Month: September 2022

Fiona Harrigan at the main Reason site beat me to this story from last week; I criticized the initial orders (which the court has now vacated) when they were initially handed down in May (see also this post about the “taken as a whole” element of the obscenity test). You can also read one of the orders, In re: A Court of Mist a Fury, for yourself; in relevant part, it holds that,

1. The Code of Virginia does not provide a Circuit Court with the statutory authority to grant the relief sought in the Petition, specifically, a determination that the book A Court of Mist and Fury … is “obscene as to minors,” and that consequently this Court lacks subject matter jurisdiction to adjudicate this matter.

2. The Petition does not allege facts sufficient to support a finding, under the terms of Virginia Code § 18.2-384, that the Book is obscene [i.e., obscene as to adults].

3. The Constitutions of the United States and the Commonwealth of Virginia operate as a constraint on the pleading of a claim of obscenity as to adults and as to material that is inappropriate for distribution to minors, and the Petitions fail to meet the requirements of the governing constitutional rules.

4. Virginia Code § 18.2-384 [the obscenity injunction statute] is unconstitutional on its face in that it authorizes a prior restraint that violates the First Amendment and the Constitution of Virginia [by authorizing preliminary injunctions against distributions of works; the criminal law of obscenity is unaffected by this -EV].

5. Virginia Code § 18.2-384 is unconstitutional on its face under the First Amendment and the Constitution of Virginia in that it imposes a presumption of scienter on persons who have no knowledge that a book may be considered obscene.

6. Virginia Code § 18.2-384 is unconstitutional on its face under the First Amendment and the Constitution of Virginia in that it violates due process by authorizing judgment without notice to affected parties….

The Court further finds that its Order to Show Cause entered May 18, 2022, was issued
ex parte without the benefit of briefing or argument by affected parties, and that the finding of probable cause was made on an incomplete record.

I wish the judge had recognized these constitutional constraints at the outset, and refused to issue the preliminary restraints. Still, it’s good the court ultimately got it right.

The post "Virginia Can't Force Bookstores To Card Kids for Books on Gender and Sexuality" appeared first on Reason.com.

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[Jack Goldsmith and I will have this article out in the Texas Law Review early next year, and I’m serializing it here. There is still plenty of time for editing, so we’d love to hear any recommendations you folks might have; in the meantime, you can read the entire PDF of the latest draft (though with some formatting glitches stemming from the editing process) here.]

Let’s begin with a few words about the Dormant Commerce Clause and how it interacts with federalism principles.

The U.S. Constitution presumptively preserves state authority to control what happens within state borders, especially state power to protect citizens and residents from what legislators or voters perceive as harms. This state “police power” to regulate “health, safety, and morals” is implicitly acknowledged by the Constitution’s struc­­­ture of enumerated powers, and by the Tenth Amendment.[1]

The Constitution’s preservation of the police power in the states ensures that “the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed.”[2] Regulatory preferences differ across states because states differ in their citizens’ tastes, moral views, wealth, willingness to pay, and the like. State lawmakers are generally better positioned than federal lawmakers to ascertain such in-state preferences and implement the best policies based on them. Because policy preferences differ across states, regulating at the state level can in the aggregate satisfy more individual preferences than a uniform national law.[3] And federalism also lets states serve as “laboratories” that can experiment with various options, and show the way for other states (and perhaps for an eventual national rule).[4]

A uniform national law is sometimes appropriate to implement important national values or correct various state-level pathologies. But such uniform rules are typically imposed by a provision in the U.S. Constitution, such as the Takings Clause or the First Amendment, or by federal legislation within Congress’ enumerated powers.[5]

Alongside these principles of vertical federalism, the Constitution imposes horizontal limitations that prohibit states from unduly impinging on the prerogatives of sister states or the proper operation of the interstate system. The Full Faith and Credit and Due Process Clauses prohibit states from regulating out-of-state conduct unless the conduct involves a “significant contact” or “significant aggregation of contacts” with the state.[6] The Privileges and Immunities Clause prevents states from enacting certain types of laws that give a benefit to in-staters but not out-of-staters.[7] And of central relevance to this article, the Dormant Commerce Clause prevents states from enacting certain regulations that affect interstate commerce.[8]

