22nd Annual Constitution Day

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[Music] [Music] thank you [Music] [Music] [Music] thank you [Music] one two minutes yeah I could do that [Music] one two three all good okay no problem testing I can't remember I can't remember I know that two three four Socrates you either killed or you were enslaved [Music] so he said he did right I just want to make sure that you guys yeah yeah one two yeah a lot of philosophers dead original drooling or inebriated and decreasing inebriated as people tend to spit when they have to project oh I'm always inebriated just kidding what is uh-huh yeah it's ironic by the way Escambia County Bryant ever had a public picture shown over an older mom is the possibility of having a child that is for various Sunday reasons uh not born completely attacked right yeah it becomes you know oh absolutely yeah no you can't do this you can't do that come on enough yeah yeah [Music] foreign [Music] foreign [Music] thank you [Music] thank you [Music] [Music] [Music] foreign [Music] [Music] [Music] [Music] [Music] [Music] [Music] foreign [Music] thank you [Music] [Music] [Music] thank you [Music] [Music] [Music] [Music] thank you [Applause] [Music] [Music] foreign foreign [Music] foreign [Music] foreign foreign [Music] foreign foreign [Music] foreign foreign [Music] [Music] [Music] [Music] [Music] foreign [Music] foreign [Music] [Music] foreign [Music] [Music] [Music] thank you [Music] foreign foreign all right we'll keep this well-oiled machine going thank you everybody for being back in your seats at one on the dot uh as a reminder to our online audience you can submit questions and join the conversation uh by going to our event webpage Facebook YouTube or Twitter and you can submit questions on Twitter using the hashtag Cato scotus c-a-t-o-s-c-o-t-u-s uh once again I'm Tommy Berry a research fellow in our Robert a Levy Center for constitutional studies and editor-in-chief of the Cato Supreme Court review on this panel you'll hear about cases broadly related to speech and expression speech that is social political artistic or sometimes just none of the above these cases concern the sometimes difficult trade-offs we must make in a society where we all want to speak but we don't always have welcome listeners where we all want to speak only what we believe but where many of us also sell speech products in the Open Marketplace where we all may adapt and remix speech that came before us but we also want credit for the art that we create the cases you'll hear about all in some way involve a balance between unrestricted speech and unrestricted silence against other societal values when do when does unwanted speech like hundreds of unreciprocated Facebook messages from a stranger across the line into criminal threats whose perspective matters when we determine whether speech is a true threat the speakers are the listeners and those intent on a speaker's part matter or is Justified fear in a listener enough or turning to another case how do we mediate the freedom of conscience not to speak with an economy in which many May demand we provide them with speech services should the government mandate access to businesses that sell speech or could a narrower conception of public accommodation help solve this conflict or shifting to intellectual property when must we ask permission to create art adapted from the art of another how do we encourage creativity while also incentivizing the creation of original works and ensuring they're fairly compensated these and more questions are raised and perhaps at least partially answered by the cases and articles you'll hear about next I'll introduce our three fantastic panelists one at a time to briefly discuss the cases they wrote on for this edition of the review just enough to set the stage for you all in the audience as we shift into a discussion and a q a and I'll keep their bios very short here because you all have their full bios at the back of the review itself first up will be Professor clay Calvert who is the breckner eminent scholar Emeritus and former director of the Marion B breckner first amendment project at the University of Florida and he will be speaking on counterman versus Colorado clay in the annual uh Constitution Day Symposium I'm going to spend a little bit of time this morning or this afternoon talking about the Supreme Court's decision this June in the criminal law case of counterman versus Colorado it pivots on the prosecution of Billy Raymond counterman for online stalking causing serious emotional distress specifically counterman over the course of several years sent hundreds of unsolicited Facebook messages to a Colorado singer-songwriter named Coles Whalen with whom he had no prior relationship or any other kind of relationship in short counterman was a total stranger who sent Wayland terrifying messages such as this is the fun part that I get off permanently staying in cyber life is going to kill you and die don't need you counterman also sent Waylon messages suggesting he was watching her and knew her movements so Wayland went ahead and blocked counterman several times on Facebook but he kept coming back and just created new accounts so he kept following her and this ultimately caused Wayland to cancel several live performances and to turn down other future singing opportunities a Colorado jury then convicted counterman of online stalking causing serious emotional distress but counterman claimed his messages were protected by the first amendment's guarantee of free speech because as he argued they did not rise to the level of unprotected true threats of violence in brief counterman claimed his stalking conviction could not stand because his words did not fall into one of the very few categories of expression that the United States Supreme Court has held are not protected by the First Amendment and again namely true threats of violence and that's where the Supreme Court comes into the picture here it had to resolve a key question about when exactly a statement amounts to a true threat of violence falling outside the scope of first amendment protection now compared to other unprotected categories of speech that you might think about it such as fighting words incitement or obscenity the true threats Doctrine is relatively new it's a newer carve out from constitutional protection at least as the Supreme Court has recognized it it began in 1969 in a case called watts versus the United States the court there overturned Robert Watts's conviction for threatening president Lyndon Baines Johnson during 1966 anti-war rally near the Washington Monument so complaining about being drafted 18 year old Watts told the crowd if they ever make me carry a rifle the first man I want to get in my sights is LBJ watts and the crowd around him then laughed the court deemed as protected as quote political hyperbole unquote but it stressed that the First Amendment does not Safeguard true threats which unfortunately it failed to Define in 1969. in 2003 then the court offers a partial definition it observed the true threats include and I quote here statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals but I stress that means to what does that really mean is kind of unclear it was unclear lower courts disagreed about what this really meant uh was it did it actually require speakers to intend to threaten someone or simply that they intended to communicate a message that came to be understood as threatening by the person to whom it was received and that's the issue that the court tackled in the counterman case counterman versus Colorado does a speaker's mental awareness a speaker's men's Raya in legal parlance about a statement's threatening nature make any difference in deciding whether it constitutes an unprotected threat or does it matter only that an objectively reasonable person in the position of the target would find the message threatening and it's important question because sometimes an intended message may get lost in translation a joke might be misunderstood as a threat a threat may never have been intended on the internet where in-person context is stripped away and hyperbole as we know is the communicative Norm this may be especially so furthermore a risk-averse speaker who fears being convicted for a misunderstood message May engage in what we call self-censorship stifling his own expression of statements that actually would have been protected by the First Amendment in other words a fear of liability might produce what we like to call a chilling effect on speech additionally and this is the question who constitutes the hypothetical reasonable person today and are sometimes sensitive times when it comes to sorting out what's a threat so supposedly objective reasonable person standard can actually turn out to be pretty subjective when left in the hands of jurors so in short taking into account something about a speaker's subjective State of Mind regarding the allegedly threatening nature of the statement sometimes may Safeguard speech and prevent a person from being convicted who is really not morally culpable yet on the other hand the true threats Doctrine is intended to protect people from certain harms the Supreme Court had earlier stated before the counterman case that it's designed to protect individuals from fear of violence from the disruption that fear engenders and from the possibility that threatened violence will in fact occur so the the jury in Billy Raymond counterman's case in Colorado was not asked to consider anything at all about his State of Mind what he knew what he believed or what he intended by his statements what he thought did not matter all that counted was whether a reasonable person in Cole's whalen's position would have found him threatening so in deciding what if anything courts should consider about a defendant to speak of State of Mind regarding their awareness or lack thereof the threatening nature of of what they're communicating the Supreme Court could and dare I say it here try to strike a balance between interests specifically it could try to balance the First Amendment interest in protecting speech on the one hand with the interest in protecting victims from the terrifying life disrupting harms they may suffer on the other from threats and here's what the Supreme Court concluded a five Justice majority in an opinion penned by Justice Elena Kagan a Barack Obama appointee an opinion joined by justices from across the perceived ideological and political Spectrum namely Chief Justice John Roberts and Justice Samuel Alito to George W bush appointees and Brett Kavanaugh a Donald Trump appointee and katange brown Jackson a Joe Biden appointing concluded the defendant speaker State of Mind is relevant and must be considered in deciding whether a true threat Falls outside the scope of first amendment protection and more specifically the five Justice block held that the government must prove that a defendant speaker and this is the rule or the test that the court created quote consciously disregarded a substantial risk that his Communications would be viewed as threatening violence so really three parts consciously disregard substantial risk that will be interpreted as threatening violence so this amounts to a men's rare requirement that we call recklessness Justice Kagan elaborated for the majority that Reckless defendants have done more than make a mere mistake they have consciously accepted a substantial risk of inflicting serious harm but because the Colorado jury was not asked to consider this the court cost tossed out counterman's conviction and sent the case back to Colorado where he could be retried in according with that recklessness standard so now two justices Sonia sotomayori and Neil Gorsuch again we're seeing a lot of interesting matchups right between the justices believe that the government should have to prove a higher level of men's Raya than recklessness in a typical true threats case typically they believe that the government must prove an actual intent or Purpose By defendant speaker to put a person in fear of imminent violence in other words it's not enough that a defendant speaker was merely aware of a substantial risk of harm and consciously disregarded it in their view instead the government must prove that a speaker actually intended to make the target feel threatened so it should be noted by the way that somewhere in between the highest level of men's Raya called for by Justice Sotomayor namely acting with an intent or purpose and the lower level of recklessness that the Kagan majority adopted there's another level of men's Raya called knowledge in other words a defendant speaker might not have actually intended to put a person in fear but instead knew the target would be fearful and then finally justices Clarence Thomas and Amy Coney Barrett both issued dissenting opinions they believe that defendant's subjective state of mind about a threatening meaning whether it's intent purpose knowledge or recklessness is simply irrelevant all that the government must prove is that a reasonable person would have been fearful in short this is the least Free Speech friendly possibility and thus they would have upheld counterman's conviction so that provides a brief overview of the counterman case with the bottom line being that the court adopted this recklessness standard or mental state that the government must in other words demonstrate that a defendant consciously disregarded a substantial risk that his Communications would be viewed as threatening violence just to go back to those justices in case you were keeping track in the majority uh that was five justices nominated by four presidents from two different parties so free speech cases thus sometimes can unite justices despite their perceived political ideologies uh although as we're going to hear that was certainly not the case with a 303 creative case all right fantastic uh next up is Professor Christopher green who's professor of Law and Jamie L whiton chair in law and government at the University of Mississippi and he will be speaking on 303 creative versus Elena's well that was a beautiful segue uh unfortunately interrupted if I talked about about me but uh 303 was one of the big six three cases right at the end uh kind of conservatives versus uh versus liberals uh it got a lot of press uh I think uh but most people are are pretty familiar with it but briefly uh this is uh Colorado they were at the court five years ago in the masterpiece cake shop case uh Master reach Cake Shop was a free exercise case um of course not a free exercise clause both of these are 14th Amendment cases but I'll whine about that in a minute so Masterpiece uh they said well if you're uh going after this this poor uh uh poor Jack Phillips uh because of hostility to his religion that violates the free exercise uh Clause as Incorporated by the 14th Amendment um uh but the 303 case so 303 case uh Masterpiece about cakes this is about websites so I mean when I I got married 25 years ago and the internet was just barely a thing if you've young people I see some young people in the audience so uh uh if you if you go to a wedding uh frequently you'll have these these websites that and get put together a lot of times the the the uh the the URL or the the name on the on the website it'll be some weird portmanteau of the two surnames so uh you know my my name's green you know so if you've got something you know that could be green so my grandmother she was her maiden name was foot so then you say well you know I you know her one foot turned green okay so anyway you have these websites with you know some kind of you know jokey uh jokey portmanteau on the on the name anyway people just have a website for a wedding these days so uh so who is this uh this uh this Laurie Smith lady so she has not been doing wedding stuff she's been doing website stuff but there's a bunch of money in those in those wedding websites uh she had this idea let's let's get into wedding unlike Jack Phillips she uh knew that Colorado was going to want to come after her if she only did this service for opposite sex weddings and not same-sex weddings so um so whenever I told my kids about it they say well who who were the people that wanted a website that she said no to there actually weren't any people because she filed a declaratory judgment action knowing that Colorado would come after her which obviously they would uh uh so a lot of the press coverage when the case first came out uh gave the impression that this was a case about ripeness which it was not um but uh you know she obviously had a very real controversy with the state of Colorado uh but there was no particular couple that that came uh came to her saying we want to uh I want a website so Lori Smith she petitions for so she loses in the uh uh she actually files a federal lawsuit she loses in the 10th circuit on this kind of wild ground that there's a compelling interest in getting any particular person's services so because Lori Smith has a monopoly on Lori smithness uh so the second 10th circuit had this kind of wild theory that didn't get much play at the Supreme Court when they granted cert they say well you know maybe they'll affirm but like it's not going to be on the 10th circuit ground that is just kind of a wacky ground uh and that's that was that was that was right um but um she partitioned for cert saying this this is compelling me this would compel me to speak uh it violates my free exercise rides under Employment Division versus Smith and also what the heck let's overrule Employment Division versus Smith okay and the court says well we're not going to Grant cert on overruling Smith we're not going to Grant cert on free exercise and we're even gonna rewrite your free speech question to make clear this is that your religious duties have nothing to do with it anyway just about compelled speech so uh she wins because the court says this is analogous to uh Hurley on compelled speech about uh that's the the the short version of argument this is a lot like a parade and you're compelling here to to uh to speak I had uh a much uh much bigger game theory that I floated in an amicus brief and there was another Amicus brief there were a couple of Mikus briefs with with uh the theory that I was floating and uh big Amigas brief uh hitting back uh back at it uh so the uh and this this Theory hitting back at my amica's brief uh by uh Joseph singer at Harvard Law School and some uh uh some friends of his this was adopted a whole hog in pretty extensive lengthy form by Justice sotomayor's dissent as you read the opinion spending like three four pages you know really going like singer is right and all these cases that singer sites say uh uh so what is this what is the theory my theory is we should reinvigorate the affected with a public interest Doctrine from mun versus Illinois as applied to these same-sex uh wedding cases the idea should be if you can get the service somewhere else with no additional hassle at all if you have access to the relevant Goods there's no reason to force a particular person to supply it to you other than the desire to have that person's view suppressed okay and that's because that's not a legitimate interest unless you have scarcity you don't have a genuine reason for a public accommodation law okay singer and his his uh colleagues say that's not the right history of public accommodations law they say public accommodations law is about two independent things and specifically they say if a business offers to serve the public if any business at all offers to serve the public it's subject to a duty to serve all of the members of the public equally okay so it's not limited to Common carriers not limited to any particular kind of business this is directly contrary to something the Supreme Court said in 1923 Charles wolf packing says one does not devote one's property or business to the public use or clothe it with a public interest merely because one makes commodities for and sells to the public okay why wouldn't the court want to cite this wonderful case from 1923 of course it's it's lochner phobia you don't have to go full lochner to get there so what I want to do and what a lot of Scholars of the history of the 14th Amendment want to do want to have a tradition and equal citizenship approach to economic and entrepreneurial Liberty as well as other things under the the 14th Amendment so I don't you know first amendment what's the first word of the First Amendment Congress okay you're not going to be able to go back to 1791 and figure out what kind of Occupational limits are going to be proper why because the 1791 first amendment was written for a federal government that has no power over occupations how do I know that because they didn't even have the power to prohibit slavery in the states okay look at article one section 9 Clause one makes no sense unless unless that's the case okay so if we reinvigorate the 14th Amendment if we go back to what's what is the tradition of public accommodation what are you going to find you're going to find these two rationales okay you find some cases saying uh you that uh public accommodation Duties are for businesses that serve that offer to serve everybody in the public you will these law s are for the accommodation of people whose circumstances oblige them to trust particular people so that is a paraphrase of a case from 1703 called cogs there's a case from 1701. these are both written by Chief Justice old anyway there's a whole lot of historical details I invite you to to read read the article basically sotomayor's mistake is and singer's mistake they look at a bunch of cases saying it's for everybody who sir it's for businesses that serve everybody they look at these other kids they don't look they don't mention these cases that say it's for the accommodation of people in particularly tight circumstances with scarcity if you basically when I mentioned you know online or Twitter or someplace I say hey there's what about mun what about uh uh Charles wolf what about cogs what about uh these other 19th century cases that talk about scarcity they say well there's more cases that talk about an offer to serve the entire public rather than just counting up cases for different rationales what we should do is look at all of them to see if you can have an integrated rationale so the idea is I'm the 1701 case and 1703 cases are written by the same author okay the way we should think about it is this if you are a railroad or somebody serving a particular uh uh people who in different difficult scarce situations and you make an offer to the entire public hey come on my Railroad and you can go particular places and then you say oh yeah it's going to be an extra three thousand dollars it's gonna be a million dollars if you want to like store your laptop in the safe or something you've got them over a barrel the offer to the public causes the scarcity which requires the public accommodation Duty so that's my story of how you can put put the uh all of the rationales together if you look at Mund versus Illinois certainly if you look at Charles wolf that's the that's the uh the picture you get there's a number of like really particular pieces of evidence that I think Sotomayor uh deals with really poor and and singer there's this there's this line in a 1914 article called business jurisprudence where uh the article says uh uh what does it say um uh nowhere is Monopoly suggested as the distinguishing characteristic um which she reads as saying nowhere in the discussion of public accommodation and the entire history of the 19th century is it is it discussed in context Adler is talking about the early 18th century so the 1700s uh he's not saying that Munn had nothing to do with Monopoly in context it obvious it's obvious he's criticizing the historical Foundation of man so anyway there's a bunch of details if you're interested in that which of course you should be uh and you know virtually all of you are I'm sure uh you can get some dirt under your fingernails with this the thing that's most encouraging about this uh there's just this kind of sentence you know not very committal from the majority Justice Gorsuch and this long descent about that proposition uh makes me think the descent is expecting to see this again uh on this ground so given and I you know I kind of someone snarkily say given the weakness of The Descent you know it seems like this battle is coming in and I think it's winnable so uh we will we will return to this ground I think uh again uh at some point maybe another five years that would be uh a nice round number as they say excellent and finally we have Gregory Dolan who's an associate professor of law at the University of Baltimore senior litigation council at the new civil liberties Alliance and recently served as a resident associate Justice of the Supreme Court of the Republic of Palau he will be speaking on two intellectual property cases Andy Warhol Foundation versus Goldsmith and Jack Daniels properties versus VIP products Greg thanks and thanks for having me it's been 10 years since I was on a panel discussing IB cases so um you know it's nice to be back um it's kind of odd for me to be on this panel because um First Amendment issues in this case were in some sense very secondary both of these cases both the VIP products and Andy Warhol had to do with a construction of the Lanham Act and the VIP case and Copyright Act so two intellectual property statutes but in both cases the first amendment was kind of the under undercurrent because in both cases the accused and frenchers claim to have had a First Amendment right to do what they did not withstanding the strictures of the two acts so let me briefly talk about the cases and see why this was one case I guess out of the three that we're discussing here or two cases out of the I guess four that were discussing here where the First Amendment concerns actually ended up with a short end of the argument correctly in my view so let me begin with a shorter case the kind of the easier case and the one that resulted in unanimity on the Supreme Court and that's Jack Daniels versus VIP products so check Daniels for those of you who are drinkers or at least visitors to bars you know that's a whiskey that's an American produced whiskey there it has a very distinctive bottle particulars of square shape particular font on that bottle all of those things are actually trademarked so the shape of the bottle is trademarked so even if you don't see the label you will write or if your bottle is turned you know 90 degrees or 180 degrees you'll recognize the bottle you'll know that's Jack Daniels it has a particular sort of labels as like number seven right as particular filigree particular fonts so all of those features are instantly recognizable and that is after all the purpose of trademark law right you have trademarks so that the consumers can easily recognize your product right you can be driving down a highway you see you know mile down the road two golden arches you instantly know that it's not I don't know if you need to drive Closer by to see underneath the largest written McDonald's right you know simply by looking at the sign same thing you know you see a car with a you know with a three-pointed Stars you know it's a Mercedes you don't need to come up closer to see that written Mercedes on it um so a company called VIP products they make uh dog toys chew toys and you know they make humorous chew toys and one of the toys they decided to make was shaped as a square bottle with a similar font to uh Jack Daniel's bottle um it's brown so to simulate kind of brown liquor and instead of saying uh Tennessee whiskey old number seven recipe it said uh you know old number two on your Tennessee carpet and um and they called them and they they called this particular bottle not Jack Daniels of course that would be bad but they call it bad spaniels uh you know apparently Jack Dennis didn't see the humor in this uh and so they sued and they sued on two theories they stood on the theory of trademark infringement uh meaning they have used VIP products that of confusing consumers so consumers would think that the you know the chew toy would come from the same uh producers as the Jack Daniels liquor and they sued him on a theory of um essentially disparagement uh there's a word for in copyright um jurisputinous is called tarnishment potential disparagement of the mark um there was a trial and the trial court concluded that um you know that the consumers actually are confused so or there's this High likelihood of confusion um and so the trial court held for the you know they held for the Jack Daniels for the trademark holder but that pellet Court reversed and so the theory of that part was basically you know um yeah you know when I teach I always tell my students say it in a Layman's language tell it to your kind of to your uncle whoever went to law school and so the night the lament language of the uh of the Appellate Court was essentially come on right everybody else this is a joke right you're not inflation trademark everybody's joking around anybody who has like you know two brain cells to rub together knows that that's what's happening and first amendment protects that sort of jokey uh you know humorous uh you know sarcastic entry into the marketplace um and it's so and that's how it got to the Supreme Court in a unanimous opinion by Justice Kagan Supreme Court rejected that theory um essentially with Justice Kagan said that sure there might be instances where you do need to talk about the mark and use the name or use the shape or use the symbol that's protected to comment on the mark right so for example and then so in my article talk about for example the movie Supersize Me Right supersize is a trademark of McDonald's uh and you know the whole movie was about how this guy goes to McDonald's starts eating food and you know shockingly gains weight um and you know in those contexts because you're using the mark not to sell your own Wares using the market say like look McDonald's is terrible food or you know these are great shoes or Mercedes is a good car or whatever right you're using the mark not to sell your own Wares but as a comment on the market of course you cannot make commentary on anything without naming that thing right it's hard to I mean I suppose you can you can comment on say an Apple computer saying like well you know computers the ones that use a system that's not really based on you know but you of course you can't use the word Windows either because that would be a marker you could in a very roundabout way describe Apple Computers but that's going to be horribly inefficient so you just say Apple computers are good bad and different whatever it is um Justice Kagan again in the unanimous opinion