Month: February 2022

A conversation with my father Vladimir (who coincidentally shares the name of both the Russian and Ukrainian leaders) reminded me of the opening stanza of the Soviet National Anthem:

Союз нерушимый республик свободных
Сплотила навеки Великая Русь.
Да здравствует созданный волей народов
Единый, могучий Советский Союз!

An indestructible union of free republics,
Great Russia has joined forever.
Long live, created by the will of the peoples,
The united, mighty Soviet Union!

And that reminded me of the famous line that “the Holy Roman Empire was neither”; hard to think of a stanza that has a higher density of total falsehood, at least in its first three lines. (To be fair, the Soviet Union was indeed united and quite mighty for 70-odd years, though ultimately not mighty enough to endure beyond that.)

The post Holy Roman Empire + 1000 Years appeared first on Reason.com.

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On Thursday, March 3, the Honorable Neomi Rao will deliver the Sumner Canary Lecture on “Textualism’s Political Morality” at the Case Western Reserve University School of Law. In this lecture, Judge Rao will focus on the political and moral foundations of the positive law and explore how textualism as a method of statutory interpretation reflects and incorporates these foundations. The event, at 4:30pm, will be live, in-person at the law school. It will also be webcast. 1-hour of CLE is pending approval. Registration information is here.

Judge Rao currently serves on the U.S. Court of Appeals for the D.C. Circuit. She previously served as the Administrator of the White House Office of Information and Regulatory Affairs, and has worked for both the White House Counsel’s Office and Senate Judiciary Committee. She was also a tenured professor at the George Mason University Antonin Scalia Law School, where she founded the Boyden Gray Center for the Study of the Administrative State. She also clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit and Justice Clarence Thomas on the Supreme Court.

Judge Rao is the latest in a long line of distinguished jurists to have given the Sumnber Canary Memorial lecture. Other recent lecturers have included Judge Don Willett, Neal Katyal, and then-judges Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. A full list of prior Canary lecturers (with links to video when available) is here.

The post Judge Neomi Rao to Deliver Sumner Canary Lecture on "Textualism's Political Morality." appeared first on Reason.com.

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[1.] When possible, quote instead of paraphrasing. Say, for instance, that you want to argue that the obscenity exception doesn’t cover ordinary vulgarities (even ones that are sometimes labeled “obscenities” in ordinary language). Cohen v. California (the “Fuck the Draft” case) has some great language:

This is not, for example, an obscenity case. Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket.

So quote it directly, e.g.,

To be “obscene,” “expression must be in some significant way, erotic”; mere “vulgar” words do not qualify. Cohen v. California, 403 U.S. 15, 20 (1971).

A paraphrase, such as

The obscenity exception only covers erotic material, and not just vulgarities.

is less effective; quotations have a verisimilitude and thus a persuasive force (despite readers’ recognition that quotations are sometimes out of context) that mere paraphrases don’t have.

Of course, I say “when possible”; sometimes, there isn’t a really good quote in the original, even though the case really is good for you. And of course quotations of legal holdings also are often not enough; you often need to also analogize the facts of the precedent to yours (for instance, in a few sentences following the Cohen quote and citation). But always look for the good quotations.

Much the same applies to statutes, but even more so.

[2.] Generally speaking, put good quotes in the text; don’t bury them in a parenthetical:

To be “obscene,” “expression must be in some significant way, erotic”; mere “vulgar” words do not qualify. Cohen v. California, 403 U.S. 15, 20 (1971).

is better than

See Cohen v. California, 403 U.S. 15, 20 (1971) (to be “obscene,” “expression must be in some significant way, erotic”; mere “vulgar” words do not qualify).

and much better than the redundant

The obscenity exception only covers erotic material, and not just vulgarities. See Cohen v. California, 403 U.S. 15, 20 (1971) (to be “obscene,” “expression must be in some significant way, erotic”; mere “vulgar” words do not qualify).

Again, this is “generally speaking”; for instance, parentheticals may make sense when you’ve already given a good quote in the text, and are citing some cases to follow up. But try to keep the best material out of the parentheses.

[3.] Of course, don’t bury good quotes even further, in the footnotes. For more on footnotes, see here. And remember: footnotes are the Siberia of your brief.

[4.] This is a closer call, but I suggest that you frame your quotes as legal facts, e.g.,

To be “obscene,” “expression must be in some significant way, erotic”; mere “vulgar” words do not qualify. Cohen v. California, 403 U.S. 15, 20 (1971).

rather than as statements of what a court had said, e.g.,

The Supreme Court has held that, to be “obscene,” “expression must be in some significant way, erotic”; mere “vulgar” words do not qualify. Cohen v. California, 403 U.S. 15, 20 (1971).

