Tag: hit&run

Looking for Writers About the Business of Sports (Such as Gymnastics)

I’ve run across an odd story that has to do with the intersection of law and the business side of sports, chiefly but not only gymnastics. If need be, I might write it up myself, but a journalist who specializes in that field will do better with it, I think. If any of our readers is interested, or personally knows someone who is, please let me know (at volokh at law.ucla.edu). Thanks!

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Connecticut AG Opinion on Repealing Religious Exemption from Vaccination Rules

From Conn. AG Op. No. 2019-01, issued May 6 and just uploaded onto Westlaw:

Dear Majority Leader Ritter:

I am writing in response to your request for a formal legal opinion from the Office of the Attorney General (the “Office”) regarding the “constitutionality of eliminating the religious exemption for required immunizations” that is set forth in Conn. Gen. Stat. § 10-204a(a).[1]

There is no serious or reasonable dispute as to the State’s broad authority to require and regulate immunizations for children: the law is clear that the State of Connecticut may create, eliminate or suspend the religious exemption in Section 10-204a(a) in accordance with its well-settled power to protect public safety and health. The exercise of this authority is fully consistent with the Constitutions of the United States and the State of Connecticut.

This Office expresses no opinion regarding whether the State should eliminate the religious exemption in Section 10-204a(a), or any other exemption from the requirement for a child to be vaccinated as a condition to attending a school. That is a policy decision entrusted exclusively to the judgment of the legislature and the Governor.

The U.S. Supreme Court Has Repeatedly Affirmed The Authority of the States On This Issue For More Than 100 Years.

Federal law has supported the authority of the states to require and regulate immunizations for children for over 100 years. As early as 1905, the United States Supreme Court recognized the states’ authority to enact “health laws of every description” to protect the public health and the public safety. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 (1905). Jacobson involved a Fourteenth Amendment challenge to the constitutionality of a Massachusetts statute requiring compulsory vaccination for smallpox. The Court, recognizing that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members”, held that the state law did not “invad[e] any right secured by the Federal Constitution.” Id. at 27, 38. Notably, the Court cited with approval several state court decisions upholding “statutes making the vaccination of children a condition of their right to enter or remain in public schools.” Id. at 32-34.[2] Seventeen years later, the U.S. Supreme Court affirmed that Jacobson “had settled that it is within the police power of a state to provide for compulsory vaccination,” and that such ordinances in the exercise of that police power may make reasonable classifications reflecting the “broad discretion required for the protection of the public health.” Zucht v. King, 260 U.S. 174, 176-77 (1922). Accordingly, the Zucht Court held that a city ordinance requiring immunization for school attendance violated neither due process nor equal protection principles. Id.

Twenty-two years after Zucht, the U.S. Supreme Court cited Jacobson for the proposition that the “right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944). Noting that the “state’s authority over children’s activities is broader than over like action of adults,” the Prince Court reasoned that “[p]arents may be free to become martyrs themselves. But it does not follow they are free … to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” Id. at 168, 170.[3]

Jacobson, Zucht and Prince remain valid today. Numerous federal courts in recent times have held that the free exercise of religion must give way in the face of mandatory state vaccination laws. The United States Court of Appeals for the Second Circuit recently held “following the reasoning of Jacobson and Prince, that mandatory vaccination as a condition for admission to school does not violate the Free Exercise Clause.” Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir.) (per curiam), cert. denied, 136 S. Ct. 104 (2015). The Phillips Court observed that a law that is neutral and of general applicability need not be justified by a compelling government interest even if it has the incidental effect of burdening a particular religious practice. Id.; accord, Nikolao v. Lyon, 875 F.3d 310, 316 (6th Cir. 2017), cert. denied, 138 S. Ct. 1999 (2018) (upholding Michigan’s mandatory immunization law).