says that uh there is there is this kind of narrow set of circumstances where you're not really critiquing the Mark or praising the Mark or anything else but you again you're using the mark in some other way and one thing that for example um comes up is um there's this case that came up a while ago and a number of decades ago um where Ginger Rogers uh who had essentially trademarked her name and her likeness she sued Federica Fellini because he made a movie called ginger and Fred and so Ginger Rogers are like well people might think that it's my movie or at least I authorize this movie and so you're using my trademark to sell your own movie and the second circuit said well but how else are you going to shoot a movie about an Italian couple who lives in this small village and who basically model their life on Ginger and fat and become sort of known of their Village as kind of the local Ginger Rogers and Fred Astaire and so although you're using Ginger rogers's again trademark it's not about her and first men ought to protect your ability to do so and Justice King said well first of all we're not even endorsing that task but that palace called the ninth circuit took the test way too far essentially what Nine Circles said that in every trademark dispute from now on the first step of the inquiry would be is there some potential First Amendment value or concern to allowing people to speak and there's a value about humor and therefore VIP products when a Justice Kagan for the court says that's not how it works it's the opposite first you figure out is there a trademark violation and then maybe you will be able to use a First Amendment defense and it's going to be an exceedingly narrow defense even if it exists and by the way the defense that VIP product advanced their defense again was kind of come on everybody knows this is a joke nobody could possibly be confused right everybody knows this is humorous but if that's true seems very odd that a trial as a matter of factual fact finding the court concluded that consumers actually are confused right if everybody thinks that of course this is a joke of course this is a parody of course this is just making fun of Jack Daniels there'll be no reason why consumers would be confused so this defense I'm not quite sure how it survives if there's actual confusion on the market but that's kind of that's an easy case the much harder case was the Warhol Foundation case and uh I think if you want to really understand Warhol it's worthwhile flipping through the opinion for the photographs I wouldn't recommend reading the opinion because it's terribly written both a majority and The Descent but photographs are very helpful to illustrate kind of what are they debating about and but so let me try you know one of my uh professors at Georgetown once said it is true that a picture is worth a thousand words just it's just that law professors prefer the thousand words you should have put the pictures uh well you know people can look at that opinion so but in any event so let me try to use a thousand words to describe what's happening so back in the day a famous photographer took a photograph of now of the late artist Prince back when he was alive and she licensed that photograph to Vanity Fair for a one-time use so that they could write an article and illustrate it with an article by Prince and Illustrated Vanity Fair paid her money they took the photograph got the license then turned over the photograph to Andy Warhol who then colorized it adjusted it cropped it rotated it so did a whole bunch of things totally wouldn't um permission that he was granted by that license and Vanity Fair printed that article with that photo with that adjusted or modified or transformed photograph and that was that but unbeknownst to connect to anyone Andy Warhol so loved this Photograph that in his Studio he kept playing around with it he had like numerous other soulscreen in different colors he made pencils drawings based on this Photograph etc etc and that kind of again would have Sleeping Dogs would lie but for the fact that one Prince died and everybody kind of rushed to publish more stories about Prince lots of magazines were seeking for illustrations in fact including from the original photographer she had more than one photograph of Prince and from now Andy Warhol Foundation because by that point Andy Warhol was no longer alive as well and so they published one of these Prince version 2.1 right the one that was not initially in Vanity Fair but once that Andy Warhol had um and the photographer instantly recognizes photograph sent a letter to the portal Foundation saying hey guys what are you doing this is my photograph that's my copyright um you at the very least ought to pay me royalties for using it or at least maybe as permission I don't know um and you know because this is America instead of kind of asking permission and the Warhol Foundation just went to court for declaratory judgment saying that you know we're not infringing and even if we are infringing we have a First Amendment slash um statutory right because our work uh for fair use because our work is transformative and that was really the number of the argument between the majority by Justice or mayor and it descent weirdly enough written by Justice Kagan Rogers Kagan just wrote this opinion about a few weeks prior essential rejecting First Amendment argument um but flip sides and in an opinion again was kind of weird alignment is Kagan and uh Roberts in descent a 72 opinion so sort of Mario writes that look the photograph here is kind of is the Baseline sure what Andy Warhol did is not just you know slap some paint onto it and called it a day of course what he did was artistic and of course the dovers those of us who have ever seen a Warhol would instantly recognize that this is indeed work by Andy Warhol but that's not I mean that's nice but that's not all there is to it the question is not merely whether what Warhol did resulted in a different work of art of course it did the question is whether it's the type of difference that the copyright law and a First Amendment recognizes and there's a real tension in copyright law because on one hand copyright law requires or reserves to the initial authors the right to make derivative works but on the other hand of course it allows others to use underlying works for fair use and again there's a real First Amendment right you want to comment on other people's books right in other people's theories and other people's movies etc etc and the two opinions the majority in descent are really venomous they real I mean at one point Justice Kagan says major and I think I quote or very close to the taxes majority should go back to school right I mean that's kind of the tone of their opinions uh but ultimately both majority I think in descent don't really gather the number of the issue uh instead so they talk about various tests and what would the world have looked like if the copyright law of you know current corporate law that's applicable in the United States applied in uh you know Renaissance Florence and whether or not we would have had more or fewer works by great painted painters But ultimately I think both and and that's kind of Justice kagan's point and just sort of yours point is something along the lines of um well you know both photographs and Andy warhol's paintings they serve the same purpose obviously magazines buy them so they're the same right I think both are kind of silly arguments what really I think unites those cases the argument I make in my article is that people tend to forget that copyright patents trademarks Trade Secrets they are property and if you recast these two cases as a property case or as property cases they start making sense because of course you can go protest a whole bunch of property owners you can go stand outside Cato right now and protest whatever you want to protest about Cato I do it unless invited and you can't do it in Cato's Lobby right you can do it outside and you can even you know carry a sign saying Cato is terrible or if you certain clients saying cater is awesome right you can use Cato's name but you can't do it inside here you can do inside the auditorium unless you're invited in and so too with trademarks and copyrights you can talk about how good or bad McDonald's is how good or bad you know Tennessee Whiskey Jack Daniels is but what you cannot do is you cannot use the whiskey itself the trademark itself to sell your own Wares right you can try to free ride on somebody's property just like you cannot come into decadence Lobby because it's cold outside or hot right and so you want to you would rather protest an air-conditioned building than standing outside right so to you cannot take Jack daniels's bottles so that your own Wares will sell better and same thing with Andy Warhol you cannot take somebody else's photograph so as your own Baseline you can absolutely make your own paintings of prints you can absolutely say that's a terrible photograph or it's a great photograph or portrays Prince this way or that way but what you cannot do is take that photograph since you repaint it and then say well and now why don't you buy my product because I have a different take not on prints not on the outside world but on the photograph itself and if you look at it that way that addresses both the majority concerns but also Justice kagan's concerned because she kept saying wow if we had majorities view back in Renaissance Venice and Florence we would never have multiple paintings of you know sleep in Venus and that's just not true because everybody as Justice home said over 100 years ago everyone is free to copy the original I.E the world you're just not free to copy the copy the painting precisely because it's a copy is private property if you think it through that way both cases start making sense and just as sort of Major's opinion could have been about 20 Pages shorter and way way clearer fantastic well thanks to all three of our panelists I'll note that occasionally Cato has invited people in here to basically say Cato is terrible but I have to keep invited Express right yes but we do we do invite them it's our own uh it's our own choice to to take that abuse occasionally I'll remind the people watching online that you can submit questions and join the conversation uh directly on the event webpage on Facebook YouTube or X formerly known as Twitter using the hashtag Cato scotus c-a-t-o-s-c-o-t-u-s but I'll start by asking our panelists if they have any questions or discussions they'd like to start amongst themselves sure I might start if you don't mind about 303 creative as as a First Amendment right not to speak case which is really I think what it boils down to in many ways and and it's potential relevance this coming term if the Supreme Court takes two cases called the net Choice cases coming out of both Florida and Texas these are efforts by state governments to tell social media platforms that they have to host content and speakers again against their will that interfere that interferes with their editorial autonomy and decision making essentially the Florida law says that uh any qualified candidate for state or local office in Florida cannot be de-platformed regardless of how many times they violate the terms of service of a large social media platform with over 100 million users or 100 million in annual revenue those are right not to speak cases essentially why should a social media platform be compelled to host an individual and give a platform to his speech after that individual repeatedly violates their their rules in terms of service same thing in Texas a statute prohibits viewpoint-based discrimination we think of viewpoint-based discrimination we usually think about government but no now we're saying that a social media platform can't enforce its own policy saying you can't say certain things so now you're being compelled to host people's speech when you don't want to host it otherwise so I think 303 creative is going to be interesting is it narrowly limited to a woman being compelled to express views that frankly conflicted with her religious beliefs about same-sex marriage or is it kind of the culmination of I think what we've been seeing recently in a line of cases nifla versus bashara in California saying that anti-abortion crisis pregnancy centers could not be forced to convey California's message saying that if you are poor you have a right to a free or low-cost abortion the Janus case from 2018 saying that if you're not part of a union you can't be compelled to support the views and pay money and contribute there we're seeing this Evolution and so I think 303 creative is going to be very important down the line how does the Supreme Court assuming the court takes the two naturalized cases the one was was called Paxton uh but uh yeah I know he's like the Phoenix right so uh so whether it takes those two cases or not I think it will the solicitor general held her brief saying the court should take those two cases and I think 303 creative to watch out down the line yeah I on the ground that I was I was babbling about about whether Facebook and all these all these things are kind of relevantly like a railroad uh is a super important uh issue uh the fifth circuit uh one of the opinions uh you know really got into this issue is uh Facebook uh his Twitter is uh Google are they businesses affected with a public interest and Justice Thomas in his uh I think concurrence of the denial of certain the Knight versus uh or the Biden versus night free speech Institute uh sounded like he really thought it was you know I guess like a bridge so you know saying oh you know build your own Facebook um uh it's like saying well you can just swim across the the stream but uh you know but Myspace remember Myspace uh uh you know it it probably looked like a railroad back in the day and then you know Facebook came along um a lot of people aren't happy with these people like a whole you get these Exodus Exodus these big Mass Exodus movements from from X uh from time to time I never know what exactly is motivating them but you know people are trying to start a start a new one I think questions like that are uh uh enough in the case that I'm like come on to like talk about man talk about Charles wolf that's what uh that's where we think they should uh that's where I think they should be uh uh fought but uh who knows I guess I would just take it but or maybe take it or slash ask from a slightly different angle um I think at some point Facebook and Google Etc will have to decide who are they or what are they are they hosts or are they content moderators because that has a real implication for liability purposes right for example under Section 230 as long as you say look I just I just host right people post stuff and sure if you send me a copyright infringement notice I'll take it down but my hands are clean here I'm just a passive aggregator fine but if you're passive Aggregate and you gotta behave like a passive aggregator and if you're saying look it's a speech I'm choosing not to hold someone I'm choosing to speak I'm choosing to edit or editorialize choosing to edit it well then now also new potentially not a passive aggregator so I think you'll have to they will have to pick a lane I don't know which one is more than financial advantages to them yeah and then the Court's going to have to pick which issue does it go down to because the section 230 must be on the scope I'm sorry to section 230 preempt some of the underlying issues there in in Cali and excuse me Florida and Texas or do we take the First Amendment part because the platforms would argue that when we adopt our editorial policies we prohibit this speech we allow this speech we don't that they are speaking through those policies and that we are creating a speech Community by establishing what speech we allow so yes uh I think the court will also have to decide if it takes the cases how it's going to frame those questions yeah it interacts in a lot of interesting ways with the Missouri B Biden thing where you've got the federal government putting this implicit pressure uh what are they doing when they kind of put these little notes saying you know you should believe whatever fauci tells you or whatever I don't know notes or taking taking stuff down you know are they are they departing from a neutral uh of approach improperly seems pretty dang likely they're going to take certain on both of those and I would think it would make sense to take certain those in the same term so you can try to make them coherent but you know one might be before and one after the January cutoff no I agree I mean the Court's got its hands filled with the internet-based service providers cases coming up and yeah the Missouri versus Biden is going to be I know you've got a panel later on if it's but that's that's going to be huge assuming they take it as you may know Justice Alito who Lords over the fifth circuit uh on Friday decided to delay uh enforcement of the injunction as Modified by the fifth circuit until basically midnight on Friday and the government has until Wednesday defi excuse me the plaintiffs have until Wednesday to file their briefs in response to the Biden Administration so again that's the job owning case about how much leverage and pressure and persuasion can you put on social media providers before it crosses the line from a private decision by those social media providers you into coerced First Amendment which raises the First Amendment government state action question so I think that's that's enough and I'll shut up and I'll note uh for our audience if anyone's interested Cato actually filed amicus briefs at the circuit level and both of them in that choice cases and one thing we focused on is how the political valence has kind of done a complete 180 on this issue that in the 60s you had uh progressives on the far left essentially saying we need to mandate access to newspapers which at the time seemed the dominant monopolized media that anyone who controls that controls the the conversation and now you have Conservative Republican conservative in their quotes Republican governors of Florida and Texas basically saying uh we have to mandate access to social media companies they're the the dominance so it's an interesting question of is there really is this ideological or is it about perceived you know who is on your enemy and who which media is on your side at any given time we've already gotten a couple questions coming in a couple spicy questions uh online one for um Chris if scarcity is what should trigger public accommodations law would it be okay for a restaurant to refuse service to African Americans as long as they were a nearby restaurant serving similar food to all Races or if not why not um so it seems to me that the the the general principles uh that that govern this are going to apply in in race cases as well so if I mean if you dig into my I mean the the uh the the big original Source uh uh basis that uh that I give in the amicus briefs and David Upham joined the one in in uh Masterpiece um was the distinction that was made in 1872 uh between uh purely private social rights and uh public rights involving common carriers or things like common carriers uh and those were race cases so uh some some socially conservative folks uh really say oh well what we want is a a different set of principles with respect to uh disputes about same-sex marriage than we get about disputes about uh uh uh the morality of of of interracial social interaction or something and I yeah I certainly think there's a big huge moral difference between those those views but in terms of uh do you have to have scarcity uh if you look at the title II discussions from Magnuson uh Senator Magnuson he's if you look at the the uh legislative history of Title II the Civil Rights Act of 1964. he's clearly the brains of the outfit he is very specifically basing title to on mun uh versus Illinois and on chief justice Hales uh stuff in deportivas Maris which is this Treatise that gets uh written in the 17th century published in 1787. uh so I would I would play the same same rule to uh uh to to the race cases restaurants are going to have a physical footprint that's different from a purely online situation so figuring out whether when and whether there's scarcity is going to be a significantly different question than it is in 303 or like an episodic thing that you plan in advance like a bake a bakery for a uh for a wedding so if you're like the one restaurant at that uh stop it's going to be a lot easier to to show I think it should be a lot easier to show local scarcity in a restaurant case but I don't think there should be a difference between uh between the race cases and the sexual orientation cases and a quick follow-up this is my own question they occurred to me is there any distinction between scarcity and necessity so I wonder I mean typically people have a certain categories of things like food shelter Transportation the things you need to do to get from one side of the state to the other should there be or is there any distinction between those and things like websites that some might say seem not to be as as necessary to sustain life or something yeah so you go back to cogs Cog septino 3 talks about the people the necessity of whose circumstances obliges them to trust these sorts of people but they didn't have to go on this trip in the first place you don't have to engage in a commercially related uh field if you look at the Civil Rights Act of 1875 it applies to places of public Amusement so whatever you say about public Amusement it's not absolutely essential I mean I guess maybe you say like I would just go mad if I couldn't watch you know my you know office reruns or something but I think making the distinction on you know just how important a good is it where on Maslow's hierarchy yeah just I don't think that really fits the history based on uh based on the 1875 stuff all right and then uh for clay we have a question here about um subjective belief tying it into current events Trump claims he subjectively believed his election fraud narrative after counterman will the relevant question be whether Trump recklessly disregarded available evidence in assessing the truth or falsity of significant election fraud or will countermen be limited to True threat cases so this might be there might be a distinction here between belief about the effect of what you're saying versus belief about the truth of what you're saying but yeah so the counterman decision is is narrowly about the truth Red's Doctrine I I think when you come into the other another Doctrine we might talk about which may relate to Trump uh not about the election fraud but his incitement to violence uh and that's a separate category you know the capital uh did he shortly before the incidents there uh in the riots did he actually incite imminent Lawless action right so that's a different question uh the Trump part is going to be interesting in defamation cases I think what does he know and what does he believe uh because part of this recklessness standard comes through in defamation law and that's one of the reasons I didn't talk about it that Justice Thomas objected to it uh because Thomas sees the actual malice standard in defamation law which basically says that if you're defaming a public official or public figure they the public figure public official is going to have to show that you knew the statements were false when you published them or that you acted with Reckless disregard for the truth and Reckless disregard for the truth that's the recklessness part so the question then comes in on if you are in an isolated bubble of knowledge where you so seriously believe things are one way uh and you don't know that they're false because you're year I think that's that's that's where that could actually come into play uh so Thomas to go back to it didn't adopt why Thomas and Coney Berry they said we have a pure objective test encounter men right we're not going to take anything about subjective State of Mind Thomas didn't like it for a very different reason than she didn't like it Thomas said you know actual malice is uh legislatively driven policy decision by the Supreme Court and there's no historical you know text history and tradition for adopting that standard now so hopefully it Taps into a little bit from different angles and just a follow-up of my own the court drew a distinction with incitement and said we need more breathing room for their for in incitement we need a higher standard because it's so often adjacent to political speech that one man you know you can have a politician speaking in Trump as an example or just in general you have harsh criticism of the government or of law that can come close to the line of incitement but not being there and it's even more important with the subtext I got to make sure we draw keep that line careful and have breathing space they there do you buy that distinction that it's more important to a political speech adjacent to incitement to protect that I I mean I endorsed the Brandenburg standard for incitement to violence which does require it asks is the speech directed to inciting uh or producing imminent Lawless action and is it likely to result in that the word directed means intent so that's the highest level right if we talked about a men's Raya purpose or intent to do so right so it that that is I think good law uh to have out there uh you know in First Amendment law it's really a grab bag where you get your men's Raya from the fighting word standard doesn't have any men's Raya it's just simply a personally abusive epithet in a one-on-one face-to-face situation where the person's going to be inherently likely to swing back and hit you it doesn't matter what the speaker thought or believed or anything that's that type of a situation obscenity law it's actually knowledge in terms of possession uh well on that scienter mens rea level so if I have something that turns out to be scene because I don't know whether it is or not until the court tells me but if I had knowledge of the contents of it that's enough so in the First Amendment we go from fighting words there's no men's rare requirement is it simply a personally abuse of epithet that's inherently likely to make you swing back and hit me to incitement to violence did I actually intend or have the purpose of leading people to commit violence and now we have with true threats kind of this lower tier of recklessness a substantial disregard that the message will be interpreted as threatening so we're all over the board in the First Amendment basically yeah in terms of breathing space in a counterman situation I mean it's hard to see like exactly what the breathing space argument is New York Times versus Sullivan's like man we need an open discussion about civil rights but the idea like we want to make space for really aggressive courtship rituals of like a kind that terrify people and cause them to shut down their careers like I I guess I would be inclined to label the value of that as zero yeah it's low or no value speech and that I think was the argument that Barrett uh made in hers very effectively and that's why I think if you if you think about it we have the buffer zone of actual malice and defamation law The Reckless disregard because the media are reporting about public officials and matters of public concern they need breathing room to make certain mistakes in true threats as we talk about the harm is the fear that that it engenders and the disruptions of that fear there's very so it's low value speech there so I think that's one of the reasons that she Justice Barrett pushes back against him let's go to some questions here in the auditorium I see a hand back there in the tie yes and please state your name and affiliation as well thank you yes hi Trey Mayfield I'm an attorney from Fairfax regarding counterman and I apologize I haven't had a chance to read it does anything in that implicate other theories of criminal liability like for instance harassment I told you to stop calling me I told you to stop posting on my Facebook page and yet you've continued okay so that's a it's a good question because counterman itself was a stalking case and not truly a true threats case it happened to involve stalking and you can stalk somebody without engaging in a true threat of them I I called them multiple times I hang up the phone in other words I I follow them around but I'm not saying anything to them uh and that was one of the issues I think that some of the justices in particular Sotomayor was very concerned about she said within the context of Simply uh the context that they had to address it in this case of a true threats case then she wants a higher standard but if it comes down to Pure stalking she would be okay with the men's Raya standard But to answer your question no it's just limited uh particularly to the true threats Doctrine and I should say this is the last thing there's a difference between defining a threat with a men's rare requirement in a statute and the First Amendment question and what the court was addressing really was the first amendment doctrine of true threats right what does it take to push it outside of the scope of First Amendment not just what not the men's rare requirement that a statute might require so the court addressed the First Amendment not the statutory but it was I think it was very limited in terms of uh the true threats Doctrine rather than harassment more questions a question in the audience Jonathan Mitchell has this view of 1257 where he thought the Supreme Court should be able to review the application of State terms under a constitutional doubt provision so uh it's uh it's kind of a wild Theory like many of Jonathan's views but uh you think you know it's too bad that 1257 like it's just the Constitution or nothing another question in the audience okay well you all ruminate I have a question for Greg so it seemed like the court distinguished between where an adaptation is used to correct me if you think I'm misreading it but they seem to be saying it was important the fact that they were using this Prince uh art as a cover of a magazine in the same way that you might have used the original photo and that perhaps if you put up the art in a museum display where you wouldn't plausibly put up original photos that might be okay is that how you took the opinion to basically be making distinctions not just about whether you can adapt it and how you can adapt it but where you're using those adaptations in the marketplace and do you do you buy that rule and do you think that's a line that courts can enforce opinion it's just it's not a good opinion uh it's not well written and so if she is making a distinction a distinction is stupid uh