Tag: hit&run

For our 1Ls at St. John’s this year, my colleague Marc DeGirolami and I recorded a Legal Spirits podcast on the 1966 film, “A Man for All Seasons.” The film, an adaptation of Robert Bolt’s play, tells the story of Sir Thomas More’s conflict with King Henry VIII over papal supremacy. It’s an anachronistic portrayal. Bolt depicts More as a classical liberal who is dying for individual conscience–”What matters to me is not whether it’s true or not but that I believe it to be true, or rather, not that I believe it, but that I believe it”–when in fact More was a Catholic martyr. And the film is a little too earnest at times, though it has a great cast, including Paul Scofield, Wendy Hiller, John Hurt, Orson Wells, and Leo McKern, who steals the show as More’s nemesis, Thomas Cromwell.

The film and the story it reflects is especially appropriate for lawyers, even the non-theist kind. Marc and I use the film to explore topics such as the lawyer’s obligation to submerge his own beliefs to advance his client’s goals, the legal system’s dependence on the sort of people who administer it, and the ultimate unreliability of law in a totalitarian state. Listen in!

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The Washington Post reports that Immigration and Customs Enforcement initiated the transfer of 74 detainees from Florida and Arizona to an immigration jail in Farmville, Virginia, to provide cover for the mobilization of Homeland Security tactical teams during the anti-police brutality protests in Washington, D.C.

As the Post explains, restrictions prevent ICE employees from taking chartered flights unless detainees are also onboard, meaning that moving tactical teams via these flights is also prohibited. To justify their movement, ICE claimed that it needed to move the prisoners to avoid overcrowding, a proposal that drew an objection from ICE officials in the Washington, D.C. field office. The objections were reportedly overruled by ICE headquarters and the transfers were carried out.

Last month, The Richmond Times-Dispatch reported that 51 of the 74 transfers tested positive for COVID-19 by the end of June. Soon, the outbreak spread to 97 percent of detainees in Farmville and became the largest recorded outbreak in any immigration jail at the time. One detainee, a 72-year-old Canadian national named James Thomas Hill, died after being hospitalized with the virus.

Following the death of George Floyd at the hands of Minneapolis police officers in late May, protests occurred across the nation. Anti-brutality protesters in multiple cities were met with aggressive policing and further brutality. These demonstrations took a turn when, on June 1, U.S. Park police tear-gassed and clubbed protesters and journalists in front of the White House to clear the square just before President Trump crossed the area to take his infamous Bible picture in front of St. John’s Church.

Soon after, Trump called for soldiers and law enforcement to deal with the protests and enforce a 7 p.m. curfew.

“In light of civil unrest taking place across the country, ICE personnel and Special Response Teams have been deployed to protect agency facilities and assets in support of the Federal Protective Service and assist local, state and federal law enforcement partners, as needed,” ICE spokesperson Danielle Bennett told Roll Call that same day.

According to reports, as many as 400 border patrol agents were deployed in the protests, some of which were documented by Reason‘s Christian Britschgi. The presence of federal law enforcement led to allegations of civil liberties abuses.

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I wanted to follow up on this story briefly by linking to some news accounts of the matter—CNN (Jessie Yeung), BBC (Kerry Allen), and the New Zealand Herald; the first two add some material on international reactions, e.g. (from CNN):

The controversy has even made waves on social media across Asia; many in Hong Kong, Taiwan and mainland China responded with disbelief, sympathy for Patton, and a fair bit of ridicule.

Numerous comments on the Chinese social media site Weibo pointed to the Chinese song “Sunshine Rainbow Little White Horse” by Wowkie Zhang, in which nei ge is repeated throughout the chorus. [I listened to it, and it does have an absurd bizarro rap quality to it. -EV]

Other Weibo users echoed American criticisms that this may be an example of cultural sensitivity gone wrong, with a few comments likening the incident to “literary inquisition,” the historical Chinese persecution of intellectuals for their writings.

“I’ve watched the video of the professor’s class, and read the email letter his students sent, and the statement from the school,” one person wrote on Weibo. “I only want to say, this is ridiculous. It’s just too ridiculous.”

I also wanted to mention an e-mail that I’ve been sending since Monday, in various versions, to various people. I haven’t gotten any substantive answer, but I thought I’d flag the question:

One thing that nags me about the Patton matter is that all the news accounts report just that the complaint came in an e-mail by “Black MBA Candidates c/o 2022.” Is there any information on how many students signed on to the e-mail, or confirmation that they were indeed black MBA candidates in the class of 2022? At least the counterletter from the 100+ students has names, and a few searches on the more unusual names suggest they check out. I just wonder whether this might have been either a prank that the Dean fell for [I assume not, but who knows?], or perhaps a reaction of a very small and unrepresentative group of black students who managed to be seen as speaking for black students generally just by dint of their signature.