Similarly, the Fourth Circuit upheld West Virginia’s decision to eliminate any religious exemption to mandatory immunization statutes, rejecting challenges based on the free exercise, due process and equal protection clauses of the U.S. Constitution. Workman v. Mingo County Bd. of Educ., 419 Fed. Appx. 348, 353-55 (4th Cir.), cert. denied, 565 U.S. 1036 (2011). Citing Jacobson, Zucht and Prince, the Workman Court noted that the “Supreme Court has consistently recognized that a state may constitutionally require school children to be immunized.” Id. at 356. The court found that this was “not surprising given the compelling interest of society in fighting the spread of contagious diseases through mandatory inoculation programs.” Id. (internal citations omitted).

In another vein, the Mississippi Supreme Court struck down a state statutory exemption from mandatory vaccinations on the basis of religious beliefs, on the grounds that it violated equal protection under the Fourteenth Amendment of the U.S. Constitution. Brown v. Stone, 378 So.2d 218, 222-24 (Miss.), cert. denied, 449 U.S. 887 (1980). Noting that vaccinations prevent “the horrors of crippling and death resulting from poliomyelitis or smallpox or from one of the other diseases against which means of immunization are known and have long been practiced successfully,” the Court held that a religious exemption would “discriminate against the great majority of children whose parents have no such religious convictions.” Id. at 223. Thus the Brown Court concluded that requiring “the great body of school children to be vaccinated and at the same time expose them to the hazard of associating in school” with children who have not been vaccinated because of a religious exemption would violate equal protection under the Fourteenth Amendment. Id.

  1. II. Analysis Under Connecticut Law Supports The State’s Authority To Require School Immunizations.

Connecticut constitutional provisions and statutes support the same result. Our courts have generally followed federal constitutional jurisprudence in interpreting Connecticut’s Free Exercise Clause, finding such “precedent construing the analogous federal constitutional provision … persuasive.” Cambodian Buddhist Soc. of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 399-400 (2008); see also Mayock v. Martin, 157 Conn. 56, 64 (1968) (consistent with First Amendment free exercise protections a state may safeguard the peace, good order and comfort of the community without invading liberties protected by the Fourteenth Amendment; citing inter alia, Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)).

It is important to note that our State’s school vaccination law does not require vaccination of all children in all circumstances. This law does not prohibit parents or guardians from freely exercising their genuinely held religious beliefs. If the religious exemption of Section 10-204a(a) was eliminated or suspended, parents and guardians who object to vaccinations on religious grounds could continue to do so and educate their children through alternative means, such as through home schooling.

Connecticut has enacted statutory protections for the free exercise of religious beliefs. Conn. Gen. Stat. § 52-571b provides that the state or any Connecticut political subdivision cannot burden the free exercise of religion under Article I, § 3 of the state constitution “even if the burden results from a rule of general applicability,” except where the burden is in furtherance of a compelling state interest, and it is the least restrictive means of furthering that compelling state interest. Repealing or suspending the religious exemption does not create any necessary conflict with Section 52-571b in the first instance. Combatting the spread of dangerous infectious diseases, particularly among children who congregate in schools where the danger of the spread of such diseases is particularly high, grounded as it is in the state’s paramount duty to seek to ensure public safety, has repeatedly been found to constitute a compelling state interest.[4] See, e.g., Zucht, Prince.

The only legal question here is whether requiring vaccination as a precondition to enrolling at a public or private school, without a religious exemption, is the “least restrictive means” of accomplishing the salutary purpose of the statute. Such an inquiry must be informed by the underlying principle that “”‘[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”D’ Phillips, 775 F.3d at 543 (quoting Prince, 321 U.S. at 166-67). The legislature could reasonably determine that the requirements of Section 52-571b were satisfied in this situation.[5] If the efficacy of mandatory vaccinations depends upon exemptions being limited and rarely exercised, and if a religious exemption is being so frequently taken as to undermine the effectiveness of the mandatory vaccination program, elimination of the exemption would appear to meet the “least restrictive means” test of Conn. Gen. Stat. § 52-571b(b)(2). Eliminating the religious exemption from the existing statute would be narrowly tailored to the state’s goal, since it would protect children from the spread of dangerous communicable diseases, while allowing a parent or guardian who objected to vaccinations on religious grounds the option to home school his or her child.