Generally speaking, I think this yields an argument that flows more smoothly and thus persuasively.

Philosophers might tell you that the second approach is the more accurate: You’re not speaking about what “to be obscene” means as a fact, they might argue, but rather simply about what some authoritative body has said. But I think it’s both fair and helpful in briefs to take advantage of the legal fiction that “the law” exists out there, and you’re just reporting on it.

The argument for the “The Supreme Court has held …” locution is that it immediately signals the authority for the proposition, and I see that point. But I think it’s usually better to just make your legal assertion and then have the citation indicate the weight of authority (which surely won’t be lost on the judge reading your brief).

[5.] While quoting is important, don’t overquote. The precedent (or statute or other authority) will often have material that’s irrelevant to your case; generally speaking, you should edit that out—so long as you can candidly do so—and focus just on the material that’s on point. Thus, I think that,

To be “obscene,” “expression must be in some significant way, erotic”; mere “vulgar” words do not qualify. Cohen v. California, 403 U.S. 15, 20 (1971).

is better than the longer quote:

“Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that[, for instance, a] vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket.” Cohen v. California, 403 U.S. 15, 20 (1971).

Of course, omissions, bracketed changes, or excerpts of clauses rather than sentences or paragraphs can create some extra suspicion that you’re quoting out of context. But on balance it’s usually better to run that risk rather than distract the reader with irrelevant  or even just tangential material from the original.

The post Using Precedents in Briefs appeared first on Reason.com.

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New Hampshire Gov. Chris Sununu has decided to punish Russian President Vladimir Putin for invading Ukraine by ordering the removal of Russian-branded liquor from state-run liquor stores. Governors of Ohio, Utah, and Pennsylvania have also ordered Russian liquors off the shelves. In Texas, Gov. Greg Abbott asked Texas restaurants and shops to stop selling Russian goods.

It’s a weirdly authoritarian response, especially against the retro-socialist background of having state-run liquor stores in the first place. It also isn’t going to accomplish what these governors think, unless their only goal is to look like they’re doing something, because the economic harms will fall on people completely outside Russia’s borders.

Let’s start with the obvious: The booze you’re removing is already here. To the extent that the profits go back to Mother Russia, that’s already happened. Russia loses zero rubles when you take the vodka you already paid for and hide it in the stockroom for a few months.

But there’s a bigger issue: “Russian” vodka often isn’t actually from Russia at all.

We went through all of this back in 2013, when Russia’s parliament passed an anti-gay law and LGBT activists responded with a boycott of what they thought was Russian vodka. There was a logo and everything. The primary target was Stolichnaya Vodka, one of the more popular brands.

Yet the Stoli that gets imported to the United States is not Russian at all. It’s made in Latvia, and the company that manufactures it is based in Luxembourg. Stoli, furthermore, had developed strong ties to the LGBT community and even financially backed community projects. The law was awful, but this attempt to punish Russia for passing it did not actually hurt Russia at all—and Russia certainly hasn’t gotten any friendlier to LGBT people. But it did get some organizers a lot of media attention.

Similarly, this new boycott idea will have a negligible impact. Stoli still isn’t produced in Russia, and the company had even posted support for Ukraine solidarity on its website.

Meanwhile, imports from Russia are fairly minimal in the big scheme of things. The most recent data from the Office of the U.S. Trade Representative, from 2019, lists $22.3 billion in Russian imports. That may sound like a lot, but Russia’s Gross Domestic Product for 2019 was $1.6 trillion. Our imports are less than 1.5 percent of that.

And of those imports, food and liquor barely factor at all. Total agricultural and food imports from Russia that year totaled just $69 million. The top import was fuel: We imported $13 billion in mineral fuels like natural gas from Russia in 2019.

Reuters reports that only 1.2 percent of U.S. vodka imports came from Russia in the first half of 2021. Much more comes from France. Smirnoff is produced right here in the United States.

In a change from their coverage of the LGBT vodka boycott, lots of media outlets are pointing out this time that boycotting vodka does not impact Russia’s economy in any way. It may make people who are otherwise helpless over foreign policy (like state governors) feel like they’re doing something. But the economic impacts of a vodka boycott—if there are any—are going to be felt by people who aren’t connected to Putin at all, and in many cases aren’t even Russian.

