Category: reason

From a Kansas Supreme Court majority opinion (by Justice Stegall) earlier this month in State v. Harris (a 4-3 decision):

In Kansas, it is a crime for a convicted felon to possess a knife[, defined] … as “a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character.” … [F]iguring out when an object is a “knife” because it is a “dangerous or deadly cutting instrument of like character” is not as easy as one might suppose. See, e.g., Crocodile Dundee (Rimfire Films 1986) (“That’s not a knife … That’s a knife.”).

Indeed, no one has argued the statute makes it illegal for convicted felons to possess the utensil commonly used in kitchens to butter bread or slice vegetables. But does it? After all, it is a cutting instrument, is universally referred to as a knife, and it could conceivably be dangerous. Today we are tasked with deciding whether the uncertainty in the residual phrase in [the statute] is so great that the law is impermissibly and unconstitutionally vague. We conclude it is….

Christopher M. Harris is a convicted felon. When he and another man got into an altercation on a Wichita street, Harris pulled out a pocketknife. A police cruiser was in the area and the officer turned his spotlight onto the men. The officer observed Harris dropping an object which turned out to be the pocketknife.

The State charged Harris with aggravated assault, criminal possession of a weapon by a convicted felon, and criminal use of a weapon. At his jury trial, Harris testified he felt in fear of his life and opened the knife only for protection. The pocketknife had a 3 and 1/2-inch blade with serrations. A jury convicted Harris of criminal possession of a weapon and acquitted him of the other two charges….

Most litigation concerning vagueness in statutes has tended to focus on the due process elements of the vagueness doctrine. Does the statute fairly put people on notice as to the conduct proscribed? Are the words used common and understandable enough to allow persons of ordinary intelligence to easily grasp their meaning? This hurdle is often described as requiring no more than a “‘commonsense determination of fundamental fairness.'” … And when the analysis is confined to these questions, the rationale of the Court of Appeals panel—as well as the dissent—[rejecting the vagueness challenge] is understandable. The statute bars possession of knives by convicted felons. A pocketknife is a knife. People of ordinary intelligence are on notice as to what conduct the statute restricts, and the demands of fundamental fairness are met.

But our focus today is on the second hurdle—the one intended to ensure that the Legislature has not impermissibly delegated its authority to write the laws to officials or actors in either the executive or judicial branches of government…. The primary problem with a law that fails to “provide explicit standards” for enforcement … is that such laws “invite arbitrary power.” That is, these laws “threaten to transfer legislative power to” police, prosecutors, judges, and juries, which leaves “them the job of shaping a vague statute’s contours through their enforcement decisions.”

Because an impermissible delegation of legislative power will often lead to arbitrary enforcement based on subjective or even prejudicial criteria, the United States Supreme Court has indicated that the “more important” prong of the “vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’ [Without these], a criminal statute may permit ‘a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’ [Citations omitted.]” See also United States v. Davis (2019) (“Vague statutes threaten to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide.”); United States v. Reese (1875) (“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.”).

It is the very overbreadth of such laws that renders them impermissibly vague. It is not necessarily because they are ambiguous on their face—an overbroad law can be very clear. The problem, in fact, may be amplified by clarity. If a law “makes everyone” a violator, then “prosecutors and the police [will] both define the law on the street and decide who has violated it.” This is a world in which “almost anyone can be arrested for something.” Nieves v. Bartlett (2019) (Gorsuch, J., concurring in part and dissenting in part).

It is appropriate to call such clear-but-overbroad laws “vague” because by failing to provide adequate enforcement guidelines, the Legislature has left it up to other actors to give the law teeth through their enforcement decisions and actions. As Justice Robert Jackson once wrote, without clear legal standards to guide us, we human beings “usually end up … condemning all that we personally disapprove and for no better reason than that we disapprove it.”

Within constitutional boundaries, legislators have this liberty. This is by design. Prosecutors, judges, law enforcement officers, and juries—that is, actors constrained by the law—do not have such freedom. This, too, is by design. Whether or not a person is arrested, charged, and convicted for violating a law must depend more on objective and discernable legal rules than on the mere discretion, guesswork, or whim of government officials. See Davis (“Only the people’s elected representatives in the legislature are authorized to ‘make an act a crime.'”)….

