Author Archive | Eugene Volokh

Right to Physician-Assisted Suicide for “Mentally-Competent, Terminally-Ill Individual[s]”

A New Mexico trial court in today’s Morris v. Brandenberg (N.M. Dist. Ct. Jan. 13, 2014) holds that the New Mexico Constitution protects such an unenumerated right, though the U.S. Constitution does not. Not clear what the New Mexico appellate courts will do with this, though. [...]

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Mauritanian Convicted of Apostasy

AllAfrica and The Malay Mail Online, as well as other outlets, so report. From AllAfrica:

A young Muslim man in Mauritania is facing a possible death sentence after being convicted of apostasy and jailed for having written an article criticising the prophet Mohammed, a judicial source said … He … “was convicted of lack of respect for the prophet,” and jailed, the source told AFP.

The author of the article will be brought before a judge and given the chance to repent but if he refuses, “he risks the death penalty,” the source added.

The author apparently “questioned the decisions taken by Islam’s prophet and his companions during the holy wars,” as well accusing Mauritanian society “of perpetuating ‘a sinful social order'” and and “marginali[zing] and discriminat[ing] against [many Mauritanians] from birth.” [...]

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Nigeria Outlaws Membership in Gay Rights Groups

Reuters reports; the law apparently provides that,

Any person who registers, operates or participates in gay clubs, societies and organizations or directly or indirectly makes public show of same-sex amorous relationship in Nigeria commits an offence and shall each be liable on conviction to a term of 10 years in prison.

The law also “contains penalties of up to 14 years in prison and bans gay marriage,” though “[u]nder existing Nigerian federal law, sodomy is [already] punishable by jail.” For a similar recent incident, see the report on this Uganda bill, which was passed by parliament and is now before the president for signature. Appalling.

Thanks to Robert Dittmer for the pointer. [...]

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See a Crime and Videorecord It? Go to Prison

That’s what this proposed South Carolina bill (S.B. 878) (sponsored by Sen. Sheheen — who is running for governor — and now before the Senate Committee on the Judiciary) would provide:

(A) It is [a felony punishable by up to five years in prison] for a person to produce or create, or conspire to produce or create, a video or audio recording, digital electronic file, or other visual depiction or representation of a violent crime, as defined in Section 16-1-60, during its commission … [except for]

(1) viewing, photographing, videotaping, or filming by personnel of the Department of Corrections or of a county, municipal, or local jail or detention center or correctional facility for security purposes or during investigation of alleged misconduct by a person in the custody of the Department of Corrections or a county, municipal, or local jail or detention center or correctional facility;

(2) security surveillance in bona fide business establishments;

(3) accidental or incidental recordings;

(4) any official law enforcement activities;

(5) private detectives and investigators conducting surveillance in the ordinary course of business; or

(6) any bona fide news gathering activities.

So you see a robbery occurring, or the police illegally beating a citizen, and you videorecord it — you’ve now committed a felony, unless you can persuade a court it’s a “bona fide news gathering activit[y].” (The recording isn’t “accidental or incidental,” since you’re making it deliberately.) Or say your friend is being attacked, and you record the video to give to the police or to use in a civil suit; perhaps you even expected an attack, for instance if you’re going to a potentially violent demonstration or going past a place where thugs have routinely attacked people of some race, religion, or sexual orientation. That too is a felony.

And while one could [...]

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Tim Sandefur Guest-Blogging

I’m delighted to report that Tim Sandefur will be guest-blogging this coming week about his new book, The Conscience of The Constitution, which has just been published by the Cato Institute. Tim is a principal attorney at the Pacific Legal Foundation, a national libertarian public interest legal group that defends economic liberty and private property rights, and is also the author of Cornerstone of Liberty: Property Rights in 21st Century America (2006) and The Right to Earn A Living: Economic Freedom And The Law (2010).

In Conscience, Sandefur argues that the classical liberal principles of the Declaration of Independence should guide interpretations of the Constitution: that the central value the Constitution was meant to foster and protect is individual liberty and not — as many of today’s lawyers, judges, and law professors believe — democracy. As a result, Sandefur defends the controversial theory of “substantive due process” and argues against both conservatives and liberals who believe in “judicial restraint” or “judicial modesty.” This isn’t quite my own view of the matter, but I expect the posts to be very interesting and thought-provoking. [...]