Two principal tests govern Dormant Commerce Clause analysis. First, state regulations cannot discriminate against interstate commerce. In practice this usually means that state regulation cannot favor in-state over out-of-state firms.[9]

Second, neutral state regulations cannot unduly burden interstate commerce. “Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”[10] The Supreme Court has not been clear about how to apply this undue burden test.[11] But the economic efficiency criterion that animates Dormant Commerce Clause jurisprudence suggests that the out-of-state costs of a state regulation are often justified, and that courts should balance the costs and benefits of a state regulation and strike down only those that impose costs on out-of-staters that clearly exceed the benefits they bring in-staters.[12]

A handful of Supreme Court cases have invoked the Dormant Commerce Clause to invalidate state laws on a third, ostensibly different, ground: that the laws regulate extraterritorially or impose inconsistent regulatory burdens. The extraterritoriality argument is particularly often raised in lower-court Dormant Commerce Clause challenges to state regulations of the internet. Yet the Supreme Court has not applied the extraterritoriality test or the inconsistent regulation test in recent decades,[13] and commentators and lower courts have doubted whether these tests have much practical contemporary relevance beyond what the two standard Dor­mant Commerce Clause principles—discrimination and undue burden—prohibit.

The Court articulated the modern extraterritoriality test in two alcohol price-affirmation cases in the 1980s.[14] Brown-Forman Distillers Corp. v. New York State Liquor Authority[15] involved a New York law under which liquor distillers could not sell to wholesalers in New York except in accordance with a monthly price schedule that affirmed that prices in New York were no higher than the lowest prices charged in other states.[16] Healy v. Beer Institute, Inc.[17] involved a Connecticut statute that required out-of-state beer shippers to affirm that prices posted for products sold to Connecticut wholesalers were, in the relevant period, no higher than prices in bordering states.[18] The Court invalidated these price affirmation schemes on the narrow grounds that they had the “practical effect of controlling . . . prices” in another state, and thus “deprive[d] businesses and consumers in other States of ‘whatever competitive advantages they may possess’ based on the conditions of the local market.”[19]

Beyond this narrow holding, Healy, relying on Brown-Forman and earlier decisions, stated more generally that the “Commerce Clause . . . precludes the application of a state statute to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State,” as well as laws for which the “practical effect of the regulation is to control conduct beyond the boundaries of the State.”[20] This dicta, if taken seriously, would require a dramatic rethinking of state authority.

But it is clear that this dicta has not and cannot be taken seriously. It is widely accepted that, consistent with the Dormant Commerce Clause, a firm doing multistate business must bear the cost of discovering and complying with state laws—tort laws, tax laws, franchise laws, health laws, privacy laws, and much more—everywhere it does business.[21]

People and firms operating in “real space” must take steps to learn and comply with state law in places they visit or do business, or must avoid visiting or doing business in those states—and that often means that the “practical effect of the regulation is to control conduct beyond the boundaries of the State.” McDonald’s can (and must) craft different franchise contracts to comply with different state franchise laws, even if most of the conduct involved in creating and implementing such contracts would likely take place in the state in which McDonald’s is headquartered. Walmart’s data collection at checkout in its thousands of stores must conform to the potentially different privacy laws in all fifty states. Conagra can label its cooking oil “100% Natural,” but may need to include different disclaimers in different states, to the extent that the label is seen as potentially misleading.

One “practical effect” of all these state schemes is the cost—legal cost, compliance cost, and more—that the firms incur to conform their business practices to the different state laws where they do business. Another “practical effect” may be to encourage such firms to devise uniform contracts, privacy practices, and labeling schemes that can work in all states, often by adhering to the most demanding state law. In these senses, state laws regularly and pervasively apply to and impose costs on, and thus “control,” or at least affect, the conduct of firms operating in other states.

