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Parliament and Brexit

Now that the Tories have settled on a new Prime Minister, there is a fascinating constitutional question that must be addressed in Britain: Can Brexit be triggered unilaterally by the PM or must there be an Act of Parliament? This is not a trivial matter, because it is unclear whether a majority of MPs would support Brexit if it were put to a vote.  (Let alone the House of Lords.)

The issue is partly about whether prior Acts of Parliament confirm or assume Britain’s EU membership in such a way that only another Act can repeal them. Another issue is whether the power to withdraw from a treaty (which is one way of thinking about Britain’s obligations to the EU) is part of the royal prerogative, which is the power that a PM can exercise without Parliament.  In the United States, the President must get congressional approval for a treaty (either through 2/3 of the Senate or a majority of each House), but he can unilaterally abrogate.  Is this true in the UK?  I’m not sure what the recent precedents say, but we’ll find out.

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FAN 116 (First Amendment News) Farber on Scalia & the Abortion Protest Cases

Professor Daniel Farber

Professor Daniel Farber

The current issue of the Minnesota Law Review Headnotes consists of a symposium on Justice Antonin Scalia. One of the contributors to that symposium is Professor Daniel Farber, whose contribution is entitled “Playing Favorites?Justice Scalia, Abortion Protests, and Judicial Impartiality.” His essay consists of an analysis of Justice Scalia’s views on four abortion protest cases and the First Amendment.

Here are a few excerpts from his introduction:

“[G]iven Scalia’s accusations of partiality in the abortion protest cases, a 2013 statistical study concluded that Scalia himself was far more likely to uphold the speech rights of conservative speakers than liberal ones, though the study has been subject to some methodological criticisms.”

“Taking a closer look at the abortion protest cases can shed light on these disputes over judicial bias in First Amendment cases. It can also shed light on two important aspects of Scalia’s work: his rhetorical style, which regularly featured scathing attacks on the motives or competence of other Justices; and his insistence that his own decision-making adhered to rigorous, objective methods of analysis.”

1199772_630x354“In reexamining the four abortion protest cases, my goal is not to decide whose views of the doctrinal issues were correct. Rather, it is to assess whether Justice Scalia or the majority stepped outside normal bounds in ways that might indicate bias. At the risk of eliminating suspense about the results of the inquiry, there seems to be more evidence of partiality on the part of Justice Scalia in these cases than on the part of his opponents.”

He concludes his essay by noting:

“In these cases involving abortion protesters, Justice Scalia accused the Court of ignoring well-established law in the interest of suppressing speakers with whom the majority disagreed. That was a serious accusation. It involved not only violation of the general judicial duty of impartiality and fairness toward all litigants, but also of the First Amendment’s own imperative of neutrality toward opposing viewpoints. A close examination of the relevant cases suggests little support for this accusation, although it is never possible to say with confidence that a case was completely unaffected by the biases or ideologies of the judges. . . . “

Headline: “Judge Rules Virginia Can’t Force Delegates to Back Donald Trump”

According to a story in the Wall Street Journal “Virginia can’t require Republican National Convention delegates to back Donald Trump, a federal judge in Richmond said Monday, though he made no ruling on whether the party can itself bind its delegates.”

“U.S. District Judge Robert Payne said the Virginia state law requiring delegates who oppose Mr. Trump to vote for him next week at the party’s convention creates ‘a severe burden’ on First Amendment rights.”

“But Judge Payne explicitly avoided weighing in on whether Republican National Committee rules requiring convention delegates to follow the results of their states as dictated by state and national party rules. Judge Payne said he “lacks jurisdiction to adjudicate” the broader unbinding question. . . .”

Bopp Petitions Court in Judicial Elections Free Speech Case  Read More

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Guns and Public Service Announcements–Part II

The last post got a lot of comments, and so I wanted to follow-up.  One line of thought was “What if a local or state government launched a public campaign to discourage people from voting or believing in Islam?  How are those different from discouraging people from owning a gun?”

A couple of responses come to mind.  First, any of these kinds of campaigns could be unconstitutional  depending on what they said.  For example, if the message was “Don’t buy a gun or else . . .,” that would be coercive in a way that would violate the Second Amendment.  Second, something can be very wrong but still constitutional. Third, these rights are not equivalent.  Felons cannot own guns, but felons can (in most states) vote and (in all states) practice Islam.  So you can’t say that they all must be treated equally with respect to the validity of government speech discouraging them.