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Right to Carry Guns on Federal Recreation Areas, and Right to Possess in Tents on Those Areas

Today’s Morris v. U.S. Army Corps of Engineers (D. Idaho Jan. 10, 2014) strikes down an Army Corps of Engineers regulation barring possession of loaded guns in recreation areas surrounding Corps dams. The court holds that tents are akin to homes, where Second Amendment rights are protected. The court also holds that the Second Amendment protects the right to carry guns as well as to possess them at homes, so that the regulation is unconstitutional even as to carrying outside tents. And the court rejects the argument that the government may restrict such gun possession and carrying on the grounds that the government owns the property, and has no obligation to open the property to the public in the first place.

It’s not clear how the opinion will fare on appeal, but the case should be interesting to watch. Thanks to Charles Nichols for the pointer. [...]

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Ford “Know[s] Everyone Who Breaks the Law” Using Cars They Made — Why Aren’t They Doing Something About It?

Business Insider reports that Ford executive Jim Farley stated, in a panel discussion:

We know everyone who breaks the law, we know when you’re doing it. We have GPS in your car, so we know what you’re doing. By the way, we don’t supply that data to anyone.

He later retracted that, saying Ford doesn’t routinely collect GPS data about its drivers, but that he was just “imagin[ing] a day when the data might be used anonymously and in aggregate to help other marketers with traffic related problems.” I’m happy to accept that clarification.

Yet the point remains that Ford could technically gather this information, and could use it to prevent injuries. For instance, if GPS data shows that someone is speeding — or the car’s internal data shows that the driver is speeding, or driving in a way suggestive of drunk driving or extreme sleepiness, and the data can then be communicated to some central location — then Ford could notify the police, so the dangerous driver can be stopped. And the possibility of such reports could deter the dangerous driving in the first place.

Ford, then, is putting extremely dangerous devices on the road. It’s clearly foreseeable that those devices will be misused (since they often are misused). Car accidents cause tens of thousands of deaths and many more injuries each year. And Ford has a means of making those dangerous devices that it distributes less dangerous; yet it’s not using them.

Sounds like a lawsuit, no? Manufacturer liability for designs that unreasonably facilitate foreseeable misuse is well-established. And the fact that the misuse may stem from negligence (or even intentional wrongdoing) on the user’s part doesn’t necessarily block liability, so long as the user misconduct is foreseeable. [UPDATE: I should note that I’m not wild about these [...]

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“A Little Bit of Laches Goes a Long Way”

My colleague Sam Bray is a remedies scholar, which makes him a rarity these days — and he is a remedies scholar who thinks the distinctions between legal remedies and equitable remedies are important and should in large measure be maintained, which makes him doubly rare. He now has a very interesting new paper on the forthcoming Petrella v. MGM case, and I thought I’d pass it along. Here’s the Introduction (paragraph break added):

The famous Martin Scorsese movie Raging Bull, and ancient doctrines of equity, will make a joint appearance later this month at the U.S. Supreme Court. On January 21st, 2014, the Court will be hearing arguments in Petrella v. Metro-Goldwyn-Mayer, Inc. The case involves copyright infringement claims about the movie, and about the extent to which those claims are barred by the doctrine of laches.

Laches is a defense that was developed by courts of equity, and it is typically raised in cases where a plaintiff has delayed her suit without good reason. Petrella raises two big questions about how laches fits into contemporary American law. One is whether it applies to all remedies or only to equitable remedies. The other is how it is affected by a federal statute of limitations. Is laches displaced, on the theory that Congress has spoken by enacting the statute of limitations, and that it would violate separation of powers for a court to substitute its own equitable doctrines? Or does laches remain and coexist with the statute of limitations, on the theory that Congress legislates against the background of traditional equitable principles?

The parties in Petrella offer diametrically opposite answers to these questions. The petitioner, who lost below because the lower courts invoked laches, has argued that laches is entirely precluded because Congress enacted a statute of limitations.

