with malice was the phrase “enemy of the people,” that even Nikita Khrushchev forbade its use, telling the Soviet Communist Party that the phrase had been introduced by Stalin for the purpose of “annihilating such individuals” who disagreed with the supreme leader.

This alone should be a source of great shame for us in this body, especially for those of us in the president’s party. For they are shameful, repulsive statements. And, of course, the president has it precisely backward – despotism is the enemy of the people. The free press is the despot’s enemy, which makes the free press the guardian of democracy. When a figure in power reflexively calls any press that doesn’t suit him “fake news,” it is that person who should be the figure of suspicion, not the press.

I dare say that anyone who has the privilege and awesome responsibility to serve in this chamber knows that these reflexive slurs of “fake news” are dubious, at best. Those of us who travel overseas, especially to war zones and other troubled areas around the globe, encounter members of U.S. based media who risk their lives, and sometimes lose their lives, reporting on the truth. To dismiss their work as fake news is an affront to their commitment and their sacrifice.

According to the International Federation of Journalists, 80 journalists were killed in 2017, and a new report from the Committee to Protect Journalists documents that the number of journalists imprisoned around the world has reached 262, which is a new record. This total includes 21 reporters who are being held on “false news” charges.

Mr. President, so powerful is the presidency that the damage done by the sustained attack on the truth will not be confined to the president’s time in office. Here in America, we do not pay obeisance to the powerful – in fact, we question the powerful most ardently – to do so is our birthright and a requirement of our citizenship — and so, we know well that no matter how powerful, no president will ever have dominion over objective reality.

No politician will ever get to tell us what the truth is and is not. And anyone who presumes to try to attack or manipulate the truth to his own purposes should be made to realize the mistake and be held to account. That is our job here. And that is just as Madison, Hamilton, and Jay would have it.

Of course, a major difference between politicians and the free press is that the press usually corrects itself when it gets something wrong. Politicians don’t.

No longer can we compound attacks on truth with our silent acquiescence. No longer can we turn a blind eye or a deaf ear to these assaults on our institutions. And Mr. President, an American president who cannot take criticism – who must constantly deflect and distort and distract – who must find someone else to blame — is charting a very dangerous path. And a Congress that fails to act as a check on the president adds to the danger.

Now, we are told via twitter that today the president intends to announce his choice for the “most corrupt and dishonest” media awards. It beggars belief that an American president would engage in such a spectacle. But here we are.

And so, 2018 must be the year in which the truth takes a stand against power that would weaken it. In this effort, the choice is quite simple. And in this effort, the truth needs as many allies as possible. Together, my colleagues, we are powerful. Together, we have it within us to turn back these attacks, right these wrongs, repair this damage, restore reverence for our institutions, and prevent further moral vandalism.Together, united in the purpose to do our jobs under the Constitution, without regard to party or party loyalty, let us resolve to be allies of the truth — and not partners in its destruction.

It is not my purpose here to inventory all of the official untruths of the past year. But a brief survey is in order. Some untruths are trivial – such as the bizarre contention regarding the crowd size at last year’s inaugural.

But many untruths are not at all trivial – such as the seminal untruth of the president’s political career – the oft-repeated conspiracy about the birthplace of President Obama. Also not trivial are the equally pernicious fantasies about rigged elections and massive voter fraud, which are as destructive as they are inaccurate – to the effort to undermine confidence in the federal courts, federal law enforcement, the intelligence community and the free press, to perhaps the most vexing untruth of all – the supposed “hoax” at the heart of special counsel Robert Mueller’s Russia investigation.

To be very clear, to call the Russia matter a “hoax” – as the president has many times – is a falsehood. We know that the attacks orchestrated by the Russian government during the election were real and constitute a grave threat to both American sovereignty and to our national security. It is in the interest of every American to get to the bottom of this matter, wherever the investigation leads.

Ignoring or denying the truth about hostile Russian intentions toward the United States leaves us vulnerable to further attacks. We are told by our intelligence agencies that those attacks are ongoing, yet it has recently been reported that there has not been a single cabinet-level meeting regarding Russian interference and how to defend America against these attacks. Not one. What might seem like a casual and routine untruth – so casual and routine that it has by now become the white noise of Washington – is in fact a serious lapse in the defense of our country.

Mr. President, let us be clear. The impulses underlying the dissemination of such untruths are not benign. They have the effect of eroding trust in our vital institutions and conditioning the public to no longer trust them. The destructive effect of this kind of behavior on our democracy cannot be overstated.

Mr. President, every word that a president utters projects American values around the world. The values of free expression and a reverence for the free press have been our global hallmark, for it is our ability to freely air the truth that keeps our government honest and keeps a people free. Between the mighty and the modest, truth is the great leveler. And so, respect for freedom of the press has always been one of our most important exports.

But a recent report published in our free press should raise an alarm. Reading from the story:

“In February…Syrian President Bashar Assad brushed off an Amnesty International report that some 13,000 people had been killed at one of his military prisons by saying, “You can forge anything these days, we are living in a fake news era.”