Despite a diligent search, we have been unable to find a Connecticut case that has held that a religious exemption from school vaccinations was constitutionally required. On the contrary, over 100 years ago, the Connecticut Supreme Court upheld mandatory school immunizations. Bissell v. Davison, 65 Conn. 183 (1894). More recently, a superior court case has upheld the constitutional dimensions of immunization in the context of a child custody case. In Archer v. Cassel, the court reviewed the applicable federal jurisprudence, and held that “Connecticut courts have the authority to order children to be vaccinated.” 60 Conn. L. Rptr. 10, 2015 WL 1500447 (Conn. Sup., March 10, 2015). The court in Archer noted that “religious freedom in this country is not an absolute right” and that “the right of parents to raise their children in accord with their personal and religious beliefs must yield when the health of the child is at risk or when there is a recognized threat to public safety.” Id.

The Connecticut Supreme Court has recently held that the Commissioner of the Department of Children and Families, acting as an appointed guardian, could not compel a child to be vaccinated against the wishes of biological parents whose parental rights have not been terminated. In re Elianah T.-T., 326 Conn. 614 (2017) on reconsideration, 327 Conn. 912 (2017). However, Elianah T.-T. was predicated not on federal or state constitutional claims, but on interpretation of the state statute authorizing the Commissioner to ensure “”medical treatment” (which the Court held implied curing illness or injury but not preventive care such as vaccinations).[6]

Given the foregoing, it is the opinion of the Office of the Attorney General that there is no constitutional or statutory bar to the State’s elimination or suspension of the religious exemption currently contained in Conn. Gen. Stat. § 10-204a.

[1] Conn. Gen. Stat. § 10-204a(a) provides in relevant part that public and private schools must require that all children “be protected by adequate immunization” against various specific diseases unless the child has a medical exemption pursuant to subsection (2) or “presents a statement from the parents or guardian of such child” that the immunizations would be “contrary to the religious beliefs” of the child, parents or guardian, pursuant to subsection (3).

[2] Before 1905, the states of Indiana, Georgia, North Carolina, California, Connecticut, Vermont, New York and Pennsylvania had all upheld state statutes requiring vaccination of children as a condition of their right to enter or remain in public schools. Jacobson, 197 U.S. at 32-35 and cases cited therein.

[3] Notably, Prince was decided after Cantwell v. Connecticut, which established that the Fourteenth Amendment to the U.S. Constitution prohibited state legislatures from enacting legislation that would infringe upon the First Amendment protections for the free exercise of religion and the prohibition of state “establishment” of religion. Cantwell v. Connecticut, 310 U.S. 296, 304 (1940). While Cantwell concerned a Connecticut law prohibiting, among other things, solicitation of donations for religious purposes without a state license, the Court observed that a state may, consistent with constitutional principles, “safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment.” Id.

[4] The Centers for Disease Control gives us an insight into these diseases and their effects on the health of children and adults. See, e.g., http://bit.ly/2lRPP16.

[5] The legislature could of course obviate any concern regarding a conflict with Conn. Gen. Stat. § 52-571b(b) by specifically exempting the mandatory vaccination law from the requirements of § 52-571b(b). To the extent that there was any tension between the two legislative actions, the later one would prevail. Tomlinson v. Tomlinson, 305 Conn. 539, 553 (2012) (“‘[i]f the expressions of legislative will are irreconcilable, the latest prevails ….'”).