Today’s case gives us a textbook example of the … enforcement guesswork that can result from a vague law. The statute makes it a crime for Harris to possess a weapon. A weapon “means a firearm or … a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character.” It is undisputed that Harris did not possess a firearm, a dagger, a dirk, a switchblade, a stiletto, or a straight-edged razor. In these circumstances, enforcement officials must ask, what exactly is a dangerous cutting instrument of like character? We are unable to discern a sufficiently objective standard of enforcement in this language. Instead, we are left with the subjective judgment of the enforcement agencies and actors. A pair of scissors? Maybe. A safety razor blade? Perhaps. A box cutter? Probably, but would that decision be driven by an objective rule or a historically contingent fear of box cutters?

The dissent chides us for reciting these hypothetical examples, though in doing so it issues its own subjective interpretation of what really counts as a knife. The dissent goes so far as to attempt to distinguish between the relative deadliness of the cutting edges on a box cutter (prohibited) and a pair of scissors (not prohibited). But the statutory language at issue—”dangerous or deadly cutting instruments of like character”—does not permit such fine distinctions….

[A] legislative enactment … has impermissibly delegated legislative power to the executive and judicial branches. Thus, we hold that the residual clause in K.S.A. 2019 Supp. 21-6304 is unconstitutionally vague….

From Justice Biles’ dissent:

The “pocketknife” in this case features a sharp, serrated blade, 3 and 1/2 inches long, that folds back into its handle. It is about 7 inches long fully extended. And even though the oversized bowie knife of Crocodile Dundee movie fame dwarfs it by comparison, it cannot reasonably be mistaken as something outside the foreseeable statutory meaning of “knife” in a measure designed to keep convicted felons from possessing a weapon…. I dissent because the majority’s decision inappropriately conjures facts not supported by the record, while improperly drifting past the undisputed facts in favor of hypotheticals. And by doing this, the majority imposes too strict of a standard on the Legislature’s ability to formulate criminal laws by now requiring “an explicit and objective standard of enforcement.”

That said, Christopher Harris may still prevail. In my view, he is entitled to pursue the mistake-of-law defense denied to him by the district court. I would reverse his conviction on that basis and return this case to the district court for a new trial….

The directive to consider a statute’s vagueness in the actual context of the facts should control. Courts decide whether a statute is vague as applied to the particular facts at issue because a litigant who engages in clearly proscribed conduct cannot complain about a law’s vagueness as applied to someone else’s conduct….

Analyzing K.S.A. 2019 Supp. 21-6304(c)(1) in light of the facts in Harris’ case reinforces our two traditional analytical polestars: (1) the statute is sufficiently clear to have informed him it was unlawful to possess his knife, and (2) the statute is sufficiently clear to stave off any contention that authorities arbitrarily prosecuted him for having it….

The criminal-possession statute makes clear not all objects with a blade are prohibited. It provides instead that “‘[k]nife’ means a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character.” This statutory description supplants the term’s ordinary meaning. And the phrase with which we are concerned—”dangerous or deadly cutting instruments of like character” is given understandable dimension by the five listed items that precede it—dagger, dirk, switchblade, stiletto, and straight-edged razor.

When the Legislature decided to use the word “means” in defining “knife,” it made that definition both complete and exclusive. And nothing can be added or deleted by interpretation. So the majority’s hypothetical examples (“[a] pair of scissors and [a] safety razor blade”) would be excluded from the Legislature’s restrictive definition of “knife.” Similarly, and as the majority seems to concede, its box cutter example may very well fit within the restrictive definition of “knife.”

Nevertheless, the five descriptors provided are easily and reasonably understood to describe per se dangerous or deadly cutting instruments. The dictionary defines “dagger” as “a weapon with a short, pointed blade, used for stabbing”; “dirk” as “a long, straight dagger”; “switch-blade” as “a large jackknife that snaps open when a release button on the handle is pressed”; “stiletto” as “a small dagger, having a slender, tapering blade”; and “straight razor” as “a razor with a long, unguarded blade that can be folded into the handle.” And this then carries through for the disjunctive phrase “or any other dangerous or deadly cutting instrument of like character,” which is simply intended to prevent convicted felons from carrying a broader range of dangerous or deadly cutting instruments with features similar to those listed. Most importantly, the statutory language does not insert subjective judgment unmoored from the statute’s specifics. Harris’ knife—with its sharp, serrated, 3 and ½-inch blade that folds into its 4-inch handle—falls well within this statute’s foreseeable bounds….

