- Hundreds of colleges now have bias response teams, with many deeply involved in regulating speech [Adam Steinbaugh, FIRE survey]
- Trump’s tweet made old idea new: in 1991, Rep. Henry Hyde filed unsuccessful bill to cut off federal funding of colleges that punished students for speech otherwise protected by First Amendment [The American Interest, earlier] A new cadre of federally mandated administrators, modeled on Title IX coordinators and backed by the threat of funding cutoffs, to ride herd within universities? Uh-oh [Michael Rappaport, ambivalent]
- Arizona lawmakers quickly kill bill to cut state support from classes and activities that “promote division, resentment or social justice toward a race, gender, religion, political affiliation, social class or other class,” which would have extended earlier curb on Mexican and other ethnic studies [Tucson Star, Arizona Republic, Christian Science Monitor; background Melinda Anderson, Atlantic]
- 47 Boston College faculty members ask “zero-tolerance” policy on hate speech. That’s different from the speech that Arizona was looking at that “promote[s] division, resentment” along ethnic lines, right? [Washington Times]
- At the University of Minnesota, you might lose a student-advisor job for not demonstrating “a commitment to social justice growth and promotion to residents.” [David Blondin, Minnesota Republic/Campus Reform]
- View that speech is violence, and thus properly countered by violence in response, is popular at UC Berkeley student paper [screencap by Ashley Rae on Twitter] More: The new religious establishment: Berkeley’s Division of Equity and Inclusion has $20 million a year, 150 staff [Heather Mac Donald]
Archive for February, 2017
Harvard law faculty (and Mike McConnell) on Neil Gorsuch
The Harvard Gazette asked HLS faculty what they thought of Supreme Court nominee Neil Gorsuch:
“He’s a brilliant, terrific guy who would do the court’s work with distinction.” — Laurence Tribe.
“He’s immensely qualified for the Supreme Court — an outstanding lawyer, and judge, and person.” — Jack Goldsmith.
“The Democrats have to let somebody go through. And there is not going to be anybody more acceptable than him.” — Charles Fried.
“The single most qualified person” on Trump’s list of 21 potential nominees, a judge “who is smart and has integrity. This is a man of enormous achievements” — Richard Lazarus.
“”What struck me was his real, genuine reverence for the Constitution and the rule of law that came through on a daily basis, As a judge, he believes that cases should be decided on the basis of the law and not on the basis of policy or personal preferences. His judicial record shows he applies the law impartially.”
“He’s really a kind, genuine and decent man,” she said. “He’s a great boss and a great mentor for all clerks, including myself. Any clerk you speak to, would just speak glowingly and lovingly of him.” — Jane Nitze, who served in the Obama administration after clerking first for Gorsuch and then for Sonia Sotomayor (Gorsuch serves as a feeder judge for liberal as well as conservative Justices).
More here (Liz Mineo, Harvard Gazette). And for those who prefer a West Coast academic view, Prof. Michael McConnell — a rare conservative on the Stanford law faculty who formerly served as a judge alongside Gorsuch on the Tenth Circuit — in this appreciation at Hoover salutes Judge Gorsuch’s impartiality and devotion to constitutional principle:
I asked my research assistant to pull every case in the last five years where Judge Gorsuch sat with both a Republican-appointed and a Democratic-appointed judge and the panel split as to the outcome. The results were striking. In almost a third of the cases, Judge Gorsuch voted with his presumably more liberal Democratic colleagues rather than the presumably more conservative Republicans. That is the mark of an independent, non-partisan jurist.
This is not just my opinion. In the days since the nomination, several liberal professors have studied his record and come to a similar conclusion.
Bonfire of the Obama regs: the Congressional Review Act
“The revival of Congressional activity under the CRA is a welcome development and shows that Congress is taking seriously its responsibilities both as ultimate lawmaker and in oversight of federal agencies,” said Olson. I’m quoted among other regulation-watchers [Aileen Yeung, Western Wire] More on the belated vitality of the Congressional Review Act: Brian Mannix/Law and Liberty; Kim Strassel/WSJ; Paul Larkin/Heritage.
“The Met wins admission charge lawsuit, but lawyer may rack up $350K”
“The big winner from a lawsuit against the Metropolitan Museum of Art over its recommended $25 admission charge is the plaintiffs’ lawyer — who is seeking a staggering $350,000 fee for handling a case that resulted in a nonmonetary settlement.” [Julia Marsh, New York Post]
More: Center for Class Action Fairness has objected.
