Tag: in-the-news

Former Vice President Joe Biden kicked off his campaign with a bid to recapture blue collar union workers Monday.

“I make no apologies,” Biden told his audience at the Teamsters Hall in Pittsburgh. “I am a union man.”

He thanked United Steelworkers, the American Federation of Teachers, the Service Employees International Union, and the International Association of Fire Fighters for attending.

It’s obvious that if he were to win the primary, Biden’s general election strategy would revolve around winning Pennsylvania, Wisconsin, and Michigan—three states where Trump’s unique appeal to certain rank-and-file union members essentially won him the election. On Twitter, the president countered that “dues crazy union leadership” may be in the tank for the Democrats, but “the members love Trump.”

Biden is currently enjoying a popularity surge among the voters he needs to win the primary. A new poll has him at 36 percent. Bernie Sanders is at 22 percent, followed by Elizabeth Warren at 9 percent and Pete Buttigieg at 8 percent. According to Morning Consult:

Biden’s popularity has stayed steady, even amid a string of unflattering news stories in recent months, including his physical contact with women and a resurfaced debate over his handling of the 1991 Supreme Court confirmation hearings involving Anita Hill and Clarence Thomas when he was chairman of the Senate Judiciary Committee.

Any concerns that those stories may dampen his support with women and black women is not yet borne out by the data. If anything, Biden’s advantage over the field relies heavily on edges with those groups: Among women overall, Biden jumped 8 points in the last week, to 38 percent — driven by a 7-point bump with white women (to 36 percent) and a 10-point jump with black women, to 47 percent.

Free Minds

Amelie Wen Zhao has decided to move forward with publication of her debut novel Blood Heir after all. Previously, she had canceled its release because several reviewers in the young adult literary community had branded it racist.

When these accusations first emerged several weeks ago, they struck both New York magazine’s Jesse Singal and Vulture‘s Kat Rosenfield as ill-founded. Zhao’s book concerns a fictional princess with magic powers, and is inspired by the tragedy of Anastasia Romanov. Zhao, an Asian immigrant, includes Russian themes, and a significant part of Blood Heir deals with forced labor. But some “sensitivity reviewers” decided that Zhao was really writing about American chattel slavery, having culturally appropriated this aspect of African history. “Racist ass writers, like Amélie Wen Zhao, who literally take Black narratives and force it into Russia when that shit NEVER happened in history—you’re going to be held accountable,” one early reviewer promised.

This is a wildly off-base criticism, of course. Slavery is not some unique phenomenon that only occurred in the American South; virtually every human society since the dawn of civilization has grappled with slavery—including Russia, where serfdom was not abolished until 1861.

In any case, it’s good that Zhao has decided to publish the book, although she has apparently revised it to be more pleasing to the hyper-woke, according to The New York Times:

After Zhao decided she wanted to release the book, she and her publisher sought feedback from scholars and sensitivity readers in an effort to resolve any ambiguity around the type of indentured labor depicted. They had academics from different multicultural backgrounds, as well as one who studies human trafficking in Asia, evaluate the text, and Zhao added new material and made changes based on their comments. They had additional sensitivity readers vet the book for racial and other stereotypes.

It’s unclear whether such efforts will mollify Zhao’s critics, or if the release of “Blood Heir” this fall will ignite another cycle of outrage — a backlash to the backlash to the backlash. There’s also the risk that the controversy will dampen enthusiasm for the book among readers and booksellers.

But Zhao and her publisher seem more excited than wary that readers will have a chance to evaluate the book for themselves.

“We ultimately think our Y.A. readers are very smart,” Marino said. “They can read what they want to read and use their critical thinking skills to work through it.”

In all likelihood, most readers would have been perfectly satisfied with the book in its original form. Callout culture’s squeakiest wheels make a lot of noise but are few in number.

FREE MARKETS

Burger King is bringing its Impossible Whopper—a hamburger made from 0 percent meat—to all locations nationwide after a successful test launch in St. Louis, Missouri. According to Vox:

The plan for nationwide distribution is further evidence of plant-based meat going mainstream — a huge deal for those who want to see meat alternatives replace actual meat because of concerns over animal cruelty or climate change. If this keeps scaling up, it could help save hundreds of thousands of animals from suffering on factory farms, and it could fight global warming by reducing the number of methane-producing cattle. It could also combat other problems related to our factory-farming system, like antibiotic resistance.

Burger King’s announcement caps a month of incredible growth for the alternative meat movement. Earlier this month, Del Taco announced it’s partnering with Beyond Meat to offer new meatless tacos. And Qdoba announced that all 730 of its locations will offer Impossible Foods’ plant-based meat alternative.

