Category: reason

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the Short Circuit podcast: Special guest Joey Mogul, of the People’s Law Office, joins the panel to talk about a pizza raid in Chicago.

• After the Affordable Care Act caused insurance premiums to increase, younger and healthier consumers turned to short-term limited duration insurance plans that were exempt from ACA requirements, and therefore much cheaper. But this shrunk the risk pool for ACA-compliant plans, leading to more premium increases. After an abortive attempt to scale back the market for short-term insurance, the feds relent and return to the original rules. Sellers of ACA-compliant plans sue, alleging that the reversal of course was arbitrary and capricious. D.C. Circuit: Not at all. Premiums kept going up after the rule change, and it was reasonable for the feds to try to make cheaper insurance available to consumers. Dissent: The whole point of the ACA was for young healthy people to subsidize older and sicker people, and this rule undermines that.
• &pizza (a U.S.-based pizza restaurant) sues @pizza, a restaurant in Edinburgh. Allegations: @pizza’s founders photographed &pizza restaurants and downloaded copyrighted pictures of &pizza—all culminating in their knock-off restaurant across the Atlantic. D.C. Circuit: None of that means &pizza can enforce the Copyright Act or the Lanham Act extraterritorially. So (for now at least) @pizza gets off scot-free.
• After something like 50 years of marriage, a Connecticut couple divorces. Allegations: The (now-deceased) ex-husband concealed marital assets in offshore accounts, nearly $40 mil of which went to his alma mater to, among other things, fund “unlimited” scholarships for Antiguan and Barbudan students. (Separately, the ex-husband is accused of hiring a hitman to kill his son.) Which gives occasion to this vocab quiz, courtesy of Judge Selya of the First Circuit: eleemosynary, oenologist, vel non, and importunings.
• New York state officials instruct 50-year-old Christian adoption agency to provide adoption services to unmarried and same-sex couples or close down. (The agency’s current practice is to refer such couples to other adoption services). The agency sues and seeks a preliminary injunction, but the district court denies the motion and dismisses the case. Second Circuit: Erroneous. Take a second look at that preliminary injunction request.
• South Carolina, like virtually all states, has a winner-take-all system of appointing its nine Electors to the Electoral College, in which all Electors’ votes will go to the presidential candidate who received the most votes in the state. Plaintiffs: Which renders the losing side’s votes meaningless; the electoral votes should be distributed proportionately. Fourth Circuit: You will not be surprised to learn that the system 48 states use for apportioning their Electors—and have used for more than a century—is constitutional. Dissent: Being old doesn’t make it constitutional; the case should move forward.
• Practice pointers, courtesy of the Sixth Circuit: Don’t liken your litigation adversaries to (1) incestuous lovers “the likes of which have not been seen since the days of Sodom and Gomorrah” or (2) perpetrators of “rape, murder, pillage, loot and plunder” or (3) a virus or (4) an octopus “slink[ing] back into its hidey hole by firing its putrid pool of purple ink into the faces of the[] plaintiffs.” And if you’re going liken your opponent to Marshal Philippe Pétain, at least give the man his accent aigu. (Well, that last one is subtext.) Also, your clients need Article III standing.
• Seventh Circuit: There are many government jobs for which political affiliation may be a valid requirement, but “Deputy Assessor” ain’t one of ’em. So no qualified immunity for a newly elected Assessor who canned his rival’s supporters.
• Allegation: Displeased with Cook County, Ill. court system’s bail reforms, the sheriff unilaterally decides to keep people in jail (more than 80 percent of whom are Black) even after they have met bail conditions and also imposes his own conditions on their release (like, for one plaintiff, no contact with his children). Seventh Circuit: Decisions about pretrial detention are to be made by judges, not sheriffs. The case should not have been dismissed, and the district court shall consider whether the sheriff ought to be held in contempt.    
• Eighth Circuit: Police are not required to knock and announce before entering a house if the door is already open.
• Los Angeles drivers whose cars outstay their welcome in metered parking spaces face a $63 fine. Failing to timely pay that fine yields another $63 in late fees. An Excessive Fines Clause violation? Ninth Circuit: No, as to the first $63; maybe, as to the second, since “the City of Los Angeles did not even bother addressing the constitutionality of its late fee.” Concurrence in the judgment: I’m skeptical that the Excessive Fines Clause applies to this sort of thing, but Los Angeles conceded that point.
• Las Vegas police arrest man for alleged sexual assault. A state court suppresses evidence and holds that gov’t failed to preserve potentially exculpatory material. After gov’t drops all charges, the man sues, alleging that officers manipulated the crime scene, lied in the warrant application, threatened him for asserting his constitutional rights, and made racially derogatory remarks to him. District court: A state justice of the peace originally found probable cause to believe the man committed the crimes, which precludes this lawsuit. Ninth Circuit: That hasn’t been the rule in Nevada since at least 2005. Most of the man’s case can proceed.
• Ostensibly out of his cell to take a shower, juvenile pretrial detainee instead makes his way to a control panel where he unlocks other cells, allowing two compatriots to brutally assault a fourth juvenile, whom the three had threatened the night before. Doña Ana County, N.M. corrections officials were watching TV. Tenth Circuit: Qualified immunity. Dissent: One of the officers was plainly incompetent, so he should be held liable along with the county.
• In the mid-2000s, Chiquita financed Colombian paramilitary groups, even after the U.S. State Dep’t designated the groups foreign terrorist organizations. After the company pleaded guilty and paid a $25 mil fine, a number of people sued, claiming the financial support contributed to the deaths of their family members. They’ve been proceeding pseudonymously due to fears of reprisal, but Chiquita now seeks to reveal their identity and facts. Eleventh Circuit: “For over a decade, hundreds of plaintiffs have litigated this case under their true names, and yet nothing in the record suggests that they have faced paramilitary retaliation.” No more privacy.
• How much should Alabama’s history of enacting laws designed to suppress voting by people of color factor into the Eleventh Circuit’s review of a 2015 voter ID law? Eleventh Circuit: Not much. Case dismissed. Dissent: A lot, actually. This should go to trial.