Because state laws regularly and lawfully impose extraterritorial costs, and because a literal application of the dicta from Healy and Brown-Forman might invalidate wide swaths of standard conflict-of-laws decisionmaking, judges and commentators have searched for a narrower principle to explain the extraterritoriality cases. The Supreme Court has in practice been unwilling to extend the principle beyond the facts of Healy and Brown-Forman, which involved laws that by “express terms” or “inevitable effect” regulate out-of-state commerce.[22] Some contend that the extraterritoriality cases are best read to invalidate only state laws that “discriminat[e] against out-of-state rivals or consumers”—that is, extraterritoriality must be understood as an application of the first settled principle under the Dormant Commerce Clause.[23]

Others maintain that “extraterritoriality analysis . . . [is] appropriately regarded as [a] facet[] of the . . . balancing test”—that is, the second settled principle under the Dor­mant Commerce Clause.[24] The conclusion that the extraterritoriality principle is just a special case of one or both of the standard Dormant Commerce Clause tests makes sense of the decided cases, and of the Court’s recent insistence that “two primary principles”—antidiscrimination and prohibition on undue burdens—”mark the boundaries of a State’s authority to regulate interstate commerce.”[25] It is also suggested by the Supreme Court’s non-application of an independent exterritoriality test in almost two decades;[26] by its not invalidating a state law on that ground in over three decades;[27] and by its growing skepticism about its broader Dormant Commerce Clause jurisprudence in recent decades.[28]

The same basic analysis applies to the Dormant Commerce Clause’s ostensible prohibition on state regulations that “adversely affect interstate commerce by subjecting activities to inconsistent regulations.”[29] This test, too, cannot be applied literally. As discussed above, it is a foundational principle of our federal system that states differ in their values and policy preferences, and thus can and do regulate differently. Firms operating in different states typically must comply with scores of inconsistent regulations, even if doing so is more costly than complying with be a uniform national rule would be.

This reality, and a close reading of the cases, has led many commentators to conclude that the Supreme Court’s inconsistent-regulation cases require no more than an application of the broader undue burden test.[30] The Court has not applied the inconsistent regulations test in three decades, since Healy. And applying the undue burden test, without mentioning extraterritoriality, the Court in 2018 rejected a Dormant Commerce Clause argument that was premised on the burdens of “subjecting retailers to [differing] tax-collection obligations in thousands of different taxing jurisdictions.”[31]

[1]. See U.‌S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.‌”).

[2]. Nat’l Fed. of Indep. Business v. Sebelius, 567 U.‌S. 519, 536 (2012).‌

[3]. Michael McConnell, Federalism: Evaluating the Founders’ Design, 54 U. Chi. L. Rev. 1484, 1493–94 (1987).‌

[4]. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2673 (2015) (“This Court has long recognized the role of the States as laboratories for devising solutions to difficult legal problems.”) (cleaned up);‌ New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”).

[5]. The post-Erie federal common law powers of federal courts are ultimately justified as authorized or grounded in a federal constitutional or statutory enactment. See Larry Kramer, The Lawmaking Power of the Federal Courts, 12 Pace L. Rev. 263, 268–88 (1992); Henry J. Friendly, In Praise of Erie–And of the New Federal Common Law, 39 N.‌Y.‌U. L. Rev. 383, 407 (1964).‌

[6]. Phillips Petroleum Co. v. Shutts, 472 U.‌S. 797, 818 (1985).‌

[7]. Austin v. New Hampshire, 420 U.‌S. 656 (1975).‌

[8]. Although the Constitution affirmatively grants Congress the power “[t]o regu­late Commerce . . . among the several States,” Art. I, § 8, cl. 3, the Supreme Court’s Dormant Commerce Clause jurisprudence has recognized that the Commerce Clause limits some state regulation that affects interstate commerce, even absent congressional regulation.

[9]. See, e.‌g. South Dakota v. Wayfair, 138 S. Ct. 2080, 2091 (2018); Granholm v. Heald, 544 U.‌S. 460, 472 (2005); Hughes v. Oklahoma, 441 U.‌S. 322, 337 (1979). The Dormant Commerce Clause and the Privileges and Immunities Clause both govern state legislation that discriminates against out-of-staters. But the Dormant Commerce Clause, unlike the Privileges and Immunities Clause, protects corporations. See Blake v. McClung, 172 U.‌S. 239 (1898) (corporations are not “citizens” under the Privileges and Immunities Clause and thus cannot benefit from it).