because the question the fair use questioned Congress enumerated four criteria would make something fair use and the one that the court was debating in this particular case is the nature and character of the use and so mayor kept saying like wow look these are the same nature character this can be put on a magazine that can be put on a magazine whatever right so they're all the same therefore one it's therefore it's not fair one is not a fair use of another you say like well what if he didn't put in a magazine what if you put in a museum but we can keep playing this game all you want right that I can post a photograph in a museum as well right so um what sort of your opinion with majoria I don't want to blame just her after all uh seven Justice sign it six other Justice sign on to this there was a concurrent opinion but it was not a concurrence in judgment but Justice courses so he joined the majority as well so the blame should really be you know shared um but what's the mayor is doing is number one it's not as any sort of clear standards to whether or not one can you know you know can both be put to the same use because at the end of the day you end up with you know it's just Eternal also all the way down right you're just asking what level of generality after all like a book in a movie you can say look they have the same use you can tell the story through both of them right sure why don't you tell the story more visually the other you tell the story more I guess you know auditorily I guess as you read it to yourself or something but they both tell the story but they're clearly very different media so and that's not one mistake and number two there's a fourth criteria in that four-part test which really does look at whether or not there's an economic substitution going on and that's criteria that's a factor number four and so remember basically double counts so I think a much better way of looking at it is saying okay what is when he's asking what's the purpose of the allegedly fair use second Comer right and I think the purpose if you say look the purpose is the criticism the purpose is commentary the purpose is education right so look when I was in high school I took this class called like great Cinema and all we did was come to class we would watch movies and we would write papers on them right um that's a nice class it's a nice class it was it was great uh you know because we didn't like the movie you could nap through it and then freaked out like you uh you know sounds like you knew what you were doing uh but you have to write the paper about it that's yeah you know High School paper um but in any event so the point is like of course in order for me to write a paper about a movie I have to see the movie and that movie has to be shown to me and you can say that look in those situations it could potentially be fair use although you know there are limits on that you can say look if I want to criticize your scientific article saying you didn't take this or that into account have to quote and say oh well this equation or this data or set or whatever is wrong I'd have to have blocked quotes and even though I'm taking your words right that's fair use because I'm commenting on your work but if I'm just using your work and recasting it at all now it's my work right I think that's that's a very different point and it's not necessarily because I can put in the same scientific journal uh because they're competing with each other is because I'm trying to present the outside world first through your eyes and then basically I'm using your eyes as a bypass and that's the problem did we consider putting the photographs in as fair use in into the article because I could imagine you know that would be I mean the Supreme Court didn't have any problem who's going to tell them now right right and they put it in in color right they used their printer is more advanced than it back in the I feel like back in the 70s and 80s they all had just like grainy xeroxed pictures so displays so this may be the first supreme court opinion where you have you know nudity in color yeah in photograph can make one yeah yeah I think on both of the uh the the two cases that you address the court issued rather narrow opinions and I think especially on the transformative you use the purpose and character like you were saying in Warhol the court kind of Unleashed this is it really significantly transformative does it Con it doesn't comment on the original years ago and it addressed it in the two Live Crew uh oh pretty woman parody case and I think there was a lot of hope that the court would clean up this what is a transformative use and what are the standards what is what is or is not and the court just didn't didn't go there it made it worse what made it worse maybe yeah it made it worse no so I think we're disappointed as for the bad spaniels I always thought it'd be a good idea to have a couple of spaniels on the floor show them the chew toy show them the Jack Daniels and say what do you think are you confused I don't know uh we have barking at the wrong tree we have an online question for Chris do you think Colorado could require a business to put up a sign announcing the services or Goods it won't provide or that requirement also violate the First Amendment so I take it to be saying like could you force uh Lori Smith to say no we do not offer same-sex wedding websites um yeah so I mean again I'm a 14th Amendment person in terms of the scarcity right it would encourage people to like oh oh I see you know they'll go on to the next door instead of having come in and have a 30-second conversation or how you know several minutes uh conversation first um I mean again Lori Smith she's she doesn't have a door it's just a website so I mean you know there's just no scarcity at all you could just go to a different website should be should be required to have uh you know a little a little disclaimer on her website I mean it's hard to I guess the the question that I would ask would be to what extent is that genuinely making uh the competitors easier to find and avoiding wasted time uh on the assumption that she she would do do other things um in the lieu of anything like that I would think even the smallest imposition on her wouldn't have a justification I would say you'd need to have a justification for limiting somebody's occupational Freedom so I'm obviously not in the williamsonville optical world uh but if you if you got into into a proper historically grounded protection for economic Liberty uh I think you just have to ask what's the point of of just telling it it can't be just like we want to shame the Lori Smiths and Jack Phillips of the world right uh that you know that's not a legitimate interest I think yeah there's the doctrine of uh what a purely factual and non-controversial disclosures yeah but then the ques nowadays some states are sort of selectively there may be non-controversial information but the selectivity of the state of What Not what purely factual information do they force you to disclose and what do they not can have an ideology behind it yeah a sotomayor's descent is like especially horrified at the idea of somebody having a sign that says we're only serving certain kinds of weddings not others the problem with that is you're allowed to do that even if you're not in the business so I imagine like you know somebody walking down the street you know door number one is somebody like Lori Smith or Jack Phillips that only uh provides services for uh same-sex or opposite only for opposite sex weddings door number two they can get the services for any kind of wedding door number three is like Baron is baronelle stuntzman who has gone out of business but has a little signs and I support Jack Phillips and Lori Smith they're going to be just as offended at that little square saying you know I used to do this until I was forced out of business because it's just as events it's the same message it's just as impairing to people's dignity uh as as the one who that's that's still in business but you can't shut the one down it's just pure speech there's no reason at all just upside down other than I don't like your speech the government can't can't do that so once you want you to make that decision I think you're getting additionally upset at the sign doesn't really make sense I see a hand back there yes uh yeah O'Reilly Stevens ljc on this Monopoly power scarcity thing that we're just talking about there is a harm in being turned away right so it's not just that we want to disappear it's not the arguments would be it's not just that we want to disapprove of Jack Phillips or tell him he's a bad person it's that people who go in and get turned away there is an injury there that an insult there that if that exists even if you can go across three and get a cake somewhere else right and so it's not quite have narrower interest of your thing yeah it would have to be I mean uh conceivably there's some sort of surprise issue but if you look at the history of litigation involving Jack Phillips these folks are looking for him uh uh a lot of them and uh yeah yeah you know conceivably you know you you could have some sort of uh uh you know interest in in not being surprised in which case you know having a having a sign out front would you know would would redress that we had a question from Roger up in the front row yeah that might be a rationale for having a requiring sign let me follow up on that question uh Roger Pilon Cato um the old common law Chris had something called an invitation to treat uh I don't know if maybe you entered into spoke to this in your article but it arose in the context of of where a merchant holds himself out as open to the public and therefore creates a kind of unilateral implicit contract therefore cannot discriminate against a person coming into his Emporium but then it becomes a question of an invitation to trade to discuss the terms and price of product and so forth and this in that turn is used to distinguish in the modern context between uh being perfectly open to sell a cake with a rainbow on it that was intended for say a children's birthday party to a same-sex couple as this thing from a special in future performance for a person who finds it religiously offensive a Muslim Baker required to create a say a black maker required to create a cake with a with a Confederate flag and the like and so the distinction is drawn between off-the-shelf stuff and special performance in the future in order to draw a line to draw some kind of line perhaps you could address that a little bit yeah so I mean cases like cogs acknowledge there's this uh there's a rule about you know uh serving all-commerce but it's limited to certain circumstances a lot of the 19th century Kent story uh some indication of black stuff but there's a bunch of stuff that they they give one thing about the rule which is uh uh uh serving all comers but uh like they say for the rationale of this turn back two pages you look turn back two pages and it's talking about Cog is talking about people in difficult circumstances necessary uh requires them to trust these sorts of people all right right on the dot we're going to have to wrap up the panel there we're going to take a 10 minute break now Refreshments are available in the Winter Garden as a reminder no food or drink allowed in the auditorium we're going to reconvene for panel three at 225 on the dot and let's give a big round of applause for an excellent panel [Applause] [Music] all right foreign foreign foreign [Music] foreign foreign but I'm not hearing anything foreign [Music] thank you [Music] foreign [Music] [Music] [Music] [Music] [Music] [Applause] can you hear me uh this I think foreign foreign [Music] [Music] [Music] thank you foreign [Music] [Music] [Music] foreign [Music] [Music] [Music] foreign [Music] all right welcome back for panel three Blockbuster cases from the Supreme Court just to remind everyone please make sure your cell phones are off or on vibrate we will be taking questions at the end of this panel we welcome people to participate live and also online using the hashtag Cato scotus all one word and um oh good we've got Vic here so without further Ado I'm going to introduce all three of our distinguished panelists all at once so we don't break the flow of the discussion behind us online as Professor Vikram Amar a distinguished professor of law at UC Davis welcome frequently cited Authority on constitutional law federal courts and civil procedure and writes a monthly column on legal education for Above the Law thanks for being with us today thank you Mommy sorry I can't be there in person but we're The Interpreter great uh and you'll be talking about morvey Harper and the now defunct or perhaps defunct independent state legislature Theory far end of the row here Professor David Bernstein who holds a University professorship at the Antonin Scalia law school at George Mason University where he's been teaching since 1995. he's the author of Five Books including the 2022 book classified the untold story of racial classifications in America and the 2011 book rehabilitating lochner in which he sets the record straight about whether the Supreme Court's Vindication of Occupational freedom in that case was one of its best or its worst moments if you're not sure about that Anastasia and Tommy will be conducting a remedial course on con law later for those who want to stick around and finally last but not least Professor Judd Sugarman who is a law professor at Fordham law school his book The People's courts traces the rise of judicial elections judicial review and the influence of money and parties in American courts he's currently working on two books one of which is of particular interest to me I'm sure they're both very interesting but for me the one that focuses on California governor Earl Warren the Kennedys and others showing how the growth of prosecutorial power became a stepping stone to electoral power for ambitious politicians in the mid 20th centuries David perhaps not surprisingly we'll be talking about students for Fair admission versus Harvard and University of North Carolina and then Jed will be talking to us about the Biden V Nebraska student loan case I think since we've got Professor Amar on the uh on the webs why don't we kick off and start with you since we've got you and uh take it away thank you very much um clerk mentioned I have been asked to talk about Harper that's the case from North Carolina involving the so-called independent state distribution Theory and under this when the Constitution articles won and assembly also to refers to the legislature of each state with regard to the power to Fashion Federal elections um the question is whether the legislature is a reference to a particular organization uh or instead is simply a delegation and a conferral of Duty upon each shape to uh discharge general election Association responsibilities through whatever detrimental means it chooses so in particular the North Carolina case the general assembly that consisting of the houses of the the ordinary legislative branch they took position that the slave share is them and cannot evolve other organs of state government including the state Force enforcing the state constitution immunizes this particular uh in state law and from interference and other and the Supreme Court respected that either six two or maybe even maybe zero depending on how you count um but um chief justice Roberts wrote for six justices and I guess I make four or five points first even though a lot of cynics and Skeptics thought that a republican uh control or would embrace the public input ISL IP um the court did not and um the the decision reflected I think an open mindedness and a uh just to revisit positions on the many of the justices chief justice who had dissent in a 2015 case involving the ISL in context of Arizona uh initiative removed uh federal election regulation uh with respect to Logistics out of the legislature altogether and the district we had dissented uh word RPGs opinion held the Amazon initiative but he recently on board with the area in 2020 wrote in a uh Wisconsin um election regulations um how to operates uh the ISL writings of former Chief Justice in uh the conference in Bush versus school but he too joined versus repudiated by himself um as I mentioned also in 2012 very favorite about ASL um held his power uh thought the case was a bit uh and I think Chris Thompson as well as the movies uh even they seem to accept that a state can give power to the body other than the elected legislators to do Federal Regulation provided that it's written down into the institution where that is from is anybody's guess I think uh justice Thomas says a very good original is disappointed that he engaged against ISL am so um two is there really wasn't any time on this ISL thing um really reject and the didn't try to say well if that case was wrong we decided this one they basically embraced against ISL even after the end of the opinion did say that state Works aren't don't have free women to do whatever they want to enforcing State the two which state never happened that's my paper focuses on why things can't really [Music] going forward third point is and fourth point I would say is I think those a good sign that Scholars who wrote a lot a lot of degrees wrote a lot of Articles up to more verses are seemed to have both on the parties and justices um and then the fifth point I'll just flag because I want to open it up for other people later but um you know there was a question where this case was good because of the actions of the North Carolina Supreme Court um uh in the last year but uh I I think the quote got it right on this um even though this case is an illustration of one of a number of cases this year this year where there was Professor Omar I'm afraid that we uh have a connection problem and so we're going to work on trying to re-establish that but in the meantime why don't we hand it off to uh Professor Bernstein and we'll see if we can resolve our technical issues in the interim apologies we'll see if we can get this fixed apologies to you and the audience as well we had higher hopes you would think after three years of coven we would have this down but internet connections can be finicky so take it away David okay so I'm talking about the Harvard and North Carolina cases students for fair admissions versus them affirmative action racial preferences in higher education have been hanging by illegal thread since the issue first came to the Supreme Court in 1973 in the Phoenix case and since the 1978 Baki case the court has put increasingly strict limits on the use of race and Emissions starting with uh the university is only being allowed to use race to enhance diversity and then increasingly making stringent additional rules thereafter as seen in Magruder and Fisher cases at least as I read them universities kind of pretended to abide by these rules and the Supreme Court at least the swing justices in each case pretended not to notice that universities were not abiding by the rules and instead I'm engaging in what amounted to soft racial and ethnic quotas just not publicly saying they were doing so this cozy status quo was disrupted when students for Fair admission or sffa filed lawsuits against UNC and Harvard against UNC under the equal protection clause and title VI of the Civil Rights Act and against Harvard under title VI of the Civil Rights Act the Supreme Court has held for several decades that standards are exactly the same logically or not for both of them so the issues were exactly the same in each case like other universities Harvard and UNC had basically acted as if they could do whatever they want to do under Supreme Court precedent so long as they didn't have official quotas indeed uh one thing the Supreme Court had made clear first and gruder but really reiterated quite strongly in Fisher was that the universities were required before they could use race and Emissions to determine whether there was any other way they could achieve diversity uh what we call it under the narrow tail or intest to be narrowly tailored you first have to try or at least strongly consider other means of achieving diversity achieving your compelling interests and if that didn't work out then you could use race and Harvard and UNC like basically every other country College in the country basically didn't bother doing that in fact it came up in the briefs during oral argument there was some dispute as to how much diversity Harvard for example could have gotten without explicitly focusing on Race classifying anyone but race but everyone agreed that Harvard could have achieved more diversity than otherwise if it got rid of alumni preferences certain Sports preferences uh preferences for children faculty and staff and so on and Harvard's position is we're Harvard we shouldn't have to do any of those things and haha you're not going to make us because you're you keep bluffing uh so this was unlikely to go over well with the current Supreme Court and not surprisingly the sixth vote majority was in favor of the plaintiffs in both cases and much of Chief Justice Roberts's majority opinion covered familiar territory first Roberts contended that racial preferences amount to Illegal racial reverse racial discrimination College admissions after all are zero sum he said so if you're preferring underrepresented minorities in your discriminating against the other groups second the equal protection clause in both its original meaning and how it's evolved in precedent creates an extremely strong presumption against racial classification and that the notion that this would allow universities to use racial classifications to achieve a racially balanced University turns the claws on its head Justice is soy mayor and Jackson both dissented and Justice Kagan joined both defense interestingly enough neither of the descents uh tried to use a diversity rationale diversity rationale was apparently only useful for the more liberal Justice the extent that they could get a swing conservative to go along with them instead they argued that the 14th Amendment is properly interpreted to allow the government to use racial classification to redress the past exclusion of underrepresented minorities in particular African-Americans there were though well this was like very familiar territory there were three relatively novel aspects of the opinion first Justice Clarence Thomas in the concurring opinion gave the most extensive defense of the anti-racial preferences perspective on the 14th Amendment from an originalist perspective which is something that anyone had given this had been largely ignored by the conservative justices in the past and the descending Justice took issue with that I original scholarship isn't really my forte so I'll I'll leave that and I'll leave in my article for the kale stream Court review I leave that issue for others with one exception because this relates to my interest in racial classification even if you adopt the position that was promoted by Defenders of affirmative action that the 14th amendment was intended to allow for racial preferences specifically based on race for the formerly enslaved African-Americans and even for their descendants you would still have to explain why that allows Harvard and UNC to give preferences to anyone whose ancestors happened to speak Spanish to recent first and second generation African and Caribbean immigrants and to discriminate against Asian Americans the third uh uh oh sorry second uh novelty which follows from what I just said is that affirmative action preferences are frequently portrayed by Defenders as a battle between white privilege every dress for African-Americans but as the United States has become more racially and ethnically diverse this has less and less become the how these cases actually come to the court in the Fisher case you mostly had a question so we have more ages and fewer Hispanics or fewer Asians more Hispanics in sffa uh the plaintiffs made a big to do over the fact that Harvard was pretty clearly discriminating against Asian American applicants by artificially lowering the personality scores that Michigan officials gave them this was I think the most telling statistic is that in 1991 Harvard's undergraduate class entering class was 21 African Asian American and uh 2014 23 years later when the sffa litigation started it was 22 percent Asian American despite a much a huge increase in the underlying population uh for that they could have drawn for their applicant pool and Thomas's concurrence really hammered home this point we've got the Asian Americans have been victims of significant racism in the U.S and Harvard had come up with these diversity policies to begin with to keep Jews out uh justice Sotomayor straining credulity said actually Asian Americans benefit from policies that discriminate against them which you know like I said strange credulity uh the third and most novel aspect of sffa that was overlooked I think in most of the early commentary on the cases and really drives with my interests and my book classified The Untold which my publisher would be very upset if I didn't mentioned uh available to find bookstores near you for the first time a supreme court majority survives that racial classifications used by universities do the same as our use throughout Society they're invented by the government as I described in the book in the 1970s are so arbitrary that using them to decide who has preferential treatment is unconstitutional even if all the other criteria under strict scrutiny and narrow tailoring are satisfied you have to justify why you're using these particular classifications and Justice Roberts chief justice Roberts said hey apparently Harvard and UNC don't care whether you're from East Asia or South Asia they count Indians exactly the same as Chinese people and exactly the same as Filipinos even those are wildly different groups the Hispanic classification he said are arbitrary is undefined when we asked unc's lawyer well is it the case that Middle Eastern Americans got some tree some some uh special categorization for diversity the lawyer purported not even to know which certainly suggests that they don't really have any good read they don't even know why they're preferring certain kinds or even which ones they're preferring he also quoted Justice gorsuch's concurring opinion detailing what Gorsuch call the incoherent and irrational stereotypes of these categories Advance they use these classifications Robert suggested because they're so arbitrary actually inhibit diversity rather than promote it so for example Harvard he says would rather have 15 percent of students all be mexican-americans and have 10 percent but they will be from all different Latin American backgrounds which would actually be more diverse so in any event is holding on the classification issues provides a new opportunity for litigants to challenge the classifications uh in a whole variety of areas including Government Contracting in biomedical research not even preferences just the government requires biomedical companies to use he's ridiculously unscientific classifications in its research and also in the really weirdly arbitrary ways that government requires people to classify people as American Indians or not I don't have time to discuss all those but they're all in my chaos Supreme Court review article so feel free to pick it up and look at it thank you thanks David and let me say again our wonderful AV folks are working on the connection with Professor Amar we apologize for that I would invite he or she who is among you who has never had a connectivity issue to cast the first virtual Stone um we're working on it so thanks for your patience and uh so Jad uh speaking of patience can you take us through um what was either a a an act of of attempted charity on the part of this Administration or an impermissible power grab well I I think I will talk about it as an impermissible power grab um and and I say that uh well first let me say thank you to everyone at Cato for this invitation but in particular Tommy Berry uh who uh I wish every law review was as efficient and as fast and getting here he's like the the world how can the world function for a year without in publication our wise observation so to get it out in a month was was was amazing and they did a fantastic job um uh and so uh and one other little note here is um and this is a bit on the nose or on the hand I I had a I got stung by a bee yesterday um on my left hand and it must be some amount of poetic justice because it's by now my left hand comparing my two hands my my right hand is in is an invisible hand hey now but my left hand is now um bloated um dysfunctional scary I mean did someone send a b to Massachusetts to to for this for this uh uh uh to lend me a hand on this interest that piece and adjunct yes well you'll have to join on about it oh very nice oh that's that that was uh that was well done um well played David um so uh but so let me say that I'm an originalist but not a Libertarian uh and and I think one I'm happy to talk about um originals and more here um and in some ways depending upon and I've been getting into fights on my left and on my right over the last five or six years um and depending upon my mood I sometimes describe myself as either a progressive Democrat or conservative Democrat I think I now realize that I'm a rule of law a Democrat um and and uh and it's lonely uh these days um and and uh one observation is that I spent a lot of time during the Trump Administration and and before this is this has been a long-standing uh part of of my scholarship I actually wrote an article about the creation of the Department of Justice in 18 it was not created in the founding was created during the Reconstruction Era and it is grossly had been grossly misunderstood um but it misunderstood by both sides there was there's a mythology that Scalia has as an originalist in Morrison versus Olson about prosecution and the left had its own mythology about the Department of Justice and it turns out both were wrong history is complicated um and so I started that project because of the abusive prosecutorial power which is a bipartisan problem and so then uh looking at the Trump Administration I look I I was responding to what I thought were some frequent abuses of of executive and emergency power that were not departures my view is that the Trump Administration was not aberrational it has been part of a decades if not centuries-long progression of the abuse of of federal executive power um and you know I like to you know what's good for the goose is good for the gander so when the bite Administration announced uh it was going to start this policy um I wrote an uh an op-ed in the Atlantic the