If we embrace the majority’s view, our standard for the appropriate degree of specificity is transformed from a requirement for commonsense adequate protections against arbitrary and discriminatory enforcement to an unbearably exacting requirement that all statutes making specific conduct criminal must be wholly expressed by the Legislature. This goes too far.

The Justices also disagreed on the significance of certain statements by the state about the knife prohibition. The majority:

Harris [had] sought approval to introduce evidence that the State of Kansas—through Harris’ parole officer Alexis Olave—had told him that the pocketknife was not a prohibited knife. Harris proffered evidence that before the incident, Olave had advised Harris that he could carry the precise knife at issue, and he relied on that advice. Harris also provided a letter he had received from Olave after the incident in which she told him, “[Y]ou are allowed to have a pocket knife less than 4 inches in length while on post release. However, if the pocket knife is used in a threatening manner, then it can be viewed as a violation or as a crime.” … [The trial court rejected this argument, relying on the State’s argument] that parole officers are not legally authorized to interpret any statutes and so anything Olave may have said was legally irrelevant to a potential mistake of law defense ….

Harris moved to reconsider. Along with the evidence already proffered, he submitted the Kansas Department of Corrections Division of Community and Field Services Supervision Handbook. The handbook stated: “An ordinary pocket knife with a blade no longer than 4 inches is not considered by law to be a dangerous knife, or a dangerous or deadly weapon or instrument.” At a hearing on his motion to reconsider, Harris personally testified, “I went to [s]tate orientation just a couple of months before this, the whole place told me, everybody at that place told me and they give me that [handbook] stating and they told me I could own that knife.” The district court ruled again that Olave’s advice—or implicitly, the advice of anyone at the Kansas Department of Corrections (KDOC)—on what “counted” as a knife under the relevant statute was not an official opinion upon which Harris could rely….

[W]e have [here] a concrete example of government officials expressing and operating under diametrically opposed, yet plausible, enforcement standards—a sure sign of subjectivity in action. The State of Kansas, through its prosecutors, believes (and has acted on its belief) that K.S.A. 2019 Supp. 21-6304 is meant to be enforced against Harris and his pocketknife. But the State of Kansas has also, through its Department of Corrections, published a handbook and advised parolees (including Harris) that K.S.A. 2019 Supp. 21-6304 is not meant to be enforced against Harris and his pocketknife. Even without any bad faith on the part of the government—and the record here gives us no reason to suspect there is—the circumstances present us with an unmistakable instance of arbitrary enforcement of an inherently subjective standard.

The dissent:

The majority further stretches the record past the breaking point by declaring the KDOC handbook is “a sure sign of subjectivity in action.” The majority’s premise is that KDOC was interpreting the statute under which Harris was convicted. The majority then concludes from the handbook that “the circumstances present us with an unmistakable instance of arbitrary enforcement of an inherently subjective standard.” other words, the majority wants the reader to believe the Sedgwick County District Attorney and KDOC both looked at the same statute and independently came to different legal conclusions about its scope, so the statute must be subject to arbitrary enforcement. Let’s consider a far more likely reality.

The Kansas Department of Corrections Division of Community and Field Services Supervision Handbook that Harris was given, after explaining, “You are prohibited from owning, possessing or purchasing any firearms while on supervision with the KDOC,” stated:

“Other prohibited weapons may include brass knuckles, throwing stars, or any other weapon so defined in K.S.A. 21-6301 (criminal use of weapons). An ordinary pocket knife with a blade no longer than 4 inches is not considered by law to be a dangerous knife, or a dangerous or deadly weapon or instrument.”

The record is a little unclear about this part, but it appears Harris received the handbook in 2014. We at least know he entered a halfway house in May 2014. But the inconvenient truth for the majority’s arbitrary enforcement premise is that the law changed in 2013 regarding criminal use of weapons. The 2013 change struck from K.S.A. 2012 Supp. 21-6301 the following language: “except that an ordinary pocket knife with no blade more than four inches in length shall not be construed to be a dangerous knife, or a dangerous or deadly weapon or instrument.” Note how that language parallels the handbook.