Of course, it’s also possible that this did come from all, most, or many of the class of 2022 black MBA candidates; and of course my substantive view on the matter doesn’t turn on that. But I’m always interested, just as a student of organizational politics, in how these things develop (especially in a situation where a school should recognize that either of the obvious options can create possibly bad publicity, indeed possibly bad worldwide publicity).

If anyone does know the answer, please let me know!

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David Peterson is an art professor at Skidmore College, a private liberal arts college in Saratoga Springs, New York. In late July, the professor and his wife, Andrea Peterson, attended a “Back the Blue” rally—not as supporters of the cause, they say, but as curious spectators.

“Given the painful events that continue to unfold across this nation, I guess we just felt compelled to see first-hand how all of this was playing out in our own community,” he later told the student newspaper.

They stood on the edges of event, watching pro- and anti-law enforcement demonstrators argue with each other. After 20 minutes, the Petersons left to eat dinner.

But unbeknownst to Peterson, the couple’s attendance at the rally was noticed. Now Skidmore students are demanding that both Peterson be fired for “engaging in hateful conduct that threatens Black Skidmore students,” according to Times-Union columnist Chris Churchill, who wrote about the controversy.

Andrea Peterson is not an employee of the college, according to Churchill.

“The Petersons weren’t wearing pro-police T-shirts,” notes Churchill. “They weren’t carrying a banner, holding a sign or waving a black-and-blue flag. They appear to just be listening. But merely listening to an opinion that some Skidmore students find objectionable is apparently enough to get a professor in hot water.”

Students have circulated their demands on social media, and even taped a note to the door of Peterson’s classroom advising his students that they are “crossing a campus-wide picket line and breaking the boycott against Professor David Peterson.” Peterson has attempted to make it clear that his presence at the rally did not constitute an endorsement of it; this matters very little to the students. An opinion piece in the student newspaper included his explanation, but still accused him of failing to “reconcile with his behavior.” That piece also claimed that “there have been many claims of Mr. Peterson making students of color and queer students feel uncomfortable and unheard in his art classes prior to this,” but did not elaborate.

“I still have no indication of how [David and Andrea Peterson] plan to take accountability for their actions and make their classrooms a safe space for our communities of color,” wrote the student.

In any case, the boycott is evidently succeeding: Peterson said that most of his students have dropped his classes: Those who think the boycott is ridiculous are afraid to speak up, one student told Churchill. Skidmore’s administration defended his free speech rights in a statement, but is nevertheless investigating the accusations of bias in the classroom.

If this is how they treat a professor who is insufficiently committed to their causes, one wonders how progressive students would treat a professor who holds ardently conservative views—or whether they could peacefully engage with another student, administrator, or any human being who disagrees with them. One gets the sense that a certain kind of liberal arts education is, for some extremely sensitive far-left students, no longer preparing them for the real world, or at least not in the sense this was traditionally intended. Indeed, the real world had better be prepared for them.

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The writer and activist Vicky Osterweil is the latest and most strident defender of the violence and destruction that have accompanied some of the protests following the death of George Floyd.

Osterweil argues in her new book, In Defense of Looting: A Riotous History of Uncivil Action, that in the last years of Martin Luther King Jr.’s life, as his focus moved beyond desegregation and voting rights and toward promoting socialism, he had a change of heart about looting and destruction as a tool for social change.

“Though he wasn’t calling for violent revolution,” she writes, “neither was he chastising or rejecting rioters anymore.”

Others have pointed to the famous King line, “A riot is the language of the unheard,” as a moral justification for the riots of the 1960s.

In reality, King was unwavering in his commitment to nonviolence.

“My hope is that we are going to have a protest like this every summer,” said in a 1966 interview with 60 Minutes‘ Mike Wallace, referencing protests in Chicago that turned violent. “My hope would be that they are nonviolent, because riots are self-defeating and socially destructive.”

He tried to make his position crystal clear in that same that interview, saying, “I will never change in my idea that nonviolence is the most potent weapon available to the Negro in his struggle for freedom and justice.”  

And less than a year before his death, King delivered a lecture addressing skeptics of nonviolence following the 1967 riots.