QUICK HITS

• Deputy Attorney General Rod Rosenstein has resigned.
• A sexual assault accusation against Democratic presidential candidate Pete Buttigieg now appears to be a hoax cooked up by far-right political operatives Jacob Wohl and Jack Burkman. Wohl is suspected of perpetrating a similar hoax against Special Counsel Robert Mueller.
• Former Alaskan Sen. Mike Gravel is running for the 2020 Democratic presidential nomination. Gravel was a Democrat while in office, though he briefly joined the Libertarian Party.
• Financial disputes between National Rifle Association leadership have finally spilled out into the open.
• Can’t get Game of Thrones‘ underwhelming big battle off your mind? Here’s a must-read: “Cersei Lannister Is Smarter Than All These Morons”

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As Howard Wasserman notes, in an intriguing post at PrawfsBlawg, a panel of the Ninth Circuit has ordered briefing on whether one national injunction renders another one moot. It’s remarkable that this is a novel question—it’s another reminder of how recent the widespread use of national injunctions really is.

The one point I want to add right now to Howard’s post is about the distinction between Article III mootness and what is sometimes called “equitable mootness.” This doctrine is discussed in my article The System of Equitable Remedies.

I list a number of doctrines and habits associated with equitable remedies, including: “A claim for equitable relief is subject to a stricter ripeness requirement” (545). “Equitable ripeness,” I note, “is required only for equitable ripeness” (549). The supporting footnote is as follows:

The equitable ripeness doctrine tends to be stated more crisply in the secondary sources. See Samuel L. Bray, The Myth of the Mild Declaratory Judgment, 63 DUKE L.J. 1091, 1133-37, 1140-43 (2014); Laura E. Little, It’s About Time: Unravelling Standing and Equitable Ripeness, 41 BUFF. L. REV. 933, 977-80 (1993); Gene R. Shreve, Federal Injunctions and the Public Interest, 51 GEO. WASH. L. REV. 382, 390-92 (1983). But see LAYCOCK, supra note 38, at 585-86. Even so, the case law also shows a greater concern about ripeness and other justiciability doctrines when courts are asked to give equitable remedies. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 103, 105, 109, 111-13 (1983) (treating equitable requirements as more strict than the general case-or-controversy requirement); O’Shea v. Littleton, 414 U.S. 488, 499 (1974) (same); United States v. Regenerative Scis., LLC, 741 F.3d 1314, 1325 (D.C. Cir. 2014) (requiring for injunction “a reasonable likelihood of further violations in the future”); Hodgers-Durgin v. De la Vina, 199 F.3d 1037, 1042 & n.3 (9th Cir. 1999) (en banc) (W. Fletcher, J.) (concluding that although plaintiff class may have had Article III standing, they failed to show the “likelihood of substantial and immediate irreparable injury” required for equitable relief); Beck v. Test Masters Educ. Servs. Inc., 994 F. Supp. 2d 98, 101 (D.D.C. 2014) (“The claimed injury must be both certain and great and of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.”) (emphasis in original); LJL 33rd St. Assocs., LLC v. Pitcairn Props., Inc., No. 13 CIV. 5673 (JSR), 2013 WL 5969139, at *1 (S.D.N.Y. Oct. 24, 2013) (holding that declaratory judgment claim was ripe though specific performance claim was not); Town of Monroe v. Renz, 698 A.2d 328, 333 (Conn. App. Ct. 1997) (“The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted.”); Howe v. Greenleaf, 320 P.3d 641, 652 (Or. Ct. App. 2014) (requiring for injunction that “the conduct to be enjoined is probable or threatened”) (alterations and citation omitted); 67A N.Y. JUR. § 167 (2d ed. 2000) (requiring for injunction a “violation of a right presently occurring, or threatened and imminent”). It is harder to distinguish ripeness and equitable ripeness for equitable restitutionary remedies, but there, too, the courts seem wary of speculative claims. See Bank of Am. v. Bank of Salem, 48 So. 3d 155, 158 (Fla. Dist. Ct. App. 2010) (“[A]llegations, which pertained only to promises of future conduct, are insufficient evidence of fraud to warrant a constructive trust.”); Nw. Props. Brokers Network, Inc. v. Early Dawn Estates Homeowner’s Ass’n, 295 P.3d 314, 325 n.7 (Wash. Ct. App. 2013) (rejecting unjust-enrichment counterclaim as unripe).