This simply means the handbook’s exception derives from statutory language that was outdated when the handbook was given to Harris—and the outdated language was not even from the statute now challenged…. [T]hese circumstances would be proper areas of inquiry as part of Harris’ mistake-of-law defense; but they do not provide an example of arbitrary enforcement of K.S.A. 2019 Supp. 21-6304 as the majority claims.

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In an apparent bid to shore up his support among progressives in the San Francisco Bay Area, President Donald Trump is promising to prevent the construction of new low-income housing in suburban neighborhoods.

“I am happy to inform all of the people living their Suburban Lifestyle Dream that you will no longer be bothered or financially hurt by having low income housing built in your neighborhood,” Trump said on Twitter, referencing his recent repeal of the Obama-era affirmatively furthering fair housing (AFFH) rule. “Your housing prices will go up based on the market, and crime will go down. I have rescinded the Obama-Biden AFFH Rule. Enjoy!”

…Your housing prices will go up based on the market, and crime will go down. I have rescinded the Obama-Biden AFFH Rule. Enjoy!

— Donald J. Trump (@realDonaldTrump) July 29, 2020

The old “Obama-Biden” AFFH rule did not, in fact, force suburban communities to allow low-income housing construction. Instead, the rather obscure regulation required states and localities who received federal housing funds to report on obstacles to fair housing.

The substance of that now-replaced rule is likely much less important to Trump than its symbolism as an example of the federal government forcing change onto localities that don’t want it.

In that sense, the president shares a lot in common with many of his progressive detractors in deeply blue areas of the country who are also happy to use regulation to keep new housing at bay, and who organize against attempts from higher levels of government to force them to accept new development.

This would include places like Lafayette, California, a wealthy San Francisco suburb nestled in Contra Costa County, where 69 percent of voters supported Hillary Clinton in 2016. Its residents fight to stop a “very urban,” “unsightly” 315-unit housing development was recently profiled by The New York Times.

Over in the suburban community of Cupertino, California—hardly Trump country—local activists spent years trying to stop the development of an abandoned mall into apartments, half of which would be rented out to lower-income tenants at below-market rates.

In the famously liberal city of Berkeley, California, activists often argue against new housing on the grounds that it will threaten their community’s sustainable character.

“Berkeley needs to prioritize a livable, sustainable environment for people who already live here,” said one resident at a 2018 Zoning Adjustment Board meeting, when opposing a 57-unit development of student housing. “We are not obligated to sacrifice what is best about Berkeley to build dorm rooms.”

In February, Curbed reported on how the group Livable California had created an ideology-spanning coalition that included Green Party members, explicit socialists, and anti-gentrification activists to oppose efforts to loosen restrictions on building dense housing.

In San Francisco proper, anti-gentrification groups frequently lead the charge against new apartment buildings, deploying arguments that blend concerns about rising rents and displacement with worries about “monster” developments changing the character and demographics of neighborhoods and (in at least two cases reported by Reason) casting shadows on nearby parks.

Frequently, activists’ crusades against particular projects include demands that developers build only 100 percent below-market-rate housing, something Trump now says he’s against on principle. Nevertheless, activists’ demands for only affordable housing often mean they end up stopping or delaying market-rate projects that would include a significant number of affordable units.

Trump’s attacks on the AFFH rule as an example of federal overreach mirror housing policy fights in California, where anti-development activists of all ideological stripes have opposed state bills that would require local governments to allow for more housing near transit lines and job centers.

The most recent iteration of this idea, Senate Bill (S.B.) 50, was opposed by a number of “equity groups” for including insufficient protections against displacing current residents. Other groups like Housing Is a Human Right—a project of the AIDS Healthcare Foundation—argued against S.B. 50’s liberalization of market-rate development as “trickle-down housing.” That group is instead backing a rent control ballot initiative.

NIMBY (Not in My Backyard) opposition to new housing development is very much a cross-ideological phenomenon. NIMBYs on the right might put more emphasis on property values and crime. Those on the left will fret about gentrification and environmental sustainability. Regardless of the rhetoric, or even intent, the result is less housing gets built, and housing costs go up.

It’s unlikely that Trump will pick up too many votes in the blue suburbs of blue cities, but his defense of local control and low-density zoning probably isn’t hurting him there.