[10]. Pike v. Bruce Church, Inc.‌, 397 U.‌S. 137, 142 (1970).‌

[11]. Indeed, the Justices have expressed skepticism about their ability to do so. General Motors Corp. v. Tracy, 519 U.‌S. 278, 308–09 (1997) (every opinion questions Court’s competence at implementing undue burden test).‌

[12]. See Goldsmith & Sykes, supra note 11, at 798–802. On economic efficiency as the touchstone for Dormant Commerce Clause analysis, see Saul Levmore, Interstate Exploitation and Judicial Intervention, 69 Va. L. Rev. 563, 567–68 (1983); Mark Tushnet, Rethinking the Dormant Commerce Clause, 1979 Wis. L. Rev. 125, 130–40.‌

[13]. The Supreme Court may soon revisit the extraterritoriality test, see National Pork Producers Council v. Ross, No. 21-468, cert. granted, Mar. 28, 2022 (raising question whether California’s import restriction on pork raises without space and related allowances, and which allegedly “has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant Commerce Clause, or whether the extraterritoriality principle described in this Court’s decisions is now a dead letter”), reviewing 6 F.4th 1021 (9th Cir. 2021). As noted above, we will publish a follow-up article in 102 Tex. L. Rev. Online when Pork Producers is decided, discussing how it affects our analysis.

[14]. Earlier in the decade, a plurality of the Court in Edgar v. MITE Corp.‌, 457 U.‌S. 624 (1982), struck down an Illinois antitakeover law that the plurality concluded had “sweeping extraterritorial effect” because it “purports to regulate directly and to interdict interstate commerce, including commerce wholly outside the State.‌” A majority of the Court concluded that the statute did not survive the undue burden balancing test. For hints of the extraterritoriality doctrine decades earlier, see Baldwin v. G.‌A.‌F. Seelig, Inc.‌, 294 U.‌S. 511 (1935).‌

[15]

[16]. 476 U.‌S. 573 (1986).‌

[17]

[18]. 491 U.‌S. 324 (1989).

[19]. Healy, 491 U.‌S. at 338–39 (quoting in part Brown-Forman, 476 U.‌S. at 580); see also Brown-Forman, 476 U.‌S. at 582–84. Both decisions also concluded that the price affirmation statutes were invalid because they “[f]orced a merchant to seek regulatory approval in one State before undertaking a transaction in another.‌” Healy, 491 U.‌S. at 334 (quoting Brown-Forman, 476 U.‌S. at 582).‌

[20]. Healy, 491 U.‌S. at 336.‌

[21]. See, e.‌g.‌, Am. Trucking Ass’ns, Inc. v. Michigan Pub. Serv. Comm’n, 545 U.‌S. 429, 437–38 (2005) (acceptable under Dormant Commerce Clause for an interstate trucking firm to pay local fees everywhere that it does business); Exxon Corp. v. Governor of Maryland, 437 U.‌S. 117, 127–28 (1978) (Dormant Commerce Clause “protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations” in states where it does business); Online Merchants Guild v. Cameron, 995 F.‌3d 540 (6th Cir. 2021) (“Entities doing business in multiple states must comply with those states’ valid consumer protection laws—this is nothing new.”); Kearney v. Salomon Smith Barney, Inc., 137 P.‌3d 914 (Cal. 2006) (“[A]s a general matter, a company that conducts business in numerous states ordinarily is required to make itself aware of and comply with the law of a state in which it chooses to do business.”).