[6] Connecticut’s constitutional guarantee of free public education (Conn. Const. art. VIII, § 1) does not limit the State’s power to require vaccinations. A California appellate court held that given the compelling need to fight the spread of contagious diseases, elimination of the state’s religious exemption to mandatory vaccinations would not violate the state constitutional right to a free education, even if analyzed under strict scrutiny. Brown v. Smith, 24 Cal.App.5th 1135, 1145-47 (2018). The Brown v. Smith court also upheld the elimination of the exemption against state equal protection and due process claims. Id., at 1147-1148.

 

 

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App Store Antitrust Case Could Still Tank

A new U.S. Supreme Court ruling related to Apple’s App Store has a lot of pundits and press freaking out. But it’s not quite the major loss nor broad-in-scope ruling many are making it out to be.

Yes, the court said an antitrust lawsuit brought against Apple, brought by a small group of consumers, should be allowed to continue. But that doesn’t mean that the consumers’ claims will be found to have any merit. This wasn’t a ruling on the merits of the lawsuit but a merely a decision not to shut it down immediately.

“At this early pleadings stage of the litigation, we do not assess the merits of the plaintiffs’ antitrust claims against Apple, nor do we consider any other defenses,” the court stated.

The 5-4 decision—authored by Justice Brett Kavanaugh—saw Kavanaugh siding with more liberal justices in the majority, which of course has raised eyebrows among those who expected him to be basically a Republican puppet.

In the case, Apple v. Pepper, plaintiffs argue that the App Store is an unfair monopoly. Apple’s lawyers argued that the plaintiffs had no standing to bring the lawsuit, since they’re app users and not app developers.

In the dissent—written by Neil Gorsuch and joined by John Roberts, Clarence Thomas, and Samuel Alito—the justices wrote that the majority’s interpretation was “not how antitrust law is supposed to work.” More from the dissent:

More than 40 years ago, in Illinois Brick Co. v. Illinois … this Court held that an antitrust plaintiff can’t sue a defendant for overcharging someone else who might (or might not) have passed on all (or some) of the overcharge to him. Illinois Brick held that these convoluted “pass on” theories of damages violate traditional principles of proximate causation and that the right plaintiff to bring suit is the one on whom the overcharge immediately and surely fell. Yet today the Court lets a pass-on case proceed. It does so by recasting Illinois Brick as a rule forbidding only suits where the plaintiff does not contract directly with the defendant.

This replaces a rule of proximate cause and economic reality with an easily manipulated and formalistic rule of contractual privity. That’s not how antitrust law is supposed to work, and it’s an uncharitable way of treating a precedent which—whatever its flaws—is far more sensible than the rule the Court installs in its place.

FREE MINDS

Freshman Sen. Josh Hawley (R–Mo.) is quickly outpacing more experienced colleagues at being The Worst:

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Stossel: Moral Panic Over Sex Work

Police often use “sex trafficking” and “prostitution” interchangeably. That’s what happed in the Robert Kraft case, says Reason reporter Elizabeth Nolan Brown.

Kraft, the owner of the New England Patriots, was caught in a “sex trafficking” sting.

Law enforcment “had all of these big announcements at first saying that…these women were being forced there and they weren’t allowed to leave,” Brown explains to John Stossel.

But now prosecutors in the Kraft case concede that there was no trafficking.

That’s usually the case when it comes to “sex trafficking” busts, says Brown: “I’d say 99% of the headlines are not true.”

Brown covered a similar case in Seattle where the cops claimed to have busted a sex trafficking ring. In a press conference, King County Sheriff John Urquhart said: “These women are true victims.”

But the court documents “actually paint a very, very different story,” Brown points out. “No one has been charged with human trafficking in that case.”

Yet politicians and the media often exaggerate the frequency of trafficking. Congresswoman Ann Wagner claims, “Right now almost 300,000 American children are at risk”.

That 300,000 number is repeated constantly in the media. The number is based on a study that has been disavowed by the lead author, Richard Estes. “Many people debunked the study and say, ‘This is just a total bullcrap number,'” Brown says.