“Many people feel that nonviolence as a strategy for social change was cremated in the flames of the urban riots of the last two years,” said King, before re-iterating his call for massive, sustained, nonviolent civil disobedience.

“In this world, nonviolence is no longer an option for intellectual analysis; it is an imperative for action.”

Violent protests were self-defeating, King argued, because, “every time a riot develops” it makes “a right-wing takeover more likely,” helping segregationists like George Wallace gain political power and influence.

Osterweil writes admiringly of the nationwide riots that followed King’s assassination as “an act of pure mourning, grief, and rage” that perhaps “felt so natural, so immediate, so appropriate, even those who would normally marvel at their scale fell quiet.”

These uprisings are “wildly understudied, theorized, or historicized,” she writes, and, “the silence on the part of historians, scholars, and activists has been deafening.”

But the Princeton political scientist Omar Wasow has studied the ’68 riots in detail and argues that they helped Richard Nixon to beat Democrat Hubert Humphrey in that year’s presidential race. As King understood, media coverage was why looting and violence backfired.

“A nonviolent protest today produced a headline about civil rights tomorrow. Whereas when protesters engage in violence that predicted a headline about riots tomorrow, a headline that was much more likely to focus on crime and disorder, and public opinion moves very closely with that,” Wasow told Reason‘s Nick Gillespie in a podcast interview. “The tactics that are employed by protesters can really make a powerful impact on how the media tell the story, which in turn shapes public opinion.”

Some media outlets have at times appeared to downplay some violence and destruction, but King’s warning and Wasow’s research still resonate today as polls show a sharp downward turn in approval ratings of the Black Lives Matter movement in recent weeks—including in Wisconsin, even before riots hit Kenosha.

And Democratic presidential candidate Joe Biden seems to fundamentally understand that.

“Rioting is not protesting. Looting is not protesting,” said Biden in a speech in late August.

That might help explain how he’s maintained a lead so far against an incumbent who’s fanned the flames with his rhetoric, threatening to send the military into the streets to crackdown on protests and riots in early June.

King wasn’t excusing riots by describing them as the “language of the unheard.” He was imploring observers to acknowledge the unjust conditions that contributed to their emergence in the first place.

The paths forward to social change couldn’t be more clear. Persistent, nonviolent resistance tied directly to concrete policy demands, as practiced by Martin Luther King, Jr., who helped achieve historic civil rights legislation; or rioting and looting promoted by activists who believe, “We need to argue for and defend every tactic that might help us to overturn this miserable world of white supremacy, anti-Blackness, cisheteropatriarchy, capitalism, empire, and property.”

Produced by Zach Weissmueller; edited by Weissmueller and Regan Taylor; graphics by Lex Villena.

Photo credits: Cees de Boer, CNP AdMedia Newscom; Kheel Center, Gage Skidmore; John Lucia.

Music credits: “Vampire Cop,” by Odonis Odonis; “Your Suggestions,” by the Unicorn Heads.

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From Goldman v. Barrett (2d Cir.), decided yesterday by Judges Debra Ann Livingston, John M. Walker, Jr., and Dennis Jacobs:

Plaintiffs-Appellants Robert M. Goldman and Ronald Klatz … are the co-founders of the American Academy of Anti-Aging Medicine. They sued Stephen Barrett over an allegedly defamatory article he posted on the website Quackwatch noting the outcome of a disciplinary proceeding the Illinois Department of Professional Regulation had initiated against them.

After the district court dismissed their original complaint, Goldman and Katz filed an amended complaint newly alleging that Barrett made defamatory statements to Chinese and Malaysian government officials, causing those officials to deny Goldman and Klatz approval to pursue business opportunities in those countries. Barrett told Goldman and Klatz that these new allegations were false. To that end, he provided Goldman and Klatz with telephone records tending to show he had not made or received any calls with any numbers in China or Malaysia. When Goldman and Klatz declined to withdraw the new allegations, Barrett moved for sanctions under Fed. R. Civ. P. 11, arguing that the new allegations lacked factual support.

The district court [granted Barrett’s motion to dismiss the amended complaint and] granted the motion and imposed a sanction of $10,000 on Paul. Goldman and Klatz appeal that order….

Goldman and Klatz alleged that Barrett told Chinese officials that Goldman and Klatz “had violated numerous U.S. laws,” “would likely be criminally prosecuted,” “had tried to silence Dr. Barrett by using physical force and other intimidation tactics,” and “were under further indictment by other countries for distributing drugs to foreign nations,” among other things. Goldman and Klatz alleged that as a result of these statements, Chinese authorities canceled the China Project. The amended complaint also alleged “it is likely Defendant Barrett had a similar conversation with Malaysian officials regarding the Malaysia Project which caused the consulting arrangement to be terminated.”