Let me add one more thought.  Suppose Columbine decided to use public funds for an anti-gun message.  Given the sad history of that high school, would you really say that the town would be prohibited from responding in that way?

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Justice Ginsburg Should Apologize

It is inappropriate for a sitting Justice to take sides openly in a presidential election, as the Justice did in her interview with Adam Liptak yesterday.  Even though it was safe to assume that she was for Hillary Clinton and was not a fan of Donald Trump, she should not say so in the media.  The younger Justice Harlan was right when he stopped voting after reaching the bench, because he said it might affect his impartiality.  Justice Ginsburg is not helping anybody by sounding off.

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Graetz & Greenhouse on the Burger Court

Over at SCOTUSblog, I interviewed Michael J. Graetz and Linda A. Greenhouse in connection with their new book The Burger Court & the Rise of the Judicial Right (Simon & Schuster, 2016, pp. 450).

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Here is an excerpt:

Question: By the end of your book one gets the impression that Justice Powell – the “centrist” jurist – was both the great enabler of the Burger Court’s “counter-revolution,” on the one hand, and the great denier of that very charge, on the other hand. Is that true? What are your thoughts?       

Graetz & Greenhouse: You’re right – Powell’s role was very substantial, to a degree that surprised us. He commanded respect within the Court. His instincts were notably conservative: pro-business, pro-local and state discretion, ready to draw a line against recognizing new rights or handing new remedial powers to the federal courts. He also left a great set of papers (at Washington & Lee), making it easy to trace how often his deepest-held views prevailed and how those views, projected onto the pages of United States Reports, so often trace the story of the Burger Court.

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Berkshire’s Blemishes: Lessons for Buffett’s Successors, Peers, and Policy

Columbia University has published my most recent research paper, available free on SSRN (registration required): “Berkshire’s Blemishes: Lessons for Buffett’s Successors, Peers, and Policy.” Here is the abstract.

* * * * * * * * * *

Berkshire Hathaway’s unique managerial model is lauded for its great value; this article highlights its costs. Most costs stem from the same features that yield such great value, which boil down, ironically, to Berkshire trying to be something it isn’t: it is a massive industrial conglomerate run as an old-fashioned investment partnership. An advisory board gives unchecked power to a single manager (Warren Buffett); Buffett makes huge capital allocations and pivotal executive hiring-and-firing decisions with modest investigation and scant oversight; Berkshire’s autonomous and decentralized structure grants operating managers enormous discretion with limited second-guessing; its trust-based culture relies on a cultivated vision of integrity more than internal controls; and its thrifty anti-bureaucracy means no central departments, such as public relations or general counsel.

Delineating the visible costs of Berkshire’s model confirms the desirability of tolerating many of them, given the value concurrently generated, but also reveals ways to improve the model—a few while Buffett is at the helm but mostly for successors. Current reform suggestions include hiring a full-time public relations professional at headquarters and more systematically developing senior executives; suggestions for future reform include enhanced subsidiary compliance resources and separating the identity and personal opinions of top executives from the corporation and its official policy.

Besides helping Berkshire, the review and suggestions will help managers of other companies inspired by Buffett’s unique managerial model and policymakers who should study it. Implications for peers and policymakers include highlighting flexibility in corporate governance, the efficacy of the conglomerate form, and especially the value of strategies that produce long-term thinking among shareholders and managers alike.

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Guns and Public Service Campaigns

I want to get reactions to a thought that I’ve had about the problem of gun violence.  Right now the debate focuses on regulatory policy–under what conditions, if any, should people be able to own or buy guns.  Thus far this has been a dead end in terms of reducing gun violence.

Wouldn’t a better approach be for amenable states or municipalities to spend money on public education campaigns to discourage people from owning guns, much in the way that they do to discourage smoking? This would do nothing, of course, with respect to deranged people who want to kill many.  But there are many more easily preventable gun deaths from suicides, accidents, or domestic violence.  If lawful gun possession went down by, say 10%, many lives would probably be saved.

What are the arguments against this?  One would be that public campaigns like this don’t work.  This could be true– I don’t know what studies about similar efforts to reduce drunk driving and smoking show.  A second objection is that owning a gun is good and should not be discouraged. Here I think the answer is that different states or cities can make their own judgments about that.  People would still be free to buy a gun anywhere, and if they feel strongly that they want to live in a place where gun ownership is celebrated then they can move. (The Second Amendment does not say that the state must pat you on the back for owning a gun.)