In the Philippines, President Rodrigo Duterte has complained of being “demonized” by “fake news.” Last month, the report continues, with our President, quote “laughing by his side” Duterte called reporters “spies.”

In July, Venezuelan President Nicolas Maduro complained to the Russian propaganda outlet, that the world media had “spread lots of false versions, lots of lies” about his country, adding, “This is what we call ‘fake news’ today, isn’t it?”

There are more:

“A state official in Myanmar recently said, “There is no such thing as Rohingya. It is fake news,” referring to the persecuted ethnic group.

Leaders in Singapore, a country known for restricting free speech, have promised “fake news” legislation in the new year.”

And on and on. This feedback loop is disgraceful, Mr. President. Not only has the past year seen an American president borrow despotic language to refer to the free press, but it seems he has in turn inspired dictators and authoritarians with his own language. This is reprehensible.

We are not in a “fake news” era, as Bashar Assad says. We are, rather, in an era in which the authoritarian impulse is reasserting itself, to challenge free people and free societies, everywhere.

In our own country, from the trivial to the truly dangerous, it is the range and regularity of the untruths we see that should be cause for profound alarm, and spur to action. Add to that the by-now predictable habit of calling true things false, and false things true, and we have a recipe for disaster. As George Orwell warned, “The further a society drifts from the truth, the more it will hate those who speak it.”

Any of us who have spent time in public life have endured news coverage we felt was jaded or unfair. But in our positions, to employ even idle threats to use laws or regulations to stifle criticism is corrosive to our democratic institutions. Simply put: it is the press’s obligation to uncover the truth about power. It is the people’s right to criticize their government. And it is our job to take it.

What is the goal of laying siege to the truth? President John F. Kennedy, in a stirring speech on the 20th anniversary of the Voice of America, was eloquent in answer to that question:

“We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.”

Mr. President, the question of why the truth is now under such assault may well be for historians to determine. But for those who cherish American constitutional democracy, what matters is the effect on America and her people and her standing in an increasingly unstable world — made all the more unstable by these very fabrications. What matters is the daily disassembling of our democratic institutions.

We are a mature democracy – it is well past time that we stop excusing or ignoring – or worse, endorsing — these attacks on the truth. For if we compromise the truth for the sake of our politics, we are lost.

I sincerely thank my colleagues for their indulgence today. I will close by borrowing the words of an early adherent to my faith that I find has special resonance at this moment. His name was John Jacques, and as a young missionary in England he contemplated the question: “What is truth?” His search was expressed in poetry and ultimately in a hymn that I grew up with, titled “Oh Say, What is Truth.” It ends as follows:

“Then say, what is truth? ‘Tis the last and the first,

For the limits of time it steps o’er.

Tho the heavens depart and the earth’s fountains burst.

Truth, the sum of existence, will weather the worst,

Eternal… unchanged… evermore.”

Thank you, Mr. President. I yield the floor.

WHITE HOUSE REPLY

→ Tessa Berenson, White House Responds to Jeff Flake’s Speech Criticizing Trump, Time, Jan. 17, 2018

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Torts and Self-Driving Cars

I’m back from my vacation, and one article that I found interesting upon my return was Mark Gestfield’s paper on tort liability and self-driving cars. He makes many sensible suggestions about how produce liability law should apply to autonomous vehicles, how NHTSA should regulate the industry in conjunction with state law, and what should happen if self-driving gets hacked and an accident results.

The one area that I find fascinating about the future (at least with respect to law) is how juries will respond when a human driver and a self-driving car collide. You would think that the answer in most of these cases will be that the human driver was at fault. Nevertheless, you can imagine that juries will be more sympathetic to the human driver (or more skeptical of the self-driving technology) than the experts. On the other hand, insurance companies might simply adopt the view that the human driver was presumptively at fault in that sort of case, which would have significant implications for litigation.  Anyway, the paper is worth your time.

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FAN 174 (First Amendment News) Special Issue on Legal History — New article “reorients our understanding of the history of speech and press freedoms”

According to the most famous words of the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.” But what did the founders understand those words to mean? A remarkable answer comes from Jud Campbell, a University of Richmond law professor, who has just produced what might well be the most illuminating work on the original understanding of free speech in a generation. In brief, Campbell argues that the founders meant to protect a lot less speech than most of us think.

Cass Sunstein, The Originalism Blog

Leonard W. Levy (1923-2006)

History forever haunts us. Even if it did not, there is always that temptation to look into the rear-view mirror to catch a fleeting glimpse of the world of the dead. Even some of the great who wrote about the dead are themselves now dead. Remember this constitutional historian?