In litigating the sanctions motion, Goldman and Klatz revealed the basis for these allegations. Goldman submitted a declaration stating that a politically connected colleague in China, Stephanie Kuo, had informed him and Klatz that “the likely reason for [the China Project’s] rejection[] focused on concerns that resulted from the [Quackwatch] Article and communications that the government likely had with Dr. Barrett during diligence.” Goldman further stated that he believed “the Article and Dr. Barrett’s influence also similarly caused the cessation” of the Malaysia Project.

Paul also submitted a declaration in support of the opposition to the sanctions motion stating that he communicated with Kuo “at various points in late 2015 and 2016” using the app Weixin (also known as WeChat). He stated that “Kuo informed [him] of the facts relating to the termination of various joint venture license[s] … which were generally described in the Amended Complaint” and that he “had no substantial reason to doubt the statements made” by Kuo. He believed that to corroborate Kuo’s claims “the Case would need to proceed to the discovery stage and that information requests would need to comply with applicable international treaties (e.g. Hague Evidence Request).” …

Under Rule 11, an attorney has an obligation to file only papers that have a basis in fact. By signing a pleading, an attorney certifies that its “factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” An attorney who files a paper that no competent attorney could believe, after reasonable inquiry, is well-grounded in fact violates Rule 11.

As such, every attorney owes a duty to conduct a pre-litigation inquiry into the viability of a pleading that is objectively reasonable under the circumstances. Under the circumstances indicated by the record below, the district court did not abuse its discretion in finding that Paul failed to make a reasonable pre-filing inquiry into the bases for the China Project and Malaysia Project allegations.

First, Paul’s reliance on Goldman and Kuo’s insinuations about Barrett’s conduct was unreasonable. Attorneys may, when reasonable, rely on what their clients tell them to support a claim. However, by necessary inference, an attorney may not base an allegation solely on a client’s representation if it is objectively unreasonable to believe that the representation could support the allegation.

The district court did not abuse its discretion in concluding that Goldman and Kuo’s statements did not reasonably support the specific allegations about what Barrett said to the Chinese officials. Goldman’s statement that Kuo believed Barrett’s interference was “likely” does not support the complaint’s specific allegations of what Barrett said. As the district court noted, “speculation that conversations may have taken place … provides no support” for allegations as to the content of those conversations. And even though Paul declared that Kuo informed him of the “facts … generally described in the Amended Complaint,” the district court did not abuse its discretion in concluding that Paul’s failure to disclose or summarize the actual conversations between him and Kuo “strongly suggests that the factual allegations lack evidentiary support.” Cf. Calloway v. Marvel Ent. Grp. (2d Cir. 1988) (finding an attorney’s failure to file an affidavit documenting his pre-filing inquiry suggestive that no such inquiry took place).

The district court’s conclusion that the record failed to make out sufficient support for the Malaysia Project allegations follows a fortiori. In support of the allegation that it was “likely … Barrett had a similar conversation with Malaysian officials,” is only Goldman’s declaration, which states his belief that “the Article and Dr. Barrett’s influence also similarly caused the cessation” of the Malaysia Project. The district court did not abuse its discretion in finding that Goldman’s speculation was insufficient to provide reasonable factual support for the amended complaint’s specific allegation.

Second, Paul was not entitled to rely on discovery to justify bringing claims with no factual basis. An attorney may use discovery to bolster evidence. See Fed. R. Civ. P. 11 advisory committee’s note to 1993 amendment (“[S]ometimes a litigant may have good reason to believe that a fact is true or false but may need discovery … to gather and confirm the evidentiary basis for the allegation.”). However, as the advisory committee note makes clear, having “good reason” to believe the truth of an allegation is still a threshold requirement of filing a paper. To that end, an attorney may not rely on discovery to manufacture a claim that lacks factual support in the first instance. Id. (“Tolerance of factual contentions in initial pleadings by plaintiffs or defendants when specifically identified as made on information and belief does not relieve litigants from the obligation to conduct an appropriate investigation into the facts that is reasonable under the circumstances; it is not a license to join parties, make claims, or present defenses without any factual basis or justification.”).

On appeal, Goldman and Klatz press that Kuo refused to “reveal names and details regarding the decisions of the Chinese governmental authorities at issue unless the information was exchanged in accordance with [Chinese] law” and “international process.” Paul concluded that it would be impossible to use the applicable international discovery devices until after the complaint had been filed.