[22]. In Pharmaceutical Research & Mfrs. of America v. Walsh, 538 U.‌S. 644 (2003), the Court with little analysis rejected petitioners’ argument that a Maine prescription drug rebate program violated the extraterritoriality prong of the Dormant Commerce Clause. The Court suggested that the extraterritoriality cases were limited to laws, like the “price control or price affirmation statutes,” that “regulate the price of any out-of-state transaction, either by its express terms or by its inevitable effect.‌” Id. at 669. Many lower court cases take a similar position. See, e.g., Energy & Env’t Legal Inst. v. Epel, 793 F.‌3d 1169, 1173 (10th Cir. 2015) (Gorsuch, J.‌) (rejecting application of extraterritoriality doctrine to statute that “isn’t a price control statute” and “doesn’t link prices paid in Colorado with those paid out of state” in part because “the Supreme Court has emphasized as we do that the [extraterritoriality] line of cases concerns only ‘price control or price affirmation statutes’ that involve ‘tying the price of . . . in-state products to out-of-state prices'”); Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.‌3d 937, 951 (9th Cir. 2013) (concluding on the basis of Walsh that the extraterritoriality principle is “not applicable to a statute that does not dictate the price of a product and does not tie the price of its in-state products to out-of-state prices”); IMS Health Inc. v. Mills, 616 F.3d 7, 30 (1st Cir. 2010), vacated and remanded on other grounds, IMS Health, Inc. v. Schneider, 131 S. Ct. 3091 (2011) (characterizing the Brown-Forman line of cases as bearing on (1) “price-affirmation statutes that force regulated entities to certify that the in-state price they charge for a good is no higher than the price they charge out of state” and (2) “statutes that ‘force an out-of-state merchant to seek regulatory approval in one State before undertaking a transaction in another'”); Vizio, Inc v. Klee, 886 F.3d 249, 255–56 (2d Cir. 2018) (rejecting extraterritoriality challenge when statute did not make “specific reference” to out-of-state pricing and “attach[] in-state consequences where the pricing terms violate[d] the statute[]”); see also Brannon P. Denning, Extraterritoriality and the Dormant Commerce Clause: A Doctrinal Post-Mortem, 73 La. L. Rev. 979, 979–80 (2013) (Walsh indicates that the extraterritoriality doctrine in “the strong form articulated by the Court in the 1980s is dead, an unlikely to be revived by the Current Court”). But see Ass’n for Accessible Meds. v. Frosh, 887 F.3d 664, 669–70 (4th Cir. 2018) (rejecting this reading of Walsh).

[23]. Epel, 793 F.‌3d at 1173; cf. Nat’l Solid Wastes Mgmt. Ass’n v. Meyer, 63 F.3d 652, 661 n.10 (7th Cir. 1995) (“We have no need to determine whether the issue of extraterritorial reach ought to be analyzed distinctly from the issue of discrimination against interstate commerce.”); Cotto Waxo Co. v. Williams, 46 F.3d 790, 793 & n.3 (8th Cir. 1995) (“it may . . . be correct to say that ‘extraterritorial reach’ is a special example of ‘directly’ regulating interstate commerce” and thus discriminating against it).

[24]. State v. Heckel, 143 Wash. 2d 824, 837 (2001); see also Am. Beverage Ass’n v. Snyder, 735 F.‌3d 362, 379–81 (6th Cir. 2013) (Sutton, J.‌, concurring) (arguing that extraterritoriality principle is unnecessary to the decided cases and should play no role in Dormant Commerce Clause analysis beyond the already-problematic undue burden balancing test); Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.‌3d 104, 110 (2d Cir. 2001) (extraterritoriality principle in Healy and Brown-Forman invalidates state regulations that “disproportionately burden interstate commerce” because they have “the practical effect of requiring out-of-state commerce to be conducted at the regulating state’s direction”); Goldsmith & Sykes, supra note 11, at 804; Lee Biddle, State Regulation of the Internet: Where Does the Balance of Federalist Power Lie?, 37 Cal. W. L. Rev. 161, 167 (2000); cf. Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 Harv. L. Rev. 1468, 1521 (2007) (“In practice, states exert regulatory control over each other all the time. . . . The prohibition on extraterritorial legislation is thus understood only to constrain a state from formally asserting legal authority outside its borders. . . .”).‌

[25]. South Dakota v. Wayfair, Inc.‌, 138 S. Ct. 2080, 2090 (2018).

[26]. The last case that clearly applied the extraterritoriality principle was Walsh in 2003. As then-Judge Gorsuch put it, extraterritoriality is “the most dormant” strand of Dormant Commerce Clause doctrine. Energy & Env’t Legal Inst. v. Epel, 793 F.‌3d 1169, 1172 (10th Cir. 2015).‌ As noted supra note 25, the Court recently granted certiorari in a case that raises the continuing validity of the extraterritoriality prong of the dormant commerce clause.