Later in the article, when discussing the constraints on equitable remedies, I have this passage (578-579, some footnotes omitted):

Given the greater cost and greater potential for abuse, the equitable remedies and equitable enforcement mechanisms need limits. These limits, even if not sharply defined, give a sense of shape to a plaintiff’s expectation of equitable relief. These “equitable constraints” are crucial to understanding equity:

1. Equitable Ripeness. There is a requirement of additional factual development for equitable remedies, which is represented by the equitable ripeness doctrine. There is obvious overlap here with constitutional doctrines of ripeness and standing, as well as abstention doctrines. The relationship between the constitutional doctrines and their equitable counterparts cannot be untangled here. It suffices to say that they overlap, and yet that a court may invoke equitable ripeness as an independent reason not to give equitable relief.251 Indeed, cases about constitutional standing, ripeness, or abstention often emphasize the plaintiff’s request for equitable relief, and many of those cases have suggested that these doctrines apply differently depending on whether legal or equitable relief is sought.252 Nor is this concern misplaced. Ripeness is especially important for equitable remedies because they can depend on facts that are changing and contingent, and can entangle the courts in the relationship of the parties, not just at the moment of decision but (at least potentially) on a continuing basis. Not only ripeness, but other justiciability doctrines, such as mootness, are also sometimes said to be more exacting for claims for equitable remedies.254

Among the supporting footnotes are the following:

251      For analysis related to the injunction and declaratory judgment, see Bray, supra note 85. The courts’ more exacting review of the ripeness of equitable claims may take place under other doctrinal headings, such as irreparable injury, equitable discretion, and lack of propensity. E.g., In re DDAVP Indirect Purchaser Antitrust Litig., 903 F. Supp. 2d 198, 209-11 (S.D.N.Y. 2012) (finding a failure to state a claim for injunctive relief).

252      See Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996); City of Los Angeles v. Lyons, 461 U.S. 95, 111-13 (1983); O’Shea v. Littleton, 414 U.S. 488, 499 (1974); Younger v. Harris, 401 U.S. 37 (1971); Burford v. Sun Oil Co., 319 U.S. 315 (1943); R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500-01 (1941). For discussion, see Anthony J. Bellia Jr., Article III and the Cause of Action, 89 IOWA L. REV. 777, 827, 827 n.216 (2004) (standing); Bray, supra note 85, at 1146 n.247 (ripeness); Louis Henkin, Is There a “Political Question” Doctrine?, 85 YALE L.J. 597, 617-22 (1976) (political question); see also Lochlan F. Shelfer, Note, Special Juries in the Supreme Court, 123 YALE L.J. 208, 234 (2013) (“Because the overwhelming majority of cases in the Supreme Court’s original jurisdiction sound in equity, the Court often refuses petitions on the equitable basis of alternative fora.”) (footnote omitted). For more skeptical views, see Martha A. Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U. PA. L. REV. 1071, 1138-43, 1139 n.177 (1974); Laycock, supra note 2, at 75; Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 84-90 (1984).

254      See FTC v. Accusearch Inc., 570 F.3d 1187, 1201 (10th Cir. 2009) (“When, as in this case, a defendant has ceased offending conduct, the party seeking injunctive relief must demonstrate to the court ‘that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.”‘) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)); Getty Images, Inc. v. Microsoft Corp., 61 F. Supp. 3d 296, 300 (S.D.N.Y. 2014) (“[T]he standard for establishing the need for injunctive relief is more stringent than the mootness standard.”); see also Pires v. Bowery Presents, LLC, 988 N.Y.S.2d 467, 472 (N.Y. Sup. Ct. 2014).

Finally, when discussing how different equitable rules, habits, and maxims help judges avoid the problems inherent in equitable remedies, I have this passage (584-585, footnotes omitted):

None of these equitable constraints is rigid . None is airtight. All are discretionary, and the discretion to invoke them is committed to the very judge they are intended to constrain—the judge deciding in the first instance whether to give an equitable remedy. This may cause some to deny that they are actually constraints. Surely they would not work for a judge who was intent on abuse of power. But not all constraints are fetters. These equitable constraints guide the responsible exercise of judicial power, both at the trial and appellate levels, by focusing a judge’s attention on certain situations where equitable remedies and enforcement mechanisms are most likely to be misused.

For example, one scenario in which judges are more likely to misuse their equitable powers is when they act with insufficient information, not just for generic reasons that might apply to every claim, but for reasons specific to equitable remedies. The commands inherent in equitable remedies are more likely to be factually involved and contingent because they need to be designed not only for present circumstances but also for future ones. The attention of judges is directed to this concern about factual development by the doctrine of equitable ripeness.

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Cattle ranchers who lease public land to graze their livestock tend to see free-roaming wild horses as nuisances, fueling conflict among commercial interests, bureaucrats, and animal advocates. A controversial agreement was hammered out last week—but, unsurprisingly, that has hardly settled the dispute.

That something had to change is granted by pretty much everybody involved in the wild horse debate. The government can’t just continue removing wild animals from the land and warehousing them at growing expense, as it has done for decades.

In “The Wild Free-Roaming Horses and Burros Act of 1971,” Congress announced “that wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that these horses and burros are fast disappearing from the American scene.” Lawmakers ordered the Bureau of Land Management (BLM) and the U.S. Forest Service (USFS) to keep what was left of the population—perhaps 10,000 animals—alive and kicking.

