Author Archive | Eugene Volokh

Thanks for Help with Obsidian Finance v. Cox

I just wanted to thank the many people who helped me with Obsidian Finance v. Cox:

  • Benjamin Souede of Angeli Ungar Law Group LLC, our pro bono local counsel for the motion for new trial in district court and for the motion to block plaintiff’s zany attempt to seize the appeal rights.
  • Mayer Brown LLP, with which I’m a part-part-part-time Academic Affiliate, and which paid the litigation costs through its pro bono program.
  • Helene Siegel of Mayer Brown, for her work with cite-checking and production.
  • My colleagues David Babbe, Sam Bray, and Dan Bussel, Loyola (L.A.) professors Karl Manheim, Jay Dougherty, John Nockleby, and Justin Levitt, and recent graduate Dafna Gozani for their help with moot courts for my argument.
  • Bruce Brown, Gregg P. Leslie, and Jack S. Komperda, representing the Reporters Committee for Freedom of the Press, and Tom Goldstein, representing SCOTUSblog, for their amicus briefs that supported our position, and Matthew J. Zimmerman and Richard D. Mc Leod, representing the Electronic Frontier Foundation, which filed an amicus brief supporting our motion for new trial.

I very much appreciate all that all these people have done to bring us to Friday’s win. [...]

Continue Reading 0

Two Toddlers Killed in Exorcisms in Maryland

So reports the Washington Post (thanks to Prof. Howard (Friedman) Religion Clause for the pointer):

A Germantown mother and another woman accused of killing two toddlers and trying to kill two other children believed that they were releasing demonic spirits that had possessed the siblings, Montgomery County police said Saturday.

The two dead children — a boy, Norell Harris, 1, and a girl, Zyana Harris, 2 — were found Friday morning on their mother’s bed in a Germantown townhouse. Both had been stabbed repeatedly, police said. A sister, Taniya Harris, 5, and a brother, Martello Harris, 8, were seriously injured but are expected to survive.

Police said the women thought that they were performing an exorcism, although it did not appear they had followed any ritual….

Police identified the women as Zakieya L. Avery, 28, the mother, and Monifa Sanford, 21, who lived with the family. Each has been charged with two counts of first-degree murder and two counts of attempted first-degree murder….

Avery, who has received mental health counseling, moved twice in recent years — from Western Maryland to Ohio and then to Montgomery, according to a minister whose church she attended. A relative said she had separated from her husband. Writings on her Facebook page suggest that she believes in God and fears Satan….

In the townhouse community where Avery lived … at least one neighbor saw signs of possible trouble Thursday night. He spotted a child alone in a parked car and called 911, police said. As officers were on the way, two women came out of Avery’s townhouse, told the neighbor to mind his own business, took the child and went back into the home, police said.

When officers arrived, they knocked on Avery’s door but got no response. They didn’t hear or see anything suspicious

Continue Reading 0

Prison for Blasphemy

The Guardian (UK) reports:

A man who created a Facebook page poking fun at a revered Greek Orthodox monk has been sentenced to 10 months in prison in Greece after being found guilty of blasphemy…. Filippos Loizos, 28, … used a play on words to portray Father Paisios as a traditional pasta-based dish [pastitsio -EV] ….

Father Paisios, who was revered for his spiritual teachings and was said by some believers to have powers of prophecy, died in 1994.

Loizos had appealed against the ruling and would not be jailed before his case was heard by a higher court, Kleftodimos said.

Here’s what seems to be a copy of the Facebook page:

A reminder that blasphemy prosecutions are, unfortunately, not entirely a thing of the past in Europe. Thanks to Bill Poser for the pointer. [...]

Continue Reading 0

Federal Ban on Lobbyists’ Service on Advisory Committees May Violate the First Amendment

[UPDATE: Whoops, Jonathan beat me to it; I’m turning off comments, so people can post on that thread instead.]

So holds Autor v. Pritzker (D.C. Cir. Jan. 17, 2014), a very interesting D.C. Circuit decision just handed down today. (Congratulates to my Mayer Brown LLP colleagues Charles Rothfeld and Joseph Minta, who represent the plaintiffs.) An excerpt (one paragraph break added):

President Obama, seeking to reduce the “culture of special interest access,” directed executive agency heads to bar federally registered lobbyists from serving on advisory committees. Appellants, federally registered lobbyists wishing appointment to one type of advisory committee — Industry Trade Advisory Committees (ITACs) — challenge the constitutionality of the presidential ban. Because the ban requires Appellants to limit their exercise of a constitutional right — in this case, the First Amendment right to petition government — in order to qualify for a governmental benefit — in this case, ITAC membership — we reverse the district court’s premature dismissal of the complaint and remand for that court to determine in the first instance whether the government’s interest in excluding federally registered lobbyists from ITACs outweighs any impingement on Appellants’ constitutional rights.

