Blog Updates
Tanveer Basith and Abuzaffer Basith were married in India in 1979. In September 2017, Tanveer sought a divorce, in Illinois court; she says that the parties are Illinois residents. (All the facts and quotes here are drawn from In re Marriage of Basith, decided last week.) Abuzaffer moved to dismiss the divorce petition, “assert[ing] that the parties’ marriage had already been dissolved in India on May 10, 2017, and that Tanveer had accepted a financial settlement of … about $447. Because she had accepted the financial settlement, Abuzaffer argued that Tanveer’s action was barred by res judicata.” Tanveer responded, “assert[ing] that she was never properly served with notice of the petition for dissolution filed in India, nor did she consent to the entry of that judgment.”
The Appellate Court reversed:
Sounds right to me; for more on this general topic, see Religious Law (Especially Islamic Law) in American Courts and Foreign Law in American Courts. Note also that under American law a divorce must be obtained in the jurisdiction in which the parties are domiciled, rather than in the jurisdiction where the parties were married (often decades ago). via Tumblr [Eugene Volokh] The Trial Court “Did Not Consider American Law and Fundamental Precepts of Due Process”
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Over at the Niskanen Center, I have posted some thoughts on volume one of the report by special counsel Robert Mueller. The first volume addresses Russian interference in the 2016 presidential election and the extent to which the Trump presidential campaign participated in that interference. The good news is that the campaign did not actively conspire with Russian operatives to influence the election and that the Russian efforts at interference were not terribly effective. The bad news is that Russian operatives clearly did try to influence the election and that the Trump campaign was at best unconcerned about Russian meddling and at worst would have been happy to encourage and benefit from it. You can read the whole thing here. From the conclusion of the Niskanen Center post:
via Tumblr [Keith Whittington] On Volume One of the Mueller Report Illegal Pete’s is a Colorado-based Mexican restaurant chain; starting several years ago, the name has drawn controversy because some view it as an insulting reference to illegal aliens. (The restaurant owners disagree, and say the name was chosen “to convey the unique, countercultural atmosphere [the founder] wanted to foster” and was an homage to the founder’s father, who was “a bit of a good-natured hell-raiser.”) The owners of Illegal Pete’s wanted to make it a Delaware limited liability company, but the Delaware Secretary of State’s office rejected the application, allegedly on the grounds that the name “has a negative connotation,” and that
Yesterday, Illegal Pete’s sued the Secretary of State, arguing that the denial was unjustified by statute—which on its face applies only to names containing the word “bank"—and violates the Due Process Clause and the First Amendment. And indeed, given the Supreme Court’s decision in the Slants case (Matal v. Tam), the denial does violate the First Amendment. Matal holds that the government can’t deny trademark registration to allegedly racially offensive marks. It follows that the government likewise can’t deny certificates of incorporation (or LLC status) to business names that allegedly offensively refer to illegal aliens (or, for that matter, to marks that seem to praise illegal conduct, if that’s the Secretary of State’s objection). The case reminds me of Kalman v. Cortes (E.D. Pa. 2010), which struck down a Pennsylvania ban on corporate names that contain ”[w]ords that constitute blasphemy, profane cursing or swearing or that profane the Lord’s name" (applied in that case to the name “I Choose Hell Productions”). But following Matal, the matter is even clearer. via Tumblr [Eugene Volokh] Delaware Government Refusing to Allow “Illegal Pete’s” as Corporate Name My frequent co-author (and now co-blogger) Steve Sachs and I have a new article out in the Northwestern Law Review, in a symposium issue devoted to “Originalism 3.0.” Our contribution, “Grounding Originalism,” tries to provide philosophical grounding for our approach to originalism, one which emphasizes that originalism is a theory of law, under which our law is the Founders’ law, plus all lawful changes enacted since then. The piece responds in part to criticisms raised by Richard Primus, Mark Greenberg, Mikołaj Barczentewicz, and Charles Barzun, among others (and Eric Segall is publishing a response here). Here is the abstract of our piece:
Because this piece is the latest in a line of five or six pieces that Steve and/or I have written advancing this theory, it doesn’t provide all of the arguments or evidence for our view. But we do provide (p. 1491) what I hope is a helpful summary of how past and present law relate:
As well as (p. 1477-78) another hopefully helpful summary of the evidence we’ve amassed in previous pieces that we think supports our view:
As always, if this provokes further productive criticisms or a counter-argument about theory better describes our law, we’d love to see it! Meanwhile, Steve and I are at work on two more pieces aimed at more specialist literatures, one in history and one in philosophy, which I’ll look forward to sharing here later this year. via Tumblr :@WilliamBaude: Grounding Originalism Published [Eugene Volokh] Beyond the First Amendment: Anti-Libel Injunctions and Prosecutorial Discretion4/23/2019 [I’m continuing to serialize my forthcoming Penn Law Review article on Anti-Libel Injunctions.] I’ve argued that criminal contempt prosecutions for violating anti-libel injunctions are similar to criminal libel prosecutions. But they are missing one important feature of most prosecutions—the normal prosecutor. In criminal libel prosecutions, a prosecutor exercises discretion about whether to prosecute. In criminal contempt proceedings, a judge would normally refer the case to the prosecutor’s office, but if that office declines to act, the judge may appoint a special prosecutor. And in some states, the litigants could initiate the criminal contempt prosecution themselves, or move for contempt and ask for the court to appoint their lawyers as the prosecutors. [In the federal system, the judge may not appoint the plaintiff’s lawyer as prosecutor, Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. 787 (1987), which may make it hard to find a lawyer willing to take the task. But that is a principle of federal contempt procedure, not a constitutional mandate.] Indeed, in states that still have criminal libel laws, the injunction’s cutting out of the prosecutor is especially vivid. Why, after all, would a person who is being libeled seek an anti-libel injunction in that state? Why not just ask the prosecutor to threaten the defendant with a criminal libel prosecution? After all, an injunction only works because the target is worried about the threat of a criminal contempt prosecution; why wouldn’t a prosecutor’s threat of a criminal libel prosecution work as well? Presumably the defamed person would opt for spending the time and money to get an injunction precisely because the prosecutor is not inclined to act. Maybe prosecuting libels is a low prosecutorial priority, compared to violent crimes, property crimes, or drug crimes. Or maybe the prosecutor thinks the criminal libel law is archaic, and that people shouldn’t be jailed merely for lying about people. Or maybe the prosecutor wants to prosecute only the most egregious libels (such as the ones that most threaten reputation), and this libel isn’t one. The prosecutor is thus using prosecutorial discretion to choose not to prosecute a particular kind of crime. And the injunction bypasses that prosecutorial decision. The question for judges, then, is whether they see prosecutorial discretion as an advantage or a disadvantage in such cases. Prosecutorial discretion is sometimes touted as an important protector for liberty: Before a person goes to jail for something, the theory goes, all three branches must agree—the legislature must criminalize the action, the executive must prosecute, and the judiciary must convict. In the words of then-Judge Kavanaugh, The Executive’s broad prosecutorial discretion … illustrate[s] a key point of the Constitution’s separation of powers. One of the greatest unilateral powers a President possesses … is the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior … . The Framers saw the separation of the power to prosecute from the power to legislate as essential to preserving individual liberty. Judge Kavanaugh was speaking of prosecutorial discretion as a check on the legislative power, but it could equally be seen as a check on the judicial power. Indeed, such a check may be especially necessary to rein in criminal contempt prosecutions, in which judges might be unduly skewed by the sense that the violation of an injunction is a personal affront to their own authority. Justice Scalia’s concurrence in Young v. United States ex rel. Vuitton et Fils SA, for instance, argued that federal contempt prosecutions must always be initiated by the Executive Branch, partly because Justice Scalia saw a threat to liberty in “judges’ in effect making the laws, prosecuting their violation, and sitting in judgment of those prosecutions.” On the other hand, prosecutorial discretion is sometimes seen as unduly favoring those victims who have the prosecutors’ ear—indeed, one criticism of criminal libel laws has been that they are disproportionately used to punish speech critical of political officials and law enforcement. And people sometimes fault prosecutors for being not attentive enough to particular crimes that are seen as too hard (or too unglamorous) to prosecute; that, for instance, was part of the criticism of prosecutors