[27]. The last case to invalidate a state law based on the extraterritoriality principle was Healy, which was decided in 1989. One could argue that BMW of N. Am. v. Gore, 517 U.‌S. 559 (1996), invalidated an Alabama punitive damages award based on the extraterritoriality principle since it cited Healy and Beer Institute. But the case was about the Due Process Clause, not the Dormant Commerce Clause, the Court did not discuss extraterritoriality per se, and the Court later made clear that the Dormant Commerce Clause was not relevant to excessive cross-border punitive damages. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.‌S. 408, 416 (2003).‌

[28]. Wayfair, Inc.‌, 138 S. Ct. at 2100 (Thomas, J, concurring) (noting that the Court’s “entire negative Commerce Clause jurisprudence” can “no longer be rationally justified”); id. at 2100–01 (Gorsuch, J.‌, concurring) (questioning whether and how much of the Court’s Dormant Commerce Clause jurisprudence “can be squared with the text of the Commerce Clause, justified by stare decisis, or defended as misbranded products of federalism or antidiscrimination imperatives flowing from Article IV’s Privileges and Immunities Clause”); Denning, supra note 34, at 990–92 (explaining the ways that the Court had by 2013 grown hostile or indifferent to its traditional Dormant Commerce Clause tests).‌

[29]. CTS Corp. v. Dynamics Corp. of Am.‌, 481 U.‌S. 69, 88 (1987); Edgar v. MITE Corp.‌, 457 U.‌S. 624 (1982). An earlier generation of cases involving state rules regulating cross-border transportation invoked the inconsistent-regulation idea. See, e.‌g.‌, Kassel v. Consol. Freightways Corp.‌, 450 U.‌S. 662 (1981) (invalidating an Iowa restriction on truck length); S. Pac. Co. v. Arizona, 325 U.‌S. 761 (1945) (invalidating an Arizona regulation limiting train lengths).‌

[30]. Denning, supra note 34, at 1006–07; Goldsmith & Sykes, supra note 11, at 806–07; Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich. L. Rev. 1091, 1110–25 (1986) (arguing that the transportation cases invalidated on inconsistent regulation grounds are an instance of balancing); Daniel R. Fischel, From MITE to CTS: State Anti-Takeover Statutes, the Williams Act, the Commerce Clause, and Insider Trading, 1987 Sup. Ct. Rev. 47, 90 (interpreting CTS Corp. as a balancing case).‌ Many lower courts have taken this position as well, see, e.g., Ward v. United Airlines, Inc., 986 F.3d 1234 (9th Cir. 2021); Nat’l Ass’n of Optometrists & Opticians v. Harris, 682 F.3d 1144 (9th Cir. 2012), and some of the Court’s inconsistent-regulation cases are fairly explicit about balancing, see, e.g., Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 529–30 (1959) (balancing “deleterious effect which [regulation] will have” against regulation’s putatively “inconclusive” safety benefits).

[31]. South Dakota v. Wayfair Inc.‌, 138 S. Ct. 2080, 2093 (2018).‌

 

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In February, my UCLA First Amendment Amicus Brief Clinic student Pauline Alarcon and I were appointed by District Judge Stephen Clark (E.D. Mo.) as amicus to file a brief supporting the right of public access and opposing sealing of certain documents. The parties had both agreed to sealing, but “courts are duty-bound to protect public access to judicial proceedings and records,” even as to “stipulated sealings … where the parties agree.” And appointing an amicus curiae to represent the no-sealing position helps give the court an adversary presentation on the matter.

We briefed the case, and Pauline flew out to argue it under my supervision; I think she did a superb job. I hope the court found our work helpful in its ultimate decision on the matter, which was published several days ago (see here, plus here on why that decision was in some measure redacted). Thanks to Scott & Cyan Banister, the main benefactors of our Clinic, we had funding for travel costs, so none of this required spending court funds.

It seems to me that this sort of appointment is win-win-win:

1. The court gets arguments from both sides, which it can then impartially consider. (The court may of course end up disagreeing with our position.) I’ve litigated over 30 motions related to sealing in courts throughout the country, so I can make sure that the arguments are well researched and presented. And I’ve written the just-published The Law of Pseudonymous Litigation, and in the process learned a great deal about pseudonymity (plus I’ve also litigated several pseudonymity cases).
2. The public’s presumptive right of access to court records is protected.
3. My student gets an opportunity to brief a real motion under my supervision, and argue it in court, if the court concludes oral argument is appropriate. This is a tremendously valuable educational opportunity for any law student, I think.