She adds, “When we have these exaggerated numbers, it forces people to go into this crazy emergency moral panic mode that ends up not helping the actual problem that we have.”

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The views expressed in this video are solely those of John Stossel; his independent production company, Stossel Productions; and the people he interviews. The claims and opinions set forth in the video and accompanying text are not necessarily those of Reason.

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Joe Biden Is Running Backwards Against Trump

Joe Biden still has the big smile.

He’s physically smaller, the same way that Bill Clinton is these days, the way that it’s hard to tell whether it’s because he’s in better shape, or he’s shrunken with age, or it’s a combination of both.

Also like Bill Clinton, the hair has moved past gray into a color approaching white. At least Clinton, unlike Biden, has a full head of it still. If Donald Trump’s orange tint can evoke the late Senator Strom Thurmond, Biden’s locks, color-wise, are more like those of Senator Ernest “Fritz” Hollings, a Biden friend and colleague who died last month at age 97.

In the back of a Hampton, N.H., pizza joint where Biden is campaigning in front of a largely geriatric crowd, a campaign surrogate is telling a reporter that it’s about what you’d expect for a midday, midweek event. I’d been to midday, midweek New Hampshire campaign events for Beto O’Rourke earlier this year, though, that drew younger crowds.

When Biden says Republicans are “going to try to eviscerate the social safety net, Medicare, Social Security,” he’s talking about programs that to many in the room aren’t abstract future promises. He’s wearing a cardigan sweater under his sport coat, as if someone is worried that he might catch a cold.

Biden, 76, is running a campaign that from a message standpoint echoes the one that Trump, 72, ran in 2016.

“I want to restore the soul of this country,” Biden says, “rebuild the backbone of this country.”

Restore, rebuild. The prefix “re” literally means “again,” as in Trump’s “Make America Great Again,” as if Biden, like Trump, somehow wants to turn the clock back.

Even Biden’s economic policy of tax increases gets a “re” frame; speaking of a plan for free community college, Biden says “we can pay for this with the tax cut that we are gonna reverse.”

There “used to be a basic bargain,” Biden says, in which employees shared in the prosperity.

Biden understands the potential political appeal of “used to be,” the warm nostalgia in the hearts and minds of older voters about what they imagine America was before its supposed decline.

He also sounds like 2016-era Trump when he criticizes the economy on the grounds that “people are being left behind,” talking about a closed General Motors assembly line in Delaware.

Biden talks about Warren Buffett complaining that he has a “lower tax rate than my secretary does.” Buffett is 88, which explains why he has a “secretary” rather than voicemail or a personal assistant or executive assistant. The word “secretary” isn’t much used anymore in the contemporary American workplace.

Biden talks about President Kennedy’s speech about going to the moon, a speech delivered in 1962, saying his favorite part of it was Kennedy’s phrase “we refuse to postpone.” Actually, Kennedy called it a challenge “we are unwilling to postpone,” but close enough.

“We have to end it now, this administration,” is what Biden says he wanted not to postpone. Whether the analogy between the moonshot and ousting President Trump makes any sense or has any resonance will be up to the voters.

The moonshot reference is part of a kind of stream of consciousness tour of the policy highlights, or lowlights, of the past 60 years. “There is a whole lot of talk about Biden and the crime bill,” Biden says, referring to himself in the third person, as Biden frequently does. “That’s all Biden, midnight basketball.”

That’s a crime bill that passed in 1994, which was 25 years ago, before some of today’s voters were born.

“I said back in 1987,” Biden says at one point, during a discourse that also hits on the Civil Rights movement, Vietnam, the Iraq War.

The cameras in the back of the room are from C-Span and Fox News, but it’s almost as if the whole thing belongs on the History Channel.

Biden’s attraction to voters seems to be that they think he can win. “Maybe the country’s just not ready for a woman,” is the way Shirley Sylvester, 62, a retired project manager, put it to me.