However, Paul’s confidence that “substantiation … would ensue” upon discovery, did not relieve him of his Rule 11 obligation to include only factually supported allegations in the complaint. Nor did it avail him of Rule 11’s allowance for claims that “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery” because, as discussed above, the district court concluded he lacked good reason to believe the China Project and Malaysia Project allegations were true when he filed the complaint. As such, Paul could not have reasonably thought it “likely” under Rule 11 that factual support would be forthcoming with discovery.

{Even if these allegations were within Rule 11’s allowance for claims requiring corroboration by discovery, Goldman and Klatz did not comply with the Rule’s requirement that such allegations be “specifically so identified.” Fed. R. Civ. P. 11(b)(3). Paragraphs 49–54 of the amended complaint, which contain the relevant allegations regarding the China Project, were not prefaced as being made on information and belief, and contain no “specific[]” reference to the need for additional factual support from discovery.} …

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A federal appeals court today upheld a Florida law requiring felony offenders to pay off their court fines and fees before they can regain the right to vote. The decision is a setback for civil liberties groups’ attempts to re-enfranchise an estimated 775,000 residents in the battleground state.

In a 6–4 ruling, the 11th Circuit Court of Appeals held that the law, passed by Florida Republicans last year, does not violate the Equal Protection Clause of the 14th Amendment or the 24th Amendment’s prohibition on poll taxes. This overturned a U.S. district judge’s ruling in May, which held that the state’s inscrutable system for determining voting eligibility discriminated against offenders who were too poor to pay off their fines.

“Florida withholds the franchise from any felon, regardless of wealth, who has failed to complete any term of his criminal sentence—financial or otherwise,” Judge William Pryor wrote in today’s ruling.

The case is expected to be appealed to the Supreme Court. But it all but ensures that most of those in Florida with felony records won’t be able to register to vote in time for this November’s election. As WLRN reported last year, Florida felons would have to pay back hundreds of millions of dollars to restore their voting rights.

The ruling will not immediately affect the status of some 85,000 residents with felony records who have already registered to vote.

Julie Ebenstein, a senior staff attorney with the American Civil Liberties Union’s Voting Rights Project, said in a press release that the ruling “runs counter to the foundational principle that Americans do not have to pay to vote” and called it “an affront to the spirit of democracy.”

The fight over felon voting rights in Florida began in 2018, immediately after Florida voters decisively passed Amendment 4, a constitutional amendment restoring voting rights to those with felony records. Florida was one of a small group of states that enforced a lifetime voting ban for anyone with a felony record, and Amendment 4 was hailed as one of the largest single expansions of the franchise in recent history.

The amendment’s language said that voting rights would be restored “upon completion of all terms of sentence including parole or probation,” but it did not say whether “all terms” included financial obligations imposed by courts. 

Florida Republicans, including Gov. Ron DeSantis, argued that it did, and they passed a bill making voting eligibility contingent on first paying off court fines and fees. Civil rights groups say that amounts to a poll tax, and several of them filed lawsuits last year challenging the new law at both the state and federal levels.

At trial this April, state officials repeatedly admitted they couldn’t easily track how much someone owed in criminal fines and fees; the documents were often scattered across multiple county agencies.

U.S. District Judge Robert Hinkle ruled in May that the Florida government could condition voting on paying off court fines and fees, but that blocking offenders who are too poor to pay their fines is discriminatory. Hinkle had previously ordered the state to create a clear process to identify whether former felony offenders are eligible to vote, exactly how much money they owed, and if they were indigent.

The 11th Circuit’s opinion today vacated Hinkle’s orders, finding that the Due Process Clause created no obligation for the Florida government to provide felony offenders with records to determine how much they owe.

“So long as a State provides adequate procedures to challenge individual determinations of ineligibility—as Florida does—due process requires nothing more,” Pryor wrote.

“This is a deeply disappointing decision,” Paul Smith, vice president of the Campaign Legal Center, one of the other groups that challenged the law, said in a press release. “While the full rights restoration envisioned by Amendment 4 has become less likely to be realized this fall, we will continue this fight for all Florida voters, so the full benefits of Amendment 4 will someday be realized.”