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What will the COVID-19 pandemic and the lockdown of our society mean for the hundreds of thousands of foreign workers, refugees, and asylum seekers who apply annually to become Americans? Donald Trump won the presidential election in 2016 in part by vowing to “build a wall,” deport all unauthorized residents, and greatly reduce the number of people welcomed here legally.

COVID-19, which has its origins in China, may help the president to deliver on his campaign promises. Is the mythology of America as a nation of immigrants coming to an end?

A deputy national editor at The New York Times, Jia Lynn Yang is the author of the timely new book, One Mighty and Irresistible Tide: The Epic Struggle Over American Immigration, 1924–1965. The book begins at another dark moment in American immigration policy, when a restrictive law ended a long period of relatively open borders and effectively stopped mass movement to the United States for the next 40 years. It tells the story of the decades-long battle that led the U.S. to begin accepting foreigners once again. And yet almost nobody involved in that fight foresaw the extent to which the 1965 law signed by President Lyndon B. Johnson would open the door once again to large numbers of new immigrants—including Yang’s family, who came here from Taiwan in the 1970s.

Nick Gillespie sat down with Yang first in March and then again in May, after signs that COVID-19 pandemic could have a major effect on U.S. immigration policy, including Trump’s executive order temporarily halting legal migration, a delay in asylum hearings on the Mexican border, and a federal order blocking entry of migrant children that invokes a 1940s-era law.

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Last week Mark and Patricia McCloskey, the lawyers who brandished guns in response to protesters passing by their house in a private neighborhood of St. Louis on June 28, were charged with illegally exhibiting lethal weapons “in an angry or threatening manner.” The merits of those charges, which are Class E felonies punishable by up to four years in prison, obviously depend on exactly what happened that day. But the heated debate about whether the McCloskeys were lawfully exercising their Second Amendment rights has instead been driven by political and ideological agendas.

“It is illegal to wave weapons in a threatening manner at those participating in nonviolent protest,” St. Louis Circuit Attorney Kimberly Gardner, a Democrat and the first African American to occupy her position, said when she filed the charges. “And while we are fortunate this situation did not escalate into deadly force, this type of conduct is unacceptable in St. Louis.” But after Sen. Josh Hawley (R–Mo.) urged the U.S. Justice Department to open a civil rights investigation of the McCloskeys’ treatment, Gardner’s measured position gave way to over-the-top, inflammatory rhetoric that reflects underlying political grudges and racial suspicion.

“This is a dog whistle of racist rhetoric and cronyism politics,” Gardner said. “This is a modern-day night ride, and everybody knows it.” She thus equated Hawley’s objections to her prosecution of the McCloskeys with Ku Klux Klan terrorism.

While the McCloskeys are white and many of the protesters were black, Hawley said nothing about race in his July 16 letter to Attorney General William Barr, although he did accuse Gardner of “a politically motivated attempt to punish this family for exercising their Second Amendment rights.” The case against the McCloskeys is “part of a troubling pattern of politically motivated prosecutorial decisions,” he said, citing Gardner’s opposition to a law that eliminated the permit requirement for carrying a concealed firearm and her decision not to charge eight people arrested for rioting during local protests against police brutality. “There is no question under Missouri law that the McCloskeys had the right to own and use their firearms to protect themselves from threatened violence,” Hawley asserted, “and that any criminal prosecution for these actions is legally unsound.”

The couple also has the support of other prominent Republicans. Missouri Attorney General Eric Schmitt condemned the case against the McCloskeys as a “political prosecution.” Gov. Mike Parson said he probably would pardon them if they were convicted. President Donald Trump called Gardner’s investigation of the couple “a disgrace.”

Parson’s position on the case is especially revealing since he admitted he is not familiar with the facts required to determine whether the McCloskeys’ actions were legal. The couple “had every right” to brandish their guns, he told reporters on July 14, accusing Gardner of “attempting to take their constitutional rights away.” But he also said he was still “reviewing all the available facts” and conceded that he did not “know all the details of it.”

Three days later, in an interview with a local radio station, Parson said he was grateful that Trump had promised to “do everything he could within his powers to help with the situation” (although exactly what that might mean is unclear, since the president has no authority over local prosecutorial decisions). Asked if he would pardon the McCloskeys, Parson replied, “By all means, I would, and I think that’s exactly what would happen.” But he again conceded that he did not know “all the facts,” adding that “if this is all about going after them because they…did a lawful act, then, yeah, if that scenario in fact happened, I don’t think they’re going to spend any time in jail.”