in domestic violence cases, which led many states to enact statutes specifically authorizing injunctions against continued domestic violence. More broadly, injunctions are available in many other contexts where torts are also crimes. The occasional assertion that “equity will not enjoin the commission of a crime” means simply that equity “would not enjoin violation of … criminal law as such,” but would only enjoin acts that harmed the particular plaintiff in some legally cognizable way. Injunctions against trespass are issued without concern that this will undermine prosecutorial discretion not to prosecute trespasses as crimes; likewise with injunctions against copyright infringement, even though willful copyright infringement for commercial gain is also criminal. And perhaps the availability of criminal contempt proceedings in such cases, even without the opportunity for prosecutorial discretion, might be especially justified by the need to vindicate a particular victim’s interest. The Third Circuit, for instance, has taken the view—expressed, to be sure, as to administrative enforcement proceedings rater than as to criminal contempt of court prosecutions—that “the doctrine of prosecutorial discretion[] should be limited to those civil cases which, like criminal prosecutions, involve the vindication of societal or governmental interest, rather than the protection of individual rights.” I don’t think that the availability of prosecutorial discretion should be seen as a necessary First Amendment protection that renders invalid injunctions that cut out such discretion. Indeed, prosecutorial discretion may introduce an extra risk of viewpoint discrimination, and enforcement of injunctions without a prosecutorial veto would decrease this risk. Judges in injunction cases often write opinions explaining why they exercise their discretion a particular way, which constrains their discretion in some measure; prosecutors don’t. Judges’ decisions not to issue injunctions are reviewable on appeal (even if under the relatively deferential abuse-of-discretion standard); prosecutors’ decisions not to prosecute are generally not reviewable. Prosecutorial discretion cannot save an overbroad law. The absence of prosecutorial discretion should not invalidate a narrowly crafted injunction. This having been said, though, courts might still choose to consider whether separation of powers concerns should counsel against injunctions that evade prosecutorial discretion, especially in those states where criminal libel statutes exist. The Court has spoken of its “cautious approach to equitable powers,” especially when the powers involve “substantial expansion of past practice”; state courts may choose to take a similar approach. Such caution may be reason to avoid an end-run around prosecutorial judgment, especially with a remedy that has historically been frowned on—which makes anti-libel injunctions different from, for instance, anti-trespass injunctions—and in the absence of specific legislative authorization (which makes anti-libel injunctions different from, say, anti-harassment or anti-stalking injunctions issued pursuant to a specific statute). [You might also read my earlier posts on the subject,
Or you can read the whole article, which is forthcoming in the University of Pennsylvania Law Review, in PDF.] via Tumblr [Eugene Volokh] Beyond the First Amendment: Anti-Libel Injunctions and Prosecutorial Discretion I just saw an interesting ruling handed down last week by the Illinois Supreme Court, Illinois v. Buffer, 2019 IL 122327 (Ill. April 18, 2019) (available here), which concerns what length of sentence should be considered a de facto life sentence triggering the Eighth Amendment sentencing limitations articulated by the Supreme Court in Miller and Montgomery. For folks following closely debates over the reach and application of the Eighth Amendment to juvenile term-of-year sentences, all of Buffer is worth reading (including the extended concurrence). Here is a key passage from the court’s opinion:
via Tumblr Relying on post-Miller legislation, Illinois Supreme Court rules any juve sentence over 40 years constitutes de facto life sentence How could and how should a President push states to extend the franchise to all prisoners?4/23/2019 I have not been blogging all that much about some of the notable criminal justice positions and statements by the huge field of candidates seeking the Democratic Party’s nomination to run for US President. But this press piece about an exchange involving Senator Bernie Sanders at a town hall last night prompted the question that is the title of this post. The headline of The Hill piece is catchy, “Sanders: Boston Marathon bomber should be able to vote from prison,” and here is its account of the exchange:
Regular readers likely know that I see no good reason to disenfranchise categorically any class of competent voters (and my basic thinking on this front was explained in this Big Think piece years ago headlined “Let Prisoners Vote”). But, in the context of discussions about the positions of potential candidates for President, anyone call for expanding suffrage ought to be asked about how the federal government can and should seek to push states into ensuring more people have the right to vote. This can be done, of course, through a constitutional amendment or through various forms of federal legislation that might try to force or prod states into changing their voting eligibility rules. I would really like to know if Senator Sanders (or any other presidential contender) is prepared to move forward with a formal federal plan that would go beyond just “call[ing] for more states to join Vermont and Maine in allowing imprisoned felons to vote." Because I am not a voting rights expert, I am not sure what might be the best ways, legally and politically, to make progress on this front. But I hope the question in the title of this post might be further explored on the campaign trail over the next 18 months. via Tumblr How could and how should a President push states to extend the franchise to all prisoners? The title of this post is the title of this notable new “evidence brief” from the Vera Institute of Justice. Here is its overview:
via Tumblr "Justice Denied: The Harmful and Lasting Effects of Pretrial Detention" The new President of the Ukraine, Volodomyr Zelensky, is (as I noted in an earlier post) not a career politician, but a prominent actor and comedian. How did he become famous? By playing a non-career-politician who is unexpectedly elected the President of the Ukraine. Anything we can do, he can do meta. The only thing better would have been if his character in the show had been an actor and comedian. (The character was actually a history teacher who first studied law before switching to history; Zelensky is trained as a lawyer.) For whatever it’s worth, here’s the theme song (which, I’ve just learned, is called “саундтрек” in Russian) to the show, which is called “Servant of the People,” and which Zelensky apparently helped create. I think the song captures well the humor of the show; time will tell what it tells us about Zelensky the President rather than Zelensky the character and producer. Imagine it sung in a jaunty, carefree tone; also imagine it rhyming, which of course it does in Russian:
The author is Dmytro Shurov (or Dmitriy Shurov in Russian) of the band Pianoбой. via Tumblr [Eugene Volokh] The Ukrainian President’s Theme Song? In a new case, Taylor v. City of Saginaw, the Sixth Circuit has ruled that the common practice of parking enforcement officers “chalking” a tire to see if the car has been moved violates the Fourth Amendment. I’m not sure the decision is correct. But it’s plausible on current law, and it raises some really interesting conceptual issues. Here’s an overview of the new case and some thoughts on whether it’s right. First, the facts. Alison Taylor gets a lot of parking tickets, and she decided to make a federal case out of it. Specifically, she sued the city of Saginaw in federal court. She alleged that her constitutional rights were violated by practice of “chalking” her tire to figure out if she had overstayed the time she was permitted to park her car. I don’t know of any other cases in which “chalking” was alleged to violate the Fourth Amendment. But the Sixth Circuit ruled that it did, in a decision authored by Judge Donald joined by Judge Kethledge and Judge Keith. And the court’s reasoning seems broadly applicable to all of our cars, not just Alison Taylor’s. Here’s the court’s thinking. First, the court reasons that the chalking is a search of the car because it is a trespass on to the car to obtain information under United States v. Jones. It’s a trespass under Jones, the court says, because it satisfies the common law trespass test:
Next, it is an act conducted to obtain information, as Jones requires:
Having concluded that the chalking was a search, the court then concludes that it was unreasonable and therefore unconstitutional. The basic idea here is that no exceptions to the warrant requirement apply, so by default the warrantless search is unlawful. First, the automobile exception does not apply:
Next, the search was not reasonable under the community caretaker exception:
And finally, the search was not justifiable based on a general interest in having an orderly parking system:
Here are a few thoughts on the case: (1) From a practical perspective, this is a really important decision. It concludes that a routine practice that wasn’t thought to be illegal (if it was thought of at all) is actually unconstitutional. I’m not sure if the decision is correct. And as I’ll explain below, there are several plausible but debatable moves in the opinion. But this decision is now binding in the Sixth Circuit and may also be followed elsewhere: Traffic enforcement officers around the country should be paying attention to this. (2) Is the decision right? As I said above, I’m not sure. United States v. Jones introduced the idea of the trespass or physical intrusion test for searches in 2012. As I’ve written before, Jones could mean a lot of different things. It’s just not yet clear what the standard is or how it should apply. Given that, I think the result in Taylor is plausible but that it’s also subject to several plausible objections. (3) Start with the question of trespass. First, the court takes from Jones the idea that the test is “common law trespass." Maybe that’s the test. But maybe it’s not. The Court in Florida v. Jardines notably did not describe the Jones test as a trespass test. Instead, Jardines described the test as "physical intrusion." That’s potentially pretty different. And assuming the test is common law trespass, figuring out what kind of trespass test that meant is actually pretty tricky. Maybe it’s the Restatement test, but maybe it’s something different. (4) I’m also not sure of the court's conclusion that the chalking was "to obtain information,” needed to satisfy the search test from Jones. That’s certainly a possible result. But it also strikes me as a somewhat awkward fit. Here’s the context. In Jones, the officer installed the GPS device on a suspect’s car and then obtained GPS info from it as the car was tracked for 28 days. The majority ruled this a search in part on the ground that installing the GPS was done to obtain information—specifically, the stream of data from the GPS that would provide the location of the car to which it was attached. Here’s the most relevant discussion of the intent test from Footnote 5 of Jones:
The Sixth Circuit in Taylor sees that element satisfied by the chalking. And it is no doubt true that the officer chalked the car with the ultimate goal of finding out a fact—whether the car had moved. That may be right under Jones. On the other hand, it seems like a somewhat unusual application of the intent test. I would think the Fourth Amendment idea of a “search” of a person’s “effects” ordinarily implies intent to obtain information from the effect searched. Normally, searching a box means getting information from inside the box. Searching a home means getting information from inside the home. In Taylor, however, the officer’s plan is to place his chalk on the car and then come back later and see if the chalk moved—thus giving the officer a clue about whether the car moved. That’s information about the car, but it seems removed from a search of the car itself. After all, the car is just out in public. It is sitting on a public street for anyone to see. And the officer is just looking at the chalk the officer placed. Is it really a search of the car at Time A to see at Time B if the chalk moved between Time A and Time B? Maybe yes. Maybe the problem is that Jones itself was an awkward fit. The obtaining of information in Jones was also just ultimately about the car and where it had been in public, as well. And the Supreme Court apparently found that sufficient. But it’s at least a question worth raising: Are there limits on what kind of information the government needs to want to obtain, and from what, and when, to satisfy the Jones test? (5) Assuming the chalking is a search, the next question is whether it is constitutionally reasonable. I agree with the Court’s analysis of the automobile exception and the community care-taking exception. But I suspect some courts might disagree with the Sixth Circuit’s reasonableness analysis on the ground that chalking is a de minimis search as part of a regulatory scheme. It’s just putting a temporary mark on a tire, it causes no damage, and it doesn’t reveal anything. Some courts have articulated doctrines that allow low-level searches as reasonable based on a balancing of interests without particularized suspicion. I can imagine that as a possible path for other courts. We’ll see. (5) I have to wonder how much this issue matters in a world of smart phones. Everyone is now carrying around a camera. Instead of chalking the tire, the parking folks can just take a picture of the car. They can figure out if the car moved by comparing the pictures at Time A and Time B to see if the car is in the same place. It may be more complicated or expensive than chalking, but it avoids the Fourth Amendment concern by just observing what is in public without any physical attachment to property. (6) Finally, it’s not at all clear what if any remedies may be applicable. Chalking is common and hasn’t been thought to be illegal. Given that, qualified immunity should attach and civil suits against the officers won’t work. And it’s not clear that there is any exclusionary rule available in an enforcement action to pay the parking ticket, as that is a civil proceeding and the exclusionary rule may not apply under United States v. Janis. via Tumblr [Orin Kerr] Chalking Tires and the Fourth Amendment |
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