Would the First Amendment be violated by government speech that discourages the exercise of a fundamental right?  I think that the answer is no so long as that speech is general.  In other words, forcing gun store owners or abortion providers or liquor stores to lecture customers about the evils of those goods would be deeply problematic.  But if the speech is not done at the point of sale and comes through media (TV, radio, etc.) then I see no First Amendment violation in what amounts to government propaganda.

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Trump v. Mahr: Another Donald Contract Folly

(Credit: Ethan Miller/Getty Images)

(Credit: Ethan Miller/Getty Images)

In 2012, Donald Trump, flirting with a run for the presidency of the United States and criticizing its incumbent, Barak Obama, pressured the President to confirm his U.S. citizenship by publicly disclosing his birth certificate.

Despite Obama having done so, Trump sustained the pressure, posting a video on the internet on October 24, 2012—the last week of the election campaign—in which he offered to pay $5 million to Obama as consideration for the President publishing his college and passport applications and records.

Trump was serious, even suggesting charities, clarifying his goal of producing the information, and committing to pay within one hour. The offer also had a deadline: October 31, 20012 at 5:00 p.m. That hour having come and gone without Obama accepting, the offer terminated Obama’s power of acceptance.

On January 7, 2013, the comedian and political talk show host, Bill Maher, appeared on the Tonight Show with Jay Leno. After calling Trump a liar and racist, he characterized some of Trump’s public ramblings as “syphilitic monkey.” Then came what Trump portrayed as an offer: “suppose that perhaps Donald Trump had been the spawn of his mother having sex with an orangutan. . . . I hope it’s not true . . . , but, unless, he comes up with proof, I’m willing to offer 5 million dollars to Donald Trump . . . that he can donate to a charity of his choice. . . .”

Trump formally submitted his “acceptance” of this “offer” the next day, sending a copy of Trump’s birth certificate attesting that he is “the son of Fred Trump,” and naming the charities designated as beneficiaries of the $5 million. In Trump’s view, a contract was formed “the moment the Acceptance Letter was sent,” a reference to the usual rule of acceptances, which makes them effective on dispatch (affectionately referred to as the “mailbox rule”).

On February 4, 2013, Trump sued Maher. The lawsuit, of course, was an inherent loser, and Trump soon withdrew it. But in their filings, Trump’s lawyers got much of contract doctrine right, in both the Obama background and Maher interactions.

In relation to Obama, the lawyers correctly noted that (1) an offer creates the power of acceptance, (2) an unrevoked offer may be accepted by following the route to acceptance stated in the offer and a binding contract results, and (3) that the power of acceptance terminates upon any expiration stated (or upon the offer’s revocation of it, the offeree’s rejection of it, or the offeror’s death).

So why did Trump file such a patently frivolous lawsuit?  For a hint and another example of how Trump is a prolific frivolous litigator in American courts, see this companion post.

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FAN 115 (First Amendment News) Profile: Jameel Jaffer to Head New Knight First Amendment Institute

Jameel Jaffer

Jameel Jaffer

“Columbia University President Lee C. Bollinger announced his appointment of Jameel Jaffer, deputy legal director at the ACLU, as founding director of the Knight First Amendment Institute at Columbia University. Last [May], Columbia and the John S. and James L. Knight Foundation announced the creation of the new institute which will workthrough litigation, research and public advocacyto preserve and expand the freedoms of expression and the press in the digital age.”

Columbia News also reported that “since he joined the staff of the ACLU in 2002, Jaffer has litigated some of the most significant post-9/11 cases relating to national security and civil liberties, among them: constitutional challenges to gag orders imposed under the USA Patriot Act, surveillance conducted by the National Security Agency, the viewpoint-based denial of visas to foreign scholars, and the sealing of judicial opinions issued by the Foreign Intelligence Surveillance Court. He has argued cases at all levels of the federal court system, including in the U.S. Supreme Court, and has testified before Congress about a variety of topics relating to national security and civil liberties. Jaffer is also one of the nation’s leading Freedom of Information Act attorneys, having litigated landmark cases that resulted in the publication of crucial documents about the U.S. government’s counter-terrorism policies.”