Created by the Trade Act of 1974, which requires the President to “seek information and advice from representative elements of the private sector … with respect to” trade policy, ITACs play a significant role in shaping international trade agreements. The sixteen industry-specific ITACs run the gamut of industrial interests from Aerospace Equipment to Consumer Goods to Service and Financial Industries. In addition to meeting “at the call of the United States Trade Representative,” ITACs prepare reports for the President, Congress, and the Trade Representative on whether proposed trade agreements provide for “equity and reciprocity within” the committees’ sector. Although ITAC advice is non-binding, the Act requires the Trade

Continue Reading

Bloggers = Media for First Amendment Libel Law Purposes

So holds today’s Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014) (in which I represented the defendant). To be precise, the Ninth Circuit concludes that all who speak to the public, whether or not they are members of the institutional press, are equally protected by the First Amendment. To quote the court,

The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.

I think that’s right, not just as a matter of First Amendment principle but also as a matter of history and precedent (as I documented at length in Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012)). The specific legal issue that the Ninth Circuit was confronting in this passage, by the way, is whether all who speak to the public are equally protected by the Gertz v. Robert Welch, Inc. rules, which are that

  1. libel plaintiffs suing over statements on matters of public concern must prove that the defendant was negligent
Continue Reading 0

Writing Briefs When Judges Read on iPads

I just read a very interesting article, Daniel Sockwell, Writing a Brief for the iPad Judge. The basic problem:

[M]ore and more judges are reading briefs primarily on iPads or other tablets…. The Fifth Circuit judiciary reads the majority of their briefs on iPads, and, from conversations with numerous judges and clerks, the other Circuits are not far behind (though I was told that the Third Circuit is “not as iPad heavy as some circuits”). The best way to know how a particular judge typically reads briefs is to ask — the clerks will likely be happy to help.

Why you should care how the judge reads your brief

Why do iPads even matter? … Lawyers who care about communicating forcefully and clearly should seek to perfect style and typography in addition to substance. The rules of typography are simply different for a screen than for print….

And here are the author’s suggestions (reprinted with his permission, some paragraph breaks added):

A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.

Lawyers who expect a brief to be read on an iPad should try to avoid footnotes. One of the advantages of reading on an iPad is that judges can adjust the screen view, zooming in and focusing on the current passage. However, this advantage is lost if footnotes require the reader to constantly scroll to the bottom of the page for citations or substantive material. Worse, the extra scrolling raises the risk that the footnotes won’t be read at all, already a concern with substantive footnotes.

Next, lawyers should carefully consider what font to use in a brief that may be read

Continue Reading 0

Empire State Building Owners Sue Photographer for Taking Topless Photograph on the 86th Floor Observatory

See the complaint, and a New York Daily News story:

Empire State Building management has filed a $1.1 million lawsuit against photographer Allen Henson for taking pictures of a topless woman at the skyscraper’s packed 86th floor observatory in August.

Here’s one of the photos, which I imagine originally didn’t contain the black rectangle; the Daily News story has more.

The owners’ theory is that the photographer (Allen Henson) is guilty of tortious trespass, for which the owners seek $100,000 compensatory damages and $1 million punitive damages. But while I sympathize with their disapproval of the photographer’s behavior — to quote the complaint, “[i]n order to continue to attract visitors, including families, to the Building and the Observatory, … ESB has to maintain both the image and the fact that the Building and the Observatory are … [an] appropriate place for families and tourists” — I just don’t see how their theory is sound.

It’s true that a property owner can allow people onto its property only on the condition that they behave in a particular way, and exceeding this consent might constitute tortious trespass. To quote the Restatement (Second) of Torts § 168, “A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with.” But, according to the Complaint itself, no such condition was clearly expressed to visitors. The Complaint says,

The admission ticket for the Observatory states, in pertinent part, that ESB “may refuse admission or expel any person whose conduct is objectionable.”

But that, on its face, simply reserves ESB’s right to kick people out, or not let them in. It doesn’t purport to legally limit the scope of visitors’ conduct, especially since the word “objectionable” is so vague that [...]

Continue Reading 0

Adoption by Close Friend (and Not Romantic Partner) of the Child’s Parent

An “intimate partners without benefits” case, from In re Adoption of G., N.Y. Slip Op. 23454 (Surr. Ct. Dec. 27, 2013):

In this uncontested second-parent adoption proceeding, the court is faced with an interesting question: may two close personal friends, who together decided to adopt and have jointly participated in all aspects of the adoption process, and have been, in fact, raising a child together, be her joint, legal adoptive parents? For the reasons to follow, the answer is yes….