title was the Biden student debt plan is a legal mess colon the subtitle the good news is there's still time to fix it and there's a whole long story but that led the response by the left to what I was trying to highlight as uh illegality um didn't go anywhere so I decided to write an amicus brief and that suddenly has led me to present this paper at the scalia's law school two weeks ago I was at a federal Society event last week I'm back here I'm running I'm going to be back at the federal Society National Convention hope to see you there talking about originalism I'm getting a lot of swag from from uh from an amicus brief I didn't get paid in in dollars but I've been paid in hotel and airfare so thank you um so I'm going to talk we on a conference call that Clark LED uh really helpfully we were going to highlight four themes originalism uh justiciability legitimacy and what next I'm going to talk a little bit about those themes I'm going to group together the justiceability question in this case was about standing and that standing is going to be what I'll highlight for what next because I think this is much bigger than the Biden student debt question I think this is about federalism and the enforceability of the Constitution and what's good for the goose is good for the gander the second point so that's that's grouping those two together then I'll talk a little bit about how the major question Doctrine out of this case should be understood as a constitutional question or a mix of purposivism and not textualism and the final thing and may I I'm depending upon how far how much I go over my time allotment I may talk about legitimacy as well but I think that that overlaps with originalism how how reliable is is originalism over time I think I'm more of an originalist in theory and then as I see the court and left and right Scholars use use and abuse history I wonder whether originalism is actually you usable and reliable in practice so first just briefly on standing the only way to understand standing in Biden versus Nebraska is that it is the new state standing Elena Kagan is half right when her she criticizes the majority opinion and Roberts for not having a concrete harm or an imminent harm if you read scalia's opinion in Luhan and then the more recent decisions in Transunion and spoke Spokeo it is it is impossible to square the text of the Robert's opinion with standing Doctrine as it is standing now the only way to understand it is a Revival of Massachusetts versus EPA and I'm disappointed in all of the justices maybe most disappointed in the Liberals for not being consistent now they were not on the Massachusetts versus CPA court let me just take I should pause and say what Massachusetts versus EPA was about at least on the standing question was on climate change and greenhouse gases did Massachusetts and other states have standing to bring the claim and it was as much a speculative not imminent kind of question but the court recognized quote this special solicitude for States as a sovereign as a quasi-sav I'm not sure what a quasi-sovereign is but because what states like what's dual sovereignty states are sovereign I mean that's that's just part of the doctrine so um but Robert's dissented on that question so just to connect some Dots here what also came down in this term was Texas versus United States and that case was a Kavanaugh and Roberts in the majority uh with with you know with others concurring uh but reaching uh unfairly standard ground on prosecutorial discretion that Texas did not have standing against the United States on Border questions um but on a case about the Border there was a border or if you will or a proxy war on a separate question of State standing Alito descents on his own it's eight to one Alito descents saying quoting Massachusetts versus EPA and saying if their State's standing there there should be State standing here um and in concurrence uh Gorsuch with Thomas and Amy and Justice Barrett uh concurring uh go out of their way to disown State standing now as constitutionalists here I don't care if you're an originalist or a Libertarian if you're a constitutionalist there is a question about how we enforce the Constitution there are lots of reasons for limiting standing under article three so that you don't have 300 million plaintiffs in cases or a hundred a hundred thousand plaintiffs but one nice thing about State standing is that you can limit the kinds of questions to ins elected institutional actors and their 50 of them okay so uh so in my view so this proxy battle that happened in Texas versus United States indicates that there is a mix of views it's possible that in another case coming up Kagan and Jackson and Sotomayor might sign on to State standing if I don't know maybe it lines up more with their ideological priors but I think this is an open question so so um I will also note that in the same term and thanks to Christian Court when I presented this the federal Society Christian Corrigan on the panel who is the solicitor general of Montana made this nice observation that in a Holland versus brackeen there was another there was a reversal against State standing because the the Supreme Court disowned uh no pun intended disowned parents Patriot uh uh I hope I'm pronouncing that but disowned and like disowning family responsibilities um that's another kind of version of the state standing in as a parent okay so there is this battle happening behind closed doors that was never mentioned in this opinion and so I'm going to Pivot from just just disability and standing to what next I think there should be an open invitation to everyone on the left and the right to use this uh sub cylentio doctrine of the new state standing to enforce the Constitution um so second on major question Doctrine and and a pivot to uh touching on originalism um the major question Doctrine in this case it's only in two cases that the the majority opinions of the Supreme Court have ever referred to the majority uh to the major questions Doctrine it was West Virginia versus EPA last term with Roberts and then this Robert's opinion also mentions it um I'm going to give three cheers to the major question Doctrine I just think there are four questions sorry this is not a Passover seder but I think there are four questions that have that have emerged from the major question Doctrine and here are the three cheers one it is uh against Chevron yay right okay Chevron was wrong when it was decided I tell my administrative law students who are worried about deference I say worry less skid more that's for my admin nerds out there so no Chevron two it's purposive and not textualist yay that makes sense to me and then a clear three clear statement for delegation I think that's important four I used to be more opposed to this and I think maybe I'm just hanging around more Cato and federal Society people the fourth is a clear and specific statement for the major policy now what I will say is uh is that when I wrote this brief I was recognizing that there was a compromise there was a more moderate solution for purposivism but let me just I'm going to truncate this because I know I'm over time um but I'm gonna I'm gonna suggest that not only is the majority opinion purposive I'm I um I'm puzzled frankly about the discourse in this opinion and in the in the first panel today I wonder if you picked up on the resistance to um say to saying what these cases are For Better or For Worse this is about the the Canon of constitutional avoidance about the non-delegation doctrine now I am more sympathetic to this Doctrine than most people most of my fellow Travelers on the left um but it is a little ideological I think to uh and I think Justice Barrett is being ideological when she insists that this these moves are textualist and I that's the question I asked the first panel today because second versus EPA is a an opinion that reflects the the doctrine of constitutional avoidance on the lines of states rights and federalism let's just be honest about it and why why should why should the Cato Institute and other Libertarians shy away from enforcing the Constitution so Gorsuch is honest about this being the the Canon of constitial avoidance Justice Barrett just engages in the avoidance of the Constitution all of us if we're rule of law Democrats or rule of law conservatives or rule of law Libertarians we all should embrace substantive canons in the enforcement of our constitution let's not be why do we have to insist that that is neutral textualism there is no rule of law with neutrality right that is we need some commitment and I think it's important to recognize that this is not a bad thing is to to recognize this I can say more about why I think there is a reasonable argument for the non-delegation doctrine but I'll see if that comes back if we come back to that in Q a so let me leave it at that uh and then I unless well let me say two words um Mike Ramsey at the University of San Diego was at the same conference at the same workshop at the Scalia law school talk and he has a very interesting argument for the major question Doctrine rather than the non-delegation doctrine now the non-delegate his point and I I'm I think uh he's going to be extending this argument he observed that in scalia's jurisprudence um remember there's a case called Whitman which was around 2000 which was a non-delegation case that was 9-0 recognizing a non-delegation Doctrine but not enforcing it Mike Ramsey uh uh says that not in that case but in scalia's other writing Scalia says the non-delegation doctrine is so hard to delineate what the boundaries of it are that it should be under enforced as a matter of uh uh let's say uh judicial restraint but what I I don't know if this is Scalia or Mike Ramsey but the flip side is if you're going to under enforce the non-delegate Asian Doctrine you can balance out that under enforcement with the enforcement of the major question Doctrine I think that's a really sophisticated and nice explanation for what's going on here um the the magic of it is you get the same results in cases at least in major questions um is that the you can't get that major policy through without a without a clear delegation but I think that's a good complementary balance and that's kind of what I think the doctrine of constitutional avoidance is supposed to do is is uh is is make sure that principles are being enforced while shying away from their over-enforcement or their unmanageable enforcement so I'm going to endorse Mike Ramsey's View and I'll just I write a little bit more about the originals case for non-delegation in an article called vesting in the Stanford law review from a couple years ago Roy thank you for that and um you know I want to make sure everybody understands everybody has a great article in in the review about this professor Omar wrote a great article on morvey Harper we know he's put a lot of work into preparing for the talk today so I think we can In fairness we're going to try one more time and uh hopefully the technical issues have been resolved so welcome back uh to the panel and uh maybe you can pick up either where you left off or just give us a quick summary of what we missed the last time thank you Clark I don't know what if anything you could hear it was hard for me to even say anything because I could hear my own words reverberating back and I'm sorry David I couldn't uh I wasn't able to hear anything uh uh that you said but I enjoyed your piece and I do have a question for Jed at the end but let me just quickly go back over more remember more rejects the idea that the word legislature in article one and two refers to a particular entity in state government um it rejects the idea that the Federal Constitution kind of resolves state separation of powers and instead six justices and maybe eight even if you count the two dissenters embrace the idea that states have flexibility to decide which organs of state government they want involved in the fashioning of federal election policies so there's certainly no problem the court says where the state moving uh Federal uh Congressional districting uh Power away from an ordinary elected legislature into an independent elect a district in commission there's no problem with a state court applying and enforcing the state constitution uh to whatever federal election rules uh uh come out of whatever process the state uh has decided upon at the end of the opinion the court does say that um state courts you know may perhaps be um in trouble if they exceed what we call ordinary judicial review um but in light of the rest of Moore versus Harper and this is what I spend a lot of time on in my piece that language really doesn't give federal courts much leeway to do much anything because once you reject the idea as the majority clearly did that the Federal Constitution identifies a particular organ within state government namely the ordinary elected legislature that must be empowered and who's expressed will must be respected once you acknowledge that this is entirely ultimately a matter of state law that the state gets to decide however it wants to do this then for federal court to overturn a state Supreme Court's interpretation of state law the state court would have to be doing something pretty darn Lawless and although we can kind of argue back and forth about how to describe what that standard review would look like and how much difference would be involved the big point I try to make in the paper is if it's Lawless enough to constitute the state court acting outside of a Judicial role for purposes of the elections Clause then that would mean that this ruling of state law that the state court has embraced could not be used in state as well as Federal elections um uh that you can't really make state courts can't make up new rules to apply in any elections whether those elections are governed by articles one and two or whether they're Garden variety State elections so that's why I spent a lot of time in the peace on but I do want to double back to one of Judge themes I do think this piece of this this case is a is a celebration of originalism if you ask what's different between this six to two or eight oh ruling uh uh recognizing that states have flexibility here versus the uh the five to four ruling in the Arizona case from 2015 where where Thomas dissented and Roberts dissented and both of them now are on board saying a state can have independent districting commissions the big difference between rbg's opinion and the Arizona case and the majority opinion here is there's a whole section on originalism that really demonstrates that before and after the founding ordinary elected state legislators didn't have free reign to regulate uh Congressional elections any which way they wanted to um and that itself is a function of what Scholars have done um uh you know I wrote a piece with my brother in uh in the Supreme Court review but there were a lot of other really good pieces as well after that that they really kind of highlight the history around this question and I think to their credit most of the justices including Roberts and especially maybe Kavanaugh and and Alito who who held his powder in this case even though he had been a proponent of ISL in the past as as was Kavanaugh I think that's a good sign both for Scholars who are trying to help the Court which is a self-professed originalist court right after Dobbs and after Bruin the court has committed itself to a kind of a historical approach to giving meaning to contested constitutional Provisions the court acknowledges it's not made up of professional historians so I think high quality and call it as you see it scholarship is going to be increasingly helpful and important to the court and I think this is this is a good sign that they accepted that um I don't know if we're going to segue with questions but if we are let me just throw one out for Jed um Judd i i a lot of people trash Biden's uh standing analysis in in Biden versus Nebraska uh Roberts is standing analysis excuse me and um and I you know I'm willing to accept that it it Embraces a Massachusetts versus EPA kind of uh um uh solicitude for first state governments and I'm not sure that's a bad thing but I'm not even sure why it's such an exceptional standing uh willing in the following respect Roberts says that this um that the Missouri loan processing entity which clearly would have standing on its own I think everybody agreed with that even even Kagan although maybe not but but let's just let's just let's just say let's just say they lost they're losing money so that's kind of a classic injury in fact and um Robert says some of their money every year goes to public universities to help um in in public universities in in Missouri and then he cites to the annual report of this loan processing entity which I looked at and and in the in the last year in fact some of their money had gone to Missouri public higher education institutions um as long as As a matter of state law they can step in the shoes of this um uh this uh entity the same way the state of Arkansas could step in the shoes of the University of Arkansas in the case that by that Roberts discussed I'm not sure why this is so um kind of newfangled or arresting um I think you could ask an interesting question about whether um the state is kind of exercising third party standing because to the extent that the law in Biden versus Nebraska was really arguably exceeding presidential uh uh uh powers to the extent that the the regulations uh were a violation of separation and Power course it's not clear whether states are the right ones to be bringing that um uh but but putting that third party standing aside just in terms of article three standing it wasn't clear to me why they didn't suffer an injury that could be redressed absolutely and now I can't hear you even though I hope you can hear me is uh can you hear me now now I can yes I feel like I'm selling cell phones um so uh we I think you and I are both in the exercise of trying to interpret and make and and make reasons that are not given in the Robert's opinion let me explain why I don't think your argument fits with the um with the line of Lujan uh TransUnion in Spokeo um there's a substitute with any University there is a enough of a substitution effect that if less money came from uh students who were borrowing from Mohela those universities would Downstream get other applicants in the pool who would decline if a student couldn't pay to go to the University of Missouri and went to a different University they would fill that seat with someone else it is far from clear to me and also this this doesn't seem to have been argued um that that there was no harm to the University of Missouri or the University of Nebraska from from this you're speculating and one of the things about uh about standing rules especially after TransUnion Union and Spokeo is that it's not supposed to be a speculative injury it's supposed to be an imminent and probable injury that's that's just that is just what the Roberts Court with what the rehnquist court and the Roberts Court have settled on so um and Vic here's one more question here um basically what Missouri is arguing and what you know what Missouri is arguing here is tantamount to what 100 000 missourians as taxpayers could have argued and they would have all the 100 000 Missouri citizen taxpayers would have lost under all these doctrines if the University of Missouri Vic had sued I think they would have um if it hadn't been for State standing they would have said this is a speculative injury you're going to get tuition from another source so the only way to make sense of how Missouri or the University of Missouri hypothetically could have gotten standing is the way that is in my analysis is how he converts those arguments from speculative and and very attenuated into standing is by virtue of being a state they're spokio but there's also you know dry house from from Ohio and if you just go back over the last 30 years and decide you know when the court really stretches what's speculative you got you know the scrap case from the Georgetown students Etc I mean causation and the the assumptions and inferences they indulge about what's going to likely happen in the real world I mean Clapper was five to four um uh with four justices thinking yeah this injury is isn't quite likely an imminent I just think all of that is so um uh kind of legislative or it it's so dependent on the instincts of the particular justices um that if that just doesn't do that much for me because I think you could criticize so many of the cases on that basis just one more sentence is that um I what I the reason why Vic I'm using uh the case of Texas versus United States is because that is the proxy war it's not like I'm just imagining that that state standing could have been in discussion what Texas versus United States shows us is that behind the scenes earlier in the term there was a fight over State standing and we know that they couldn't agree about it but we know there was a split so I'm inferring but I'm inferring with some with some uh some documentary evidence that the uh that that state standing was in The Ether across these cases and I don't I don't I don't have reason to disagree with that I yield to no one in my disdain for federal standing Doctrine I could slag standing all day long maybe we'll come back to it um but there was a very uh lonely elephant in the room right now that pertains to David's uh presentation and there's a question that everybody wants to know the answer to um and it's and we've had already a couple of inquiries uh online how big of an of an opening did the Supreme Court leave for universities and others who may wish to practice some form of affirmative action to essentially wink at the ruling in sffa by allowing students to do things like talk about their experience as a racial minority in a personal statement or use some of these other approaches that are ostensibly race neutral like uh Geographic or the top 10 percent of your graduating class which is what they've done in my home state of Texas so everybody wants to know the answer of this we know you don't have a crystal ball but I also know you've got opinion so why don't you share those with us sure so I think the first thing to say about this is that the Court's opinion I think is very much specifically about racial classifications and admissions it doesn't talk about you know intent and all this other stuff that might come up when States might be using what would be seen as proxies so I think the first thing to say say about that is that Supreme Court President says that if you have discriminatory intent and there are discriminatory effects then the pro then the policy is unconstitutional now what me what does discriminatory intent mean that's difficult but I think the one case that we will likely see this being elaborated upon is in the case against Thomas Jefferson High School in Fairfax County where Thomas Jefferson had an emissions test that resulted in the class being about 70 percent uh of the what we call Asian Americans as a very broad classification there were some legitimate reasons why one might have thought that this test was not the only uh or maybe not at all the way to admit students in that you know I live in the Northern Virginia area where there's a lot of cram schools for this test and one could easily say hey we want the top students for this program but the top students aren't actually those whose parents are making them study three hours a night and 12 hours on weekends for this particular test however uh and I think that if Fairfax County the other counties that are involved had considered that as something we were thinking about anyway but also we think that it'll be nice to make sure we're after all it's a public school we want to draw from different places the problem in this context is that there's a lot of evidence on the record that various people were seeing nope problem is too many agents can't have too many agents you can't do that so there's a clear uh I think there's a clear line there that if you are in fact saying that it's not just this one that hey it'll be nice to have different demographic you know more representation from all over the place uh but we also have a lot of other reasons to reconsider then you have to get then that's okay potentially but once you single particularly particular groups is disfavored that's no good contrary wise imagine the situation I live in Arlington County we have three high schools one high school is predominantly white one is more balanced between white and Hispanics with a mixture of Asian American and and black students for the rest and one high school is like 60 Hispanic imagine we're doing a redistricting and they say oh here all the factors we're looking at to see where the boundaries should be and among other factors it'd be nice if we didn't have quite as much segregation you don't have to do that under current Doctrine you don't have to take affirmative steps to change your boundaries to affect desegregation I don't think it's an illegitimate government motive so long as the only it's not the only you're not only saying hey we need racial balancing but hey if we could if it's good if if the different choices are almost uh the same uh in terms of their overall efficacy and one will also lead to more mixing of different populations demographically that's okay so I think those are your true sort of your two boundary lines now in universities I don't go on too much of this universities in particular I think along those lines the 10 percent or eight percent plans as long as the I think you know in those cases in Florida and Texas other states that have them most of the Republicans of the state legislature were actually in favor of them they say look this is a good thing to do in general right it's true that this will also look more racial diversity but these are state universities we shouldn't just be uh appealing or taking students from only wealthy suburbs for a public university so I think in the absence of Thomas Jefferson like evidence that our real goal was racial balancing and that's it those will likely be up on the other hand there are areas like Government Contracting where why why if you come here from India or Argentina go to grad school and at MIT or Stanford open a government contracting business with help from your family uh Fortune I've become a citizen why do you get the same Contracting preferences as someone who grew up in inner city Baltimore who's the set of slaves because that's how it works very few government coaching preferences go to African Americans they mostly go to post 1965 immigrants and their descendants it's completely incoherent as to why some people get these preferences and others don't around half the population's already getting them I just think this is so wildly arbitrary now for example the SBA case that's currently pending in the sixth circuit I don't see any way that the circuit well I don't know what the circle will do I'll say anyway Supreme Court ultimately uphold the random nature of that and similarly I don't know if any bio pharmaceutical companies will actually challenge the way race is required to be used by NIH or FDA but to say that oh we're still the modern vaccine we have to make sure you have enough Hispanics or we're not going to let your vaccine come to Market which is exactly what happened to moderna if this is completely even I forget strict scrutiny there's no rational basis because Hispanic is not a genetic classification where you expect any that there'll be any scientific results that will make any sense it's back as a multiracial classification multi-ethnic could be from anywhere in the world just like Americans like saying we need more Americans before we can say this is valid so I think it really depends my line with classifications is always if you want to know whether or race and juicing race if you want to know what you're doing you need to say what is this being used for it doesn't make any sense if you actually use classifications it's going to be a lot harder now if you use proxies for classifications A lot's going to depend on whether you are considering race as one aspect of a broader looking at public policy or if it's really the complete driving factor to get around Supreme Court precedent so the last thing I want to point something about this is that some people have a lot of the media and sometimes law professors will say what the Supreme Court said is that you can't use race conscious decision making as now what the opinion says and you can't have a rule like that civil rights laws are race conscious we have civil rights laws because people of certain races were being discriminated against right if if someone like Cato said you know Congress should really legalize drugs in part because racial minorities are being unfairly targeted by these laws that's race conscious but no one at Cato is libertarian as they are that's an illegitimate thing to consider so it's not that anytime race comes into the legislature's head that this inherently makes things unconstitutional it's very much dependent on the specifics of what the legislature is doing like you want to jump in yeah real quick just you asked you asked two questions and I kind of approached these both from the vantage point of a constitutional scholar who's written about the 14th Amendment but also as someone who was an associate Dean for six years and the dean for eight years who overheads admissions processes so the first question you asked about the the quote loophole at the end of Robert's opinion that uh although universities can't um uh credit someone who checks a a box a racial uh category box um certainly they can take into account individuals um uh having overcome racial challenges uh this on an individualized particularized basis um I do think that's a big loophole um and it's interesting to me that that overcomes not just the uh problem with um you know using race as a formal factor in admissions which the court kind of frowned on but also it kind of implicitly perhaps avoids the the problem that David interestingly writes about about what is a racial classification because if you're writing an essay that says race has been a big factor in my life and I've been treated as an Hispanic even whether I'm not an Hispanic or not um you know it doesn't really matter what what the category is if you're just talking about how you've been regarded as and how that's changed your life so that's point one point two is I I agreed David with David completely and again I'm sorry I couldn't hear your original presentation about the Thomas Jefferson case um and maybe the court will grant certain that the Thomas Jefferson High School case but I just want to