As a presidential candidate in the 1988 cycle, Biden dropped out before the New Hampshire primary. As a presidential candidate in 2008, he finished sixth in the New Hampshire Democratic primary, behind Bill Richardson and Dennis Kucinich, with 0.22% of the votes. Not 22%, but 22 hundredths of a percent. This time around, he’s got nowhere to go but up, at least New Hampshire-wise.

Perhaps the secret to progress is to cloak it, Trojan Horse-style, in conservative rhetoric. Or perhaps, for better or worse, there is something genuinely backward-looking about elements of Biden’s program that want to undo the Reagan revolution and restore Johnson-era liberalism—”consensus,” Biden called it, invoking a word historians use, somewhat controversially, to describe Cold War-era America.

Biden’s path to victory requires being different enough from Trump to win the Democratic nomination while simultaneously being similar enough to Trump to win a general election. If not, it could be time to dust off some other “re” words—a repeat of Reagan’s 1984 reelection, with Biden reprising the role of Walter Mondale.

Ira Stoll is editor of FutureOfCapitalism.com and author of JFK, Conservative.

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Kids Aren’t Rushing To Get Their Driver’s Licenses—and That’s OK!

The share of teens with driver’s licenses peaked in 1983, when 72 percent of Americans aged 16–19 were legally approved to drive. Today, only about 50 percent are.

The decline has stupefied many a baby boomer and Gen Xer, who can’t imagine why young people today don’t want to hit the open road. Writing in The Atlantic in May 2018, Penn State professor Gary Cross fretted about the loss of that “magical age of 16, when suddenly a world opened up.” The Washington Post in 2015 dedicated more than 2,000 words to how America’s love affair with cars was “cruising towards oblivion” because those damn kids don’t want to drive.

What do teens actually say? According to a University of Michigan survey, the two most common reasons given for not having a driver’s license were being “too busy” to get one (37 percent) and thinking that owning a car “is too expensive” (32 percent). Most of the teens surveyed (70 percent) said they planned to get a license eventually.

Owning a vehicle was never cheap, but those survey responses suggest there’s simply more competition for teens’ dollars and attention today than in the past. Do you want to spend your money and time fixing up an old car or buying and playing Red Dead Redemption 2?

“Car culture” has always been an American touchstone, but researchers have found similar declines in teen driving rates in Canada, Germany, Japan, and South Korea. The University of Michigan analysis correlates the decline in teen driving with the rise in internet use, suggesting that cyber connectivity and escapism is replacing the lure of the open road—or at least slackening the need to drive to friends’ houses to hang out in person.

But teens holding off on hitting the road isn’t cause for worry. For one thing, it’s probably good for public health. According to data from the Centers for Disease Control and Prevention, more than 2,400 Americans aged 16–19 were killed in car crashes in the United States during 2016—about six deaths per day. That’s down from 7,993 deaths in 1995, and 9,659 in 1985.

As for the loss of car culture? Times change, and social norms evolve—teens don’t rock out to Elvis, the Ramones, or Linkin Park anymore, either. That’s fine. There’s no single reason fewer teens are driving today, and no amount of consternation is likely to reverse the trend.

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Brickbat: Don’t Let Anyone Know

A Louisiana mom who was charged with unlawful posting of criminal activity for sharing video of a fight at her son’s school says she plans to sue for unlawful arrest. Maegen Adkins-Barras shared the video on Facebook with the message: “This should not be happening. Why do we have to worry so much about our kids at school?”  The next day, she was asked to attend a meeting at the school, where she was handcuffed and taken to jail. The charge was later dropped.

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Hyatt, the Constitution, and the Common Law

Today the Court decided FTB v. Hyatt, overruling Nevada v. Hall and declaring that states have sovereign immunity in other states’ courts. The majority opinion has gotten some rather pointed criticism—largely because it didn’t rely on any particular clause of the Constitution, but rather on general structural concerns.

