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FAN 25.1 (First Amendment News) — Mass. Gov. signs abortion buffer zone bill

The bill, titled an Act to Promote Public Safety and Protect Access to Reproductive Health Care Facilities, was signed earlier today by Massachusetts Governor Deval Patrick.

Pro-choice demonstrators in front of Supreme Court

Pro-choice demonstrators in front of Supreme Court

The law, which is effective immediately, allows a police to order a person who “impedes” access to a reproductive health facility to stand at least 25 feet away from the entrance (or driveway) of the facility. The officer’s order will remain in place for eight hours or until the facility closes for the day (whichever is earlier). The law defines “impede”  as making it impossible or very difficult to access the clinic. If the person does not obey the order, he or she will face criminal penalties (a fine and potential jail time).  The penalties increase with each transgression. There are also penalties for threatening to harm or harming a person going to or from the facility and penalties for attempting to stop a car from accessing or leaving the facility.

The new law comes in the wake of the Supreme Court’s recent ruling in  McCullen v. Coakley, which struck down a 2007 Massachusetts buffer zone law as violative of the First Amendment.

In a prepared statement, Governor Patrick said: “I am incredibly proud to sign legislation that continues Massachusetts leadership in ensuring that women seeking to access reproductive health facilities can do so safely and without harassment, and that the employees of those facilities can arrive at work each day without fear of harm.”

“This bill,” said Attorney General Martha Coakley, “takes an important step toward protecting the rights of women and public safety around reproductive health facilities. We now have new tools to help ensure access to these facilities free from intimidation and threats.”

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Titles of Nobility Awarded by States

There is a lot of tough news out there these days, so I thought I would try a light-hearted post.  I am an Admiral in the Nebraska Navy.  Folks from Nebraska know what this means, but for the rest of you “admiral” is an honorific awarded by the Governor to folks who make a significant contribution to the state.  (Mine was based on the fact that I wrote an article in the Nebraska Law Review.)  You get a fancy certificate and my Admiralty students find it amusing.

Here’s my question.  Is my title unconstitutional?  The Constitution prohibits states from awarding titles of nobility.  Why does this not apply to Nebraska or to Kentucky, which awards honorary colonel positions?  The answer must be that “Admiral” or “Colonel” is not a title, but why is that?

One thought is that titles in the constitutional sense apply only to the ones awarded in Britain at the Founding.  Thus, Nebraska could not make dukes or barons, but it can make admirals.  Another thought is that a title refers only to something that confers legal benefits.  While those sorts of titles would be invalid, this answer is not sufficient.  If Nebraska awarded knighthoods that were just ceremonial, I think we would still conclude that was unconstitutional.

Accordingly, interpreting “titles of nobility” in the Constitution is partly an originalist task (What was a title in 1787?) and partly a functional one (Is a state doing something that is comparable in spirit to those in a harmful way?).

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FAN 25 (First Amendment News) — High Court again asked to intervene in state judicial elections

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Lanell Williams-Yulee

If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges. Justice Sandra Day O’Connor (2002)

The case is Williams-Yulee v. The Florida Bar. The issue in the case is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment. In a per curium opinion, a divided Florida Supreme Court denied the First Amendment challenge. (See here re video and transcript of oral arguments in Florida Supreme Court.)

A petition for certiorari has been filed by Andrew Pincus, Charles Rothfeld, and Michael Kimberly with assistance from Ernest Myers and Lee Marcus along with Eugene Fidell of the Yale Law School Clinic.

→ Flashback: FAN 15, “Free Speech & Judicial Elections: The Return of Kaus’ Crocodile,” May 14, 2014