make two points about that first the fourth circuits rationale in upholding um uh what I think you're right to describe as a pretty heavy uh we need fewer Asians and and more more non-asians um a kind of message the courts the lower court said Asians are still over represented um and and so they can't claim to be discriminated against I think that that's made no sense to me for reasons I've explained in writing and I don't think that's going to move but but I want to go back to your point about the difference between that an extreme end and uh and and softer uh variants thereof in that extreme form let's remember that in his descent in gruder the Michigan law school case Justice Thomas said if you want diversity University of Michigan just have a lottery and that clear implication of Thomas's descent was the only reason you moved to a lottery is because you want racial proportionality and that would be okay that was just his way of thumbing and putting a thumb in the eye of the majority um and then of course you know 20 years later he's he's voting to Grant cert or or uh dissenting from the denial of a stay in the application in the Thomas Jefferson case because apparently he didn't mean what he said 20 years earlier but remember in those early cases the conservative position was hey just change the criteria and now it I think that's the next Battleground is when can you change the criteria with a race on your mind and how much it has to be on your mind before it's problematic well thanks for that and uh thanks again to our audience here in the studio I've Lost You Clark I couldn't hear you sorry for your forbearance uh we have a little bit of a lag when you stop speaking but hopefully you've got us now so uh thank you all really appreciate it we got time for questions um and so we've got our uh legal Associates in the audience the microphone I thought we might have some interest in questions I saw Todd's hand up first so let's start there Nathaniel right there I don't know if you're talking oh you're talking to people on the crowd get up Todd gaziano now from the center for individual rights and uh certainly David I agree with your analysis of the the the case that struck down the section 8A of the uh small business administration is the ultimate case that my colleague here the the distinguished Michael Rossman uh prevailed but it you slight correction it's not in the sixth circuit yet and so I want to calm you to comment I may have misled you when we talked last that I thought it was going to be in the sixth circuit we or the federal government haven't decided that because proceedings are still before the district court and it and I want you to comment on that as the Washington Post related the SBA I think is afraid to go to the Sixers or may be afraid to go to the sixth circuit and so instead they've they've asked all of the minority contractors who previously got the unconstitutional automatic preference to submit essays on why they're socially disadvantaged and the SBA has publicly said that it's training new people not in the normal certification offices but at headquarters and they will turn around those decisions in three or four or five days and we're before the district judge now we just filed our initial brief um on questioning questioning whether whether that is chief justice Roberts did say yes you could take true disadvantage into account but you can't use it as a proxy so so what do you think about that kind of situation we're in now so without be otherwise you're right I wasn't aware of the current proceedings um I think we should and the court should distinguish between and first of all just generally admissions policies where you're looking for a diverse class for different reasons right that was the point yeah I went back and read um several times uh the uh deciding opinion uh by Justice Powell and Baki and Powell never actually says you can look at a race separately from everything else but if you read the opinion closely what he's really saying is you're already looking at Sports and geography and all those other stuff that universities look at if if you want to consider different different ethnicities different races and things that will add like a little flavor to your school that's okay not just looking at underrepresented anyone who would want to talk about their race which is pretty much what Robert said I mean universities may or may not be cheating in the future some of them probably will but the point of Robert saying look at an essay is anyone can write an essay about interesting experiences they had that might lead the university to want to Grant admission to them and this wouldn't be limited to race but you certainly there's no reason that we almost violate protection say you you know you can write about anything interesting that ever happened to you as long as it doesn't involve race and that'd be weird so um I don't see how that relates to getting a government contract to begin with because they're not interested in having an interesting group of government contractors but also the history of the SBA program is that all Congress said was we wanted to have a program for disadvantaged businesses disadvantaged business Enterprise they didn't specify what that meant the SBA on its own volition at some point decided that what we mean by disadvantaged businesses is basically you have to either persuade us with some extraordinary evidence that you're disadvantaged or if you are a member of any of the designated minority groups any member of the Hispanic Native American black native Hawaiian and Pacific Islander nowadays I did I miss one whatever the official anyone who's uh not Hispanic uh who is Hispanic and not why or not white uh gets a preference uh and you automatically are presumptively disadvantaged unless your income is too high I don't think there's ever been a case where they say oh you come within the income levels but you're really not disadvantaged because your dad's a professor at Harvard or as an executive at IBM or so forth so the SBA Kanai it seems to me turn around and say oh well we're going to let minorities tell us how disadvantaged they are these official minorities so if you are uh if your grandparents came here from Spain you could write a nice essay about how having the last name Rodriguez has been a real burden to you even though you live in the White upper middle class suburb but we can't allow someone from Yemen who is officially white who wears uh Muslim Garb and is very dark-skinned his suffers religious racial Etc discrimination they're not they have no right to do so that's completely arbitrary it's uh and I can't imagine that that you can read that you can legitimately read sffa as allowing for that okay we got 11 minutes left which means we've entered our vaunted speed round Professor Brandon Denning is going to show us how to get that done ask a fast question get a fast answer Cumberland School of Law hi David um uh I had a comment for Jed and then a question for David so the comment of Jed is um thinking about your linkage of the uh major questions Doctrine with the non-delegation doctrine Put Me In Mind of uh scalia's opinion in mistretta where he says because we can't enforce that's it yes delegation Doctrine it's very important that we pay close attention to what is and isn't a separation of powers violation and so that to give credit to Mike Ramsey that he's that he mentioned mistretta and I forgot and you're exactly right uh and David I have a question one of the one of the curious things I thought about Roberts's opinion is that he never quite sort of says like gruder and grants are overruled and in fact I think even Kavanaugh sort of says he concurs and says well this was an excellent application of of the standards at Fourth and gruder and Gratz and then also by the way we've just constitutionalized uh justice O'Connor's complete and total what I read at the time as a throwaway line about this oh in 25 years we won't need this anymore and then suddenly it became you know a a constitutional imperative that they used to sort of lever and say well we're a couple years too early but since they're not going to um they don't show any interest in ending this we're going to just go ahead and draw a curtain over this so what do you think of I mean or gruder Gratz dad right and they just didn't it was absolutely so speed round so uh gruder and Gratz the rule is if you to justify using race and Emissions or some of the other areas has to be a compelling interest has to be narrowly detail Court said diversity is not compelling interest so gruders reversed in the universities to incoherent reverse in that regard and they apply the much stricter version with more arms and you know the different more things coming out of it about what has to be narrowly talented so the official standard hasn't been changed it's not overruled in that sense but in application it's definitely different well done David well done um so I there's a question I've been wondering about that one of our online participants asked as well so I think we got to ask and it's for Professor Amar um does more of you uh Harper do you think it tells us anything about the likely um progression of some of these uh section three challenges to uh president Trump's eligibility uh to run in the 2024 election for those who don't know uh there's a paper that just came out by professors Bode and Polson that argues and there's been a lot of Buzz so I'd be surprised when the audience doesn't know it but uh that uh it may be that President Trump is ineligible uh to run for president again or at least to be president again because of having participated in an Insurrection or Rebellion I Hope they've given you some time to think about this uh question that we didn't have a time to go over during our initial call but do you have any thoughts on that I think yeah sure um first of all I'm sorry I've been unable to hear you all accidentally but I don't think more and the ISL debate really has much to do with the section three question um and they're really three questions I think about um what is rebellion mean to what does it mean to be engaged in rebellion and then three who gets to decide whether someone has engaged in rebellion and I don't think that any but court would be allowed to make that determination and I think and this is the same I have a lot of sense of President Trump or only 14 months away well actually 13 months away from an election and how are you gonna all of these proceedings with any kind of coherence in that sort of timeline you just don't see that being ultimately um what uh finally you know this 63 issue not likely to be of interest in Blue State where president Trump would win and black um so just don't see it as that big a deal yet okay well thanks for that yeah a bad idea this whole section three thing as a matter I think as a matter of originalism but as a matter of like just I mean for the points that Vic may but he also uh what's good for the goose is good for the gander also be careful what you wish for yeah uh there is no there is no limiting principle once we go down the road this way I suspect we'll be having a whole event about this at some point um let's try somebody on this side of the room I thought I saw a hand over here yep um Chris uh uh so a question about this boundary between a substantive Cannon and a textual Cannon so I'm curious uh I mean maybe this is really more a question for justice Barrett but uh uh U.S versus Fisher from 1805 uh uh says you know when fundamental principles are at stake you require a clear statement um one way to to suss that out would be to say well we have a convention uh you know that we as an empirical question we think when Congress passes things they agree with us on the substance so it's got kind of an empirical Vibe and a a normative Vibe you know I probably wouldn't put it in terms of text but in terms of you know what the text Expresses in virtue of the existence of a convention so it would be part of the convention that you know that causes the text to express the meaning but uh I guess I'm skeptical about the distinction between these you can put almost anything in terms of uh the character of a convention can't you question that question uh I'm gonna be I'm going to be more concise um just because there's a gray area between two categories you can still have paradigmatic points the same slippage that happened in the first panel this morning is is a conflation that happens in Justice Barrett's opinion um Justice Barrett claims she's describing what Congress does I don't know what Congress she's been watching for a hundred years but Congress doesn't like to make major questions for itself political scientists have shown over and over they even have a code for this it's called Sr shifting responsibility it's football season it's called punting Congress descriptively likes to pass the buck or I mean I'm a Cato they like to tax the buck and spend it um but they like to avoid they like to have someone else make the tough calls and make and and have bureaucrats be responsible for them that's descriptively what Congress does Tech linguistic textualism linguistic canons and purposivism are supposed to defer to what Congress did substantive canons of constitial avoidance and other subs and the rule of valenity and Prince and these principles are are normative about what Congress should do as a matter of article one design and and I just think that there is even if there is some gray area I think we can recognize that the descriptive versus the normative are are a clear difference and Barrett allides the two right I'm going to exercise a moderator's privilege to dismiss us a couple of minutes early people rarely complain about that I want to thank everybody for your patience your forbearance and your engagement I want to thank our panelists for participating including uh Amar who was hoping to be here in person who couldn't be thank you and thanks also to our av team for hanging tough and um and working out um I know it's not easy thank you all for your program come back uh at 3 50 when we are going to have our uh very popular and exciting looking ahead panels let's see what's coming down the pike thanks again [Applause] hello thank you [Music] our driver s thank you [Music] [Music] [Music] [Music] myself [Music] foreign why are you friends foreign [Music] [Music] [Music] [Music] [Music] thank you [Music] [Music] thank you [Music] foreign [Music] [Music] nights [Music] [Music] so yeah I'm dubious about state standard but I I really need them thank you [Music] thank you [Music] [Music] thank you [Music] [Music] thank you foreign [Music] [Music] [Music] thank you [Music] [Music] thank you [Music] foreign [Music] foreign [Music] [Music] [Music] thank you [Music] [Music] [Music] [Music] thank you [Music] [Music] thank you [Music] [Music] well thank you all to have stayed and made it this long you guys are the real lovers of the Constitution here so this this panel is uh supposed to be a little bit more laid back and fun and we're talking about the term ahead which is slated to start in just a few weeks and although big terms are usually filed by Quiet Ones at the court according to the brilliant and fascinating article written by wenfa in our Cato Supreme Court Journal that might not be true this year we might get another big term so here to talk about it are when PHA and Kate Stetson when PHA is director of legal Affairs at the Beacon Institute prior to joining Beacon when was a senior attorney at the Pacific Legal Foundation where he litigated two Supreme Court cases when I asked Gwen for a fun fact about himself he reminded me that he once be our own Tommy Berry in a stand-up comedy competition I was there so I remember it but what when didn't mention was that when was the judge so Kate Stetson is the co-director of Hogan level's nationally acclaimed appellate Practice Group she has argued over a hundred appeals and in fact she just argued her 123rd appeal this very morning so we are lucky that she could make it here for this panel okay as recovering litigator I am still processing all of the ways that the courts have come up with to refrain from actually ruling on my own cases so I wanted to first talk about Loper bright versus raimundo which will hopefully get rid of at least one way in which judges refrain from judging and that is by deferring to administrative agencies in their interpretations of law so can you tell us about that case sure and just to just to start with a little bit of background you all are familiar with the Chevron Doctrine and you all are likely familiar with the fact that the Chevron Doctrine was born under the watch of an EPA administrator whose name was Anne Gorsuch fast forward about 20 years later and you have her son Neil Gorsuch who at the time was serving on the 10th Circuit Court of Appeals and wrote a concurrence to his own decision which is almost like being the judge in your own stand-up comedy competition uh concurrence to his own decision that basically said I needed to write the majority opinion that I just wrote Because Chevron is a doctrine that exists and I have to follow that Doctrine but it's time to confront the elephant in the room the elephant in the room is at Marbury versus Madison said is it it is emphatically The Province and duty of the Judiciary to say what the law is that was the most visible vocal Gauntlet thrown down in what then became a a series of attempts to refine and ultimately I think in this case perhaps to overthrow Chevron so Loper bright involves the lowly Herring which for those of you who are curious is of the genus Club a day it's approximately 25 centimeters long uh the Herring fishery industry sued the national marine fisheries service and they sued because the fishery service came out with a rule that held that the Herring fishermen were required some percentage of time not just to carry industry monitors on their boats which is something that the relevant statute talks about but to pay for industry monitors to be carried on their boats and the upshot of that in the in the DC circuit was that a split panel two judges in the majority concluded that Chevron protected the nmfs's decision to require Herring fishermen not just to carry those monitors but to pay for them judge Walker wrote a rip roaring dissent which I commend to you if you haven't read it and up it came to the Supreme Court on assert petition there were two questions that were posed in the petition itself one of them was sort of your standard Sur petition question did the court of appeals in this case with this statute correctly fined or not that Chevron applied but the second question and the only question on which cert was granted was should Chevron be overruled and if not overruled should it at least be limited to those circumstances or or limited to not include circumstances where statutory silence was the basis for the Court's decision because here of course there's nothing in the statute relevant to this particular type of monitoring that talks about paying for monitors to be on your boats there is in fact other information in other parts of the statute that talks about funding monitors but not here so what the majority of the DC circuit did was essentially to extrapolate from those other portions of the statute and some general necessary and proper language and create a whole new obligation so it's up on this in the Supreme Court on both that narrow question does Chevron apply in this case but then the broader question should Chevron be overruled yeah it seems to me that the court has really backed away from applying Chevron in recent years so in some ways hasn't the battle already been won I think uh I I don't know that there are many that would say the battle's been won uh or at least maybe a battle has been won but the war has not been won um you know I think one of the cases you're probably talking about is the major questions Doctrine case from last term and that of course limited Chevron but arguably in really limited circumstances right where the statute that was being utilized by the agency had never been used that way before was used for an astonishingly broad purpose and cost an astonishing amount of money so that takes care of some Chevron questions but not many and probably not the Herring issue turning to you when the court seems particularly interested in separation of powers issues and so it has also taken up a case this term called SEC versus darkacy which involves not one not two but three really big legal issues that have contributed to the growth of the administrative state so could you tell us a little bit about that case yeah absolutely Anastasia well first I just want to say that it's a pleasure to be here at Cato and a pleasure to be on a panel with Kate and my friend Anastasia there have been a lot of big names who have given this talk over the years and I have to confess although I was confident that I could at least match previous speakers because I'm smart handsome and witty I was a little bit worried that regular attendees would find my presentation a little bit too much in terms of Shameless self-promotion unfunny jokes and bad puns my mind was quickly put at ease however when I watched last year's event and saw that the speaker in my seat last year was Ilya Shapiro as Celia said last year regression to the mean and speaking of regression to the mean some think that after a huge Supreme Court term last year this term will inevitably be a quiet one I don't think that will be the case and here's one reason why in SEC versus jarkassee that's kind of like the Black Friday of administrative law cases because it's a three for one the court will consider a seventh amendment issue a non-delegation issue in a removal issue it involves an SEC enforcement against George jarkassee who established two hedge funds controlling 24 million dollars the SEC initiated enforcement action and the statute gives the SEC the power to do that either in federal court or through an in-house proceeding which like Anastasia said is like being the judge of your own stand-up comedy routine um jarkassee so the SEC brought a claim against Sharky alleging Securities fraud among other things that he misrepresented investment safeguards and charged hundreds of thousands of dollars to jarkassee and penalties jarkassee raised several constitutional claims a seventh amendment claim a non-delegation claim and a removal claim he lost all of them at the in-house proceedings but then the fifth circuit considered each of those claims and ruled in his favor on all of them let me just quickly talk about those claims in terms in turn because they are all up for Supreme Court review in the upcoming case and the Seventh Amendment claim that revolves around the fact that in the in-house SEC proceedings there's no jury rate and of course the seventh amendment guarantees uh individuals the right to a jury trial the Supreme Court has drawn this line between public rights which are not afforded the Seventh Amendment right and also private right which are that distinction to my mind doesn't make a whole lot of sense but I think it's safe to say that's not really up for reconsideration at the Supreme Court anytime soon suffice it to say that the fifth sure can solve this as a quintessential fraud case which could be levied against one individual against another individual a common law and therefore it was a private law private right case that was amenable that needed a jury jury trial one argument or one aside I want to say just about the facts of that there's a huge argue some people have argued at least that administrative proceedings are to be favored because they're more efficient a couple comments on that the Constitution first of all As a matter of first principles the Constitution protects individual liberty not administrative convenience and even as a factual matter the SEC enforcement proceedings in this case uh dragged on for seven years so that's hardly a Hallmark of efficiency there's also a non-delegation claim raise and the claim is that the SEC can decide uh cases on a case-by-case basis whether it wants to prosecute them in a federal court or through in in-house proceeding I actually think this would probably be the hardest claim for jarkassee to Prevail on just my impression of it is that it really seems like the type of uh decision that would be committed to a member of the executive branch to be uh you know to pick the court based on prosecutorial discretion it's true that the legislature could say that this type of case should go to Federal Court this other type of case should go to the in-house proceeding but if you concede that both of those venues are proper then it seems to me that if the legislator legislature went so far as to say that you know these particular people's claims should go in Federal report these other people's claims should go to an in-house enforcement proceeding in house tribunal then you would run into an issue another constitutional issue with the bill of attainder so I I think that's in my estimation the hardest claim for carcassee to win and then finally the easiest claim I think for jarkassee to win is the removal removal claim because there you have the two layers of protection the double layer of product protection the aljs the SEC administrative law judges may only be removed from the commission for good cause and then the Commissioners may only be removed uh by the president for good cause so you have that double layer of remove removal that the Supreme Court uh found unconstitutional in another setting in a in a free enterprise uh in the free enterprise fund case so the Supreme Court in recent years has already cut back on the sec's powers in cases like Lucia and axon and I think this presents another opportunity for the Supreme Court to do so and this case could have tremendous consequences not just on the legal issues but also on the consequences the SEC prosecutes about 200 enforcement actions per year and assess four billion dollars in penalties in fiscal year 2022 and many many agencies are structured in the in a similar way so the effect of the Supreme Court's decision could have uh consequences for those agencies as well thanks for that and I'm uh secretly hoping our tech people can bring up Ilya Shapiro behind you on the screen so that he can now trade barbs with you back uh Kate last on the administrative State front there is a very odd way in which the Consumer Financial Protection Bureau gets its money and it might find itself in conflict with the Constitution can you tell us about that sure and I was just thinking as when was talking that you know it used to be back in the day that whenever the ninth circuit issued a decision it came with what I would call a rebuttable presumption of cert worthiness but the fifth circuit I feel like has really made great strides uh in this area so you know mad props to them this is another fifth circuit special involving the cfpb and what Anastasia is asking about is the way the cfpb gets its money is is unusual it has instead of periodic Congressional Appropriations the cfpb receives funding directly from the Federal Reserve capped at a certain percentage amount and Congress has specified that that amount is whatever is necessary to carry out the agency's function cap that a percentage subject to disclosure requirements subject to inflation and so forth but that's the way that the um that the appropriation happens through Congress yeah and so the the court has granted cert this term do you think you have any predictions about how it's going to turn out so um the court has granted cert because what what started out as a a modest payday lending case turned into a challenge about the Appropriations Clause the cfpb some years ago I think at this point it was subject to some pauses because it passed cfpb litigation but the cfpb passed a rule that basically prohibited lenders payday lenders from seeking more than twice in a row to access their borrowers bank accounts for payment If the previous two attempts at access had been rejected that is the rule that came up in the challenge through the district court into the fifth circuit and it was accompanied by a page or two of discussion about the Appropriations clause and what the fifth circuit ultimately end up ended up holding was as far as the payday regulation goes that's totally fair game the cfpb has the authority to regulate unfair business practices and it has the discretion to decide whether or not that's unfair so the fifth circuit had no problem with the payday lending um prohibition what it had a problem with was the way as Anastasia described it the odd way that the cfpb got its funding and what it concluded was that the Appropriations clause which you all know of course by heart but I do not says that no money shall be drawn from the treasury but in consequence of Appropriations made by law that that essentially restricts Congress to not provide the option of funding other than appropriated through the legislature itself so it has almost a negative implication in it so essentially an appropriation is required to authorize spending you can't just pass a law if your Congress providing an agency with a funding source and leave it at that um so the the solicitor general did indeed seat cert pointing out that among other things what the fifth circuit had done in this case with respect to the payday lending regulation I mentioned was to vacate it on account of this Appropriations Clause problem and the SG pointed out that if that rule goes then basically everything the cfpb has done for good or ill since it was formed is subject to question because of this Appropriations Clause issue so that's how it how it came up for cert as for predictions uh I think I I think the fifth circuit's decision is um what's the Latin word bold uh is what I would say and I don't see it garnering five votes I think it would Garner a couple frisky descents um but I don't see it carrying the day in the Supreme Court when turning away from the administrative state to some of the other issues two terms ago the Supreme Court decided the Brewing case where it came out with what I think is a somewhat novel way of deciding the constitutionality of Second Amendment cases and this term is the Court's first opportunity to really apply that framework in a case called United States versus rahimi so tell us about that case yeah so rahimi would be my bet for the biggest case for laypersons this term and probably also the most likely to be mischaracterized the defendant here is not very sympathetic Mr rahimi sold narcotics he shot in an individual's home he got in a car accident he shot at the individual in the other car he shot at a police vehicle and then he shot his gun up in the air at a Whataburger after