In my view, Hyatt is an unfortunate opinion—not just because some of its reasoning might be questioned, but because it makes the job of defending originalist doctrine harder. At the same time, though, it may have a silver lining: encouraging a slow, possibly generational shift in legal conservatives’ position on the common law.

A fair amount of what the Court says about the history seems correct. On the Court’s view, states enjoyed sovereign immunity at the Founding; at common law and under the law of nations, they weren’t amenable to judicial process without their consent. While the Constitution abrogated some of that that immunity in federal court (eg, original-jurisdiction suits between states), it didn’t abrogate it entirely (which Chisholm misunderstood, and which the Eleventh Amendment reconfirmed). State sovereign immunity largely survived Article III.

So far, so good. But note that none of this addresses whether another state, like Nevada, can abrogate California’s immunity in its courts, just as it might abrogate any other rule of common law. As Will Baude and I argued in our brief, if the immunity really is a rule of common law and the law of nations—left intact by Article III, and maybe even beyond the limited powers of Congress to alter—a Nevada court would still have to obey a Nevada statute.

That said, though the Constitution lacked any substantive rule on this point, it did offer a powerful procedural protection: the forum state’s inability to get its judgments enforced in other courts. For the first hundred years of the Republic, federal and state courts routinely enforced the common-law and law-of-nations limits on personal jurisdiction and amenability to suit—not by inventing some affirmative constitutional bar, but simply by disregarding judgments that broke the rules (as the Full Faith and Credit Clause permits).

The Hyatt Court didn’t see it that way. Instead, it held that “the Constitution affirmatively altered the relationships between the States.” Because each state retains its “equal dignity and sovereignty,” the Constitution “embeds interstate sovereign immunity within the constitutional design.” The Court also cited a grab-bag of obligations imposed on the states (privileges and immunities, full faith and credit, the denial of war powers or embargoes, etc.), “confirming that [the states] are no longer fully independent nations.” But none of this speaks to the specific question at hand, which is about whether they can abrogate the immunity of other states along with their own. Indeed, it may be less reminiscent of the Court’s recent moves toward textualism, and more reminiscient of earlier efforts to locate constitutional rules in any of a number of clauses at once.

I happen to disagree with the Court’s analysis in Hyatt on the merits, but that isn’t really the point. (The line between ‘Nevada may not hale California into its courts’ and ‘Nevada can go ahead and try, but everyone will just ignore their judgment at the enforcement stage, and also federal courts might be able to enjoin enforcement in appropriate circumstances’ is pretty thin, and courts have mishandled more obvious and consequential distinctions before.) My worry is that a decision like this one, which attributes implicit rules to the Constitution that no one at the Founding seems to have found there, does more to bring careful methodology into disrepute than a variety of less serious errors that courts might make.

Sovereign immunity is really hard; it involves plenty of precise distinctions between what was settled by the text and what was left up to preexisting rules. And because it involves so many preexisting rules, it’s easy to caricature the doctrine as “conservatives making things up outside the text.”  As someone who thinks the Court ought to pay a lot of attention to text, but also that they’ve mostly been right about sovereign immunity doctrine thus far—a “rara avis,” like David Currie or Will Baude—taking care with these distinctions is especially important.

So why were the right-leaning members of the Court willing to write (or sign off on) a relatively un-textualist opinion? I don’t think it’s as reductionist or conspiratorial as “conservatives like sovereign immunity and liberals don’t.” I think the Justices in the majority joined the opinion because they believe it to be correct. Consider an extended passage toward the end of the opinion, which described the many interstate cases in which no state has power to conclude the claims of another (border disputes, water rights, etc.). Surely something provides that states can’t declare by statute that they own New Jersey, or have better water rights than their neighbors, and so on. Why wouldn’t that same something prevent Nevada from concluding California’s claims here? If structural inferences are ever justified—and sometimes they are—why would they be unjustified when it comes to doctrines of sovereign immunity, in which the Founders also believed?