Did that scenario in fact happen? It is undisputed that the protesters—who reportedly were taking a shortcut to the home of St. Louis Mayor Lyda Krewson, where they planned to harangue her and demand her resignation for publicly revealing the names and addresses of constituents who had written to her in support of “defunding” the police—trespassed on private property by entering the gated community. Mark McCloskey—who questions the protesters’ motivation, saying “the mayor’s house cannot be reached through my neighborhood”—claims they broke through a locked gate to traverse a private street, verbally threatened him, and were deterred only by the guns that he and his wife wielded (a rifle and a pistol, respectively).

“I was a person scared for my life, who was protecting my wife, my home, my hearth, my livelihood,” McCloskey said in a June 30 interview with CNN’s Chris Cuomo. “I was a victim of a mob that came through the gate. I didn’t care what color they were. I didn’t care what their motivation was. I was frightened. I was assaulted. And I was in imminent fear that they would run me over, kill me, burn my house.” He described “hundreds of people” who were “screaming, shouting, angry” as they “broke through the private gate.” He said they were “screaming death threats at me and threatening to burn my house and kill my dog and [talking about] what rooms in my house they were going to live in after they killed me.”

McCloskey explained that his fear was amplified by his knowledge of how local protests triggered by the March 25 death of George Floyd in Minneapolis had turned destructive and violent before. “When bad things happen, they unpredictably turn really bad really fast,” he said. “The reason why they did not get up my steps was that my wife and I were there with weapons to keep them off our steps….They were coming at us until I displayed the weapon, and that stopped them.”

On those facts, Hawley is correct that the McCloskeys “had the right to…use their firearms to protect themselves from threatened violence.” Missouri law allows anyone to use deadly force when “he or she reasonably believes” it is “necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony.” The law also says a person may use deadly force against anyone who “attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person.” It adds that people facing such a threat in their own home have no duty to retreat from the confrontation—a rule, known as the “castle doctrine,” that applies in every state.

Research by the St. Louis Post-Dispatch casts doubt on at least one element of Mark McCloskey’s story. Based on video shot by a protester, reporter Jeremy Kohler found that the gate was unlocked, undamaged, and open when the first members of the group entered the private street. The video, Kohler said, shows those protesters veering away from the McCloskeys’ house rather than approaching it, while Mark McCloskey, standing on his front porch, “immediately” begins shouting at them to leave. The man recording the scene objects that the protesters are staying on the sidewalk and asks why the McCloskeys are pointing guns at them. Later on, an organizer can be heard in another video shot by a protester urging the group to stay on the sidewalk and avoid walking on residents’ property.

Notwithstanding those instructions, of course, the protesters already were illegally walking through a private neighborhood. “Any pretense of protest, as opposed to terrorism, ended when they broke through that gate,” McCloskey said on CNN. Furthermore, as Kohler noted, there is a dispute about ownership of the green area between the gate and the sidewalk, which the McCloskeys claim is theirs by squatters’ rights, since they have treated it as part of their front yard for years.

As far as I can tell, no video or audio evidence has emerged to confirm McCloskey’s claim that protesters approached his house in a menacing way and made verbal threats. But that does not mean it did not happen, since the record is incomplete.

In this context, Chris Cuomo’s attitude during his hostile interview with McCloskey and his lawyer, Albert Watkins, is maddening. “We can talk about the legal rights and the facts,” Cuomo said at the outset. “But I want to talk about, not having a right, but whether or not something is right first….How do you feel about becoming the political face of resistance to the Black Lives Matter movement?”

As McCloskey and Watkins pointed out, the couple had no control over how other people, including the president, responded to the incident. While expressing support for the Black Lives Matter message, Watkins noted that it has nothing to do with the justification for the McCloskeys’ show of force. That has everything to do with “the legal rights and the facts” that Cuomo so blithely dismissed.

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By now, almost everyone recognizes that large gatherings in confined, indoor spaces risk spreading the Coronavirus pandemic. Nonetheless, 23 states are currently conducting or planning to soon conduct in-person bar exams for new applicants for licenses to practice law. Even with precautions, putting hundreds of people in indoor spaces together for many hours at a time creates serious risks of exacerbating the pandemic.