his friend's credit card was declined I'm not seeing the issue the the law he was indicted um on though was a federal law that prohibits individuals from possessing firearms while under a domestic violence restraining order and so many of you might think that part is unsympathetic as well and I did initially but some background that these are usually granted as part of a civil as part of civil proceedings in divorce cases lawyers routinely advocate for the pursuit of these orders and sometimes both parties follow them against the other judges who deny them can face a lot of heat so many judges in practice approve them as a matter of course judge ho and his concurring opinion the fifth circuit noted that there was a restraining order issued once against a man who told his wife that he was no longer attracted to her and one issued against David Letterman because the person thought his appearance on TV he was annoying and and a lot of these divorce cases there are mutual Mutual protective orders each spouse gets them against the other and so judge whole judge ho mentioned that this might actually this law might actually hurt domestic violence victims because they're more likely to be law-abiding and it's illegal to possess a firearm while under uh while you have a domestic violence restraining order against you so to the legal analysis as Anastasia mentioned the court conducts uh according to Bruin it really it really doesn't do the whole means ends analysis that we're all used to seeing in some of the cases in other areas instead it looks to historical analogs and the two arguments in this case are one whether uh the whether Mr rahimi is a part of the law-abiding responsible citizens that are entitled uh to the protections of the Second Amendment and two if so whether there are historical analogs preventing uh you know preventing this type of possession by individuals who are under a domestic violence restraining order with respect to the first question I think the fifth circuit really quickly dispose of the government's argument that because there was a restraining order entered in this case that somehow takes Mr rahimi outside of the class of protected persons under the the Second Amendment as the court mentions these are civil proceedings and if these people don't have constitutional rights what about people who speed people who jaywalk people who don't recycle it would lead to absurd results so then the court considered the historical analogs which is a little bit of a closer question the government offered different laws so-called disarmament of dangerous persons so-called going armed laws and Surety laws and really distinguish them on grounds that they didn't really prohibit the possession of a firearm they required a finding of actual wrongdoing my favorite way the court distinguished one of these laws was with respect to the disarmament of dangerous people law it really went back to look at the law itself and said wait a minute this law prohibits people from from possessing a firearm if they are slaves Native Americans or disloyal persons there's no way that type of law should or would today pass muster under the First Amendment and the 14th Amendment therefore we're not going to consider that as a historical analog so I really found the type of historical analysis that the officer get engaged in to be a good one yeah this approach of looking to historical practice rather than applying the traditional means and scrutiny the courts have been struggling a little bit at least the lower courts with it which has caused a lot of legal Scholars I think now to engage more with the history and submit a lot of briefs and and try to help the courts hash this out but given that struggle do you think that this shift from means and scrutiny to historical analog will stay confined to the Second Amendment context or is this a sea change in the way that courts evaluate restrictions on constitutional rights well let me talk about what will happen what I think will happen and what should happen what I think will happen is that this will be limited to the Second Amendment and perhaps a few other constitutional uh protections but the vast majority of those cases are still going to be analyzed through means and scrutiny and the reason I say that is because it's it's sort of ironic in a way to me because uh generally Second Amendment cases uh there haven't been a whole lot of Second Amendment cases they're they're all of a relatively recent vintage you have Heller McDonald uh Bruin and now this case uh so there's not a lot of uh because there's a blank slate that gives I think the judges and justices more of an opportunity to proceed with the sort of historical analysis to where uh rights like for example economic economic Liberty that I think if you did look at the history you would offer stronger protections for economic Liberty against all these protectionists licensing requirements because there have has been so much case law on that already uh in the in the courts I think there's less of an opportunity for even originalists like justice Scalia for example said he was an originalist but a faint-hearted originalist so that if there were a lot if there was a lot of precedent on one side he would hesitate to disturb that I think that's probably a reason why the historical analysis is going to be a little bit find but I think what should happen is that judges should always look to find the correct answer and I think a world in which judges are not so reliant on means and scrutiny and look more to the history would be great but even on the historical analysis legislators and judges throughout history have gotten things wrong so I think you could practice Fidelity to the tax without solely focusing on the history I think there should be a presumption of Liberty and I think this is what this case ultimately is about you know a lot of people have made much about the fact that they say well the second amendment is not a second class right and that's true but there is no such thing as a second class right we are all entitled to Liberty to do essentially what we want to do if it doesn't interfere with another person's rights and I think that's the analysis that cores should engage more in well Three Cheers For That Kay I think it's a sign of the world that we live in that not one but two cases this term involve government officials blocking shall we say the haters and the losers on social media so can you tell us about the facts and the legal issues in linke and O'Connor sure and and I think as we'll talk about maybe a little later it's it's certainly not the only kind of social media issue that's in play which is good because yeah the collective age of the justices is about 800 and that's exactly who you want uh uh adjudicating these kinds of issues so the two cases that have been uh put on the Court's docket next year are linky versus freed and O'Connor Ratliff versus Garnier both of them come up in in similar contexts but reached quite different results linky versus freed came out of the sixth circuit um the uh the public official there his name was James freed was the city manager of Port Huron Michigan and he maintained a Facebook page because apparently I don't know this because I don't have this many friends but when you hit 5 000 friends on Facebook that's your limit so he went over he had more friends than that he went over and opened a Facebook page but on his Facebook page he listed his occupation as city manager he listed his address as his city manager address and he made a couple other notes that you know indicated among other things that that was his job he used the page both for Pro for personal posts posts about his child's birthday party but also for posts having to do with his job including when kovid started posts about the steps that the city was taken to taking to uh quell the spread of covid post about social distancing and so forth and these posts riled a gentleman named Kevin linkey who started posting comments on James Freed's Facebook page and the comments were unpleasant and after a while James freed blocked Mr linke Mr linke sued under section 1983 for violating his first amendment right so the question as you can imagine is what is that page doing is that page something that is you know Mr Mr City manager's official page in some respects or is it just his private page and which he happens to talk about his job and what the sixth circuit ultimately held parting with the way that other courts have looked at this issue is it was the latter this was a page that was operated by James freed as something of his sort of personal account it just so happened that he would talk about his job as part of that personal page and the the test that the sixth circuit used was kind of an unusual one and I think a unique one he said is this something that Mr freed could do without being under the auspices of his job does it use government funds does he use government resources is he going to take this page with him when he leaves and the answer was no no and yes and because that page essentially traveled with Mr freed and not with the city manager's position the sixth circuit concluded that Mr freed could block Kevin lenke from posting on his page so now flip over to the ninth Circuit Court of Appeals so these two um City officials I think were both school board members and they maintained Facebook profiles and Twitter profiles or whatever Twitter's calling itself today and what they said on their profiles was we are school board members and potentially importantly part of what they did on their Facebook pages was to ask for and receive feedback and input about their jobs so they would post you know school board meeting coming up happy to get your comments comments would come in including comments from a disgruntled family named the garnier's and the garniers made heavy use of the comments page including commenting over and over and over and over again on everything that these two School Board officials posted and eventually the officials got vexed at that and blocked the garniers the Garnier a sued under section 1983 claiming that their free speech rights were violated and here the ninth circuit parted with the sixth circuit and concluded that because the way that these School District trustees were operating on those pages that those actually were essentially state or government functions they were holding out those pages among other things as a vehicle for people to talk to them about their government functions and because they were holding out those pages in that way they could not take the Liberty that you could do as a private citizen of just blocking somebody that you decided was a hater and a loser so those two competing cases both with different results are both up in front of the court for decision next year the last case I want to talk about that's on the current docket is one involving Taxation and I know that Libertarians are famous for saying taxation is theft and everyone kind of laughs but Congress has finally done something that I think most people can agree is pretty egregious and that is tax people for unrealized income income that has not been and may never be put into people's pockets so when can you tell us about Moore versus U.S yeah so this case started when Charles and Kathleen Moore invested in Cassandra craft it's a business in India that seeks to provide agricultural tools to underserved Farmers so that they can Farm more productively the company was very profitable but it did not provide dividends it reinvested its earnings as many companies do in 2017 there was a federal law called the mandatory mandatory repatriation act which attacks some of those unrealized unrealized profits or unrealized income and so the Moors they invested in this company they ultimately did not see a dime in dividends but they were on the hook for over ten thousand dollars in taxes and the question before the court is one of those rare 16th Amendment cases is whether this should be treated as uh income whether the reinvestment should be treated as income I think there's a case about a hundred years ago a Supreme Court case called Eisner versus mccomer which really governs the case and I think will ultimately lead to a ruling in the Moore's favor but I also want to talk a little bit about the consequences that a decision an unfavorable decision for the Moors could have there have been a lot of proposals in the U.S Senate and the U.S House of Representatives to create some sort of a wealth tax to to basically tax the savings account of Americans over a certain level and I think that's not just you know I think there are many problems with that I think it's going to be in practice unworkable when the stock market fluctuates a lot we've seen over the year year to year I think it's going to discourage individuals who otherwise would save money from saving and perhaps uh you know most Salient to members of the audience it would hurt a lot of small businesses trying to start off and make a living for themselves because a lot of them are subject to are under the tax rules treated as wealthy individuals even though they put a lot of the revenues generated from their small business back into business activities so I think it's a it's a case that not just has a novel constitutional claim but a lot of significant real world consequences now the court has not even nearly finished filling out its docket so I want to turn to some interesting pending petitions and starting with one when the court was pretty clear last term that universities can't practice discrimination in admissions but even so we've seen some pretty Brazen statements from University officials and others who have made it clear that they intend to stay the course and basically they've said just don't do it don't say don't say it out loud you know don't put anything in writing don't you can look at race you can have that in your mind as Dean shimrinski recently said on a on a taped recording and he said if anybody ever asked me about this by the way I'll deny it but he was being recorded and so you know we know that that schools are going to try to continue to just drive this discrimination underground and one of the way that they will do so is by using proxies and this was alluded to in the prior panel so there's actually a petition that could let everyone know that the court really meant what it said last term when it said that you you know can't use loopholes to to do what we just said in this opinion and that is the Coalition for Thomas Jefferson case so can you tell us about that yeah definitely so the question presented in this case is basically what comes next after students for fair admissions there will be schools that still want to engage in racial balancing but what does the Constitution say about it Thomas Jefferson High School is one of the best high schools if not the best high school in the entire country admissions has always been governed by a series of tests designed to ensure that the students who end up going there are prepared for the rigorous curriculum the Fairfax County School Board which governs admission to TJ had been concerned about the racial composition there so in 2020 they changed the admission system the school is predominantly Asian American and they ran a series of simulation to ensure that it has a different racial composition and each one of those simulations really showed the school board members how many members what the percentage of a particular racial group would be uh according to a particular admissions program so basically what Thomas Jefferson in Fairfax County decided was they got rid of the tests they instituted a top 1.5 percent plan uh at the middle schools and then for any of the unallocated seats that were still unallocated after those seats were filled by the top 1.5 percent they gave students at certain underrepresented middle schools a an additional bump so the results were as Fairfax County predicted black white and Hispanic student enrollment went up the enrollment of Asian American students went down dramatically a lot of high performing students at certain middle schools were locked out of admissions at TJ so the district court this case is is really important because a district court actually granted summary judgment in favor of the students and the Coalition of TJ in this case and the Circuit Court stayed that judgment and ultimately ruled against the Coalition and I think this has a very good I mean it's always difficult to predict but I think this has a pretty good chance to go to the Supreme Court for a couple of reasons first the Coalition filed an emergency application after the state was granted and the court denied it but it denied it over the dissent of three justices so all the Coalition would need is to pick up one more Justice to vote in favor of cert for the case to be granted and second this surely will be an issue of Nationwide importance going forward not only do you have admissions offices throughout the country at colleges in universities planning to do similar things but you already have the same type of litigation going on in K-12 schools in New York Boston and Montgomery County and then of course we saw the University of Texas after the Hopwood decision in the 1990s where the fifth circuit outlawed the use of racial preferences and said that was unconstitutional going to a top 10 plan in in Texas so this will be a widespread problem and I think the Supreme Court given the Nationwide importance is likely to take this case Kate last term the core the court noted in the 303 creative case that the government can't force people to engage in speech that they disagree with but I think it's really interesting that some of the same people who cheer on that case sort of abandoned the principle when it comes to social media companies because they think that those companies should be forced to host certain speech so there are two uh petitions that are pending and even the government has asked the court to take up the case in addition to the petitioners that will get at the government's ability to regulate online platforms so can you tell us about those sure so so these two petitions come up from two different courts of appeals the 11th circuit and say it with me the fifth circuit uh both of them arise from state laws one in Florida one in Texas that purport to require social media companies private social media companies to uh to prohibit I should say those social media companies from D platforming or Banning or using algorithms to de-prioritize certain types of speech and I would I would pause here and mention that this is an issue that's gotten a lot of attention kind of on both sides of the aisle and if you haven't yet read the brilliant Amicus brief that Cato actually filed in support of the petition for sir sharari in the Florida case and I'm not just saying brilliant because two of the authors are actually sitting in the front row and looking at me right now um the the Amicus brief talks about how this issue is one that essentially is shared by both the right and the left you know the right has started trying to aggregate state power to prevent what the some states call the censorship of conservative voices and that's what you see coming out of these Texas and Florida State laws the left of course is trying in some circumstances to use state power to prevent what the state deems to be misinformation what the state deems to be hate speech and you know the the point of both of the cases here I think and certainly the the Amicus brief that Cato submitted in support of the Florida petition is that neither of those views is right what you are talking about is a state attempt to govern or censor or control speech and under the First Amendment that's verboten in the Florida case the Florida law at issue and I want to sort of read a couple of the requirements here prohibits platforms from de-platforming candidates for office uh prohibits platforms from applying post-prioritization or Shadow Banning algorithms for Content about a candidate and prohibits platforms from censoring deep platforming or Shadow Banning a journalistic Enterprise based on its content it also required a significant disclosure requirements including among other things disclosing the rationale for every single content moderation decision that they make um Texas's law is a little bit different in some of its particulars but matches a lot of the general gist what the 11th circuit ended up doing was upholding a preliminary injunction against the Florida statute what the fifth circuit ended up doing was vacating a preliminary injunction against the Texas statute so you have several different petitions that are converging on the Supreme Court either brought by the state or by net Choice the Coalition that's litigating this on behalf of the social media companies but both of them are coming from different directions but have arrived at the court at about the same time yeah and as you say this is something that you know both uh sides do want to harness government power to make people speak so even though these two uh petitions came out of Florida and Texas I did see that the platform formerly known as Twitter just brought a lawsuit against California because California had its own uh social media uh regulation exactly yeah well at any event I wanted to turn to questions from the audience so what do you all have to ask we have Chris here in the front so I had a couple just a quick procedural questions uh so when you mentioned your kind of ranking of the dark C you know likelihood of winning uh I'm imagining the court is going to ask the SEC or the SG if you lose on one of these which would you prefer to lose on and I'm wondering how they would answer uh and I had a question about the net Choice like I mean man there's a circuit split why are they Dilly dallying about just granting cert is there some timing reason why they want to put it off until I don't know 2050 or something I mean I just it seems obviously they should Grant it right I think I think obviously they should and I think after the long conference they probably will yeah but when and and on the Supreme Court I don't know what um the government will will say to that I do think that it is you know we we saw the fifth circuit reach all three issues even though it didn't have to I do think that the Supreme Court you know for all the talk about uh the the Supreme Court doing this and doing that I do think it's still with Chief Justice Roberts at the center it's still a pretty restrained court so I think it will rule foreign on one of the issues and then call it a day from there I would say if I had to bet on it I would say probably the removal issue we have a question in the back uh Raleigh Stevens ljc it's been a while since I looked at the Texas and Florida walls is there any daylight between them where you could see if not even a different outcome at least different reasoning different kind of separate opinions or are they going to arrive and fall completely together and it's going to be one opinion you know I mean it's always dangerous to predict because I think there are some differences between the laws but I don't see the concepts and doctrines that govern the outcome as really being sufficiently distinct as to Warrant two different opinions other questions while you move it over I'll take one from our online audience who wants to know if the panelists have views on the new Mexican New Mexico Governor's gun order uh and the constitutionality of that I'm going to let one take that one yeah I think it's obviously unconstitutional I mean I think I think what we're starting to see what I feel like I'm starting to see more and more is the government entities uh you know whether that be on the state level it's usually at the state level sometimes perhaps on the federal level as well really pass or enact obviously unconstitutional laws to make a political point and I think that's you know why it's really important that organizations like Cato Institute organizations like Beacon Center of Tennessee and and organizations like Pacific Legal Foundation where honest Asian I used to work really stand up and and fight these unconstitutional laws in court because I do think that sometimes it's just a matter of passing an obviously unconstitutional law and seeing if anyone is is willing to challenge them so I do think that's a trend and I think it's obviously unconstitutional and it will be held so by a court soon I have another question here which has to do with the racial preference cases is there a fear that the schools will drive their discrimination so far underground either by using proxies or not talking about it not developing a record that it really won't be able to be proven in court and what do we do about that yeah I have a few points about that I think so it really depends if it's something that is a proxy for differential treatment I think there are a lot of ways albeit resource intensive ways to approve that and I think you know you have a lot of organizations public interest organizations like plf private organizations like con Savoy McCarthy that are better equipped to prove that kind of discrimination more important point though is if a lot of that goes underground I think that's all somewhat good in a way because of the stigmatic harms that racial preferences impose and along the same lines the stigmatic arms that obviously race-based decisions to racially balance impose I mean a lot of the things or one of the things that really isn't being talked enough about I think the Harvard and UNC cases from last term is that you know for the vast majority of students that applied to UNC and Harvard the system of racial preferences wouldn't have made a difference to whether or not they would have been admitted but I think we can say that racial preferences are wrong and that discrimination anywhere is discrimination everywhere and I think it really imposes a stigmatic harm on even the individuals who got in because there might be a stigma that they got in because of racial preferences even though that's simply not true for the vast majority of applicants and my last point is I think the leveling down on standards that we see in a lot of these universities and K-12 institutions in the name of racial balancing are really counterproductive and at best Band-Aids let's go back to First principles America is a land of opportunity and equality before the law let's ensure that people can flourish because they are treated as individuals and because we are tearing down government-imposed barriers including the barriers to on the right to earn a living and also the barrier to a school that fits each student's individual needs any other questions so hi Elizabeth Slattery Pacific Legal Foundation so you've talked about uh things that are happening inside the courtroom but a lot of the justices extracurriculars have come under scrutiny uh particularly in the last six months so do you see any sort of wide-ranging Ethics reform on the horizon no I agree um I I don't I I think that the chief has already made it clear that uh you know to the extent that there is disputatiousness within the court about how some of the justices have or haven't reported uh certain things that that's going to stay that's going to stay within the court I don't see him uh moving in any direction to encourage um further disclosure reforms and I don't see Congress as being able to get sufficient traction yeah Tony Berry Cato Institute last term we saw some interesting cross ideological alliances and opinions for example we saw Justice Jackson and Justice Gorsuch join a couple concurrences or dissents on issues of due process against the government sort of progressive libertarian alliances are there any cases that you think might have similar cross ideological either majority or or joining opinions that might might surprise people but that could could make sense once they happen Gorsuch thing I think was so fascinating and occurred on several different occasions including a couple where there were just the two of them in in concurrence a shared concurrence together it's hard for me to kind of speculate mostly in the abstract about whether or not you would see that uh Alliance continue I I would have to think that some of these social media cases just because of the the push and pull of some of the issues might create some strange bedfellows but hard to predict who's going to line up so two cases I think the Galaxy case is a case because there's an opportunity to either decide all those cases or decide you know one or two of the issues I think they're going to see a similar lineup as we did with Sackett last year to where maybe the court comes to a unanimous decision but the concurrence is could be read as somewhat of a dissent in a way my very very very hot take is that in rahimi you might see one of the justices cross over to rule for rahimi because of the due process implications of taking away someone's second amendment rights when they haven't been convicted of anything I'll just add that there's a pending petition asking the court to overturn slaughterhouse and I think that's really a case where you might surprisingly get some crossover because there are of course the originalist justices and even almost everyone agrees that slaughterhouse was incorrectly decided this is one of the first cases interpreting the Privileges or immunities clause after the passage of the 14th Amendment and it just gutted the Clause entirely and uh you know I think Scholars almost near uniformly agree that the case was incorrect even if they disagree on what the scope of the Privileges or immunities clause should be so in any event I think you'll get some originalists you could get others who know that's wrong knocking on the privilege or immunities closed door and then it just it's a case with extremely sympathetic facts about a woman in Louisiana who wants to provide care for special needs kids and the state agency there locks 70 percent of people who want to apply for a license they don't even let them apply for the mere reason that the agents he says the fewer the people in this industry the easier our job and the easier our job the better off you all are and that is literally the only reason the government gave for this this law that's depriving uh very needy kids and families of care for their special needs children so I like to think that that case will have some crossover support and that's also because I wrote the petition uh but but I also objectively think that that case could get some traction other questions hi Mark Sherman do you foresee future cases with respect to college admissions related to Legacy recruited athletes children of Faculty I mean most people would view that as fundamentally unfair in its own way but