Becket Is Hiring

I am happy to pass along this announcement from Becket, which is hiring for two different attorney positions:

First, Becket is seeking to hire 1-2 new attorneys as Counsel. Ideal candidates will have an appellate clerkship, litigation experience, and excellent research, writing, and oral advocacy skills. You can find more details on the position here: https://www.becketlaw.org/counsel-position/.

Second, Becket is seeking 3 or more new attorneys for its 2023-24 Constitutional Law Fellowship. The fellowship is a one-year position that is open to exceptional recent judicial clerks. It provides immediate, hands-on experience litigating cutting-edge constitutional cases under the mentorship of experienced Becket attorneys. It is also an excellent stepping stone to an additional judicial clerkship, government service, private practice, or public interest law. Fellowships start in fall 2023 and offer a competitive salary and benefits. You can find more details here: https://www.becketlaw.org/constitutional-law-fellow-posting/.

 

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Don’t Weaponize Child Abuse Hotlines Against Your Political Opponents


Tina Ramirez shaking hands in a parking lot.

The assumption behind government agencies that can be called on to intervene when people pose a danger is that those making the calls are sincere. The reality is often very different, with malicious people making tendentious or flat-out bogus reports to sic the authorities on those they dislike. Last week saw a perfect example of abusing the system when journalist David Leavitt sent his Twitter followers to Virginia’s hotline for child abuse in response to a political candidate who said she was teaching her daughter a version of American history he didn’t like.

“Can someone please call child care services on Tina Ramirez who’s teaching her child to be a racist?,” David Leavitt urged his more than 331,000 followers. This after GOP Virginia State Senate candidate Tina Ramirez said “I teach my daughter real American history. I refuse to join the radical left’s campaign to erase history.”

Leavitt then documented his efforts to reach the hotline and complained about the wait time. It didn’t seem to occur to him that his urging hundreds of thousands of followers to use the line to harass a political opponent might have something to do with “high call volumes.”

But this isn’t really about Leavitt or Ramirez. Leavitt has a history of causing himself public embarrassment and resulting blowback, and that history is likely to repeat itself. Ramirez reported Leavitt’s behavior to the authorities, and it’s a fair bet the “award-winning multimedia journalist” will suffer far more from this than will the political candidate.

Most of us aren’t like Leavitt and Ramirez. Usually, malicious misuse of government authority takes place out of public view. Resulting defenses of reputations and even lives must be fought with the resources available to a regular person to battle powerful agencies.

“Swatting…involves calling 9-1-1 and faking an emergency that draws a response from law enforcement—usually a SWAT team,” the FBI warned back in 2008. “Needless to say, these calls are dangerous to first responders and to the victims.”

Swatting is more dangerous to victims than to first responders, to be honest. In 2017, Andrew Finch of Wichita, Kansas, was killed by police sent to his home by a bogus call involving a video game dispute in which he played no part.

In recent years, as the country turned nastier and more tribal, swatting took a political turn. Gun control advocate David Hogg was swatted in 2018. Rep. Marjorie Taylor Greene (R–Ga.) was swatted twice in August of this year. Even before then, in 2015, the Notre Dame Law Review ran an article arguing that “exploitation of police response as a means of creating a threat elicits a feeling of helplessness in victims and others sharing the political or social stance for which the victims were targeted.”

“Swatting should in fact be classified as an act of domestic terrorism when used to intimidate political adversaries or coerce advocates of a particular viewpoint to withdraw from participation in political discourse,” author Matthew James Enzweiler concluded.

Calling child-abuse hotlines on people, not because they’ve done harm, but to hurt them, is a type of swatting. It’s somewhat lower stakes than calling the cops because it’s (probably) less likely to involve drawn guns, but it’s also easier since many child-protective agencies encourage anonymous reports.

“Anyone can report suspected child abuse or neglect to a local department of social services or to the CPS Hotline,” Virginia’s Child Protective Services notes on its website. “Callers will be asked to provide as much information as possible about the child, the alleged abuser and the incident. You are not required to give your name when you make the report, but if you do identify yourself, the local department of social services will be able to contact you for further information if needed and will be able to inform you of actions that were taken.”

Such anonymous reporting lends itself to abuse. And once in the sights of child-protective agencies, victims can be subject to interference in their lives that, if not as dramatic as an armed raid, is still traumatizing and potentially long in duration. 

“With the threat of child removal at its core, the child welfare system regulates a massive number of families,” Dorothy E. Roberts wrote for Mother Jones in April of this year. “In 2019 alone, CPS agencies investigated the families of 3.5 million children, ultimately finding abuse or neglect only in one-fifth of cases, or for the families of 656,000 children. Yet the families of these children are put through an indefinite period of intensive scrutiny by CPS workers and judges who have the power to keep children apart from their parents for years or even to sever their family ties forever.” 