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

It’s a tale of two cases. In 1905, the Supreme Court issued two landmark opinions reviewing state legislation under the Fourteenth Amendment. Today, Lochner v. New York is reviled by academics and judges alike—a supposed example of “judicial activism” gone awry. Meanwhile, Jacobson v. Massachusetts is held up as a model of “restraint”—and a key precedent supporting government’s power to address the COVID-19 pandemic. And yet, IJ’s Anthony Sanders explains, the two opinions have more in common than it might seem. Click here for the surprising and illuminating discussion.

New on the Short Circuit podcast: Special guest Steve Vladeck of UT Law joins the panel to talk the Declaratory Judgment Act.

• Scheming to build a housing development that Bloomingburg, NY residents oppose, developer arranges for fraudulent votes in a bid to seize control of the village government. It’s voter fraud in a purely local election. Second Circuit: Ah, but the false voter registrations could have been used in later federal elections. Federal conviction affirmed.
• Target of IRS summons—who allegedly controlled offshore accounts through trusts for which he was both trustee and beneficiary—claims that order to produce documents violates his Fifth Amendment right against self-incrimination. Second Circuit: A trust, like a corporation, is a collective entity that has no such Fifth Amendment right. Produce those docs.
• Despite four motions to let him out, mentally disabled Pennsylvania man is detained for nine years pending a homicide trial that never happens. Can he bring an Americans with Disabilities Act claim against the clerk’s office for not doing something to get his case resolved? Third Circuit (over a dissent): Nope. He was detained because of judging, and you can’t sue about that. But we recognize the human suffering. (Other claims not on appeal might do better.)
• Texas allows mail-in voting for anyone 65 or older. The district court entered a preliminary injunction requiring that all voters—regardless of age—be allowed to vote by mail. Fifth Circuit: Plaintiffs defend the injunction on the ground that the law violates the 26th Amendment, which prohibits laws that “deny” or “abridge” the right to vote “on account of age.” But a law that makes it easier for older people to vote does not “abridge” the rights of younger people (pandemic notwithstanding). Still, plaintiffs may pursue other theories on remand.
• Purportedly enforcing a general policy against dyed hair, school dean allegedly singles out an African American boy for discipline and ridicule—calling him a “thug” and a “fool,” asking if the student “was gay with ‘that mess’ in his head,” discouraging other students from speaking with him, and even encouraging another student to concoct a false allegation of sexual assault. Fifth Circuit: All of which should have been enough to get this case past a motion to dismiss.
• What are judges to do when they wish to be faithful to text but two provisions of the same law irreconcilably conflict? The Fifth Circuit brings us the answer with an annual Medicare health care provider compensation formula that overlaps for one day each year.
• Allegation: Cleveland social workers fail to prevent a woman from abusing and eventually killing her disabled daughter. But there is still no right to protection from private harm, reminds the Sixth Circuit, so no suing the social workers for what they didn’t do. But claims that they interviewed the girl in front of her abusers and thus actively put her at risk? Those claims can proceed.
• In which the Sixth Circuit confirms that, when the Supreme Court tells courts to apply strict scrutiny to content-based sign restrictions, the Supreme Court means what it says.
• “This case is the swan song in an epic saga of unending war over trade secrets and the unlawful sales of sails. Unlike the model of the Iliad, it was ended not by men in a horse but by men in robes.” And, with that, the Sixth Circuit affirms the judgment in this honestly otherwise pretty boring contract dispute.
• Prisoners in Cook County, Ill. sue over prison efforts to control the spread of COVID-19. Trial court grants a preliminary injunction ordering the sheriff to take a variety of safety measures, including the elimination of “double celling” and group housing. Seventh Circuit: The requirement for socially distanced housing went too far, but the rest of the injunction was reasonable and well supported.
• Following a 1992 double murder, Chicago detectives use physical and psychological coercion to extract false confessions from suspects. Detectives manufacture other false evidence too. Sentenced to life imprisonment, one of the suspects spends 21 years behind bars before being exonerated. Upon release, he sues the detectives (among others). And the jury’s finding of liability—paired with a $13 million damages award—is affirmed, holds the Seventh Circuit.
• Taxpayers believe a 2008 county tax assessment violated their equal protection rights. After a decade spent trying to pursue the claim in state court, they sued in federal court. And were promptly dismissed because state courts provide a “plain, speedy and efficient remedy.” Seventh Circuit: We reversed and remanded in January, and yet the district court has taken no further action in this case—evidently waiting to see if the Supreme Court will grant certiorari. Our mandate said the case should proceed, so now we grant mandamus.