KAL and LEL met in 2000 and quickly became friends. They worked together for a number of years and their friendship deepened with time. Because LEL was a very close friend, KAL confided in him, telling him of her plans to become a mother using artificial insemination. LEL offered to be the father, rather than having KAL use an anonymous sperm donor and then be a single parent. KAL agreed. After two years of trying to conceive a child, including a round of unsuccessful in-vitro fertilization, KAL and LEL decided to instead adopt a child together.

KAL and LEL researched adoption options and together selected Ethiopia as the country of origin for their child. They spent years planning and hoping, when they finally received the call in 2011 that a child was waiting to be adopted. KAL and LEL traveled together to Ethiopia to meet G. for the first time. They then made a second trip to bring G. home to New York. Because KAL and LEL were not married to each other, they could not adopt G. together in Ethiopia, so KAL alone adopted her.

Upon returning to the United States, KAL registered the foreign adoption in Family Court in Kings County, New York. LEL then petitioned this court to adopt G. and become her second legal

Continue Reading 0

“Programmer Privilege”

Philip Guo (Slate) argues that his being an Asian young man led him to “fit society’s image of a young programmer,” and therefore got him cut various kinds of slack while he was a beginner and not very good. Maybe that’s right; I’m sure people do view others through these sorts of stereotypes to some extent, and that can sometimes be helpful and sometimes be harmful. But his first item on the list of what people never said to him seems not connected to the cause:

As an Asian male student at MIT, I fit society’s image of a young programmer. Thus, throughout college, nobody ever said to me (as they said to some other CS students I knew):

  • “Well, you only got into MIT because you’re an Asian boy.”

I would think that people didn’t say that isn’t because he “fit society’s image of a young programmer” — it’s because no-one thinks that MIT gives a preference to Asians. But many universities, including MIT, have preferences for black and Hispanic students. I recall attending a debate at UCLA Law School when I was a student (around 1990) at which the professor supporting race-based preferences said that, in the absence of such programs, there would be virtually no blacks at the institution. Other defenders of race-based preferences say similar things (see, e.g., here).

You might think that, on balance, race-based preferences are a good idea. But it’s hard to deny that, when the preferences exist — and when they’re so substantial that they mean that a large part, maybe over half, of the students of a particular group will be let in even though they’re below the bar for other groups — people will suspect that you got into a school because you’re a member of [...]

Continue Reading 0

What’s Misleading About This Picture?

That’s a graphic from an article last month in Vocativ, titled “Way More People Die in Texas From Drunk Driving Than Anywhere Else. (Vocativ is a new media startup that got a good deal of buzz last Fall, including for relying on “data ninjas.”) Here’s some of the analysis accompanying the graphic:

Texas, in many ways, is its own country, and drunk driving there is a systemic problem; perhaps, it’s the inevitable consequence of a state that tends to see legislation as an intrusion, except when it comes to abortion. Over the last couple of years, Texas was America’s runaway leader in drunk-driving deaths. In 2011, for example, 1,216 died — comprising 40 percent of the state’s total fatalities. That was almost twice as many as the state with the second-most drunk-driving deaths, California. Outside Texas, the national average for such fatalities hovers around 180.

Yup, bright red Texas sure looks pretty dangerous on that map, though blood-red California, Florida, North Carolina, and Pennsylvania are right behind. Alaska, Utah, Wyoming, South Dakota, Vermont, New Hampshire, and Maine seem like the only really safe places.

Except the map means very little. Here’s another map, from a National Highway Transportation Safety Agency site, that might be more helpful (though it uses 2008 data rather than 2011 data):

The Vocativ map counts total alcohol-impaired auto accident deaths; the NHTSA counts such deaths per 100 million vehicle miles traveled. And, for purposes of determining whether “drunk driving … is a systemic problem,” and whether it stems from some special cultural factors, total alcohol deaths matter very little. There’s no sense, for instance, in showing California as one of the four reddest states (as the Vocativ map does), when its rate is below the national average, or in [...]

Continue Reading 0

Twitter and Facebook

Embarrassing as it is for me to admit, I’ve been pretty absent-minded about maintaining our “social media presence,” such as it is. We’re delighted that we have almost 10,000 Twitter followers — with the Twitter feeds automatically coming from our RSS feed — but I can’t figure out how to sign on to manage one of our accounts (with 1,145 followers), @Volokhcom. I also can’t figure out how to sign on to manage the Facebook page called The Volokh Conspiracy, which was set up but hasn’t updated since Nov. 2012 (presumably because it’s going off an obsolete RSS feed).