Facts – Here is how Judge Chris Helinger, a referee for the Florida State Bar described the key facts in the case: “The Florida Bar alleges that on or about September 2009, the Respondent became a candidate for County Court Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, the Respondent signed a campaign fundraising letter wherein the Respondent personally solicited campaign contributions. The Respondent admits that she reviewed and approved the September 4, 2009 letter. The Respondent further testified that prior to approving the letter she reviewed Canon 7C(1) of the Code of Judicial Conduct regarding solicitation of funds. However, the Respondent testified that she interpreted the Canon to only apply if there was another candidate in the race. At the time the solicitation letter was sent no other candidate had been announced. Canon 7C(1) states that the prohibition of personal solicitation of campaign funds apply to any candidate for ‘judicial office that is filled by public election between competing candidates.’” In that regard, the Florida Supreme Court noted: “[T]he referee found that the Respondent misrepresented the fact that there was no incumbent in the judicial race for which she was running. Further, the referee found that the Respondent’s misrepresentation [which she claims was the result of a good faith mistake based on a misunderstanding of the Canon] was published in a newspaper article on November 3, 2009.”  (Source: here)

Offending Mass-Mail Solicitation Letter 

LANELL WILLIAMS-YULEE

_____________________________________________

Bringing Diversity to the Judicial Bench

Elect Lanell Williams-Yulee For County Court Judge Group 10 and Campaign Fundraiser

Dear Friend:

I have served as a public servant for this community as Public Defender as well as a Prosecutor for the past 18 years. Having been involved in various civic activities such as “The Great American Teach In,” Inns Of Court, Pro Bono Attorney, Metropolitan Ministries outreach program, as well as a mentor for various young men and women residing within Hillsborough County, I have long worked for positive change in Tampa. With the support of my family, I now feel that the time has come for me to seek elected office. I want to bring fresh ideas and positive solutions to the Judicial bench. I am certain that I can uphold the Laws, Statutes, Ordinances as prescribed by the Constitution of the State of Florida as well as the Constitution of the United States Of America.

I am confident that I can serve as a positive attribute to the Thirteenth Judicial Circuit by running for County Court Judge, Group 10. To succeed in this effort, I need to mount an aggressive campaign. I’m inviting the people that know me best to join my campaign and help make a real difference. An early contribution of $25, $50, $100, $250, or $500, made payable to “Lanell Williams-Yulee Campaign for County Judge”, will help raise the initial funds needed to launch the campaign and get our message out to the public. I ask for your support In meeting the primary election fund raiser goals. Thank you in advance for your support.

Sincerely,
/s/
Lanell Williams-Yulee, Esq.

(Source: here)

See YouTube video of TV political ad here.

State Judicial Elections 

As Professor Richard Briffault has observed: “The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states.” Consistent with the American Bar Association’s Model Code of Judicial Conduct, states such as Florida have enacted laws or rules barring judicial candidates from personally soliciting campaign contributions.

Conflicts in Lower Courts  Read More

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Reynolds v. Texas & Pacific Railway Company

In reading Ken Abraham’s excellent article on “Self-Proving Causation,” I was introduced to a delightful Louisiana case captioned above.  Plaintiff and his family were at a station to board a train.  The train was delayed until 2AM, and to get from the station to the platform the passengers had to go down a set of stairs without a railing or lights. When the train arrived, passengers were told to “hurry up” because it was running behind schedule.  Plaintiff’s wife, who was described as “a corpulent woman, weighing two hundred and fifty pounds,” fell and broke her leg.

The railroad argued that ‘but for” cause was not established, since plaintiff’s wife could have fallen in the same way in broad daylight.  The Court rejected this argument:

[W]here the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury.

This is a sound explanation of a kind of “res ipsa loquitur” for causation that was subsequently adopted by other courts.  I was also interested to learn that corpulent was used as a noun, as the opinion later says that plaintiff’s wife was “a corpulent, though not infirm.”  Anyway, the cite is 37 La. Ann. 694 (1885).

 

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Article Stub: Contracting into Federal Common Law

 

L.B. would hate this idea.

L.B. would hate this idea.

[I'm writing a series of posts I call article stubs - the germs of papers I'll likely never write. Here was the first, finding offerors under 2-207. Dan Markel might - or more likely might not - approve. I used to talk about these pre-draft ideas with him, and he mercifully steered me off most of them before they saw the light of day. In his honor, here's another bad idea. Feel free to tell me so.]

“There is no general federal common law.” We all know it, even though we sometimes, wrongly, qualify the statement “…in diversity cases.”  Though the decision’s constitutional roots are at best obscure, Erie teaches us that federal judges can’t create substantive rules of decision without constitutional or statutory sources. It’s an iconic case – and an ironic one, as it might be an example of the roving lawmaking that it abjures.