• Kansas City, Mo. man is hit with felon-in-possession charge after being caught with a shotgun. Feds offer a plea deal under which both sides would request a sentence of between 70 and 87 months. Judge chimes in with comments like “[t]hat’s probably worse than if he got convicted, right?” Judge also advises the defendant that the federal system “sucks” and is “really harsh” and that pleading guilty would mean he’d be sentenced by a less lenient judge. Man rejects plea, gets convicted, and is sentenced to 92 months’ imprisonment. Eighth Circuit: The district court plainly erred by inserting itself into the plea-bargain process. Sentence vacated and case remanded for resentencing before a different judge.
• Forty-seven states and the District of Columbia use a winner-take-all system for apportioning their votes in the Electoral College. Represented by super-lawyer David Boies, California voters sue, alleging that the system violates equal protection by rendering the votes of the losing party meaningless; they should get some of the electoral votes, too. Ninth Circuit: SCOTUS blessed this arrangement decades ago.
• The musical Jersey Boys recounts the rise to fame of the Four Seasons, the band responsible for the high-pitched caterwauling in “Walk Like a Man” and “Big Girls Don’t Cry.” After the show becomes a smash hit, the owner of copyright in an unpublished autobiography of one of the band members sues, alleging that the musical is too similar to the book. Ninth Circuit: This was a really long and expensive case that could have been resolved by the most basic proposition of copyright law: Facts aren’t copyrightable.
• Volkswagen, which at one point owned 70% of the U.S. passenger-car diesel market, used software to cheat on diesel emissions tests for years. Several executives went to prison, and the company paid billions in fines. The company agreed to settle the class action by reimbursing owners and lessees and removing the polluting autos from the road. But not all cars are eligible for compensation; the company won’t pay for those bought from junkyards or salvage yards with branded titles. And the company needn’t pay for cars bought at insurance auctions with branded titles, either, says the Ninth Circuit.
• While on a cross-country motorcycle trip, man’s bike breaks down in an isolated town in Garfield County, Utah. Yikes! He’s arrested on suspicion of stealing $20 from a local convenience store—money that, it turns out, was never stolen in the first place—and suffers long-term nerve damage from being handcuffed. He’s forced to hitchhike 95 miles back from the jail to his motorcycle but finds the bike vandalized and his possessions stolen. Tenth Circuit: No qualified immunity here.
• Congress passed the Ute Partition Act in 1954 to terminate federal supervision of “mixed-blood members” of the tribe. Those with less than 50% Ute ancestry received some tribal assets and were stripped from the rolls and unable to invoke federal Indian laws. Man who falls within this group seeks to avoid state-court prosecution for speeding in Indian Country, argues that he has Indian status, notwithstanding the 66-year-old law. Tenth Circuit: Alas, the law says what it says.
• Navajo man is charged with assaulting another Navajo man within Indian country. Federal law applies, and the man accordingly receives a substantially higher sentence than he would have received under state law. Tenth Circuit: We are sympathetic to the concern that Native Americans receive higher sentences for assault because they are disproportionately subject to federal criminal jurisdiction. But, under our precedent, the district court properly declined to consider that disparity at sentencing.
• Hedge-fund gent and his wife rack up millions of dollars in tax debt. Throughout the 2000s, they make low-ball settlement offers to the IRS while spending millions on a personal chef, a rental home in Aspen, charitable donations, and other such luxuries. Bankruptcy ensues. Bankruptcy court: Your tax debt is nondischargeable because you willfully attempted to evade liability. District court: Indeed. Eleventh Circuit: Indeed.
• Registered sex offenders, driven to homelessness by restrictions on where they can live, sue challenging the restrictions as ex post facto laws. Eleventh Circuit: Totally OK to decide the case based on the fact that your lawyers said they were bringing a “facial” challenge and not an “as-applied” challenge.
• Florida, in 2018, restored the voting rights of convicted felons. But with a catch. Restoration was conditioned on paying off all fines, fees, costs, and restitution. Eleventh Circuit (on initial hearing en banc): States may restrict voting by felons in ways that would be impermissible for other citizens, and Florida, here, permissibly distinguished between felons who have completed their sentences and those who have not. Dissent: So much is profoundly wrong with the majority opinion that it is difficult to know where to begin.
• And, in en banc news, the Ninth Circuit will not reconsider its earlier decision upholding a federal law that prohibits possession of firearms by those involuntarily committed to mental institutions—regardless of the passage of time or the individual’s current mental health. Eight judges dissent, with three writing separately, to affirm that the Second Amendment is not a second-class right.