It’s possible that I set these up with some odd e-mail accounts, though I’ve tried the ones I remember using. It’s also possible that the sites were set up by a thoughtful reader. Again, I’m embarrassed that I’ve been so scatter-brained about this, but there it is.

So let me ask:

(1) Have any of you configured either Twitter @Volokhcom or Facebook The Volokh Conspiracy? If so, please e-mail me at volokh at

(2) Do you have suggestions on how I can figure out (perhaps by reaching the right people at Twitter or Facebook) who the page owner is — and it might be me, using some odd e-mail address that I’ve now forgotten about? I know that there are ways of complaining that an account is wrongfully using my name or trademark, but I don’t want to go that far at this point.

Many thanks! [...]

Continue Reading 0

Islamic Law and Saudi Law in American Courts

From Standard Chartered Bank v. Ahmad Hamad AL Gosaibi and Bros. Co., 2014 WL 96219 (N.Y. trial ct. Jan. 10, 2014):

Defendants assert that they have standing to move to quash the instant subpoenas on the ground that the subpoenas seek all contracts between Pepsi and the defendants, documents which, they claim, include confidential proprietary information about defendants’ bottling operations. In support of their claim defendants submit the affidavit of Eric L. Lewis, Global Legal Coordinator for defendant-judgment debtor Ahmad Hamad A1 Gosaibi & Brothers Company (“AHAB”)….

Defendants contend that compliance with the subpoenas would expose Pepsi to civil and criminal penalties under the laws of Saudi Arabia. In support they offer the unsworn affidavit of AHAB’s Saudi Arabian lawyer, Dr. Eyad Reda, who claims that absent consent of the account holder or royal or agency order, Article 19 of the Saudi Banking Control Law and Shari’ah principles of privacy prohibit disclosure of banking information to any third parties.

In opposition, plaintiff’s expert, Muddassir H. Siddiqui, alleges that Article 19 prohibits such disclosure only by parties who come into possession of banking information during the performance of their duties under the Saudi Banking Control Law. He notes that since Pepsi does not operate as a bank under Saudi Law and is not an agent of the Saudi Arabian Money Authority, Article 19 imposes no restrictions on. Pepsi. Moreover, he contends, Saudi law and Shari’ah law obligate a Saudi debtor to fully disclose its assets to its creditors. Thus, Pepsi’s disclosure pursuant to the subpoenas is consonant with Saudi law.

The Court accepts the opinion of plaintiff’s expert. He supports it with specific citations and a copy of the Banking Control Law. Defendants’ expert fails to specify what “parties” are subject to the requirements of the Saudi Banking Control Law

Continue Reading 0

Using Foreign Law in Interpreting the U.S. Constitution

Those interested in this subject might want to check out today’s Supreme Court decision in Daimler AG v. Bauman. The question is whether California courts could have jurisdiction over Daimler AG, a German company whose subsidiaries do business in California, for actions allegedly committed by another Daimler AG subsidiary in Argentina:

The complaint alleged that during Argentina’s 1976-1983 “Dirty War,” Daimler’s Argentinian subsidiary, Mercedes-Benz Argentina (MB Argentina) collaborated with state security forces to kidnap, detain, torture, and kill certain MB Argentina workers, among them, plaintiffs or persons closely related to plaintiffs.

Since the Due Process Clause bars state courts from exercising jurisdiction if there is not a sufficient connection between the state and the conduct or the defendant, the question is constitutional in stature. And, after a long discussion focused on American law, Justice Ginsburg’s near-unanimous majority opinion (for all the Justices except Justice Sotomayor) added this:

The Ninth Circuit, moreover, paid little heed to the risks to international comity its expansive view of general jurisdiction posed. Other nations do not share the uninhibited approach to personal jurisdiction advanced by the Court of Appeals in this case. In the European Union, for example, a corporation may generally be sued in the nation in which it is “domiciled,” a term defined to refer only to the location of the corporation’s “statutory seat,” “central administration,” or “principal place of business.” The Solicitor General informs us, in this regard, that “foreign governments’ objections to some domestic courts’ expansive views of general jurisdiction have in the past impeded negotiations of international agreements on the reciprocal recognition and enforcement of judgments.” Considerations of international rapport thus reinforce our determination that subjecting Daimler to the general jurisdiction of courts in California would not accord with the “fair play and substantial justice” due process demands.

Is [...]

Continue Reading 0