Of old, the mysterious “something” in all this would have been doctrines of general law—rules of common law, equity, the law of nations, conflict of laws, and so on, which governed matters as to which federal law was absent and no state was competent to legislate. These included, among other things, the rules of personal jurisdiction and judgment recognition that would have kept the states safe from each others’ courts. (See also Eugene’s point, about the Court’s reliance on “established law and practice” respecting such topics as judicial review, executive removal, etc.)

As it happens, we’ve had 80 years of Erie trying to persuade us that general law can’t exist, and that unwritten law generally is the preserve of willful judges—whether as a matter of “federal common law” invented by federal judges, or of state common law invented by state judges, for “there can be no other law.” So it’s not surprising that, faced with a problem to which the Founders obviously had some answer, and deprived of the relatively straightforward and intuitive vocabulary in which that answer might originally have been framed, we get structural reasoning instead.

The silver lining in all this, though, is that this view may be starting to recede. The scholarly consensus against Erie seems to be building. The younger generation of originalists, textualists, etc., seems increasingly comfortable with our historical reliance on general law, and increasingly attentive to the role that this law plays in a divided system of federal and state courts. Decisions like Hyatt might, in the end, be some of the last of their kind: if the alternative is an unwritten “equal dignity” clause, general law starts to look pretty good. 

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Kavanaugh v. Gorsuch

This morning’s New York Times features a front-page story by Adam Liptak noting that President Trump’s two Supreme Court nominees—Justices Neil Gorsuch and Brett Kavanaugh—disagree more than one might expect. He writes:

Both justices lean right, but they are revealing themselves to be different kinds of conservatives. Justice Gorsuch has a folksy demeanor and a flashy writing style, and he tends to vote with Justices Clarence Thomas and Samuel A. Alito Jr., the court’s most conservative members.

Justice Kavanaugh is, for now at least, more cautious and workmanlike. He has been in the majority more often than any other justice so far this term, often allied with Chief Justice John G. Roberts Jr., who is at the ideological center of the current court. . . .

The differences between the two justices are not only stylistic, as a March decision in a maritime case illustrated. Writing for the majority, Justice Kavanaugh announced a three-part test to determine when manufacturers may be sued over the injuries their products played a role in causing. In dissent, Justice Gorsuch said he preferred a bright-line rule to a fuzzy test that he said created uncertainty and unfairness.

As if to prove Liptak’s point, today the Supreme Court decided Apple Inc. v. Pepper, an antitrust case concerning whether iPhone owners are direct purchasers for the purposes of antitrust law who are able to sue Apple for alleged monopolization. In a 5-4 decision, the Court ruled in favor of the plaintiffs. Justice Kavanaugh wrote the majority opinion (joined by the Court’s liberal justices), while Justice Gorsuch wrote the dissent.

That’s not all. The Court GVRed (granted, vacated and remanded) Myers v. United States, an Armed Career Criminal Act (ACCA) case. This was also 5-4. This time, it was Justice Gorsuch who joined the Court’s liberals, while Justice Kavanaugh joined the Chief Justice’s dissent.

Also today, Justice Kavanaugh joined Justice Alito’s dissent from denial of certiorari in Dahne v. Richey. Justice Gorsuch did not. At the same time, Justice Gorsuch joined Justice Alito’s denial of the Court’s grant of a stay in Murphy v. Collier, and Justice Thomas’s opinion concurring in the denial of certiorari in Price v. Dunn. Justice Kavanaugh did not.

There is no question that both Justices share a generally conservative jurisprudence, and are likely to vote together in many important cases (as they did today in another 5-4 decision, Franchise Tax Board of California v. Hyatt), but they are anything but clones of one another. They different on many issues before the Court today, and are likely to do so again in the future.

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