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Tell Me a Story. The CW. Tuesday, July 28, 9 p.m.

Tell Me a Story is probably the oddest debut of the summer TV season, because it’s not actually a debut at all. This series has actually been running for two years on the streaming service CBS All Access, and every episode that will air on The CW is, not-so-technically speaking, a rerun.

But somebody at CBS apparently figured Tell Me a Story—a sort of armed soap opera with a significant high school hot-bod component—could do bigger business on its over-the-air cousin The CW.

This was probably a pretty good guess. Tell Me a Story is not the reinvention of TV that producer-writer Kevin Williamson apparently hoped when he announced he was creating a program based on the Jungian dread of fairy tales.

But the veteran Williamson—who’s masterminded everything from the maniacal Scream franchise, to the terrifying murder-cult drama The Following, to more teenage vampire claptrap than can be listed on cyberspace—can really rattle your bones even when he’s not necessarily engaging your intellect.

And he certainly does so with Tell Me a Story, in which a bunch of dull and seemingly unrelated stories suddenly merge into a shudder-filled whole.

Tell Me a Story starts with four story arcs. In one, three seedy goofballs (including Michael Raymond-James of True Blood) are planning something unspecified but grim. In another, a moody teenage girl (Danielle Campbell, Runaways) has moved from California to New York, where she immediately clashes with her take-no-shit grandma (Kim Cattrall; yes, that Kim Cattrall). Cattrall, gleefully riffing on her own TV past, dismisses the girl’s first-day-at-school outfit: “I was slutty when I was your age, too.”

Then there’s Jordan (James Wolk, Zoo) and Beth (grown-up teen star Spencer Grammer), whose mundane arguments over friends’ at-home videos hint at the pair’s dying relationship.

Last and arguably least, trainer Hannah (Dania Ramirez, Devious Maids) and her sleazy go-go dancer brother Gabe (Davi Santos—surely you remember him as the gold Power Ranger?) blunder into a crime that starts small and ends big and then turns huge.

For the first hour, these stories—inching forward in excruciatingly tiny bits because there are so many of them—range from dull to tedious to where’s-the-remote? Telling the characters apart is way more work than it ought to be. And the closest thing to a laugh from the dialogue is a dotty line from a placard somebody’s carrying at an anti-Trump demonstration: “THIS is my resting bitch face!”

But as the tales intersect and the characters collide, Tell Me a Story gains bloodcurdling momentum.

The supposed fairy-tale foundation of the show—it’s theoretically built around Little Red Riding Hood, The Three Little Pigs, and Hansel and Gretel—never materializes in a meaningful way. (Unless you count wondering whether Cattrall is going to actually be eaten by a wolf.)