But what if you generally liked that set of precedents that followed Swift and preceded Erie?  What if you, as Justice Swayne once did, proudly hold that “We shall never immolate truth, justice, and the law, because a state tribunal has erected the altar and decreed the sacrifice.” What if you just wanted to empower federal judges hearing your contracts case to resort to their own intuitions – guided, no doubt, by the informed views of other federal courts.  Could you contract into a general federal common law framework? Under traditional conflicts principles, the answer is likely “no.”  See Restatement 187 cmt. f (“The forum will not, for example, apply a foreign law which has been chosen by the parties in the spirit of adventure or to provide mental exercise for the judge. Situations of this sort do not arise in practice.” ) But traditional conflicts principles needlessly discourage innovation and now motivate parties to choose  arbitration (where they can benefit ex ante by giving ex post discretion to decisionmakers.) Courts should accept a wider range of choice of law clauses, and should start by permitting parties to opt out of Erie.

Discuss.

 

MarkelFest! at SEALS

Howard Wasserman and the team at Prawfs have organized a get-together at SEALS in memory of Dan Markel for this Saturday, and we at CoOp are honored to co-sponsor it. I’m sure this is the first of many conferences where Dan’s memory will be celebrated. Full details are here.

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Would a right to be forgotten survive First Amendment scrutiny? [discuss in the comments!]

I’ve had some interesting discussions with readers following my post on the EU right to be forgotten’s growing pains.  Here’s a question that’s emerged:

would a right to be forgotten survive First Amendment scrutiny if it were passed under U.S. law?

To be sure, the current EU implementation of the right to be forgotten would almost certainly be vague and overbroad.  But I’m curious whether readers think there is Great_Seal_of_the_United_States_(obverse).svgsome formulation of a right to be forgotten that would survive First Amendment scrutiny and still be broad enough to achieve the basic purpose of the law, which is to give individuals license to force the removal of online content that’s deemed to be outdated or irrelevant.

There is at least one precedent for this kind of speech regulation in the States: California’s “eraser” law, which requires service providers to give minors the right to delete content they themselves posted.  The right to delete your own content is a pretty narrow application of the right to be forgotten.  Would even that narrow application fail First Amendment analysis?  (Putting aside dormant commerce clause and other constitutional concerns).

I have some thoughts on all this myself, but since the readership and authorship of this blog includes distinguished First Amendment scholars, I’ll leave mine for the comments.

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Article Stub: Finding Offerors under 2-207

Boxing-Winner

[I'm planning to write a series of posts I'll call article stubs - the germs of papers I'll likely never write. Dan Markel might - or more likely might not - approve. I used to talk about these pre-draft ideas with him, and he mercifully steered me off most of them before they saw the light of day. In his honor, here's a bad idea. Feel free to tell me so.]


 

UCC 2-207, the battle-of-the-forms provision, is famously a mess.  White and Summers describe it as “an amphibious tank that was originally designed to fight in swamps, but was sent to fight in the desert.” That’d be even more accurate if you replaced “tank” with “Ford Pinto.”  Complexities about.  (Check out this fabulous flowchart produced by one of my students, which provides one path through the maze.) But even if you work  your way through the various intricacies of the provision, resolving debates about the meaning of “expressly made conditional,” and the “knock-out rule,” a deep policy problem lurks: who, exactly, is the offeror?

The question is important because, although the provision was designed to account for a flurry of forms, it clearly privileges those forms which come first-in-time, typically finding the first mover to be an offeror. Unfortunately for the second mover (which can be a nano-second slower online) the merchant offeree’s additional terms are incorporated into the contract only if they are immaterial. Most terms that you’d care to litigate about are material. Summers and White point out that avoiding first form favoritism is an important policy goal, but proceed by privileging that first form as the offer anyway.  (See the 4th edition of their Hornbook, p. 32, n.3)  We can see the importance of the choice clearly by pairing Hill (offeror is the firm) with Klocek (offeror is the consumer). But the cases stand uneasily against each other, because the key analytic move (who goes first and why) is buried — to be fair, less so in Klocek than in Hill. (I’m sweeping broadly here, and avoiding knock-out complications.)