Among the people profiled by Jones was activist Joyce McMillan. She was motivated to support abolition of the child welfare system and its intrusions into people’s lives after somebody anonymously reported her in 1999 and her children were temporarily taken away.

Like 9-1-1, child abuse hotlines were designed for use by well-meaning Americans who care about their communities, their neighbors, and their families and who call the authorities only when they believe somebody is in danger. These tip lines remain available to such upstanding people. But they are also easily weaponized by resentful people who despise and dehumanize anybody they dislike for any conceivable reason, personal or political. It doesn’t take many ill-intentioned people to turn an emergency phone number into a means for lashing out at perceived enemies.

The problem doesn’t stop, there, unfortunately. The Department of Homeland Security is busy running ads for its “If You See Something, Say Something” campaign to get people to report suspicious “signs of terrorism and terrorism-related crime” to the authorities. It’s impossible to see those ads without thinking that, in a nation where some people interpret disagreements over history lessons as evidence of child abuse, a bumper sticker could be all it takes to spur a tip to an anti-terrorism task force.

With minimal due process protections, “red flag laws,” also known as extreme risk protection orders, also lend themselves to misuse against gun owners by those who just don’t like them for personal or political reasons. “The procedure could be misused—for instance, to harass a former spouse or disarm a potential victim,” RAND Corporation analysts acknowledged in 2020.

Ultimately, David Leavitt’s online tantrum over history lessons is unlikely to harm his target, Tina Ramirez, because of her prominence and ability to fight back. But it is a warning sign that supposedly protective government authority is too easily weaponized against those who attract the attention of malicious enemies. And right now, many Americans insist on seeing each other as enemies.

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Academic Freedom Alliance Statement regarding Maitland Jones

The Academic Freedom Alliance released a statement regarding the decision of New York University not to renew the contract of organic chemistry professor Maitland Jones.

Professor Jones retired from Princeton University after a celebrated career as both a scholar and a teacher. For the past few years he has continued to teach organic chemistry at New York University. Like many contingent faculty, he has worked on short-term contracts.

Organic chemistry has long been understood to be a gateway course for medical school and advanced study in chemistry. Those courses have long been regarded as among the most difficult courses offered at many universities and have traditionally been graded accordingly.

Professor Jones continued that tradition at NYU, but students responded not just by grousing or avoiding the course but by petitioning the university to make the course easier and to replace Professor Jones with someone else who might be compliant with those demands. NYU apparently responded by declaring that the customer is always right and that professors were expendable.

The academic freedom concerns raised by this case are complicated but real. Unfortunately, this is only the most high-profile case involving the most highly regarded institution of a phenomenon that has become all too common in American higher education. The AFA wrote in a similar dispute over grading standards at Truckee Meadows Community College involving a tenured professor who was threatened with dismissal for making his case to his colleagues over the objection of his dean.

There are important conversations to be had about grading and how students are challenged and assisted in difficult courses, but if university officials cave in to pressure campaigns mounted by students by terminating professors then the faculty will be unable to meet their responsibilities as their professional judgment dictates and the assigned grades will become even more meaningless. Unfortunately, American higher education increasingly relies on contingent faculty for a great deal of teaching, and the NYU case just highlights how vulnerable those professors are to the whims of administrators. The administration’s action in this case sends a clear signal to other professors who do not enjoy tenure protections that they should take care not to rock the boat or to make the students unhappy.

From the statement:

Academic freedom is essential to higher education’s core mission of pursuing truth and transmitting knowledge in accordance with the expertise and intellectual skills and virtues that are needed for this mission to succeed. Academic freedom must also protect the rights that teachers need to enable them to fulfill their responsibilities to their students, the institutions they serve, the academic enterprise writ large, and the nation that relies upon properly educated graduates. To meet these obligations, teachers must honestly and accurately assess the intellectual progress and performance of their students.

. . . .

Finally, NYU’s decision, including the haste and summary manner in which it was reached, appears to be another example of the trend in higher education to devolve more academic authority from faculty into the hands of administrative entities whose backgrounds and expertise reside elsewhere than pedagogy, research, and the pursuit of truth. This clear trend of devolution has obvious and unfortunate implications for academic freedom and the public good.

Read the whole thing here.

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Russian Prosecuted for Writing “No to *ar,” Acquitted Because She Says She Meant “No to Gar,” a Kind of Fish

OK, I took some liberties with the translation—but not a lot. She wrote, “НЕТ В***Е,” which most Russians today would interpret as “НЕТ ВОЙНЕ,” which means “No to War.” But she testified she meant, “НЕТ ВОБЛЕ,” which means “No to Vobla”—a fish that is apparently called a Caspian roach in English (see the Azerbaijan stamp above)—because “she feels a dislike of this kind of fish.”