Government officials sort of complied with the congressional mandate—the population of wild horses and burros has certainly grown, to over 80,000. But more of that population now lives in captivity than roams free, with holding costs consuming roughly half of the budget designated for protecting the herds.

The BLM, which inherited the lion’s share of the task, managed to turn a program intended to preserve a population of much-beloved wild animals into a scheme for corralling captive beasts that nobody wants and some interests positively dislike.

Return to Freedom, a wild horse and burro advocacy group, sees serious conflicts of interest at work. The group’s website points out:

The BLM and the USFS, among others, are responsible for managing the nation’s public lands and are foremost the managers of wild horses and burros. Their responsibilities also include issuing public land grazing permits to cattle ranchers. These grazing permits cover limited areas of public land that are available for lease. So, for every wild horse removed from a grazing permit allotment, a fee-paying cow gets to take its place, and a public land rancher gets the benefit of public land forage at bargain rates.

In 2013, the National Academy of Sciences (NAS) took a formal look at the management of the wild horse and burro population and agreed that officials have made a hash of balancing their responsibilities.

“The goal of managing free-ranging horses and burros to achieve the vaguely defined thriving natural ecological balance within the multiple-use mandate for public lands has challenged BLM’s Wild Horse and Burro Program since its inception,” the report found. Worse, BLM officials appear to have been making it up as they go along in terms of policies and procedures.

“The links between BLM’s estimates of the national population size and its actual population surveys—the data that underlie these estimates—are obscure,” the NAS assessment continued. “It seems that the national statistics are the product of hundreds of subjective, probably independent judgments and assumptions by range personnel about the proportion of animals counted during surveys, population growth rates, and other factors.”

If BLM hasn’t quite managed the challenges of conducting headcounts, it’s probably no surprise that management of the population has been equally sloppy. Removal and culling of herds to get them out of the way of competing interests even as those herds experience rapid growth—15 to 20 percent per year—is the result of ill-considered policies chasing themselves in a circle.

The NAS report adds:

Management practices are facilitating high rates of population growth. BLM’s removals hold horse populations below levels affected by food limits. If population density were to increase to the point that there was not enough forage available, it could result in fewer pregnancies and lower young-to-female ratios and survival rates. Decreased competition for forage through removals may instead allow population growth, which then drives the need to remove more animals.

To fix the problem, in addition to modifying removals, the NAS also recommended a fertility control campaign to control the horse and burro population. Birth control vaccines that prevent fertilization for females and chemical vasectomies for males, would be coupled with cross-breeding animals from different management areas to maintain diversity.

How “wild” the resulting population of neutered-and-bred horses and burros will be is an open question. But the herds have long been maintained more as museum exhibits of the wildness-that-was than as actual free-roaming beasts. Better management could have the benefit of being less self-defeating and more cost-effective in maintaining the populations. It would certainly be better than just fueling more population growth and spending ever-greater resources to warehouse or slaughter the results.

The deal that presented to BLM last week is supposed to achieve just that—better management of the not-so-wild horse and burro herds, bringing together competing groups and interests that have clashed over the issue for decades. Nonetheless, controversy continues.

On one side is the American Society for the Prevention of Cruelty to Animals (ASPCA), which calls the new agreement “a powerful, non-lethal path forward for these imperiled icons of the American West,” and The Humane Society of the United States (HSUS). The National Cattlemen’s Beef Association, Public Lands Council, American Farm Bureau Federation, and Society for Range Management have also signed on to the plan.

But others organizations aren’t convinced. Friends of Animals President Priscilla Feral accused ASPCA and HSUS of “throw[ing] in the towel when it comes to protecting America’s wild horses” by “capitulating to the Bureau of Land Management.”

An American Wild Horse Campaign statement called it “a bad deal [that] violates the Statement of Principles and Recommendations signed by more than 100 horse organizations.” The group complains that ranchers benefit the most, large-scale roundups will continue, and the agreement neglects to specify the most effective fertility-control methods, such as vaccines.

So the debate is only settled-ish, pending an assessment of the results in the years to come. But for now, federal officials have demonstrated yet again that they can mismanage anything—even herds of wild animals—into a public policy mess.

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Officials with the Pearland, Texas, Independent School District say an administrator, who wasn’t named, has been placed on leave for mishandling disciplinary action. A male student showed up at Berry Miller Junior High School with an “M” shaved into his hair, a violation of the school dress code. An administrator told the boy he had three options: call his mother, receive a disciplinary action, or color it in. The boy ended up with the “M” colored in with a marker, though it isn’t clear whether the student colored it in or the school staffer. In either case, school officials say that shouldn’t have happened and have apologized.

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The decision is the Seventh Circuit’s Tran v. Minn. Life. Ins. Co., handed down today, which disagrees with the Second and Ninth Circuits. (Thanks to Howard Bashman (How Appealing) for the pointer.)

