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.

Earlier here and here.

Omaha restaurateur on trial for tweet

Omaha restaurateur John Horavatinovich tweeted a security cam picture of two 17-year-olds turned away trying to buy beer at his establishment with an accompanying comment that included the word “sting.” Now he’s on trial on misdemeanor charges of obstructing a government operation. His lawyers argue that he had no way of knowing whether the teenagers were working with authorities, since they did not declare themselves. The case is now in the hands of jurors. [WOWT]

P.S.: Compare this 2012 post, “Judge: flashing headlights to warn of speed trap is protected speech [under First Amendment].”

Follow-up: verdict Not Guilty.

February 8 roundup

  • Freedom of association is at risk from California’s effort to crack open donor names of advocacy nonprofits [Ilya Shapiro on Cato Ninth Circuit amicus]
  • “Center for Class Action Fairness wins big in Southwest Airlines coupons case, triples relief for class members” [CEI, earlier here, here]
  • Campus kangaroo courts: KC Johnson and Stuart Taylor Jr. have spent a week guestblogging at Volokh on their new book (first, second, third, fourth, fifth, earlier links; plus Christina Hoff Sommers and WSJ video interviews with Stuart Taylor, Jr.]
  • Despite his I’m-no-libertarian talk, two 2015 cases show Judge Neil Gorsuch alert to rights of Drug War defendants [Jacob Sullum]
  • Drug pricing, estate/inheritance double tax whammy, shaken baby case, mini-OIRA in my new Maryland policy roundup [Free State Notes]
  • And the legal fees flowed like water: dispute with Georgia over water rights has clocked $72 million in legal bills for Florida [Orlando Sentinel]

Public opinion and forfeiture reform

At a meeting yesterday with President Donald Trump, sheriffs complained “that they were under pressure to ease the practice” of civil asset forfeiture, that is, seizing cars, houses, and bank accounts whether or not the owners had been convicted of any crime. Per Reuters, Trump “voiced disagreement with lawmakers who want to change asset forfeiture laws” and “said members of the U.S. Congress would ‘get beat up really badly by the voters’ if they interfered with law enforcement’s activities.”

One reason reform of civil asset forfeiture has made rapid progress lately in legislatures around the country, including my own state of Maryland, is that the public strongly disapproves of the current state of the law when it is explained. In December Cato released a polling study on criminal justice issues, led by my colleague Emily Ekins. Among its findings: “Fully 84% of Americans oppose the practice of police taking ‘a person’s money or property that is suspected to have been involved in a drug crime before the person is convicted of a crime.’ Only 16% approve.” The strong majority extends across all groups of respondents, including Republicans (76%) and those with a highly favorable attitude toward police (78%). Asked what should happen with the proceeds of seizures upon conviction, only 24% of the public favored letting local police departments keep the seized goods or cash, while 76% said it should go instead to state-level coffers. which would reduce the incentive for zealous seizure.

The same opinion survey found that 64% of the American public held a favorable view of their local police, a consensus extending across both parties and all major ideological groups. So if the survey is accurate, the American public supports police while opposing civil asset forfeiture. More: statement from Matt Miller, managing attorney of the Texas office of the Institute for Justice.

Crime and punishment roundup

  • December Cato conference on criminal justice (Ken White, Harvey Silverglate, Hon. Shira Scheindlin, Kevin Ring, too many others to list) now online (earlier);
  • Justice Scalia and criminal law: Federalist Society National Lawyers Convention panel with Rachel Barkow, Stephanos Bibas, Orin Kerr, Paul Larkin, Jr., and Hon. Stephen Markman (Michigan SC), moderated by Hon. David Stras (Minnesota SC).
  • Nominee Neil Gorsuch and the criminal law [Andrew Fleischman/Fault Lines, William Patrick/Florida Watchdog, Kevin Ring, Eugene Volokh]
  • Are you sure you want to prosecute drug overdoses as murders? [Scott Greenfield]
  • “Three anonymous allegations of criminal activity within the past year” can result in eviction threat under NYC’s no-fault nuisance eviction law [Allie Howell, Economics 21]
  • Think lawmaking was more rational in the old days? How panic in Congress brought us the 1986 drug law [Radley Balko]
  • If your mission is truth-finding or criminal justice, “Start By Believing” is wrong approach [Eugene Volokh on campaign by Arizona Governor’s Commission to Prevent Violence Against Women] Two ethicists propose demoting standard of proof in U.K. rape prosecutions from beyond a reasonable doubt to preponderance of the evidence [Aeon via Community of the Wrongly Accused, which takes a different view]

“[Recent law grad] sues Twitter for fake account in her name”

A recent graduate of the University of San Diego’s law school is “fairly upset that someone set up a parody Twitter account pretending to be her that portrayed her in an unflattering light. So she has sued. For $100 million. And she’s not just suing the ‘John Doe’ behind the account… but also Twitter. Oh, and also the University of San Diego.” Section 230 generally immunizes online providers like Twitter from liability for material posted by users. [complaint with handwritten details via Eric Goldman; Mike Masnick, TechDirt]

“So-called”

“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” President Donald Trump tweeted on Saturday morning. It was one of a series of tweets assailing the temporary restraining order issued by a federal judge in Washington state momentarily barring enforcement of the President’s executive order on visas and border crossing. Wait till he gets to the so-called Ninth Circuit!

It is still unusual to encounter the epithet so-called in high official pronouncements, in the United States at least (Pravda used to be fond of tak nazyvayemyye back in the day). But we have come to expect Trump to break new ground in judicial disrespect following his attacks last year as a candidate on federal judge Gonzalo Curiel of the Southern District of California, who was presiding over the Trump University case. I wrote then:

…In his rambling remarks, Trump also referred to Judge Curiel as “Mexican”: the jurist, previously the chief federal prosecutor for drug cases in southern California, was born in Indiana. Stoking by repetition, as his crowd of thousands booed, Trump called the federal judge “a hater of Donald Trump, a hater. He’s a hater,” and said he should be placed under investigation by the court system. I wonder whether anyone will be shocked if the judge requests personal protection for himself and his family as the trial proceeds.

Obama’s 2010 State of the Union remarks railing at the Justices of the Supreme Court in their presence regarding Citizens United were bad. This is far worse: the case is still in progress, Trump is a party, and the attack is on a single judge who will now find his task of ensuring a fair trial complicated. Trump, who speaks regularly around the country, chose to unleash the diatribe in the locality where the judge and others who will participate in the case, such as jurors, work and live.

As I noted at the time, the norm of not personally attacking judges has been eroding for years, not only at the hands of President Barack Obama (who publicly scolded judges not only in his 2010 State of the Union speech but also repeatedly during the court review of ObamaCare, as Josh Blackman documents) but from influential opinion leaders as well. One might cite in particular the extraordinarily vicious interest-group-led campaigns against judicial nominees, currently being cranked up against Judge Neil Gorsuch of the Tenth Circuit but familiar from a dozen earlier nominee battles as well.

In the mean time, like his remarks on Judge Curiel, Trump’s comments on Judge Robart could complicate the efforts of his own lawyers in court: “Either they have to defend the statements that Judge Robart is a ‘so-called judge,’ which you can’t do, or they have to distance themselves from the president, who is their boss,” as University of Pittsburgh law professor Arthur Hellman put it.

And the problems get more serious from there. Writes William Baude: “to call him a ‘so-called’ judge is to hint that he is not really a judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious issue.”

That issue arises from the difference between criticizing the quality of a judicial decision and criticizing the authority of the judge to issue it:

If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.