This assertion, the court said, was “in no way contradicted,” and the defendant was therefore acquitted. The court also ordered that her yellow box of blue chalk, which she apparently used to write this in a city square (the Square of Unity and Concord, in the city of Tumen’ in Siberia), be returned to her. My hat is off to you, Alisa Alekse’evna Klimentova, and to you, Judge Sergey Vladimirovich Romanov (no relation to the other Romanovs, I presume).

My conjecture, by the way, is that this reflects not the Russian legal system’s respect for the presumption of innocence (or whatever formal analog it might have in Russian law), but rather opposition by the judge or the local hierarchy (or both) to either the conduct of the war or at least to the prosecution of this dissenter. Query also where the court really had to note the color of the box and the chalk, or whether it was the judge’s way of further accentuating that he knows perfectly well what Klimentova was doing, but doesn’t mind. (Note that my Russian namesake Maria Volokh, who was convicted for displaying a sign that simply said “*** *****,” was not so fortunate.)

The incident has apparently been promptly and massively memed. People who can read simple Russian words and phrases may enjoy the items on this page, including, for instance, Tolstoy’s Gar and Peace, Brad Pitt in World Gar Z, and Darth Vader in Star Gars. And if you know Russian even better, check out this song by Semyon Slepakov, which has gotten more than 1M views in the last three days:

The post Russian Prosecuted for Writing "No to *ar," Acquitted Because She Says She Meant "No to Gar," a Kind of Fish appeared first on Reason.com.

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About that Yale Law School Statement on its Commitment to Free Speech…

I was a bit perplexed that in defending YLS’s commitment to free speech, Dean Gerken noted that “the faculty revised our disciplinary code and adopted a policy prohibiting surreptitious recordings that mirrors policies that the University of Chicago and other peer institutions have put in place to encourage the free expression of ideas.”

From the proverbial “veil of ignorance,” this may indeed be a good policy.

But in context, one may recall that the only reason that the law school’s egregious bullying of a student involved in the ridiculous “trap house” scandal came to light was because the student, Trent Colbert, surreptitiously recorded statements made to him by two administrators, to wit:

-5:15: The student is told that “as a man of color, there probably isn’t as much of a scrutiny of you as there might be of a white person in the same position.”
-5:32: Eldik says that the student’s affiliation with the Federalist Society was “very triggering” for students who “already feel” that the conservative group is “oppressive to certain communities.”
-7:15: Eldik says his office has received complaints that the student’s email was a “form of discrimination” and “psychically harmful.”
-10:00: Eldik starts to pressure the student to apologize.
-11:40: Cosgrove and Eldik propose addressing the apology to the leaders of the Black Law Students Association specifically.
-12:10: Cosgrove warns the student that “these things amplify over time,” so apologizing quickly is important “for your sake.”
-13:35: After the student suggests letting his peers reach out to him individually to discuss their feelings about the email, Eldik responds: “I don’t want to make our office look like an ineffective source of resolution.”
-14:05: Eldik says his office has received “eight or nine student complaints about this” and tells the student that the best way to make this “go away” would be an apology.
-14:23: Eldik says an apology would give the student “character-driven rehabilitation.”
-15:10: Eldik says he worries about the email affecting the student’s reputation, “not just here but when you leave. You know the legal community is a small one.”
-16:20: Eldik volunteers to help draft the email.
-18:10: Cosgrove warns that escalation is a possibility if the student doesn’t apologize.
-20:00: Eldik characterizes the student’s email as an invitation “to make a mockery of black people.”
-1:13: Eldik says, “This is all because we care about you,” and tells the student, “I don’t have to do my job like this.”
-1:35: Eldik says, “You’re a law student, and there’s a bar [exam] you have to take, so we think it’s really important to give you a 360 view.”

In this context, when a student avoiding punishment for speech only because he recorded administrator threats, trumpeting the “no surreptious recording policy” as a boon to free speech at Yale seems tone deaf at best.

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How Federal Energy Regulations Make Dishwashers Worse


topicsregulation

Dish soap maker Procter & Gamble has an odd new ad campaign urging folks to “do it” every night by loading their dishwashers instead of wasting time and water on handwashing.

Persuading people to put crusty dishes in a machine that will clean them seems like it shouldn’t require sexual innuendos crafted by Madison Avenue. Yet survey data show that nearly one in five Americans who own a dishwasher don’t use it.