Admittedly, the danger is smaller because most bar exam takers are young and healthy. However, there are still some older bar applicants, such as lawyers moving from one state to another, who need to be licensed in their new homes. And, of course, some young exam takers have health conditions or weakened immune systems, that make them especially vulnerable, as well. In addition, exam takers could potentially spread the disease to others, including some who are older or otherwise more vulnerable to Covid.

I am not one to say that all seriously risky activities should be avoided so long as the pandemic continues. There is, I think, a strong case for moving forward with those that create enormous benefits that cannot be achieved in another way. That, however, is not true of the bar exam, where there is the obvious alternative of “diploma privilege”—giving bar cards to anyone who has graduated from an accredited law school. Four states –Utah, Washington, Oregon, and Louisiana, have adopted this approach in various forms, joining the state of Wisconsin, which has had it for in-state law schools for years. Other states should follow this example.

The standard argument against diploma privilege is that the bar exam requirement is needed to protect consumers from incompetent lawyers. But there is no evidence that bar exams actually achieve that goal, as opposed to serving as a barrier to entry that protects incumbents in the profession from competition. The quality of legal services in Wisconsin has not suffered from its longstanding diploma privilege policy. Bar records indicate that attorneys in that state have disciplinary records similar to those in other states.

Such results are not surprising. The truth is that the bar exam is a test of arcane memorization, not a test of whether the applicant is likely to be a good attorney. That’s why, as my co-blogger Orin Kerr puts it, “when it [the exam] is over you can forget everything you just learned.”

For that reason, I have long advocated the abolition of bar exams, most recently here:

The reason why you can “forget everything” immediately after the exam is that very little of the material on the exam is actually needed to practice law. It’s a massive memorization test that functions as a barrier to entry, not a genuine test of professional competence. That strengthens the case for my view that the bar exam should simply be abolished….

My general view on bar exams is that they should be abolished, or at least that you should not be required to pass one in order to practice law. If passing the exam really is an indication of superior or at least adequate legal skills, then clients will choose to hire lawyers who have passed the exam even if passage isn’t required to be a member of the bar. Even if a mandatory bar exam really is necessary, it certainly should not be administered by state bar associations, which have an obvious interest in reducing the number of people who are allowed to join the profession, so as to minimize competition for their existing members.

Defenders of bar exams argue that consumers would otherwise have little or no way to tell whether a given lawyer is competent or not. But, in reality, there are many other signals to determine that. Often, clients hire not a specific lawyer, but a firm. In that event, the firm’s reputation is a signal of quality, and firms have an incentive to protect that reputation by avoiding the hiring of incompetents. Even with solo practitioners, quality can be discerned by consulting past clients, and a variety of other mechanisms.

Legal scholar Gillian Hadfield has an excellent article making the case that barriers to information can be further reduced by eliminating prohibitions on the corporate practice of law. If corporations were allowed to provide basic legal services—as they currently do with many other professional services, such as accounting—that would reduce cost and also make it easier to signal quality. When you hire H&R Block to do your taxes, you are relying on the overall reputation of the firm, not on that of the specific person who handles your case. Legal services can work similarly.

These methods are not perfect. But they are likely to be far better than relying on bar exam passage as a signal of quality, since the latter is really just a test of memorization.

One possible alternative to “diploma privilege” is simply postponing bar exams, as some states have done. But that prevents thousands of recent law graduates from earning an income in the meantime—and blocks clients from using their services. If states are unwilling to forego the bar exam entirely, they should at least provide temporary diploma privilege for a period of, say, three years, by which time the pandemic is likely to be over, and bar exams can be safely administered.

Online bar exams are another possible solution. The obvious objection to them is that it is extremely difficult to prevent cheating on an online “closed book” exam. It may well be impossible to ensure that a test-taker doesn’t have study guides or reference books with her as she takes the exam. That doesn’t bother me too much, because I believe bar exams are a sham credential in any case. But even I recognize there is some unfairness in a format that rewards those most willing to cheat. In addition, not everyone has access to software and internet connections that are likely to be reliable through many hours of exam taking.

On balance, online exams seem preferable to in-person ones, or to keeping law school graduates in limbo until in-person exams become safer. But diploma privilege is a better approach than either.