Of course, the parties who want the documents sealed may end up not winning; but, again, they aren’t legally entitled to sealing just as a matter of mutual agreement.

In any event, I just wanted to flag this in case some other courts will find it helpful—we’re always happy to help with such appointments. More broadly, we would be able to help:

• with briefs opposing sealing,
• with briefs opposing pseudonymity, and
• with briefs (usually in appellate courts) defending the decision below on any First Amendment or First-Amendment-related question, when the appellee isn’t appearing (see Doe v. Arizona Board of Regents (9th Cir. 2022), which we did in basically that situation) or when the appellant and appellee both disagree with the decision below,
• in state or federal courts,
• trial or appellate,
• throughout the country (we’ll get local counsel if needed).

We’d also in principle be open to being appointed to support sealing or pseudonymity as well, for instance if a party is pro se and hasn’t been able to effectively present the legal arguments but the court would like to see a knowledgeable presentation on that side. Whatever my academic or personal views might be about the propriety of sealing or pseudonymity in any particular case, as a lawyer I’d be glad to provide the court with the best arguments for whatever position needs to be covered, and I’m sure my students would as well.

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How is traditionalism similar to and different from originalism? And how does it relate to what some originalists call “liquidation”?

These questions are complicated by the capaciousness of originalism, which now encompasses many theories with diverse commitments. To narrow things down, we might compare originalism and traditionalism on the specific issue of the role (if any) of enduring practices.

Among originalists, there are disagreements about what evidence counts to ascertain the meaning of unclear text. Originalists who reject practices altogether are far from traditionalism. Those who accept practices as some evidence of original meaning are closer, though no originalist theory (so far as I know) takes enduring practices to be the primary determinants of meaning and law. None is the same as traditionalism.

As for endurance, one key difference concerns pre- and post-enactment practices. For traditionalists, such practices, their age, longevity, and density, will be centrally important, while for some originalists they will be irrelevant. Even for originalists who assign practices some role, the relative weighting will be different: practice-friendly originalists will assign more weight to practices at enactment than to pre- or post-enactment practices, while this is not so for traditionalists. Alternatively, when a self-identified originalist interpreter does weigh pre- and post-ratification practices heavily, that approach may drift toward traditionalism.

Some originalists consider a particular sort of practice-based evidence in what they call the “liquidation” of the original meaning of the text. Caleb Nelson describes a process by which judicial interpreters give unclear textual provisions one of several permissible constructions post-ratification, thereby “settling” meaning for subsequent interpreters. William Baude has elaborated the Madisonian concept of liquidation, in which three things are necessary to settle meaning: “indeterminacy, a course of deliberate practice, and settlement.” For Madison, a “deliberate practice” had to be adequately deliberated—rationalized—and had also self-consciously to concern constitutional interpretation rather than mere “sheer political will.” And as for liquidated “settlement,” there is a sub-element of public sanction or ratification of the liquidated meaning.

In her Bruen concurrence, Justice Barrett observed that the Court should achieve greater clarity about what method it is using: “Scholars have proposed competing and potentially conflicting frameworks for this analysis, including liquidation, tradition, and precedent…. The limits on the permissible use of history may vary between these frameworks (and between different articulations of each one).” Justice Barrett is right. Traditionalism is not liquidated originalism (in the paper, I use “liquidated originalism” to describe an originalism that integrates liquidation).

First, traditionalism includes pre-ratification practices. Liquidated originalism, insofar as it is liquidated, has nothing to say about those. (It may have something to say about them insofar as it is originalist, but it will do so for reasons that differ from traditionalism.) If the age, longevity, and density of pre-ratification practices that extend through the post-ratification period (the period where traditionalism and liquidation overlap) are relevant, as the Court has said they are, it is traditionalism that offers a complete account of why and how.