So don’t pour your vodka down the drain. You’re not actually helping Ukraine by wasting your booze. You can still buy Ukrainian liquor, too!

The post Why Are You Boycotting American Vodka To Punish Russia? appeared first on Reason.com.

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Tammy Giuliani, the owner of Stella Luna Gelato Café in Ottawa, has learned a valuable lesson about privacy.

Giuliani made a $250 donation to the Canadian trucker’s convoy, the movement that briefly paralyzed Canada’s capital and garnered international attention for its protest against COVID-19 mandates. Hackers leaked information about her donation and thousands of others, leading to widespread threats and harassment against the donors. The threats forced the café to close.

“When a group of people first decided they were going to travel across the country to spread this message of solidarity, it seemed like a beacon of hope for small businesses like us,” Guiliani told the Ottawa Citizen. “In retrospect it was bad judgment, but does that mean that people have a right to threaten our staff? Does it mean people have the right to threaten to throw bricks though our window and to threaten my family?”

Americans should take two lessons from these unfortunate events. First: The right to support causes privately and keep our associations to ourselves is important to a healthy and stable civil society. We cannot rid our communities of people and businesses that disagree with us. If people who object to Black Lives Matter or the Tea Party harass every small business that supports these causes, we would soon live in a world with very few small businesses—or very little free speech. Privacy of donations allows everyone to participate in political causes without sacrificing their ability to work and live in a diverse community.

As the Supreme Court ruled in 2021’s Americans for Prosperity Foundation v. Bonta, “effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” In that case, the Court upheld the rights of Americans to keep their memberships and financial support for causes and organizations private from state officials unless the government had a legitimate reason to seek the information.

In a world without donor privacy, only the loudest, wealthiest, and most shameless voices are heard, particularly in the internet age. Outrage can be harnessed faster than ever before to target individuals who otherwise would never have cause to see their name trending on Twitter.

The second lesson involves a subtler danger. America has many laws that mandate public donor exposure. Some of those laws, such as requiring public reporting of donations to candidates, are largely uncontroversial. But we should never expand such donor exposure to include Americans backing causes rather than candidates. That’s not just because the potential for harassment is genuine and severe; it’s because the information we can glean from their disclosure is often trivial, inaccurate, and prone to misuse.

Giuliani gave what she believed was a donation to a grassroots movement supporting an end to measures that have hurt her business. By the time the donation was exposed two weeks later, many Canadians had rethought their support and started seeing the convoy as an illegal occupation. The disclosure of donations such as Giuliani’s shows the transaction but none of the nuance. A small donation to an organization rarely represents a full-throated, well-informed affirmation of everything that group stands for now and in the future. But disclosure of a contribution appears as just that, and to many marks the donor as an enemy.

This is true of all disclosure rules. In Wisconsin, a nonprofit advocacy group called Wisconsin Family Action (WFA) is currently suing the Federal Election Commission because the agency’s disclosure rules are poorly crafted. The group—represented by an organization I work for, the Institute for Free Speech—occasionally speaks about elections, but that is not its primary purpose, and many donors give for other reasons. The lawsuit aims to make it clear that only those donors who intend to support the group’s political efforts need to be publicly reported, not every person who contributes over $200.

As the Institute for Free Speech explains in our case summary:

A 2018 court ruling struck down a longstanding FEC regulation stipulating that only contributors who supported a particular ad endorsing or opposing a federal candidate must be publicly exposed. Three years later, the FEC has still not replaced that regulation. The little guidance the Commission has provided suggests that nonprofits may now be forced to report general donations given for no political purpose.

This sweeping interpretation of the law could result in the public exposure of the names and addresses of every person who gives as little as $200 in a calendar year to any nonprofit group that spends just $250 on communications that advocate the election or defeat of a candidate. The threat of such widespread exposure of nonprofit donors has had a severe chilling effect on political speech.

The First Amendment and Supreme Court precedent limit the government’s power to compel public exposure of a nonprofit’s supporters. The government may only require nonprofits like WFA to report donors who intend to fund communications advocating the election or defeat of candidates, the lawsuit explains. The FEC’s vague disclosure policy violates the rights of Americans who support a nonprofit’s overall mission rather than its advocacy on campaigns.

Donor privacy may be on thin ice in Canada, but in the U.S. it still has a fighting chance. Let’s hope the courts give space for private associations to remain private.

The post Exposing Donations to Political Causes Can Chill Free Speech appeared first on Reason.com.

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