For those states that stubbornly insist on holding in-person exams during a pandemic, I am tempted to revive my “modest proposal” for bar exam reform (first developed many years ago):

Members of bar exam boards… and presidents and other high officials of state bar associations should be required to take and pass the bar exam every year by getting the same passing score that they require of ordinary test takers. Any who fail to pass should be immediately dismissed from their positions…. And they should be barred from ever holding those positions again until—you guessed it—they take and pass the exam.

After all, if the bar exam covers material that any practicing lawyer should know, then surely the lawyers who lead the state bar and administer the bar exam system itself should be required to know it. If they don’t, how can they possibly be qualified for the offices they hold? Surely it’s no excuse to say that they knew it back when they themselves took the test, but have since forgotten. How could any client rely on a lawyer who is ignorant of basic professional knowledge, even if he may have known it years ago?

Of course, few if any bar exam officials or state bar leaders could pass the bar exam without extensive additional study (some might fail even with it)…. This material isn’t on the exam because you can’t be a competent lawyer if you don’t know it. It’s there so as to make it more difficult to pass, thereby diminishing competition for current bar association members…..

My proposed reform wouldn’t fully solve this problem. But it could greatly diminish it. If bar exam board members and bar association leaders were required to take and pass the exam every year, they would have strong incentives to reduce the amount of petty trivia that is tested. After all, anything they include on the exam is something they themselves will have to memorize! As prominent practicing lawyers, however, they presumably are already familiar with those laws that are so basic that any attorney has to know them; by limiting the exam to those rules, they can minimize their own preparation time. In this way, the material tested on bar exams might be limited to the relatively narrow range of legal rules that the average practicing lawyer really does need to know.

If the knowledge tested on bar exams is so important that we must ensure all practicing lawyers know it—even at the risk of exacerbating a deadly pandemic—then surely that principle applies with extra force to prominent leaders of the legal profession, particularly those responsible for setting professional standards for others. By this reasoning, they should have to take the exam on the same terms as they impose on new bar applicants. If that means taking an in-person exam during a pandemic, then so be it!

On balance, however, I will not insist on this idea, so long as the pandemic continues. I recognize that many bar association leaders are likely to be at special risk, due to age and health conditions. The “modest proposal” might be a useful reform under normal conditions. But it would be wrong to impose it now.

We should not require bar leaders to risk their lives and health for no good reason. But they, in turn, should not impose such risks on others.

Finally, critics may argue that, as a law professor, I have a self-interest in promoting “diploma privilege.” My brief response is that I have also long advocated abolishing or at least reducing the requirement that all lawyers attend ABA-accredited law schools, as well. I have also long advocated a variety of other reforms that would have the effect of reducing the demand for law school education and legal services generally—most notably reducing the number and complexity of laws.  I don’t claim diploma privilege is the optimal regulatory regime, merely that it’s superior to system under which lawyers are required to both have a diploma and pass a worthless bar exam.

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If members of Congress intend to smear the CEOs of various tech companies as censors, monopolists, and thieves, you might expect the politicians to at least keep their accusations straight. Alas, at a House Judiciary subcommittee hearing Wednesday, ranking Republican Rep. Jim Sensenbrenner (R–Wis.) assailed Facebook CEO Mark Zuckerberg over something that happened not on Facebook, but on Twitter.

While Democratic congressmen mostly used their time to dubiously accuse Apple CEO Tim Cook, Alphabet CEO Sundar Pichai, and Amazon CEO Jeff Bezos of competitive practices that hurt consumers, Republicans focused on alleged political bias against conservatives on social media sites. Rep. Jim Jordan (R–Ohio) rattled off a long list of such transgressions—several of which were genuinely troubling, though not the purview of the government.

When it was his turn to speak, Sensenbrenner brought up the very recent example of Donald Trump Jr.’s post about hydroxychloroquine getting taken down, and asked Zuckerberg to justify this move. But it was Twitter, not Facebook, that took such action against Trump Jr.

“I think you might be referring to what happened on Twitter,” said Zuckerberg in response. Indeed, as Zuckerberg noted during the hearing, Facebook has “distinguished itself” by supporting free expression to a much greater degree than rival social media companies.

That’s part of the reason why conservative calls to regulate social media for political bias seem so untethered from reality. There are some legitimate concerns about bias on the platforms, but Congress is not the correct authority to adjudicate them, and lawmakers who envision a role for government intervention on this front continue to embarrass themselves.

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