The U.S. Energy Information Administration periodically asks Americans about their energy use. In its 2001 survey, 16 percent of respondents said they used their dishwashers less than once a week. That number rose to 18 percent by 2009, and it was about 20 percent in the last two surveys, conducted in 2015 and 2020.

The increase in unused dishwashers is correlated with federal energy efficiency standards that have made newer models less effective. In the last 20 years, the U.S. Department of Energy has twice tightened those standards, which limit the amount of water and electricity that dishwashers use. Manufacturers have met those standards by building machines that recirculate less water over a longer wash cycle.

Data compiled by D.C.’s Competitive Enterprise Institute (CEI) show that average cycle times rose from just over an hour when the first standards were adopted in 1987 to nearly two-and-a-half hours as of 2018. In complaints collected by CEI, many consumers said the longer cycle times had led them to start handwashing dishes.

The regression in dishwasher use is a great lesson in unintended consequences. As Procter & Gamble points out in its “do it” campaign, handwashing uses far more water than machine washing. Environmental standards that discourage the use of machines undermine the original goals of those rules.

President Donald Trump understood that, even if his exact figures were a little off. “The dishwashers, they had a little problem,” he said during his 2020 campaign. “They didn’t give enough water, so people would run them 10 times, so they end up using more water. And the thing’s no damn good.”

The Trump administration briefly liberalized dishwasher standards, but the Biden administration quickly reimposed the old rules. Millions of Americans will now spill needless gallons of water down the drain by cleaning their dishes in the sink while a machine that could have done the work for them sits sadly handicapped and idle.

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Brickbat: Living Large


For rent sign

New Orleans Mayor LaToya Cantrell has been living in an apartment in a city-owned building without paying rent, and city officials said that appears to violate no policies. The apartment in the historic Upper Portalba building has a rent of $2,991 a month. But no rent on the apartment was paid from September 2021 through July 2022.

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Justice Jackson Sets Record for New Justice in October Arguments

The Supreme Court’s newest Justice, Ketanji Brown Jackson, was an extremely active questioner throughout the Court’s October argument. Indeed, as Dr. Adam Feldman of EmpiricalSCOTUS tabulated, she spoke over twice as much at oral argument as any other justice. Here are the numbers, in graphical form.

Justice Jackson’s engagement in oral argument has attracted notice. Here, for example, is what the Washington Post reported:

few were prepared for Jackson’sventuresome debut in the court’s first sitting. Over eight oral arguments, she dominated the questioning and commentary, speaking twice as much as her next most loquacious colleague. . . .

Jackson was a persistent questioner in every case. Her contributions ranged from the sweeping — a rejection of an originalist interpretation of a colorblind Constitution that provoked swoons from the liberal legal community — to the kind of mundane minutiae upon which even Supreme Court decisions turn. . . .

By the end of the eight arguments, Jackson had spoken more than 11,000 words, according to Feldman’s statistics. That’s about double the nearly 5,500 words spoken by runner-up Justice Sonia Sotomayor. (Justice Elena Kagan was in third place, indicating that whilethe court’s three liberals may be outvoted in many cases this term, they are not going to be outargued.)

Unlike some other recent additions to the court, Jackson had months after her confirmation to prepare for the court’s initial round of arguments. Olivia Warren, a former law clerk to Jackson during her time as a trial court judge, said the justice’s questions reflect extensive preparation and interest in making sure she understands the positions the lawyers are taking in their briefs.

The Washington Post also noted that not every justice has received such positive reviews about their first oral arguments.

Some conservatives have grumbled that Jackson’s outspokenness has been hailed as admirable, while justices on the right of the political spectrum — Justice Neil M. Gorsuch in his debut in 2017, for instance — were criticized for coming on too strong.

Case in point, here is how the Washington Post covered Justice Gorsuch’s aggressive questioning when he first joined the Court:

New Justice Neil M. Gorsuch was an active, aggressive and somewhat long-winded questioner in his debut Monday at the Supreme Court, making his presence known during a series of complicated cases about legal procedures.

Gorsuch waited barely 10 minutes into the first of three hour-long cases before kicking off what became a long chain of questions. There is no expectation at the high court that new justices are to be seen and not heard, but the 49-year-old rookie seemed to push the envelope a bit.

Gorsuch asked more questions at his first oral argument — 22 — than did any of his fellow justices at their first appearances, according to Adam Feldman, a scholar who studies all things empirical about the Supreme Court. Before Monday, Justice Sonia Sotomayor had been the leader with 15 questions.

And, according to Feldman’s count, Gorsuch was wordier than all of his colleagues during their first time out, save for Chief Justice John G. Roberts Jr. and Justice Elena Kagan, who had joined the court after representing the government there as its chief lawyer.

 

 

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