At some level, this confusion is unavoidable – 2-207 is a badly drafted mess.  But in particular here, the problem is that although important consequences flow from making one or the other party the offeror, the Code provides no guidance in making that choice – it doesn’t even use the word offeror in the section.  Doctrine would be marginally  more clear if we made the decision as to who is the offeror explicitly a policy choice. Courts might, for example, make sellers offerors because they bear default liability burdens (warranty, nondelivery) under the UCC. Or courts could empower buyers because they typically initiate transactions, thereby spurring commerce.  Or make the choice depend on some kind of rough information-forcing default allocation.  The key realization is that 2-207 buries the lede, and that courts which simply follow the provision leave us in the dark.

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What’s ailing the right to be forgotten (and some thoughts on how to fix it)

The European Court of Justice’s recent “right to be forgotten” ruling is going through growing pains.  “A politician, a pedophile and a would-be killer are among the people who have already asked Google to remove links to information about their pasts.”  Add to that list former Merill Lynch Executive Stan O’Neal, who requested that Google hide links to an unflattering BBC News articles about him.

Screen Shot 2014-07-09 at 9.21.19 AMAll told, Google “has removed tens of thousands of links—possibly more than 100,000—from its European search results,” encompassing removal requests from 91,000 individuals (apparently about 50% of all requests are granted).  The company has been pulled into discussions with EU regulators about its implementation of the rules, with one regulator opining that the current system “undermines the right to be forgotten.”

The list of questions EU officials recently sent Google suggests they are more or less in the dark about the way providers are applying the ECJ’s ruling.  Meanwhile, European companies like forget.me (pictured) are looking to reap a profit from the uncertainty surrounding the application of these new rules.  The quote at the end of the Times article sums up the current state of affairs:

“No one really knows what the criteria is,” he said, in reference to Google’s response to people’s online requests. “So far, we’re getting a lot of noes. It’s a complete no man’s land.”

What (if anything) went wrong? As I’ll argue* below, a major flaw in the current implementation is that it puts the initial adjudication of right to be forgotten decisions in the hands of search engine providers, rather than representatives of the public interest.  This process leads to a lack of transparency and potential conflicts of interest in implementing what may otherwise be sound policy.

The EU could address these problems by reforming the current procedures to limit search engine providers’ discretion in day-to-day right to be forgotten determinations.  Inspiration for such an alternative can be found in other areas of law regulating the conduct of third party service providers, including the procedures for takedown of copyright-infringing content under the DMCA and those governing law enforcement requests for online emails.

I’ll get into more detail about the current implementation of the right to be forgotten and some possible alternatives after the jump.

Read More

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UCLA Law Review Vol. 61 Symposium: Vol. 61, Issue 6

Volume 61, Issue 6 (July 2014)
Articles

Public Utility and the Low-Carbon Future William Boyd 1614
An Open Access Distribution Tariff: Removing Barriers to Innovation on the Smart Grid Joel B. Eisen 1712
Valuing National Security: Climate Change, the Military, and Society Sarah E. Light 1772
Lessons From the Past for Assessing Energy Technologies for the Future Albert C. Lin 1814
Complexity and Anticipatory Socio-Behavioral Assessment of Government Attempts to Induce Clean Technologies Gary E. Marchant 1858
Feasibility of Flexible Technology Standards for Existing Coal-Fired Power Plants and Their Implications for New Technology Development Dalia Patino-Echeverri 1896
Socio-Political Evaluation of Energy Deployment (SPEED): A Framework Applied to Smart Grid Jennie C. Stephens, Tarla Rai Peterson & Elizabeth J. Wilson 1930
Energy and Climate Change: A Climate Prediction Market Michael P. Vandenbergh, Kaitlin Toner Raimi & Jonathan M. Gilligan 1962
Regulating Domestic Carbon Outsourcing: The Case of China and Climate Change Alex L. Wang 2018

 

Comments

Smart Meters, Smarter Regulation: Balancing Privacy and Innovation in the Electric Grid Samuel J. Harvey 2068