Just last week, IJ filed suit in New Hampshire to enforce the Supreme Court’s recent decision granting IJ a victory—and prohibiting government discrimination against religious schools—in Espinoza v. Montana Department of Revenue. But that’s not all! This week, IJ again filed suit to enforce Espinoza—this time in Vermont. Vermont subsidizes private schools for students in rural districts that don’t operate full K–12 public schools but excludes private religious schools from the program. That violates Espinoza, and IJ is on the case to make sure that states follow the decision. Learn more here.

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I argued last week that it was premature to condemn Sweden’s approach to COVID-19, which has been notably less restrictive than the policies adopted by other European countries and the United States. At the time, Sweden’s per capita COVID-19 death rate was slightly higher than the U.S. rate. Since then, the U.S. rate has surpassed Sweden’s, and the trajectory of deaths suggests that Sweden has been more successful at reducing mortality, despite (or perhaps because of) the government’s decision to eschew a broad lockdown.

According to Worldometer’s tallies, the United States so far has seen 594 COVID-19 deaths per 1 million people, compared to 578 in Sweden. Even more strikingly, deaths in Sweden have barely risen since late June, while deaths in the United States have been climbing steadily since late March. Here is what the graph of cumulative deaths looks like for Sweden:

And here is what that same graph looks like for the United States:

In Sweden, the seven-day average of weekly deaths peaked at 99 on April 16. It has been in the single digits since July 17, hovering around 1 or 2 in recent days. In the United States, that average peaked at 2,256 on April 21. It dropped below 1,000 in early June but rose above that number by late July. Yesterday it was 750, which is two-thirds less than the peak but still substantial, equivalent to about 23 deaths a day in Sweden.

Newly confirmed cases are falling in both countries, but the downward trend in Sweden has been much sharper since late June. The seven-day average of daily new cases has fallen by more than 80 percent in Sweden since June 29. During the same period in the United States, that average initially rose, peaking at nearly 70,000 on July 25. It has since fallen to about 36,000, a 48 percent drop.

Despite some early blunders (most conspicuously, the failure to adequately protect nursing home residents), Sweden generally has pursued a policy that aims to protect people who are at highest risk of dying from COVID-19 while giving the rest of the population considerably more freedom than was allowed by the lockdowns that all but a few governors in the United States imposed last spring. That does not mean Swedes carried on as usual, since the government imposed some restrictions (including a ban on large public gatherings) and issued recommendations aimed at reducing virus transmission.

Achieving herd immunity was never an official goal of Sweden’s policy. But recent trends in Sweden are consistent with the hypothesis that the country has achieved some measure of herd immunity through a combination of exposure to the COVID-19 virus, T-cell response fostered by prior exposure to other coronaviruses, and greater natural resistance among the remaining uninfected population (based on the assumption that people who were most susceptible to infection were especially likely to catch the virus early in the epidemic).

In the United States, meanwhile, sweeping legal restrictions on social and economic activity, despite the enormous costs they imposed, have had no obvious impact on the upward trajectory of cumulative COVID-19 deaths. Given current trends, the gap in per capita deaths between the United States and Sweden is bound to grow, casting more doubt on the cost-effectiveness of lockdowns.

While discussion of COVID-19 tends to focus on government policy, it is important to keep in mind that many other factors, including voluntary precautions, affect the course of the epidemic. “The existing literature has concluded that NPI [nonpharmaceutical intervention] policy and social distancing have been essential to reducing the spread of COVID-19 and the number of deaths due to this deadly pandemic,” UCLA economist Andrew Atkeson and two other researchers note in a National Bureau of Economic Research paper published last month. But when Atkeson and his co-authors looked at COVID-19 trends in 23 countries and 25 U.S. states that had seen more than 1,000 deaths from the disease by late July, they found little evidence to support that conclusion.

“Early declines in the transmission rate of COVID-19 were nearly universal worldwide,” they report, which suggests that “the role of region-specific NPIs implemented in this early phase of the pandemic is likely overstated.” They note that “many of the regions in our sample that instated lockdown policies early on in their local epidemic, removed them later on in our estimation period, or have have not relied on mandated NPIs much at all.” Yet “effective reproduction numbers [the number of people infected by the average carrier] in all regions have continued to remain low relative to initial levels, indicating that the removal of lockdown policies has had little effect on transmission rates.”

Atkeson et al. argue that their findings “raise doubt about the importance [of] NPIs (lockdown policies in particular) in accounting for the evolution of COVID-19 transmission rates over time and across locations.” They suggest that other factors, such as “voluntary social distancing, the network structure of human interactions, and the nature of the disease itself,” play a more important role than variations in policy.

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