Good riddance (if they’re indeed going) to the Dodd-Frank conflict minerals rules
President Trump is said to be considering an executive order suspending for a time the Dodd-Frank law’s provisions on conflict minerals, which have harmed American companies and consumers and also plunged many communities further into impoverishment in some of the poorest sections of Africa. Congress should rise to its part by repealing the provisions, I argue at Cato at Liberty. More: Hans Bader/CEI, Kevin Drum/Mother Jones, earlier, and as part of a wider look at securities regulation, Wallace DeWitt/National Affairs. More: Dominic P. Parker and Bryan Vadheim, JAERE; Tate Watkins, WSJ.
Stupid but constitutional
David Lat, in a brief assemblage of Antonin Scalia anecdotes, gives this one:
“…A lot of stuff that’s stupid is not unconstitutional.”
“I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT CONSTITUTIONAL! Whack! STUPID BUT CONSTITUTIONAL … [Laughs.] And then somebody sent me one.”
And now the Twitter user has posted a relevant picture [link now broken].
P.S., a Twitter exchange shedding more light:
@Chazperin @walterolson @overlawyered My sister took the picture, but she's not on Twitter, so I'll take the credit.
— Christopher J Scalia (@cjscalia) February 11, 2017
Free speech roundup
- Germany will drop law against insulting foreign leaders, invoked by Turkey’s Erdogan [DW, earlier]
- Judge Neil Gorsuch’s opinions and writing draw praise from First Amendment specialists [Ronald Collins, First Amendment Coalition]
- “Hey, Google, deindex this whole article because one of the comments harms our reputation.” A tactic ripe for abuse, no? [Eugene Volokh]
- ABA model rule defining harassment as professional misconduct violates free speech, says Texas AG [John Mudd, Josh Blackman, earlier on Rule 8.4(g)here, here, etc.]
- “CFPB Proposal Unconstitutionally Imposes Prior Restraint on Regulated Entities’ Speech” [Burt Rublin and Daniel Delnero, WLF]
- “On punching Nazis” [Ken at Popehat; “Der Fuehrer’s Face,” Spike Jones, 1943]
FBI: BigLaw partner arrested while in disguise trying to sell lawsuit
“A partner at Akin Gump Strauss Hauer & Feld who used a fake name and wore a wig was arrested last week while trying to sell [allegedly for $310,000] a copy of a sealed whistleblower complaint to a company under federal investigation, according to the FBI.” [ABA Journal]
Should the Ninth Circuit be split?
Mostly unrelated to this week’s dramatic oral argument before a Ninth Circuit panel is the perennial question of whether the circuit itself has grown too large and should be split in two, separating most other Western states from California [Debra Saunders, Las Vegas Review-Journal]:
It’s so big that Congress has looked at bills to split the circuit since 1941, and it’s so big that none of those measures have succeeded.
This year, however, Sens. Jeff Flake and John McCain, both R-Ariz., see the possibility of success. They’ve introduced legislation to create a new 12th Circuit by peeling away six states — Nevada, Washington, Idaho, Montana, Arizona and Alaska. The slimmed-down 9th Circuit would continue to hear appeals from California, Oregon and Hawaii, as well as Guam and the Northern Mariana Islands….
The 9th Circuit is the only circuit to hold “en banc” — or full bench — hearings with 11 of its 29 judges [rather than the full number]. Olson has taken to calling the 9th Circuit “the court that’s not all there.”
Emoluments Clause lawsuits likely to fizzle
My first piece for Quartz: why lawsuits over President Trump’s foreign business interests are likely to be more a nuisance than a knockout blow, even if his opponents identify potential violations of the Emoluments Clause. Excerpt:
Two aspects of the Clause in particular must be causing Trump’s lawyers angst: It’s worded as a no-fault provision, and it sets no minimum threshold. That means a present or emolument could tip the scales, even if it’s meant innocently on both sides and is very small. And the realities of an international hospitality and real estate business make for lots of possible triggers both large and small.
Even if Trump fails to comply with the Clause, however, the courts aren’t obliged to provide a broad remedy. A case that manages to get over the standing hurdle might result in a narrow ruling ordering the president’s business, say, to refund a single disputed payment. Before resorting to wider injunction powers, as groups like CREW urge, judges would need to consider what’s known as the political question doctrine under which the courts have chosen to say out of some issues they see as better suited for other branches of government—or for voters—to address.