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Because Oral Sex Is Just So Much Worse for Teenagers Than Genital Sex

Delegate Thomas Garrett has proposed a bill that would make it a felony in Virginia for anyone to have oral or anal sex with a minor. But genital sex? Well, Virginia law would, even if this bill is enacted, provide that genital sex between an adult and a 15-to-17-year-old is a misdemeanor, and sex among 15-to-17-year-olds is perfectly legal. So if two 17-year-olds are choosing whether to have oral sex or genital sex, the law would push them towards the form of sex that is more likely to transmit disease, and more likely to cause unwanted pregnancy. Genius.

The proposal would also apply to prostitution, making oral sex with a prostitute a felony for both sides, while genital sex is a misdemeanor; that too seems hard to justify. Virginia law used to prohibit nongenital sex generally, and this proposal is a response to a MacDonald v. Moose (4th Cir. 2013), which applied Lawrence v. Texas to strike down the ban on the grounds that the ban covered private noncommercial adult sexual conduct. Delegate Garrett is trying to revive that old law in those areas — prostitution, sex involving minors, and sex in public places — where Lawrence might not apply. But even though this revival might be constitutional, that doesn’t make it smart.

And, yes, I realize that some people, presumably including Delegate Garrett, view nongenital sex as immoral — but even those people, I assume, are uninclined to outlaw things (unkindness, dishonesty, not honoring your father and mother, coveting your neighbor’s wife or property, and the like) just because they are immoral. Indeed, even people who view premarital sex generally as immoral tend not to be inclined to pass new laws banning all fornication. What is there about nongenital sex that makes it more properly subject to outlawing, [...]

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“We All Declare for Liberty; but in Using the Same Word We Do Not All Mean the Same Thing”

Apropos the “imposing beliefs on others” post — and in particular debates related to abortion — I thought I’d post this excerpt from a Lincoln speech (his Address at a Sanitary Fair, Baltimore, Apr. 18, 1864). I’ve long found this to be a thoughtprovoking piece, and a useful reminder that “liberty” in the abstract is not self-defining; most rhetoric that simply refers to “liberty” — whether in the context of slavery, where Lincoln said this, abortion rights, national sovereignty, and so on — rests on assertion about the proper definition of people’s or institutions’ rights, and it’s that definition that should often be at the heart of the debate.

The world has never had a good definition of liberty, and the American people, just now, are much in need of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatible things, called by the same name — liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names — liberty and tyranny.

The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the

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Your Side Tries to Impose Its Beliefs — My Side Seeks Justice

In many ways, the U.S. News & World Report op-ed condemning Catholics verges on self-parody. The beginning is pretty telling:

Supreme Court Justice Sonia Sotomayor just dropped the ball on American women and girls.

Et tu, Justice Sonia Sotomayor? Really, we can’t trust you on women’s health and human rights? The lady from the Bronx just dropped the ball on American women and girls as surely as she did the sparkling ball at midnight on New Year’s Eve in Times Square. Or maybe she’s just a good Catholic girl.

The Supreme Court is now best understood as the Extreme Court. One big reason why is that six out of nine Justices are Catholic. Let’s be forthright about that. (The other three are Jewish.) Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence. What a surprise, but that is no small thing.

In a stay order applying to an appeal by a Colorado nunnery, the Little Sisters of the Poor, Justice Sotomayor undermined the new Affordable Care Act’s sensible policy on contraception. She blocked the most simple of rules – lenient rules – that required the Little Sisters to affirm their religious beliefs against making contraception available to its members. They objected to filling out a one-page form. What could be easier than nuns claiming they don’t believe in contraception? …

But right now, the climate is so cold when it comes to defending our settled legal ground that Sotomayor’s stay is tantamount to selling out the sisterhood. And sisterhood is not as powerful as it used to be, ladies.

You’ve got it all here — “selling out the sisterhood” as being the key question. The claim that Sotomayor “put her religion ahead of her jurisprudence,” without any serious discussion of the actual “jurisprudence,” [...]

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Proposed Virginia Criminal Ban on “Bullying”

Just introduced today by Delegate Mark Keam:

If any person, with the intent to coerce, intimidate, or harass any person, … uses a computer, including an electronic communication device, or computer network to … engage in bullying, as defined in § 22.1-276.01, he is guilty of a Class 1 misdemeanor.