Select Litigation 

  • Jaffer represented the Respondents in Clapper v. Amnesty International USA (2013) (briefs here & here)
  • In 2004, “he successfully litigated a Freedom of Information challenge that forced the administration of former president George W. Bush to release the ‘torture memos,’ which authorized the use of brutal interrogation and torture techniques against detainees during the War on Terror.”
  • ACLU v. Holder (4th Cir., 2010) (Appellants’ brief) (“The False Claims Act requires the sealing of fundamental court documents alleging matters of vital public importance, sometimes for many years. The statute penalizes relators for discussing facts that are true and of public interest. Approximately one thousand cases remain under seal, and serious allegations that the federal government has been defrauded of billions of dollars continue to be hidden from the public eye. Thus has a venerable statute enacted to expose fraud against the government been employed as a means of suppressing public debate about critical national issues, in plain contravention of the First Amendment.”)
  • ACLU v. NSA, 467 F.3d 590 (2006)

Select Publications, Congressional Testimony & Interviews

 Jameel Jaffer was born in Kingston, Ontario. He is a graduate of Williams College and received his law degree from Harvard Law School (he was an editor on the Harvard Law Review). Jaffer clerked for Judge Amalya L. Kearse of the U.S. Court of Appeals for the Second Circuit and for Beverley McLachlin, Chief Justice of Canada.

ACLU Contests Constitutionality of Computer Fraud & Abuse Act

This chill arises because the CFAA makes it a crime to visit or access a website in a manner that violates that website’s terms of service, while robust audit testing and investigations to uncover online discrimination require violating common website terms of service. — ACLU Complaint 

The American Civil Liberties Union filed a lawsuit in federal court challenging the constitutionality of an anti-hacking law. The group argues that the law (the Computer Fraud and Abuse Act) inhibits academics and others from gathering data to study whether online algorithms might be discriminatory. The ACLU claims the law v violates First Amendment freedoms.

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The ACLU complaint “challenges the constitutionality of a provision of the Computer Fraud and Abuse Act, a federal statute that prohibits and chills academics, researchers, and journalists from testing for discrimination on the internet. This chill arises because the CFAA makes it a crime to visit or access a website in a manner that violates that website’s terms of service, while robust audit testing and investigations to uncover online discrimination require violating common website terms of service. Without online audit testing, policymakers and the American public will have no way to ensure that the civil rights laws continue to protect individuals from discrimination in the twenty-first century. . .”

“The Plaintiffs’ research and testing activities, which include posing as online users of different races and recording the information they receive, constitute speech and expressive activity that is protected by the First Amendment, and that is prohibited by the Challenged Provision. The overbroad and indeterminate nature of the Challenged Provision prohibits and chills a range of speech and expressive activity protected by the First Amendment, because it prevents Plaintiffs and other individuals from conducting robust research on issues of public concern when websites choose to proscribe such activity.”

→ ACLU Attorneys for Plaintiffs: Esha Bhandari, Rachel Goodman, Arthur B. Spitzer & Scott Michelman

 David McCabe, ACLU sues feds over anti-hacking law, The Hill, June 29, 2016

7th Circuit Holds City Ban on Bus Ads Inapplicable to Women’s Health Care Ad Read More

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Donald Trump, Prolific Frivolous Litigator, Part I

Donald Trump (credit: Business Insider)

Donald Trump (credit: Business Insider)

For about two years, Chicago’s skyline has had the letters T R U M P adorning a showy luxury building the presumptive Republican presidential nominee put up during the financial crisis.   While locals led by Mayor Rahm Emanuel recoiled at the Donald’s bad taste in design, lawyers and citizens alike should recall some of the poor judgment, tone deafness, and ignorance of the law he displayed during the long construction process.

As told in my book aimed at new or aspiring law students, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, Donald Trump thought the so-called “Great Recession” of 2008-09 so calamitous to count as an “Act of God.” He was in the midst of building what would be one of Chicago’s tallest skyscrapers, rivaling the old Sears (now Willis) Tower, a combination luxury hotel and condominiums.

To finance the project, Trump borrowed $640 million from lenders led by Deutsche Bank in February 2005. By the end of 2008, Trump had only sold condos netting him $204 million along with others under contract that would yield another $353 million. That left him facing a shortfall of nearly $100 million when he was obligated to repay his lenders $40 million per month. Trump cited the Great Recession as an excuse to delay making monthly payments. The banks refused to accept the excuse from timely payment, so Trump, a prolific litigant, went to court. Read More