Still, the living continue to dig up the dead and tell their stories . . . as best they can frame them. For example,

Of course, there is more, much more. That said, there’s a new player in the First-Amendment-history town; he is Professor Jud Campbell and he has an impressive new article in the Yale Law Journal. It is titled

Natural Rights and the First Amendment

ABSTRACT. The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

Professor Jud Campbell

This Article argues that Founding Era elites shared certain understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

Nico Perrino over at FIRE interviews Professor Campbell in a So to Speak podcast

Newly Posted Historial Documents Read More

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New Book — Manheim & Watts, “The Limits of Presidential Power: A Citizen’s Guide to the Law”

A comprehensive and accurate description of the powers of the President of the United States. The book is intended primarily to benefit non-lawyers in understanding the sources and limits of the President’s powers, and their means of influencing his actions, but the work will be enlightening for lawyers as well.

Justice John Paul Stevens (ret.) 

Both a primer and a sophisticated analysis of the constantly evolving balance of power between the President, the Congress, and the Judiciary.

— U.S. Senator Slade Gorton

Two of my distinguished University of Washington Law School colleagues, Lisa Manheim and Kathryn Watts, have just released a unique and impressive book entitled The Limits of Presidential Power: A Citizen’s Guide to the Law ($7.99 paper) ($2.99 e-book, free with Kindle Unlimited subscriptions via Amazon.). Here is the abstract:

“This one-of-a-kind guide provides a crash course in the laws governing the President of the United States. In engaging and accessible prose, two law professors explain the principles that inform everything from President Washington’s disagreements with Congress to President Trump’s struggles with the courts, and more. Timely and to the point, this guide provides the essential information every informed civic participant needs to know about the laws that govern the president–and what those laws mean for those who want to make their voices heard.”

* * * *

I’ve read this book.  It is a quite accessible and highly reliable overview of the law of presidential power. Here is some of the advance buzz about the book:

This smart and indispensable guide begins where old-fashioned civics leaves off, and talks to troubled and puzzled Americans as adults. The authors demonstrate that the future of our democracy is where it’s always been: in our hands, if only we learn how to invoke the available limits on the power of the president. –Linda Greenhouse 

Prof. Lisa Manheim

Lisa Manheim and Kathryn Watts have written a wonderful book on presidential power, its scope, and its limits. The book is clearly written and easily accessible and is terrific in explaining the authority of the President and the checks on his power. The book is especially timely now, but it is about issues that have arisen since the beginning of the country and that will last as long as the Constitution. Erwin Chemerinsky 

The authors have provided a truly impressive chapter on climate change that is both sweeping and compelling, and have done so with crystal clarity and gripping narrative drive. As a result, the climate change chapter, like the rest of this book, offers every reader not only a ready understanding of a vital and complex issue and of the varying roles the government has played in shaping the issue, but also of the opportunity–for better or worse–that stakeholders and members of the public have to shape U.S. climate change policy going forward. If this is the only piece on climate change policy that a person reads, then he or she will be very well-informed and well-equipped to engage with the issue. — Joseph Goffman 

Prof. Kathryn Watts

A concise and crisp primer on the limitations of presidential power. The subject is timely and well worth pondering. This work should interest students concerned with law and the separation of powers and American politics, as well as the general public. — David M. O’Brien

In America, no one is above the law, not even the president. For anyone who has ever wondered ‘can he really do that?’ this clear and concise book on presidential power is a must read. Likewise, for everyone who cares about democracy and the rule of law, Watts and Manheim are your best guides to effective citizenship. — Kellye Testy

Accessible and interesting, this book is a must-read for anyone who wants to understand both the powers of the presidency and the limits on presidential power. Brianne Gorod 
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FAN 173.2 (First Amendment News) First Amendment Clinic Coming to Vanderbilt Law // Full-time Director Sought

Vanderbilt University Law School seeks applicants for a full-time clinical faculty position. The successful applicant will design and direct a First Amendment Clinic focused on speech, press, and assembly rights. In addition to teaching a live-client clinic, the successful applicant will also have the opportunity to teach a non-clinical course and to engage in writing as well as community and professional service.

The First Amendment Clinic is funded for an initial five-year period, after which continuation is contingent on securing additional funding.

Please send a cover letter, resume, clinic proposal/research agenda, and list of references to:

   http://apply.interfolio.com/48179

→ This from an e-mail from Professor Terry A. Maroney: Under the TN student practice rule, clinic representation is limited to persons or entities who cannot otherwise obtain counsel – so, as a general matter, this would be focused on speech, assembly, and press claims raised by poor persons, children (e.g., expression rights at school), and community organizations. Our ideal candidate is someone with a passion for free speech, meaningful litigation experience, and direct experience in teaching and mentoring law students. Other than the soft-money aspect, we anticipate that the First Amendment clinical professor would enjoy the same benefits of all our other clinical professors (e.g., non-tenure-track, with term contracts, but eligible for promotion from Assistant to Associate to full). Salary is competitive with our entry-level clinical range. I am hoping to identify someone to start this summer in anticipation of being in place for the new school year.

The final candidate for this position must successfully complete a background check. Vanderbilt University has a strong institutional commitment to recruiting and retaining an academically and culturally diverse community of faculty. Minorities, women, individuals with disabilities, and members of other underrepresented groups, in particular, are encouraged to apply. Vanderbilt is an Equal Opportunity/Affirmative Action employer.