The question is whether a life insurance “policy exclusion for deaths resulting from ‘intentionally self-inflicted injury'” applied to autoerotic asphyxiation:

• The majority said yes, because the person intentionally inflicted partial strangulation on himself, and “partial strangulation … is still an ‘injury’ as the term is commonly understood” even when it’s not intended to lead to death: “For example, if [the person] had partially strangled another person, there would be no debate he had inflicted an injury.”
• The dissent, joining the Second and Ninth Circuits, said no, because the “conduct was undoubtedly risky but was not inherently injurious,” since “when done correctly it can and does have a recreational purpose with no lasting health consequences.”

The Seventh Circuit has a sort of automatic pre-publication en-banc review (Local Rule 40(e)), under which an opinion that creates a circuit split is circulated to the whole court to see if a majority of the active judges want to take the case en banc. The panel opinion reports that a majority didn’t support review, though three judges did support it. In principle, the Supreme Court could now agree to hear the case, given the circuit split. But I doubt that it will:

Some cases get DIGged; this one would get infra digged.

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Chicago impounds thousands of people’s cars a year, including cars owned by people who have committed no crime, and forces them through an expensive, bureaucratic maze to get their car back. This process that violates residents’ constitutional rights, according to a new lawsuit filed against the city Monday evening.

The Institute for Justice filed a class-action lawsuit in Illinois state court alleging that Chicago’s impound program violates residents’ guarantee of due process, as well as protections against excessive fines and unreasonable seizures, under both the Illinois and U.S. constitutions.

“Owners find themselves in a labyrinthine impound system that is plagued by serious procedural flaws,” the suit says. “Even innocent owners get caught up in this system, facing hefty fines and fees when someone else used their car to commit a crime without the car owner’s knowledge.”

A Reason investigation published last year described how Chicago’s punitive impound program soaks people in fines and fees and deprives them indefinitely of their transportation, whether or not they actually committed an offense, in an effort to reduce its massive annual budget deficits. It also operates independently from the state’s courts, meaning that even in cases where a defendant beats a criminal charge and/or a civil asset forfeiture case, they can still be found liable for thousands of dollars in fines and storage fees, and have their cars held until they pay or relinquish them to the city, by Chicago.

That’s exactly what happened to Spencer Byrd, a 51-year-old resident of Harvey, Illinois whose impound case was featured by Reason and is now a named plaintiff in the Institute for Justice lawsuit.

Byrd, a part-time auto mechanic says he was giving a client a lift in his 1996 Cadillac DeVille one evening in June, 2016, when he was pulled over by Chicago police and searched. Byrd was clean, but his passenger, a man he says he’d never met before, had heroin in his pocket.

The police released Byrd without charging him with a crime, but his car was seized and dually claimed by both the Cook County State Attorney’s Office and the city of Chicago. He’s been fighting for nearly three years to get it back.

A state judge ordered Byrd’s car released after he filed a financial hardship motion, but the city refused to return it, claiming he owed money under the city’s municipal code.

Even after a state judge declared Byrd innocent in the civil forfeiture case against his Cadillac in Illinois state court, he was still found liable for violating Chicago’s municipal code in the city’s administrative hearings court, which has a low standard of evidence and almost no procedural protections for defendants.

In the meantime, Byrd’s livelihood has suffered. His primary trade is carpentry, but his tools have been locked in his car since it was impounded. The city has refused to let him retrieve them, or his car, until he pays his accumulated fines and fees, which according to the lawsuit now stand at more than $17,000.

“If you do wrong, fine, but I didn’t do nothing wrong,” Byrd tells Reason. “I should have had my car released to me with no fines or anything—thank you, sorry for the inconvenience, and I’m on my merry way—instead of trying to get some type of revenue from me. I was proven innocent, and they still didn’t want to act right.”

Byrd is far from alone. A WBEZ analysis of Chicago’s massive impound program found that in 2017 alone, the city impounded more than 22,000 cars for violations of its municipal code, which includes dozens of impoundable offenses ranging from drug possession to drag racing to having illegal fireworks.

The fines for those violations are steep, ranging from $500 to $3,000, and that doesn’t include towing and storage fees, which accumulate at $20 a day for the first five days, and $35 a a day after that. Given that these cases can take weeks, if not months, to wind through the system, the fees can often exceed the fines themselves.

A Reason analysis of data from the Chicago Administrative Hearings Department showed Chicago fined motorists $17 million over a 12-month period between 2017 and 2018. About $10 million of those fines were for driving on a suspended license, and more than $3 million were for drug offenses like the one that resulted in the impoundment of Byrd’s car.

Chicago can hold seized cars indefinitely. There is also no statute of limitations on impound fines and fees in Chicago. The debt can follow someone for life.

Chicago’s impound racket is both easy to be ensnared in and hard to escape. There are only three narrow defenses for those whose cars are impounded for municipal violations in Chicago, and being an innocent owner isn’t one of them.