Second, liquidated originalism aims at the settlement of textual meaning, which generally occurs (when it occurs) in a constrained time frame. That is because to settle original meaning, the liquidation must be evidence of original meaning, which weakens as it is removed from the ratifying moment. In the case of the Necessary and Proper Clause, within 40 years of enactment. In the case of the Spending Power, within less than 10-15 years. Traditionalism’s emphasis on historical longevity as probative of meaning is no real part of liquidated originalism. A related difference concerns liquidated originalism’s subject, which is the text’s semantic meaning, rather than the constitutional law relating to the text. Liquidated originalism concerns the former, not the latter, while traditionalism concerns both.

Some examples. The enduring post-ratification practices of regulating off-premises signs, the possession of handguns in contexts threatening an “affray,” abortion, and so on, could be called part of the semantic meaning of the First Amendment, the Second Amendment, and the Due Process Clause, respectively. But it would be more accurate to call them determinants of the constitutional law of these clauses. That is, liquidated originalism’s short time horizon and its aspiration to settle meaning befits its narrow subject—the linguistic meaning of the text. Traditionalism’s long time horizon and its focus on the age, longevity, and density of practices befits its broad subject—the law of the Constitution (which includes, but is not exhausted by, the text’s meaning).

Furthermore, certain parts of constitutional law may have little to do with the liquidation of the semantic meaning of the text, and more to do with enduring practices. Consider the “anti-commandeering” doctrine, which prohibits the federal government from compelling states to enact or enforce federal law. The law of anti-commandeering does not much depend upon the liquidation of the semantic meaning of constitutional text (the Tenth Amendment, for example). It is instead formed by legal decisions allowing or disallowing states to engage in a host of concrete practices based on a historical understanding of the relevant powers and immunities of the state and federal players. Or consider the doctrine of state sovereign immunity, which the Court said in Alden v. Maine is not fully determined by the semantic meaning of the Eleventh Amendment, but instead by the “history” of “custom and practice.”

A third difference concerns the sources of the relevant settling practices. Liquidated originalists tend to look to the federal judiciary (or state high courts) and the federal legislature, with illustrious figures like James Madison, Alexander Hamilton, or John Marshall often taking the settling role. Theirs are centralized practices of elite actors operating at the apex of American political power. State and local governments, and the people in their communities, have a subordinate role in “sanctioning” these practices. But their own practices, distributed across geographic time and space, spread widely across social class and rank, are not relevant. Traditionalism includes the enduring practices of national actors, though even here, the focus might be on comparatively minor figures and events in our national history. But by contrast with liquidated originalism, it also values the traditions of non-national persons and entities.

Furthermore, traditionalism, unlike liquidated originalism, depends upon the concurrence of diffuse sources of practice. When the Court in Bruen details the concurrence of 19th century state and territorial firearms regulations, observing outliers and achieving a collective sense of the regulatory landscape, it is aggregating the diffuse practices of individuals and localities across the nation to understand the Second Amendment’s scope. It is not focusing on who prevailed in a disagreement between Madison and Hamilton at one discrete moment in history so as to settle constitutional meaning thereafter.

Fourth, and finally, liquidation’s emphasis on “deliberated,” rationalized, and self-consciously constitutional interpretive practices is different from traditionalism. This rationalistic feature of liquidation in some ways follows from liquidation’s preferred sources—elite legal actors on the national stage—whose liquidations must be re-ratified and re-rationalized by subsequent elite actors. Yet why, one might ask against the traditionalist, should a practice that cannot be justified on thoughtful, rational grounds continue to endure?

The traditionalist response is that “thoughtful” interpretation in constitutional law has sometimes meant interpretation that favors and entrenches the preferences of the educational and cultural elites in American society. When the Court speaks of traditions being “deeply rooted in the Nation’s history,” it is adopting a constitutional approach more suited to the non-elites of American society. The sagacity of a people’s diffuse practices and ways of life across time and geographic space has its own merits and claims. These are not less rational than the claims of elites (here, Burke was a force more for ill than good). Indeed, one might adopt a liquidationist locution in arguing that they are a convincing public “sanction” or reasoned avowal of constitutional meaning and law.

The post Traditionalism Rising, Part II: Comparing (Liquidated) Originalism and Traditionalism appeared first on Reason.com.

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