Instead, Tell Me a Story is more like a contemplation of the moral responsibility of tossing, or even accidentally dropping, a pebble in a pond. Who’s responsible for the ripples, or that “one tiny thread pulled in the universe that triggers a human hell of suffering,” as one character puts it.

Though Tell Me a Story originally aired on a considerably more racy premium cable network, there doesn’t seem to have been much cutting involved in bringing it to The CW, just a little blurring of some bare butts and bad words. It left me wondering whether The CW censors just missed, or deliberately left intact, a joke made after a teenage three-way: “It’s like we’re a triangle on one of those teen shows on a network I don’t watch.”

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Nothing further to add.

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A federal judge in Oregon yesterday issued a temporary restraining order that bars the U.S. Department of Homeland Security and the U.S. Marshals Service from “arresting, threatening to arrest, or using physical force” against journalists or legal observers at the ongoing Portland protests against police brutality. Responding to a lawsuit filed by the American Civil Liberties Union of Oregon, U.S. District Judge Michael Simon, who on July 2 issued a similar order against Portland police, also said federal agents may not order journalists and legal observers to disperse or confiscate their press passes, cameras, or audio recorders.

“Open government has been a hallmark of our democracy since our nation’s founding,” Simon writes, quoting a 2012 decision in which the U.S. Court of Appeals for the 9th Circuit upheld the “well-established” First Amendment right to observe government activities. “When wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate….The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press.” The ACLU lawsuit, Simon adds, “tests whether these principles are merely hollow words.”

The ACLU’s complaint, filed on behalf of the Portland Mercury, eight journalists, and two observers working with the ACLU, alleges that federal agents stationed at the Mark O. Hatfield U.S. Courthouse have joined local police in violating those principles. On July 12, for instance, federal officers shot photographer Mathieu Lewis-Rolland 10 times with “impact munitions” that left “severe lacerations, welts, and bruises all over his upper body.” According to the Geneva Guidelines on Less-Lethal Weapons and Related Equipment in Law Enforcement, such projectiles “should generally only be used in direct fire against the lower body of a violent individual when a substantial risk exists of immediate serious injury to either a law enforcement official or a member of the public.”

The complaint alleges many similar abuses by Portland police, including the gratuitous use of tear gas and rubber bullets, unprovoked beatings, unlawful arrests, and other interference with activities protected by the First Amendment. The ACLU says the plaintiffs who have suffered such abuse were clearly identified as journalists or legal observers.

The lawsuit also complains that Portland police have routinely violated Simon’s June 9 order barring them from using tear gas at the protests except when “the lives or safety of the public or the police are at risk.” Simon said tear gas should not be used simply “to disperse crowds where there is no or little risk of injury.” Portland Mayor Ted Wheeler, who is also the police commissioner, got a taste of his own medicine on Wednesday night, when he was gassed by federal officers while vainly trying to show protesters that he was united with them in opposing the Trump administration’s response to the demonstrations.

The protests in Portland have been happening every day since May 28, three days after a Minneapolis police officer suffocated George Floyd. The federal officers, who according to an internal memo have not been trained in controlling riots or mass demonstrations, were deployed by the Trump administration this month, ostensibly to protect the courthouse and other federal property. But as Nancy Rommelman notes, the federal presence seems to have inflamed the situation, provoking the vandalism and assaults on the courthouse that the administration now cites to justify its involvement.

“Plaintiffs fear for their safety from federal agents’ violence,” the ACLU says. “Since President Trump ordered federal agents to go to Portland to quell protests, federal agents have been working together with Portland police to violently disperse demonstrators and neutrals.”

In addition to shooting Lewis-Rolland, federal officers have been accused of firing tear gas at peaceful protesters, illegally grabbing protesters off the streets and detaining them without charge, and repeatedly hitting Christopher David, a middle-aged Navy veteran, with a baton, breaking his finger and fracturing his hand. David, who was also assaulted with pepper spray, told USA Today he decided to attend the protests last Saturday because he was disturbed by the reports of unlawful arrests by camouflage-clad federal officers, which last week prompted a federal lawsuit by Oregon Attorney General Ellen Rosenblum.

“What they were doing was unconstitutional,” David said. “Sometimes I worry that people take the oath of office or the oath to the Constitution, and it’s just a set of words that mean nothing. They really don’t feel in their heart the weight of those words.”