“You’re talking about a lot of money for something that you may not have been responsible for,” says Institute for Justice attorney Diana Simpson. “The lack of an innocent owner protection really violates two different kinds of constitutional protections: both the excessive fines and fees protection, as well as due process.”

The case of two of the other named plaintiffs in the Institute for Justice lawsuit, Jerome Davis and Veronica Walker-Davis, exemplify what critics say is the procedural nightmare people face when their cars are impounded in Chicago.

In May of last year, the couple dropped their 2006 Lexus off at a Chicago body shop following an accident. When the repairs dragged on for longer than expected, the shop first said it was waiting for parts, but eventually the couple learned the truth: An employee of the shop had driven their car on a suspended license and was pulled over. Their Lexus was now sitting at one of Chicago’s six impound lots.

The city had never informed the couple that their car had been impounded, according to the lawsuit, and Veronica Walker-Davis had to travel in person to the city’s administrative hearings building to request a hearing to fight the impoundment.

“I’m thinking that I’m just going to go and give a statement, show proof that my car wasn’t in my possession, and everything will be okay, but in fact it turned into a nightmare,” she says. “I felt like I was pretty much in The Twilight Zone.”

The Twilight Zone is Room 110 in Chicago’s administrative hearings building, a small courtroom where the city churns through its impound cases at a rate of roughly one every 10-15 minutes, five days a week.

Because the hearings are civil matters, not criminal, there is no right to a lawyer, and Walker-Davis found herself standing across from a lawyer for the city of Chicago. She tried to explain to the administrative hearing judge what had happened, but it made no difference. She was found liable for violating the city code and would have to pay nearly $2,500 to get their car out of impound.

“I felt like crap,” she says. “I felt like a criminal.”

In late March of this year, The couple managed to find a pro bono lawyer and negotiate their fine down to $1,170, but when they arrived with cash in hand, they were told the registration on their car had lapsed in the more than six months it had been sitting in an impound lot, and the city would not release it without a current registration.

Walker-Davis rushed the next day to get their registration renewed, which cost another $101, and got the city to agree to extend the deadline for the couple to pay their impound fines. In an email provided to Reason, a lawyer for Chicago’s law department wrote to the couple: “The City will agree to extend the time for you to pay the settlement agreement to 4/12/19.”

But when the couple showed up to retrieve their car on April 10, it was gone. The city had already sold it off. According to WBEZ, Chicago sells many of the cars it impounds for paltry amounts under $200, and almost all of them are sold to a single towing contractor.

The Institute for Justice is hoping that a recent Supreme Court case will bolster their claim that Chicago’s rapacious impound program fines people so much and affords them so few avenues of escape that it violates the Constitution.

The Supreme Court ruled earlier this year in Timbs v. Indiana—the case of an Indiana man whose $42,000 Land Rover was seized for a drug felony—that states are bound by the Eighth Amendment’s protections against excessive fines and fees. Although the Court did not define exactly what constitutes “excessive,” it opened the door for civil liberties groups to press the issue.

In 2017, the Ninth Circuit Court of Appeals struck down Los Angeles’ automatic 30-day impound law, ruling that it amounted to an unconstitutional seizure under the Fourth Amendment. While state and federal courts have repeatedly upheld Chicago’s impound program in the past, the Institute for Justice hopes that it can build on the recent Supreme Court decision, as well as other cases that have addressed the government’s use of fines and fees to generate revenue.

“We think we’ve got a really great chance, and we think the courts will agree with us that the system is just too much,” Simpson says. “It’s bringing in an entirely huge amount of money for the city of Chicago—there’s about 22,000 cars that go in through this system each year—and that’s not the role of the government.”

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From the Justice Department:

Mark Steven Domingo, 26, of Reseda, California, [a former U.S. Army infantryman with combat experience in Afghanistan,] was arrested Friday night after he received what he thought was a live bomb, but in fact was an inert explosive device that was delivered by an undercover law enforcement officer as part of an investigation by the FBI’s Joint Terrorism Task Force….

In a criminal complaint filed by federal prosecutors on April 27, 2019, and unsealed earlier today, Domingo was charged with providing and attempting to provide material support to terrorists. … According to a 30-page affidavit in support of the complaint, since early March, Domingo “planned and took steps to manufacture and use a weapon of mass destruction in order to commit mass murder.”

In online posts and in conversations with an FBI source, Domingo expressed support for violent jihad, a desire to seek retribution for attacks against Muslims, and a willingness to become a martyr, according to the affidavit.  After considering various attacks – including targeting Jews, churches, and police officers – Domingo decided to detonate an IED at a rally scheduled to take place in Long Beach this past weekend. As part of the plot, Domingo asked his confederate – who actually was cooperating with the FBI as part of the investigation – to find a bomb-maker, and Domingo last week purchased several hundred nails to be used as shrapnel inside the IED.