is there a legal basis in a a chance that those will get to the court and if so would they succeed I think we've already seen some complaints I think it's possible to have a sort of Arlington Heights challenge to some of the some of those programs depending on uh sort of the history behind the Legacy preferences for example you know I think a lot of it is just you know schools their schools should admit students based on Merit so I think I agree with the bottom line conclusion that that a lot of those preferences are also unfair though it remains to be seen whether individuals will challenge them as unconstitutional or otherwise unlawful foreign thank you Jack Brown from Pacific Legal Foundation we've mentioned the right to earn a living tie a couple of times on this panel today and I was just wondering do you see any opportunities for the court to apply the Dobbs test to the right to earn a living thus treating it as a fundamental right and giving it something resembling strict scrutiny or strict scrutiny itself and How likely do you think it is that will occur thank you I mean I'm happy to jump in here because that's because that's part of this petition that I was referencing and I think if if the court were at all serious of course you would have to consider the right to earn a living a fundamental right under any of the tests that the court has ever articulated it's deeply rooted in our nation's history or as I put in the petition deeply deeply rooted in our nation's history and it has been protected through courts over time even it's it's something that is in our nation's tradition and it's also essential it's a fundamental right it's it's you know it's a combination of all of our rights our rights to use our faculties our body to earn our labor to put food on the table for our families um and so I think if the court were serious about the Dobbs test that it should open up uh uh economic Liberty to higher levels of scrutiny however you know I think the reality is is that many of the justices don't like substantive due process um and they are also afraid of opening up just run-of-the-mill economic regulations to more scrutiny which is why my petition is the ideal case because it's not just an economic regulation it's uh you know like a regulation of the industry once you're already in the industry or a health or safety regulation or something like that it's a law that keeps people out of the profession entirely it deprives some of their return of living entirely essentially establishing a monopoly for the for the people who already in the field so so while I think you know a lot of people have been asking the court to take up that question um you know it might be time to switch tactics and move to the Privileges or immunities clause or some other way to revive the right turn of living any other questions hi and thank you for a great day I'm not a lawyer so I I'm going to plead ignorance uh perhaps here in my question we can't go an entire day without asking about Donald Trump right is there any chance that any one of these 91 indictments or the challenges of insurrection with the 14th amendment that any of these will work their way to the Supreme Court in just a second question if I can anything about qualified immunity are you expecting in this coming Court can I start with the second question um so as some of you in the audience know that qualified immunity is a huge B in my Bonnet um with Cato I probably filed a dozen uh quixotic cert petitions and we continue to Tilt at that windmill um you know I I think there are a couple qualified immunity petitions that are up in front of the court I think the real question again is is appetite for it um it might also be a place where you start seeing some crossover bedfellows but you know we we have filed serpetitions in qualified immune to cases that that are absolutely jaw-droppingly egregious um fifth circuit cases and the Supreme Court has expressed zero interest in taking them um so you know my My Hope Is that the the continued drum beat of qualified immunity eventually will fall on enough ears to to get some traction But but so far it's been an effort that we are continuing to shout into the wind anyone else and I will I will seed on the first Quest well I I haven't been following it as closely I must confess but I will say that you know a lot of these cases ultimately go up to the Supreme Court on a petition I mean anybody um you know basically can file a petition and usually they're denied without comment so I I know that we have a lot of uh very well-known journalists uh and responsible journalists in this room but not I would say not everybody is as responsible and I would just take reports that the Supreme Court expressed its views in one case or another with a grain of salt simply because it did not take a particular case the Supreme Court does not exercise jurisdiction over every single case well I see the event timer is literally ticking down from seven seconds and Tommy told me that I had to stay on time and so with that I think we'll take a 10 minute break there will be Refreshments in the winter garden and then we will come back for our annual Simon lecture [Applause] absolutely true business ES [Music] all right thank you [Music] ridiculous [Music] [Music] thank you [Music] foreign [Music] [Music] [Music] thank you [Music] [Music] breakfast [Music] [Music] thank you [Music] [Music] friends [Music] [Music] [Music] [Music] thank you [Music] [Music] thank you foreign [Music] every facilities incredibly Grace [Music] Professor akilamar a year before that my good friend Professor Rachel Barco before that another good friend Don Willett from the fifth circuit and um Tom Hardiman from the sixth circuit before that but um tonight is a real treat I'm very excited to introduce somebody that I've only known for a little while we actually met kind of on Twitter which always um gives me a certain sense of anxiety I feel moved to apologize if that's how somebody first encounters me but um we've had some wonderful exchanges and it's just such a pleasure to introduce chief justice Bridget Mary McCormack who is currently president and CC CEO of the American Arbitration Association which I just learned has over two dozen Offices here in the United States and one in Singapore which keeps her traveling quite a bit but before that from 2013 to 2022 she was a Supreme Court Justice on the Michigan Supreme Court first as an associate Justice and then from 2019 to 2022 chief justice before that she was a professor at the University of Michigan law school where she taught criminal law and legal ethics and oversaw the law school's clinical programs she's also taught at the Yale law school and with trial council at The Legal Aid Society and then at the office of the Appellate defender in New York and as I said it's really a treat to be able to introduce my Twitter friend and hopefully still friend chief justice Bridget Marion McCormack thank you so much thanks Clark it's it's wonderful to be your friends with you and I think I'm going to like being actual friends with you even more I'm looking forward to it it's going to be right um so AAA does not have 2 000 offices we have 28 I must have been speaking in precisely but 28 is a lot oh two dozen is correct I think so 2000 I was like holy crap I have a lot of places to get to I'm going to be busy um see if my slides work oops oops not quite I'm seeing them but you're not oh you do okay I don't want you to see that yet we're not there yet all right I want to thank the team at Cato for inviting me um to join you today it's an honor um I I was the lucky beneficiary of your excellent work when I sat on the Michigan Supreme Court I want to thank you for what you do and encourage you to keep doing it in state Supreme Courts where we decide really important issues and get variable work on those issues we are not like the US Supreme Court we need your help and we appreciate it so thank you for all of that my topic today is the massive market failure of the Civil Justice System and its role in undermining the rule of law I'm going to start with a description of the current state of Civil Justice in America I want us all to be on the same page before I turn it to diagnosing some of the causes of the Brokenness after my diagnosis I'm going to describe some of the ripples of change I see on the horizon and what's at stake and here's my thesis we can't go on like this but before I begin word about what I am not talking about and what not to infer from that please don't take my focus on the Civil Justice System to mean the criminal justice system is currently serving the rule of law ably it's not great for the rule of law that in most jurisdictions you can be punished for conduct a jury has said you're not guilty of and did you know that if you're represented by ineffective counsel when the state seeks to terminate your parental rights and as a result of that inadequate representation you lose your kids there is no process for addressing that wrong it's a too bad so sad rule when that happens in most jurisdictions okay back to the topic I came to discuss justice system data is very hard to come by but there is some data about the Civil Justice System that captures its failures I swear I'm doing it that way that way there we go I should do it a couple times the legal services corporation's 2022 Justice Gap report found that 92 percent of civil legal problems of low-income people get either no or inadequate legal help that's a six percentage Point increase over the prior study from 2017 and it's not a pandemic blip during that same period total revenue to Legal Aid programs increased by 31 percent and there's this the national Center for state courts estimates that both parties have lawyers in only 24 percent of civil cases in state courts where about 95 percent of civil litigation occurs in other words in more than three quarters of civil cases at least one party struggles to navigate a legal system where rules are written in a language they don't speak or understand and this every year the world Justice project ranks world the world's countries on their compliance with various measures of the rule of law one of those measures is the accessibility and affordability of Civil Justice the most recent rule of law index released late last year ranks the United States 115th out of 140 countries on the accessibility and affordability of civil justice among the 43 wealthiest countries in the world the United States ranks 43rd a lot of other countries do justice better than we do the popular idea of our justice system the one we see on TV and teach in our law schools where both parties are represented by lawyers who present evidence and make legal Arguments for their clients and the best legal argument wins is a fiction in the vast majority of civil cases in the United States today the rate of lawyerless litigants is particularly troubling because of the kinds of cases they're managing on their own high stakes cases high stakes not because billions of dollars are at stake but because they often involve something more fundamental shelter personal safety family financial stability this is relatively new while State Court data is especially opaque the evidence we have shows that as recently as the start of the last quarter of the previous century lawyerless litigants were the exception there was then a steady rise over the remainder of the 20th century until by the early 2000s we were seeing the numbers we have today in 1977 two students at Yale law school did a study of 2500 divorce cases in two trial courts in Connecticut and published their results in an unsigned project in the Yale Law Journal the students were Deborah Rhodey and her husband-to-be Ralph Kavanaugh they found that 2.7 percent of the divorce cases they studied involved in unrepresented litigant they also cited a then recent study in San Mateo County California showing that 20 percent of divorce petitioners were proceeding without lawyers there a figure they characterize as an unprecedented surge in self-representation of course there are lots of government services people navigate without experts what does not having an expert for a Justice matter mean you might wonder oops we're doing another slide sorry this could be smoother the lawyers in the room know the fundamental legal fiction that we're all charged with knowing the law for those of you who are not lawyers and I heard there are a few in the room ignorance of the law is never a defense to any claim or charge and there's a lot of law to know take crimes for example according to best estimates and estimates are all we have there are about 4 500 federal crimes the United States code and more than 300 000 federal crimes dispersed throughout the Federal Regulations I can't figure out the numbers for any individual states and nor can any of the generative AI tools I consulted but fortune telling is still a crime in most jurisdictions in North Carolina it's a crime if your bingo game lasts more than five hours or if you play bingo while intoxicated in Vermont it's still a crime for a woman to get false teeth without getting permission from her husband there isn't one place to find out what the law is no resource explains in plain language what exactly the law requires of you or provides for you do you know what happens to your stuff if you die without a will the lawyers probably do I wasn't sure so I asked Google and I got this answer if you die without a will you are intested and a probate court is an intestate doesn't matter if you die without a will you are intestate or intestate and a probate court will apply the intestacy laws of the state where you reside to determine how to distribute your property among your next of kin naturally I next asks what the intestacy laws of Michigan are things went downhill from there one result seemed to be a link to a Michigan Statute but it didn't work the rest were lawyers websites one scarier than the next here's one example dying without a will may become a less than ideal situation for example the court could find that a distant relative that you never intended to give your money or property to could be entitled to your estate yikes like my cousin Tommy I can't stand Tommy if he gets my stuff you this is a very devastating scenario and at a minimum you should have a last will and testament drafted that outlines who should receive your money and your property many people have some familiarity with some parts of the US Constitution but even when we know the particular words in a constitutional provision we don't generally know what they mean in practice the words have been interpreted As We Know by judges for some 200 years or so and it's those interpretations that are in fact the rule of law and they aren't always intuitive most of us know that we have a constitutional right to be Tried by a jury of our peers if we're accused of a crime but in most cases exercising that right will mean exposing yourself to significantly longer punishment if convicted and that consequence judges have found is perfectly constitutional right to a jury trial ish and as for statutes you might find your way to reading them online but after spending 10 years trying to make sense of many of them with six other people trained and paid to do that who disagreed regularly well best of luck then there are other legal principles rules of decision that are also judge made in a little bit more freewheeling and can overlay constitutional or statutory law these are generally not tied directly to any language of a constitutional provision or statute Google mutinous rightness standing qualified immunity you can go on and on to have access to a comprehensive collection of all these judicial pronouncements of the law also known as the law you need a subscription to the most user unfriendly search engine you will ever interact with there's more still there are also sets of rules that govern how you can use the law in courts and a particular rule of law will be different from one state to state from state to state and sometimes from Courthouse to courthouse the rules for how to interact with a court can be different from courtroom to courtroom that's right in addition to sorting out the legal rules and principles and court rules that govern your dispute you better check judge what's her name's website for any special rules that you have to follow if she has a website if she doesn't you can call her office and see if she will fax you her standing order I watched some addiction cases recently before a thoughtful judge in Michigan we can still watch a little bit of Court online in Michigan I'm going to read you one short transcript from an eviction hearing the judge says we'll come to order the record May reflect the next summary proceedings matter involving Courtyard Apartments versus Joshua Salinas and all other occupants council is appearing on behalf of the plaintiff the defendant has failed to appear as I understand it not in the hallway either Council he's not the judge all right Council anything for the record good afternoon Council good afternoon your honor for the record if it pleases the court p-64392 with the law firm of swastik Levine I represent Courtyards this matter is set for a second hearing after a magistrate call a week ago Mr Salinas failed to appear at that time as well so this is a second consecutive failure to appear this matter is a health hazard matter we're seeking immediate turnover of the property so we would ask for a judgment for possession be entered at this time and that we be allowed to submit a writ immediately and that in order for eviction be issued as soon as the fees and the form is received by the the court the judge all right do you have someone available for brief testimony in support of the default judgment today Council I don't um Miss Soto she has been with us before she's the property manager she's ill she's ill at the moment and this was a summary proceeding and I thought that we could possibly do that the judge so on this the notice to quit was served August 4th I would note that notice to quit indicated in bold face type landlord will seek immediate issuance of rate of restitution the options given to the tenant were to remove the health hazards report repair and allow inspection by the landlord within seven days or move out again that was served and proof of service shows August 4th on the defendant complaint was then filed in this particular matter for termination of tenancy based upon health hazard or damage to property and paragraph nine it's the standard scale DC form 102b checked in bold face the plaintiff requests that these that in regular type and immediate order of eviction that was filed with the court properly and the lawsuit was mailed certificate of mailing protected on August 17th and the lawsuit is posted for proof of service indicating it was posted attached to the premises on August 26 under MCR 4.201 blah blah blah I will sign both the possession of judgment the Rita restitution as well as if they're provided to the court how much of that would Mr Salinas have understood if he were there why did the judge ask for a witness and then not require one is there a rule that requires testimony is it a Court rule is it a statute how would you figure that out if you were not a lawyer how would you figure out if you were a lawyer did the tenant have any defenses how would you figure that out when you say it all out loud it starts to sound not very fair it's not Justice to compel people who can't afford a lawyer to play by the rules of a system designed only for those who can it's wrong how did we get here the American legal system was built by lawyers four lawyers at a time when everyone had a lawyer four industrial revolutions passed and the complexity of our economy and Society changed dramatically at almost no updates have been made to our legal processes oh where I already got there huh a surgeon dropped from 1890 that's a moderate that's a surgical Suite from 1890 on the top left corner of the slide dropped into a modern surgical Suite the the photo right beneath it would have no idea where he was but a lawyer who appeared in the Iron County Michigan Courthouse in 1890 on the on in the middle would be just fine in that same courthouse today almost nothing has changed why hasn't change come for the legal profession in the way it's come for so many other Industries where is the Civil Justice Netflix why are lawyers so terrible at solving problems that require Innovation collaboration and also excellent at boxing out others who might be better at it part of its cultural our training and culture our risk-averse and backward looking we are trained that incremental change leads to Lasting Solutions with less conflict and lawyers are committed to the way we've always done things one of our most essential decision-making Norms is Starry decisis What was decided before governs what we decide today and there is strong cultural norm that favors the status quo we all did it this way and you should too part of it is practical we lawyers and judges attend to emergencies first and we always have emergencies we focus on lots of critical immediate problems which keeps us from focusing on structural problems each stakeholder group may work in good faith to address the immediate problems squarely in its wheelhouse but none have time to step back and explore Upstream Solutions part is lack of resources except for those lawyers in in big law a small minority of those in the profession lawyers priorities are structured around financing their practices and paying their employees courts struggle to keep the lights on judges trained and pay court staff a living wage funding for technology data collection evidence-based study and reform is minimal and the competing priorities of dispensing Justice daily are formidable and part is bar federalism part of smart federalism bar examiners in each state work separately often duplicating work and often missing each other's insights legal system stakeholders react to one another but rarely collaborate law schools have primarily built their curriculums to accommodate a complex web of State licensing requirements educational accreditation requirements and University policies policies further structured by a ranking system built on criteria that locks in anachronistic vision of the profession while law schools and courts operate independently they are in fact Interlocking Systems each dependent on and reactive to the other and each Bound by funding models traditions and cultures that have over time magnified the gap between those who become lawyers and those who need the justice system to protect their rights neither has direct control over the other both serve many other stakeholders in most jurisdictions State Supreme Courts and law schools interact very rarely in a self-regulation and licensure federalism system there is no obvious first mover for system ride before reform and lawyers are resistant to allowing others to help let me focus on the on for a minute on the supply side according to American Bar Association data in 2018 around 84 percent of law school graduates were employed in positions requiring bar passage or where a JD provides an advantage the ABA data has been criticized for overstating employment rates by including short-term and non-professional jobs and some suggest that full legal employment is likely 10 to 20 percent lower America's lawyers devote three years and hundreds of thousand dollars to learn the law some graduating with crippling debt and a significant number of them are underemployed now I don't mean to suggest that this Market mismatch is a solution waiting to happen we're not going to lawyer our way out of the Civil Justice problem if the paying work available now is not not enough to keep our current roster of lawyers fully employed the 92 percent of our neighbors who can't afford to pay lawyers to help with their Justice problems will not close that Gap in our current models but they can't get help from anyone else either in Most states anyone who's not a lawyer risks criminal punishment for the unlicensed practice of law the definition of the practice of law and the UN authorized practice of law is not UNIF are not uniform and are not easily understandable see above impossible to find the law but most UPL restrictions prohibit people from giving out of court legal advice or helping prepare legal documents this wasn't always the case in the United States at the founding when only lawyers could advocate in most courts you could still get help from your family and friends with legal problems outside of court that started to change in the early part of the 20th century when courts prohibited legal help by people who were not lawyers outside of courthouses to first when done for a fee and then eventually when done at all now lawyers monopolies around the country restrict restrict anyone who is not a lawyer from helping another person with a legal problem it isn't like this in other professions where resources are critical to basic human needs you don't see a surgeon or a doctor every time you have a medical problem sometimes a PA or a nurse practitioner is all you need 82 percent of health care workers have a bachelor associate or vocational degree and only 9.3 percent have an MD or a do in contrast eighty percent of legal service workers have a law degree this might sound a little bit like a Requiem for the legal system we love but I see lots of hopeful ripples it's a bit of a Jenga Tower and if the right pieces are pulled out it could topple quickly and you could rebuild something that made a little more sense and a number of pieces have been pulled out of the tower recently which I'm going to organize today in three buckets regulatory reform litigation and other stuff so starting with regulatory reform you've likely you've likely know this story two State Supreme Courts have attempted to be first movers to address the Civil Justice crisis in 2020 the Utah Supreme Court established a licensed paralegal practitioner program I'm going to call that lpp that allows qualified non-lawyers to provide limited legal services in debt collection landlord tenant disputes and family law matters critics mostly lawyers initially argued that lpps might increase consumer confusion and harm to become an lppe individuals must possess an associate or bachelor's degree and then complete an approved lpp education program exams and an apprenticeship lpps must adhere to professional conduct rules and complete 12 hours of continuing education annually in the first two years following the launch over 75 individuals have been approved as lpps and began providing legal services in Utah in 2021 the Arizona Supreme Court adopted rules to create a new licensing program allowing qualified non-lawyers to provide specific Legal Services Arizona licenses legal paraprofessionals who meet specific education education and training requirements set by the court to qualify individuals must present possess an associate's degree or higher and complete an LP education program approved by the court LPS must adhere to rules of professional conduct and compete annual continuing education LPS can provide specific legal services and family law landlord-tenant disputes debt collection defense and administrative appeals they can prepare legal documents advise clients on procedural issues and represent clients in certain Administrative Hearings they can't appear in court or negotiate on a client's behalf the program launched in January 2022 from January 1 to December 31 2022 25 legal paraprofessionals were approved as of January 23 10 more were approved and I don't have more recent data than that in addition to creating the legal professional program the Arizona Supreme Court amended rule 5.4 of the rules of professional conduct rule 5.4 prohibits lawyers from sharing legal fees or forming Partnerships with non-lawyers for law practice the rationale for the rule is allegedly to prevent outside influence over lawyers independent professional judgment Arizona's revised 5.4 allows for alternative business structures and non-lawyer ownership of law firms in Arizona provided specific requirements are met for example lawyers must still retain majority control over the firm and be responsible for ethical and professional conduct and firms must not allow non-lawyer involvement in matters of legal judgment Arizona's rule change aligns with similar rules in England Australia and parts of Canada and reflects the view that opening the door to new capital and business structures can increase access to legal services without undermining lawyers duties to clients more flexible rules facilitate Financial investment in Innovations like Technology Solutions for cost-effective Legal Services and so far the sky hasn't fallen in either state early evaluation of both programs so it has been encouraging a team at Stanford conducted conducted in-depth interviews and Analysis of the authorized entities in Utah and Arizona through June 30th 2022. they found that Innovations have emerged in five primary forms traditional law firms have adapted their business structures and service models or Capital structures and they make up about 35 percent of the authorized entities law companies like Rocket Lawyer and LegalZoom represent 38 percent of authorized entities these companies have chosen to become regulated so they could employ lawyers non-law companies newcomers to the sector comprise about 18 percent of entities these or companies often set up on service models that combine law with other services such as accountants intermediate intermediary platforms connect lawyers to potential clients there's a small group of those and finally entities using non-lawyers to practice law these providers use waivers for unauthorized practice of law available in Utah one example rasa uses Ai and non-leur experts to help Utah residents with criminal record expungements the Stanford team drew some thematic conclusions from the interviews they found that lawyers are pivotal in the Innovations of these new entities they're developing new Concepts and actively involved in various roles such as owners investors and compliance officers they found that a significant proportion of these entities are selling primarily to individual consumers and small businesses the people law Market and most importantly they found that the reforms haven't resulted in significant consumer harm both Utah and Arizona have reported relatively low complaints about the new entities the regulatory reform story however is a bit two steps forward 1.5 steps back 2022 witness setbacks California's initiative to introduce regulatory reforms was met with significant resistance from the bar and the legislature culminating in a legislative ban on