[§ 22.1-276.01:] “Bullying” means any aggressive and unwanted behavior that is intended to harm, intimidate, or humiliate the victim; involves a real or perceived power imbalance between the aggressor or aggressors and victim; and is repeated over time or causes severe emotional trauma. “Bullying” includes cyber bullying. “Bullying” does not include ordinary teasing, horseplay, argument, or peer conflict.

So if a high school student posts several Facebook items on her own page harshly castigating her ex-boyfriend for cheating on her, and this is seen as “intended to … harass” and “humiliate” the ex-boyfriend (not implausible) and “involv[ing] a real or perceived power imbalance” — whatever that means — that would be a crime. Likewise if some students post Facebook items harshly castigating a classmate for committing a crime or some other misdeed, unless of course this qualifies as “ordinary … peer conflict.”

But wait: While the definition of “bullying” in the statute is drawn from a statute that is targeted at schoolchildren, nothing in the definition itself is limited to such children. And the statute that Del. Keam’s proposal would modify applies to everyone, not just adults. So it may well be that the proposal, if enacted, would also apply to speech about adults. If someone harshly criticizes — on a blog, or on one’s facebook page, or in a newspaper article posted online — a businessperson, a low-level government official, an academic, or anyone else in a way that is seen as “inten[ded] to … harass” and “humiliate,” [...]

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“No Firearm May Be Sold, Acquired or Otherwise Transferred Within [Chicago], Except Through Inheritance”

That’s what Chicago Municipal Code § 8-20-100 provides (with some exceptions for sales to police officers, and loans at shooting ranges). Today’s Illinois Ass’n of Firearms Retailers v. City of Chicago (N.D. Ill. Jan. 6, 2014) holds that this violates the Second Amendment (some paragraph breaks added):

[The Second Amendment] right must also include the right to acquire a firearm …. Chicago’s ordinance … outright ban[s] legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms, and at the same time the evidence does not support that the complete ban sufficiently furthers the purposes that the ordinance tries to serve….

The City argues … that these ordinances do not ban acquisition, but merely regulate where acquisition may occur. It is true that some living on the outskirts of the City might very well currently live closer to gun stores now than they would absent these ordinances. But Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) [which struck down a ban on gun ranges in Chicago -EV], makes clear that this type of argument “assumes that the harm to a constitutional right is measured by the extent to which it can be exercised in another jurisdiction. That’s a profoundly mistaken assumption.” It was no answer there that plenty of gun ranges were located in the neighboring suburbs, or even right on the border of Chicago and the suburbs. Instead, the Seventh Circuit drew on First Amendment jurisprudence to reason that Second Amendment rights must be guaranteed within a specified geographic unit — be it a city or a State.

Indeed, this reasoning makes sense, because if all cities and municipalities can prohibit gun sales and transfers within their own borders, then all gun sales and transfers may be banned across a wide

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How Mature

The Modern Language Association (not a group with which I normally sympathize much) apparently denied the Daily Caller press credentials for this year’s MLA conference. The response of Eric Owens, “Education Editor” of the Daily Caller? Calling the MLA “douchebags” six times, plus once in the headline of the column, a headline that right now appears on the Daily Caller front page. (I assume that, at the Daily Caller, like at many online sites but not like at most newspapers, a columnist — and especially an “editor” — gets to choose the post title.) Oh, and there are six “fascist”s in there, too; that at least is not a vulgarity, but it shows a certain lack of creativity, no?

I assume that the MLA, like other academic groups, holds conventions that are generally open to members only, not to the public at large. If you’re a nonmember, but want to cover the convention, you would need the convention organizers’ permission. And while it would seem rather closed-minded for a scholarly organization to let politically friendly media outlets cover it and refuse admission to outlets on the other side of the political aisle, I find it hard to fault such a group for refusing admission to people whose idea of journalism is calling people “douchebags.”

Now maybe the real reason that the MLA denied the Daily Caller access is actually just politics. But Owens’ column undermines any such claim, rather than establishing it. [...]

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