“Domingo said he specifically bought three-inch nails because they would be long enough to penetrate the human body and puncture internal organs,” the affidavit states.

After Domingo provided the nails to the undercover operative for use in the construction of the bomb, Domingo sent a message on Thursday indicating that the operation was to proceed, according to the affidavit.  On Friday evening, the undercover operative delivered multiple inert devices, which Domingo believed were weapons of mass destruction.  After inspecting the devices and travelling to a park in Long Beach to surveil the location of the planned attack, Domingo was taken into custody.

According to the criminal complaint, Domingo posted an online video professing his Muslim faith on March 2, and the next day made another posting in which he said “America needs another vegas event” (referring to the October 2017 mass shooting in Las Vegas, Nevada) that would give “them a taste of the terror they gladly spread all over the world.”  Following an attack on a mosque in New Zealand on March 13, Domingo posted, “there mustbe retribution.”

In response to the postings, an FBI “confidential human source” (CHS) began an online conversation that resulted in a series of in-person meetings with Domingo.  During the first meeting, on March 18, “Domingo discussed with the CHS different targets for an attack, including Jews, police officers, churches, and a military facility,” according to the affidavit.

During subsequent meetings outlined in the affidavit, Domingo continued to express his desire to commit a terrorist act, at points contemplating a drive-by shooting with a modified AK-47-style rifle he owned, and at other points considering the use of an IED.  During an April 3 meeting, Domingo allegedly expressed support for ISIS and said “if ISIS ‘came here,’ he would swear allegiance to ISIS,” according to the complaint.

The plan to target the rally came into shape during an April 19 meeting, when Domingo arrived to a meeting with the CHS armed with an AK-47-style rifle “to show you that I’m serious,” according to the complaint.  During that meeting, Domingo referenced the Boston Marathon bombing and asked the CHS to find a person to construct an IED that he said could cause 50 casualties….

According to ABC-7 (Carlos Granda & Rob Hayes),

“At times, Mr. Domingo said he wanted to kill Jews as they walked to synagogue. At other times, he said he wanted to kill and target police officers, attack a military facility or attack crowds at the Santa Monica Pier.”

The Pier is less than four miles from our house, and we used to go there often with our boys. Cuts close to home ….

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In Episode 261, blockchain takes over the podcast again. We dive right into the recent activity from the SEC, namely, the Framework for “Investment Contract” Analysis of Digital Assets and the No-Action Letter issued to TurnKey Jet, Inc. (TurnKey) for a digital token. Gary Goldsholle noted this guidance has been eagerly anticipated since July 2017 when the SEC first applied the Howey Test to a digital token with the DAO report. The current framework focuses primarily on the reasonable expectation of profits and efforts of others prongs of the Howey Test. While the framework lays out a number of factors to consider when determining whether a token is a security, the practicality of those factors is still up for debate.

Will Turner explained that the TurnKey No-Action Letter was most useful for parties interested in structuring a private, permissioned, centralized blockchain, but believes the guidance in the Framework would allow for alternative structures. The key from the SEC’s perspective is that there is no expectation of profits for token holders, since the token is a stablecoin pegged to the value of USD and there is no use of the token outside of TurnKey’s network. Jeff Bandman noted the irony that the first No-Action Letter related to blockchain and cryptocurrency involves private jets, particularly since “Mr. and Ms. 401(k)“—the retail investors SEC Chairman Jay Clayton is focused on protecting—are not likely to become private jet users anytime soon.

Jeff emphasized the importance of network functionality and observed that the network for private jet use was already established. Alan Cohn highlighted this tension between the need for centralization to achieve functionality, and need for decentralization as a means to avoid meeting the “derived from the efforts of others” prong of the Howey Test.

Gary then turned to Blockstack’s Regulation A filing, the most comprehensive effort to register a token under Reg. A that we have seen to date. Blockstack is seeking to be a Tier 2 issuer, meaning they can raise up to $50 million in 12 months, which comes with heightened disclosure obligations and requires audited financials. While they seek to raise capital as a security today, their ultimate goal – and a central risk factor in their offering circular – is to achieve the requisite level of decentralization such that they no longer would meet the definition of a security.

Meanwhile, in Congress, the recently reintroduced Token Taxonomy Act of 2019 would exempt a newly defined category of digital tokens from the definition of a security, as well as provide some clarity on tax issues for cryptocurrency users and exchanges. Jeff observed that these amendments might contribute further to a gap in federal regulation over spot trading markets. While the CFTC has enforcement authority, they do not have the authority to directly supervise the bitcoin trading market.