specific reforms and the ABA issued a non-minding resolution against States considering non-lawyer ownership changes but Oregon and Alaska both recently introduced legal paraprofessional programs and other states are considering it regulatory reform isn't the only Jenga piece that's been pulled out litigation is also oops I forgot that slide litigation is also having an impact the up solve litigation is familiar to my friends at Cato who have showed up in it in April 2019 the non-profit organization upsolve challenged New York's UPL law as it applied to their program upsolve provides a free web-based platform that helps low-income individuals file for chapter 7 bankruptcy without an attorney upsolve wanted to also be able to help its users in debt collection actions by having trained workers who are not lawyers provide free legal advice on responding to debt collection lawsuits that conduct of course would trigger New York's UPL statute hence the litigation upsolve argued that New York's ban on the unlicensed practice of law violated the First Amendment upsolved CEO by the way pictured there Rohan pavaluri is not a lawyer the Federal District Court ruled in favor of upsolve finding that New York's ban on the unlicensed practice of practice of law was unconstitutional because it violated the first amendment by being overbroad and infringing on upsile's Free Speech rights the attorney general has appealed that decision the South Carolina branch of the NAACP has filed a federal lawsuit challenging that State's UPL statute the NAACP wants its members to be able to provide limited but critical guidance to low-income tenants facing eviction like explaining the eviction process possible defenses and the importance of requesting a hearing before losing their homes by default like upsolve the NAACP believes citizens have a First Amendment right to speak and Associate by offering such guidance incidentally you don't have to be a lawyer to be a magistrate who presides over eviction cases in South Carolina the judge in that case the federal judge obeyed the case for the plaintiffs to petition the state supreme court to determine whether the intended conduct would violate South Carolina's prohibition on the unauthorized practice of law because according to the judge the state supreme court has exclusive jurisdiction over interpreting what constitutes the practice of law in South Carolina which I suppose is true but the judge does get to decide whether whatever it is violates the First Amendment anyway more more on that more to come I think the antitrust division of the United States Department of Justice has also appeared on this issue recently the doj submitted a letter in support of proposals to expand access to Legal Services in North Carolina in the letter the doj argues that consumers benefit from competition between lawyers and non-lawyers and with many legal services priced out of reach lower across lower priced options are sorely needed the doj noted that unlike at the federal level where antitrust is statutory in North Carolina North Carolina's Constitution adopted December 1776 says that quote monopolies are contrary to the genius of a free state and shall not be allowed federal agencies have long allowed non-lawyers to appear in proceedings from patent and trademark tribunals to immigration courts then there's the other stuff the chief justices have kind of had it they formed a new committee and they're going to be targeting the barriers to providing better service to people with Civil Justice problems they've showed up at the accreditation meetings and they want to they they want they want to be heard on this problem they're worried that Civil Justice crisis undermines all of their work I don't think they're wrong ask Tommy or me about Frontline Justice we both sit on the national Advisory Board it's a newly launched bipartisan National effort to reform Civil Justice work and also Civil Justice workers and when asked the public overwhelmingly famous favors reform when the Arizona Supreme Court was working on its regulatory reform package it held public meetings around the state and sought public feedback by survey it also surveyed lawyers lawyers surveyed about the reforms were overwhelmingly against them the public surveys produced exactly the opposite results and that input played a significant role in the success of reform in Arizona and finally the disrupter of all disruptors that has just come on the scene in my view is generative AI which I think is poised to knock the tower right over large language models are already transforming the business and practice of Law and legal education isn't far off they're automating many of the repetitive tasks that lawyers do analyzing data sets writing code you no doubt saw that when Chachi bt-3 was released in November it took the bar exam and it failed it only passed two of the multi-state sections contracts and or maybe it's torts and evidence it passed only to fail the exam in March when GPT 4 was released it took the bar exam again and it not only passed it scored in the top 10 percent and it did it in six minutes these models can democratize Legal Information they can democratize law they can even play they can even a lot of playing fields there are of course problems to solve along the way if AI learns from biased data which is a lot of data it can learn biases but humans who make decisions in courts sometimes also have biases and there is no code to run to fix those is tick-tocking the prompts you used in gpt4 to respond to your eviction notice the unlicensed practice of law I'm waiting for the legal influencers to take to Tick-Tock and explain exactly what prompts they put into these llms to help people um across their communities getting back out of the weeds why am I talking about this topic on Constitution Day well there are some meat and potatoes constitutional questions wrapped up in the unlicensed practice of law statute challenges but you all at Cato know those well they can infringe on First Amendment freedoms of speech press assembly and petitioning the government but I have something more fundamental I'm worried about the the rule of law is built on a foundation of public confidence and what happens if the public loses confidence today about 1400 eviction cases were heard in the city of Detroit District Court just today 1400. most of them didn't have lawyers many didn't show up some probably had legal defenses others didn't but might have been able to work out a resolution that might have made a difference for their family tomorrow there'll be another 1400. during the pandemic courts across the country as you know pivoted to remote proceedings to continue to administer Justice and keep the public safe it was easier in some places than others but we all learned a lot we were running an experiment whether or not we were interested in the results and we learned that default rates in cases where people navigate courts without lawyers dropped significantly when people had remote options for appearing in retrospect duh yes technology can be a barrier for some people but do you know what barriers can be more substantial Transportation Child Care a job with no time off a disability a car is more expensive than a smartphone and legal aid lawyers estimated that their ability to provide representation increased Sevenfold when they could eliminate transportation and parking more people showed up for jury duty than ever before when they could remote in to to serve when it was safe to go back into courts we had choices we could go back to doing the things we doing things the way we always had done them or we could take account of this new data that giving people a remote option made it more far more likely they could resolve their disputes and more likely they'd be represented and that more people could participate in the jury process courts make the rules about how we administer Justice with some exceptions but very few they returned to doing things the way they always had in Michigan we published a proposed Rule and took public input on whether to continue hearings remotely at least many hearings remotely the public hearing on the rule change was the most attended public Hearing in my 10 years on the bench it took most of the day and we limit everybody to three minutes of testimony the court adopted the rule change but with dissents I responded to my dissenting colleagues in a concurrence to the order which ended with this the Judiciary should not and cannot be the only institution that does not benefit from the lessons learned from the covid-19 pandemic and the accelerated Innovation it brought more importantly the public who have traditionally been excluded from Full participation in many of our courts should not lose a valuable new tool for accessing Justice ours is a government instituted for the people after all public confidence in courts is declining federal courts more than state courts but I think that's only because federal courts are measured more than state courts I think if you asked people in their local community who have to navigate state courts all the time you'd find great dissatisfaction the rule of law is just a set of ideas and it's only as strong as the Public's confidence in those ideas when the rules are hostile to you you might stop caring about the rules we have a tremendous amount at stake when the rule of law is wobbly lawyers and judges are uniquely positioned to shore it up if we want to I hope we do happy Constitution Day thank you for inviting me [Applause] and I'm happy to do questions if that's okay okay oh there we go thank you for that um yeah non-lawyers are not the only ones who are barred from practicing law yers are barred from practicing law in states where they're not licensed I recall reading one case where an attorney got disciplined because he drafted a complaint for a friend in another state who then filed it and pursued at pro bono how do you feel about breaking down the barriers to Interstate practice of law break it down as fast as you can it's ridiculous I mean I mean I mean lawyers in many states you can jump through like 25 hoops and pay a bunch of money and then find some guy and then like maybe you can show up at the court hearing why are we doing that why are we doing that we have trouble people need help and we need people to have confidence in this legal system it's a racket and it's a racket that should end uh Chris Green from Ole Miss would things be better if law were an undergraduate subject like it is in just about the rest of the world yeah I I mean so I have lots of thoughts on like reforming legal education as well and I think um you know that's a different talk but I do think uh the the way generative AI is going to uproot legal education is really going to be stunning um but the my answer is yes I would teach I I I would license people for all different kinds of things within law like within medicine and there's no reason why undergraduate students couldn't learn a whole lot and be able to be quite helpful with certain certain licensure uh requirements in addition to that I think that honestly you know us olds are gonna have to move aside and let the young people are actually going to be able to like know what to do with these powerful tools and and solve these problems so I'm I'm for uh empowering uh undergraduates as much as possible I would also if you made me the dean of a law school which nobody would but I would send everybody to an eviction docket for the first week a debt collection Dock at the second week and a bond setting docket the third week and then teach them technology for three more weeks and then go back to Public Law private blah blah blah blah we can learn all that they're all over uh in most other Industries for lack of a better term reform doesn't come from the practitioners you know doctors don't change the way things get done the pharmaceutical companies the pharmacy the uh medical device makers the hospital administrators and it seems to me none of those structures exist in the legal system the reforms come from judges and lawyers what other structures might be made available to help this process and I suppose some could be in in governmental areas but it it seems to me there's a role for private things whether they're companies or not I don't know but they're not visible yeah I mean disruption is almost always a story about the incumbent more than it is the disrupter and your point that we you know lawyers and judges have been pretty successful at um closing every gate so disruptors can't even you know see what we're doing inside is a good one um but I think that's all going to change with with technology soon so I I I I I could be wrong but but I think we're at a we're at a different Crossroads now um and I I I I I I even though uh judges and lawyers might be slow to adapt to change not all there are some um very Innovative lawyers out there and a couple judges but um I think the change is going to come from the public and the entrepreneurs who see an opportunity I see there I see there I'm sorry I I was surprised to see that the U.S ranked last in Western countries because places like the UK and France obviously have a much longer and more established legal system since they existed for far longer than we did so how did they manage to successfully reform and what lessons can we Port over to the U.S from those older legal systems and number two should we just get rid of the mandatory bar altogether or is that too chaotic of a solution um both good questions Canada both allow investment in law practice from other actors and they have as a result have have a little bit less of a Civil Justice crisis than we have they also have different education systems so you can study law and you can be you can provide some level of service without having to go to seven years of of school and become significantly in debt so I think you know they they have different models um but I but I think there's a lot to learn from countries that are doing Justice better than we are it was by the way last 43 out of 43 of the of the wealthiest countries in the world but still that applies mandatory bar is a good one I mean you know I don't know if if an llm can pass the bar and in in six minutes what are we doing are we really I mean why does it make sense that we're we're just gonna keep testing in a way that might have made sense 10 20 30 years ago instead of um figuring out what the best model for licensure really would be what would be the way we could actually you know make sure that the public was going to be protected if we gave somebody a law license I don't know if it's the bar exam in the United States it usually takes two years to get an MBA if you go to Europe you can get one in a year or a year and a summer with some of the top programs in the world does law school need to be three years long uh you tell me I mean I don't know what I don't know I think I could teach Public Law and private law in one year I could send you to a legal residency your second year I could I could do Public Law private law in one year I could test you at the end of public law private law like we do to medical students at the end of two years and then I could put you in a residency and in your residency you could actually close the Civil Justice gap for a couple of years the problem that the problem to getting to that solution is it takes all of these stakeholders that don't communicate with one another but whose decisions um Drive um and entrench the problems right you need the accreditor and the state Supreme Courts and the ALS I think I guess the ncbe you need like a massive like we need to all go lock ourselves in a room for three days and figure this out because it's not working and apparently that's happened in other professions I learned recently that all right I happen to be the chair of the ABA section on legal education admission I am the chair of the accreditation committee this year so I'm trying to actually figure this out like is there a way to get everybody in a room and figure out is there a is there a more rational way to do this like that that would actually serve the public and it apparently it happened in um architecture they had similarly entrenched rules that were that didn't make sense across the system and they kind of had a come to Jesus with all the different stakeholders and like came out of the room and fixed everything I'm not even probably it's not all fixed but you know what I mean I came out with a much more rational system we don't we don't do that right now in illegal there's all sorts that you you pick you have the microphone I don't want to be in charge of that uh thank you continuing uh with with um areas that are close to being a JD but not um it seems like the paralegal uh Prestige and income event has declined a little bit maybe and uh it seems to me from what I've observed that people from wealthier backgrounds who don't become JD's often still get other degrees that are close to that whether it's public policy or public administration and similar degrees so what's your opinion on what should happen with those type of programs and what those people should do with paralegal programs and and other I mean um you know you know I think that the data we're seeing from Utah and Arizona is um although it's still I think a pretty small number of people who are being licensed as um paralegal-ish positions it's it's making a difference in closing the enclosing the Justice Gap in those States so I mean why why every single state supreme court hasn't done that already after seeing Arizona and Utah's uh results is a testament to how strong the Monopoly is hi I have a question about funding of course I'm not an attorney I mean my understanding is there are a lot of times funded through like fees on people there's a disincentive in some ways for law enforcement for pretextual stops asset forfeiture how much are the issues that you're talking about are not just on the user supply side but on the way the courts fundamentally are established and funded and does it create more civil in Injustice or Liberties than before in some cases yeah um really important like 25 really important Court funding is super controversial and um in Most states there is some Statewide funding for judges but most local courts are funded by their local funding units and that means that they're not funded equally you know in in Michigan for example we have 83 counties and some County courts are extremely well funded because they have a they have a wealthy task tax base and others are not well funded at all and it makes a robust difference in the outcomes that people get not only because there might be some incentive for fines and fees and a a group of district court judges in Michigan submitted an affidavit in in litigation in Michigan saying they felt pressure from their funding units to collect fines and fees in cases which interferes with their ability to um decide those those cases those cases fairly but not only that it also makes a differences in the options people have in those counties so if you get if you have a mental health problem in Oakland County Michigan there's likely to be some place a court can send you where you can get help not true in most of the rural or Northern counties so you're going to County Jail that's where you're going thank you Chief I have two questions the first one is what is your opinion on the effectiveness of dispute resolution as a remedy for this program and then the second question is what is the state Court's hesitancies with really kind of developing these programs especially because mediators they can be trained in six weeks and then put into an effective position yeah it's a great question and obviously I like spend a lot of time now thinking about alternative dispute resolution and how it um in fact is an important service to the courts if we you know if we provide um options for parties who can and want to choose alternative ways to resolve their disputes we can lessen the load on the courts but the courts have have experimented with some alternative dispute resolution uh platforms that have been stunningly successful in recent years in particular so during covid-19 a lot of States Michigan was first stood up Statewide ADR programs for the eviction dockets there was a sweet spot there because there was Federal funding that that needed to be spent and so we had a sort of easy platform but it turns out that in local communities that that um kept that process going uh it still can be a lot cheaper to figure out Solutions than kicking a family out of their apartment so those programs continue to be successful in in counties where you have a Judicial leader who who wants to do it and that's like honestly the entire difference between getting evicted in Mason County Michigan or getting evicted in I'm making this up because I don't even know if berga has a bear you know is a Judicial leader in one County um worked with the local community mediation Center and set up an alternative dispute resolution program another like unfair unfairness that's kind of built into the system recently there have been some jurisdictions that are having a lot of success with mediation and alternative resolution in debt collection cases the debt collection case right now by the way is like the modal case in in District Courts across the country and there's no way courts can get through those and provide any real process to each individual litigant and the courts that have a Innovative Court leader can can work with their Community mediation centers and and almost always produce better outcomes there's I think all kinds of opportunities now for online versions of that um I think the the there are Limitless possibilities for successful diversion programs that take the load off of Courts and leave time and space for those cases that are going to have to happen in court some cases have to happen in courts yeah this is I'm Tim Sandoval from the Goldwater Institute um what you just said brought to mind um the federal the California hostility to arbitration yeah the California courts particularly have been engaged in a conscious process of finding ways to avoid enforcing arbitration agreements uh to the point where I mean it's really I think in many cases in bad faith on the Court's part in in the state courts in California and the reason is because there's this perception that arbitration is tilted in favor of the evil Big Rich greedy corporations and against the little guy and so if you're proposing any alternative dispute resolution method how would you account for that concern to the degree which I think is vanishingly small that it has Merit yeah I mean it's so interesting because um certain groups have won the messaging war on so-called Forest arbitration right um and I guess you know good for them they got out in front of it I I I I I I prefer to address it on the merits I mean I I can show you exactly what happens if you have an arbitration at the AAA and the uh and if you're a self-represented party the um the due process requirements and the time and the space that the administrative that the arbitrator takes with you is it's it's pretty compelling I'd rather like have people see it on the merits but I agree that messaging has been um pretty one-sided there it's odd because um there is there is such good evidence that diversion programs and arbitration is a diversion program that's what it is are so successful in this other category of cases that you think the same people might care about this eviction diversion programs were stunningly successful across the country the debt collection diversion programs are stunningly successful treatment courts the the treatment Court programs which are criminal dockets where people are um instead of going to jail given some intensive treatment options depending on what their issue is that brought them to court in the first place are are far more successful than traditional criminal dockets those are ADR programs that's what they are you know and and so I I don't know I I feel like I'm I want to talk a lot about I want to break all that down and talk about what diversion really means and how in fact successful diversion programs really support the work of the public justice system and in fact without them the public justice system would would crumble I mean imagine if every case that right now goes to mediation or arbitration had to be litigated in the in the state courts which are already stunningly overwhelmed so I there's a lot of work to do there I'm trying to do some of it yes you've put your finger on a large number of problems in the Civil Justice System but I'm wondering how what you've recommended maybe increased representation would address the problems in eviction cases you said there are 1400 eviction cases a day in Detroit these cases many of them may to be sure could be addressed by representation to working out a deal yeah but so many of these cases are just plain the law isn't the real problem the law says simply you don't pay your rent you get evicted and a lawyer representation will not address that unless we change the law and say no no I yeah I think you're right I mean I don't mean that you know if we found a lawyer or a law trained paralegal for every single person who got an eviction notice they'd all stay in their Apartments they would not but if they didn't they still might understand what the process was and there's you know a robust literature on procedural fairness and its importance to the rule of law I mean people just people need to understand what the legal process is why if in fact there is no defense and there's not much they can do about it why why they're why they're why the result is what it is and there's a I think very important value in procedural procedural Justice but it's also the case that oftentimes a landlord would like to work out a deal like it is very often the case that just evicting apart from a safety case or you know certain cases if there is a way to work out a deal and um get their money eventually that's usually better so in many cases if you figured out a way to get people to a diversion program there could be a solution so I'm going to exercise the host's prerogative of last question I want to confirm something from my experience to what you just said um you know when I was litigating forfeiture cases at hij um just getting a lawyer would almost guarantee that the federal government would op up their initial settlement offer from giving you 20 back of your property to 50 so that definitely happens also man do they cut a lot of corners and just having you know maybe an AI that knows rule G of the supplemental rules of admiralty and and forfeiture actions could be a little bit helpful so I'm going to paint a quick sort of dystopian and possibly utopian picture and invite you to comment on it um I I think if someone were representing themselves per se and used an AI to write help write their briefs and a court was to have a rule that says you're not allowed to do that I think that's a First Amendment problem at least um what about a day when somebody's essentially wearing an AI and it's telling them in their ear what is the best response to the uh you know the question for example is the is the in the the landlord supposed to have a witness here to support this you know whatever default eviction petition and now they know the answer to that question I think the world looks a lot different would you could you see the courts essentially saying nope that's too much of an advantage or it's too much like a lawyer you can't do it I yeah I mean I I think um courts are going to be pretty resistant to allowing um anyone I mean as the only orders I've seen from courts are you can't use it or you have to disclose it if you used it or um and I certainly think that would apply to self-represented litigants who find a way who have it in their glass you need it in your glasses if it's in your ear they'll notice it in your ear but we could do glasses I think but um yeah I think there's going to be big resistance I I don't think the courts are prepared at all for what might be coming though because even if you can't do it in the courtroom there's an awful lot you might be able to do outside the courtroom um right now frankly so and I don't think the courts are prepared at all in Michigan a couple years ago we proposed a rule allowing people to take their cell phones into courthouses it was it turns out that in some courthouses they you could break you could take your cell phone in and others you couldn't and if it was a courthouse where you couldn't if you had a lawyer you could give your lawyer your cell phone and then you know your lawyer could carry them if you didn't have a lawyer then um you couldn't take it in and so the the main district court in Detroit 36 District part where most people have their um their cases adjudicated if you didn't know that and you took the bus and you got to court and you had your cell phone you left it in the bushes and it was never there when you got out right um seemed wrong a lot of people had like their evidence on their phone you know it's like a PPO case and they have you know their their evidence on their phone um and they can't they can't take their phones we published a rule and I that was like the second most attended hearing by the judges who were um who who were really really opposed so I mean I I I I don't know I don't know what to tell you that same court wouldn't let you take a pen or a pencil in no pen or pencil apparently a pen it could be like a secret gun I guess somebody saw a James Bond movie and made a rule and couldn't take a picture so you can't write down like what the judge tells you nope nope no writing utensils could be a gun so it had to like change that Statewide um so I think it's going to be a long while before you see the judges letting people use their glasses AI well I expect there might be some litigation over that there might be thank you so thank you thank you very much thanks for having me right now thank you oh sorry well thanks for all of you who stuck it out this long I hope you feel that you were rewarded I certainly do I want to thank chief justice McCormick for a wonderful talk and also let you know that to reward your endurance we have Refreshments for you um including adult Refreshments in our Winter Garden right outside I'm sorry up on the top um of our seventh floor beautiful space please uh join us and thank you for all of you online and present for joining us for today's Constitution Day Tommy Anastasia all of our colleagues hope you enjoyed it thank you

Channel: The Cato Institute

Views: 749

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Id: IiH7RYZGgIw

Length: 359min 15sec (21555 seconds)

Published: Mon Sep 18 2023