Judge Simon’s order aims to remind federal officers of that oath, at least as it pertains to the First Amendment rights of journalists and legal observers. “The public streets, sidewalks, and parks historically have been open to the press and general public,” he writes, “and public observation of law enforcement activities in these public fora plays a significant positive role in ensuring conduct remains consistent with the Constitution.”

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Jonathan Adler has written in favor of citing all authors’ names in law review articles, joining a nascent movement. Let me suggest a radical alternative: cite no names, at least when there are three or more.

In many contexts, we speak about works without necessarily citing the author. We might speak of a recent movie, for example, without mentioning its director, let alone listing all of the names in the credits. Sometimes, we do speak about works’ creators, because it is especially relevant. For example, we might wish to discuss several works by a single author to identify changes in that person’s thought over time. That should be perfectly acceptable, but there is no need for the name to be included in a garden-variety citation. And when there are many authors, the fact that one particular person contributed to the joint project rarely has much relevance.

Law review articles routinely cite cases without citing the judges who wrote the opinions, while mentioning the author if authorship is particularly relevant. Legal opinions, meanwhile, usually identify judges as authors, but not always. Per curiam opinions often do not identify the author at all. Perhaps there is some value in identifying which judges wrote or signed onto particular opinions (rather than simply indicating the number of judges who agreed to an opinion), because that tends to reinforce the importance of consistency in jurisprudential approach across opinions. But there is also value in reinforcing that opinions are not merely the expressions of one judge’s point of view, but statements of the law. Less citation of judges by name might mean less cult of personality and less polarization of methodological approach.

Just as one doesn’t need to know who wrote an opinion to understand its holding and unpack its logic, so too does one ordinarily not need to know who wrote a law review article (or article in other disciplines). What matters in an article are the ideas and findings expressed in the article, not the article’s author. The more attention that an author receives, moreover, the greater the chance that journals considering which articles to publish will focus on the identity of the author rather than on what the author argues. Competition to publish authors who are already famous reduces the diversity of ideas and makes it more difficult for new voices to emerge. I also favor blind review of law review articles but think it is more plausible that law reviews will engage genuinely blind review if they do not fear looking bad if it turns out that they end up publishing a bunch of unknown scholars. The problem is greatest for articles with multiple coauthors, where there is a danger that the famous person does the least work but is included to make the article more marketable.

The most obvious argument in favor of citing authors’ names is that this enables the authors to claim credit for their works. The argument sounds like an intellectual property-type justification. We may not be paid for our law review articles (at least, unless we turn them into books), but we may well be motivated by credit. But authors can get credit for their works whether or not citations include the name of the author. I am not suggesting that it would be better if works were anonymous. An article should probably include the name of the author or authors, if for no other reason than that it facilitates third parties’ contacting the author or authors in the hope of collaborating. Authors can claim credit for their articles. Scholars will thus still come to know which authors are most successful, so any reduced publicity is not likely to affect incentives significantly.

A related argument is that trademarks serve a useful value as an indicator of origin. Someone who liked reading a previous article by Jonathan Adler will be more likely to read another, and so we help maximize reader satisfaction by highlighting information that may make it easier for a reader to determine what to read. I don’t think that lack of citation would change that much. It would still be easy enough to find out who wrote what. But in our polarized times, might it not be better if at the margins, people relied on trademarks other than ones that signal that an article is likely to be one the reader will agree with? Law reviews have trademarks of their own but can present a more diverse array of perspectives. This strikes me as particularly important for law, which is inherently interdisciplinary. Meanwhile, third parties can compile lists of important articles or give prizes for the best articles in a particular field, whether or not they specifically cite the author who wrote the articles.

The existing practice will not change easily, at least with solo-authored articles. Probably, it will never change, even if everyone were to agree that a change is justified. I do not intend to omit authors’ names from my drafts, since such an idiosyncratic practice would alienate law review editors and maybe the authors I refused to cite. But there is an intermediate position, and it is a position on the issue that is the current subject of debate: Should we cite every author of an article, no matter the number of authors? The current debate concerns whether to use “et al.” or to list all authors’ names when there are three or more authors. Do the opponents of “et al.” really believe that we should cite all 5,154 authors of a certain physics paper? At some point, doing so really is like going through the credits every time one mentions a movie. One can debate the appropriate cutoff, but it seems reasonable to me to stop citing all authors when there are three or more. And if it is unfair to cite one author without citing two coauthors, might it not be reasonable in these cases simply to cite an article as having been written by “Multiple Authors”?

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