Turning to the interview, Jeff describes how he co-founded Global Digital Finance (GDF), along with other co-founders in Europe, Asia, and the United States, in order to address the lack of international standards surrounding the blockchain industry – or even a general consensus of terminology. Jeff describes how GDF has a number of working groups focused on developing high-level principles and standards on a range of topics, including stablecoins, custody, tax, and security tokens. GDF is trying to fill in some of the gaps that appear when jurisdictions regulate cryptocurrencies and crypto-assets differently.  As an example of its work, GDF’s KYC/AML/CTF group recently commented on FATF’s standards, issuing two comments in October 2018 and April 2019.

Jeff is also in the process of launching a new transfer agent service, Block Agent, focused on enabling and supporting SEC-regulated issuances. As markets mature, it is increasingly important to have the necessary post-trade infrastructure, and he is committed to offering services that recognize the novel features and efficiencies around these new technologies.

For our listeners in the DC area, Steptoe is hosting a half-day complimentary regulatory symposium this Thursday, May 2, in our DC office. Our plenary speakers include current and former commissioners and high-level officials with agencies such as the Federal Energy Regulatory Commission, the Surface Transportation Board, and the Environmental Protection Agency. We will also have breakout panels focused on four separate topics: Deference, Globalization, Regulatory/Legislative Approach, and Preemption. To register, click here.

Download the 261st Episode (mp3).

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As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

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Continue reading “Injunction to Take Down Critical Sock Puppet Comments”

Recent polls showing Joseph Biden or even Bernie Sanders defeating Donald Trump in a general election are understating Trump’s true strength.

For example, an Emerson College poll released April 15 had Biden beating Trump, 53 percent to 47 percent, and Sanders beating Trump, 51 percent to 48 percent. A Morning Consult Politico poll released April 24 had Biden at 42 percent and Trump at 34 percent. A Hill HarrisX survey released April 26 had Biden at 43 percent and Trump at 37 percent.

These polls are misleading in at least six ways.

First, the presidency is decided on the basis of the electoral vote, not a nationwide popular vote. Trump lost the popular vote in 2016 and won the presidency anyway, because of the way his votes were distributed in the various states. It’d be risky for Trump to count on a repeat of that feat, which is unusual but not unprecedented. But polls of battleground states, or swing states, can be more useful predictors than nationwide surveys.

Second, these head-to-head polls, unlike battleground state ballots, don’t include third party or minor party candidates. Such general-election efforts by candidates such as Jill Stein, Ralph Nader, and Ross Perot all were arguably significant factors in tight presidential elections in recent years. Starbucks coffee entrepreneur Howard Schultz has the money to be a factor this time around, though his campaign so far has been less than impressive.

Third, as “little Marco” Rubio and “Lyin’ Ted” Cruz can attest, Trump has considerable skill at defining an opposing candidate memorably and early. Senator Elizabeth Warren is still trying to recover from Trump’s description of her as Pocahontas, or Fauxcahontas, and Trump has even publicly regretted not saving it for later, maybe after she won the Democratic nomination. This week, after the polls were taken, Trump was tweeting about “Sleepy Joe” Biden. He’s also testing “Crazy Bernie Sanders.” Expect to hear more such nicknames, or insults, between now and Election Day.

Fourth, Trump’s own negative campaigning will be, well before the time the actual election rolls around, supplemented by independent expenditures that that emphasize the worst aspects of his opponent. Remember the way Swift Boat Veterans For Truth took John Kerry’s Vietnam War experience and turned it into a negative in the minds of some voters, or at least raised doubts about his own portrayal of that experience? Look forward to what the Trump campaign’s allies do with Biden’s “handsy” reputation or with Biden’s record as an opponent of federal intervention in integration cases involving school busing.

Fifth, as the cumulative experience of polling Brexit, the 2016 Trump campaign, and Benjamin Netanyahu’s 2019 election victory demonstrate, nationalists or conservatives or populists or whatever you want to call them tend not to be terribly eager to cooperate with pollsters. The pollsters tend to work for either universities or elite media outlets that the nationalists or conservatives or populists or whatever you want to call them view, with at least some justification, as irredeemably biased against them. The pollsters can try to use technical methods such as oversampling or weighting to correct for this sort of thing, but at bottom, if a Trump voter wants to tell a pollster over the telephone that he is actually a die-hard Elizabeth Warren fan, there’s not much the pollster can do to avoid being misled.

Sixth, these races are susceptible to last-minute, event-based swings—the financial crisis in 2008, the James Comey statements about Hillary Clinton in 2016—that are impossible to predict this far in advance. These swings could work in favor of Trump or against him.  It’s hard, though, to imagine Trump getting worse press coverage than he already has, so late surprises could well hurt his Democratic challenger.

Given all of that, why pay any attention at all at this stage? It’s a reasonable question. The colleges and news organizations are investing money in these polls in part on the basis that we readers are curious enough to click through. For better or worse, we all get the journalism, and the politicians, that we deserve.

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

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