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   PoliticsThe Judiciary

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From: TimF3/29/2018 6:06:51 PM
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Update: habeas corpus claim for elephants “wholly frivolous on its face”

Updating a November post: a judge has rejected a habeas corpus petition filed by Steven Wise’s Nonhuman Rights Project against a small Connecticut zoon on behalf of three elephants. Ted Folkman, Letters Blogatory:
The judge held that under Connecticut law, at least, it’s necessary for the next friend to have at least some relationship with the real party in interest. Here there was no relationship between the NhRP and the elephants. Indeed, as the judge observed, the people with the real relationship with the elephants were the zookeepers—the people who were being sued! …I don’t think standing is the key issue here. But the judge’s discussion does raise the question of why one would think that Steven Wise has any more right to represent the interests of these elephants than do the people who know the elephants best. This illustrates one of the real problems with Wise’s crusade: it’s an attempt to use the courts for essentially legislative purposes, and the “client” is a mere fiction or pawn. …

Why does the the NhRP focus on trying to get a court to declare that highly intelligent animals are persons with rights, instead of trying to pass improved animal cruelty laws or even trying to pass more radical statutes, e.g., a law making it illegal to own or keep elephants, say? A cynical view is that if you pass general criminal laws, then when someone violates the law, the government takes the initiative to prosecute the offenders. But if the way we protect animals going forward is through litigation with the animals as plaintiffs, then there will be a regular role for the NhRP in conducting litigation and in shaping the outcomes of particular cases. … [They] will always need the ‘help’ of the lawyers.

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From: TimF3/30/2018 3:38:37 PM
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Court Rules That Seattle Law Banning Landlords From Screening 'Qualified' Tenants Is a Taking
The state court ruling also concluded the taking violates the state constitution because it is for a forbidden "private use," rather than a public one.

Ilya Somin
Mar. 29, 2018

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From: TimF5/29/2018 5:29:38 PM
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Wisconsin Appeals Court Blows Open Big Holes in Section 230–Daniel v. Armslist

April 25, 2018 · by Eric Goldman · in Content Regulation, Derivative Liability, E-Commerce

Congress eviscerated Section 230 via the Worst of Both World FOSTA, but defendants have been doing well with Section 230 defenses over the past year-plus. Then, last week, a Wisconsin appeals court issued a published opinion that massively screws up Section 230 jurisprudence. I don’t know if the timing is a coincidence or a signal of broader common law retrenchment of Section 230 post-FOSTA. Either way, it’s very troubling.

The case relates to a shooting in the Milwaukee area that killed four people and wounded four others. The shooter found the seller of the gun and ammo on Armslist, an online marketplace for such things, even though the shooter was subject to a court order banning him from owning a gun. (The maxim “if guns are outlawed, only outlaws will have guns” seems vaguely apropos here). The shooter and seller consummated the transaction offline, so Armslist functioned as an online classified advertising service. (Thus, this case doesn’t turn on Armslist functioning like a marketplace; contrast the Airbnb v. SF ruling).

A shooting victim’s estate sued Armslist for negligence for its role in the transaction. The lower court dismissed the case on Section 230 grounds. The appeals court reversed.

The appeals court made “a plain language interpretation” of Section 230. This means the appellate court gave itself permission to deliberately ignore two decades of precedent in favor of an idiosyncratic and anachronistic reading of the statute. The court justifies its “plain language” approach “because this case presents an issue of first impression in Wisconsin and there is no guidance from the United States Supreme Court.” This is a great example of how textualist judges can justify judicial activism.

Some of the complaint’s key allegations:
  • Armslist made it easy to search for private sellers, who–unlike licensed dealers–do not have to conduct background checks on buyers. Thus, Armslist “is designed to enable buyers to evade state waiting period and other legal requirements”
  • Armslist allowed users to flag problematic content but “expressly prevented users from flagging content as purportedly criminal or illegal”
  • Armslist warned users not to engage in illegal activity but didn’t provide “guidance on specific laws governing firearm sales or the care that should be used in conducting such sales” [LAW GOVERNING LAWYERS ALERT: it would potentially constitute the criminal unauthorized practice of law for Armslist to provide “guidance” to its users about specific laws]
  • Armslist didn’t require account registration and thus encouraged anonymity
  • there is evidence that many buyers wanted to buy from private sellers, especially in states that require licensed dealers to conduct background checks of buyers. A survey indicated that “67 percent of private online sellers in Wisconsin are willing to sell to a person they believe could not pass a background check.”
The court summarizes (emphasis added): “Daniel’s theory of liability is that, through its design and operation of website features, Armslist’s actions were a cause of the injuries to Daniel.”

As you know, courts have repeatedly and emphatically shut down plaintiffs’ efforts to work around Section 230 by saying they are suing for the defendant-website’s “design and operation.” Leading recent examples include the First Circuit’s Doe v. Backpage and the Dyroff v. Ultimate Software rulings. Thus, the plaintiff’s allegations appear to support a quick and easy Section 230 defense win (as the lower court granted). What went wrong on appeal?

The appellate court says that Section 230(e)(3) preempts state law, and Wisconsin has a presumption against such preemption. Thus, the court says it must apply “an exacting standard” to the preemption scope. With respect to 230(c)(1)’s reference to publisher/speaker, the court says:
in order to prevail, Armslist must show that the claims here treat Armslist as liable because it is an entity that published or spoke information provided by Linn or Radcliffe, and Armslist must overcome the presumption against preemption
The court says Armslist failed to do this:
Armslist contends that the Act protects the activity of designing and operating a website, but without tying this interpretation to language in the Act. Stated differently, Armslist effectively ignores the Act’s phrase “publisher or speaker of any information provided by another.”…

The Act does not, for example, provide lists of website features that do or do not represent traditional editorial functions, nor does it use the terms “neutral” or “passive” or any similar terms. This leaves courts without principled and consistent ways to define “traditional editorial functions,” “neutral means,” or “passive display.” We cannot lightly presume that Congress would intend that the highly consequential immunity determination could turn on how courts might chose to characterize website features as being more or less like traditional editorial functions, or more or less neutral or passive, especially without reasonably specific statutory direction or guidelines.
Despite its plain meaning approach, the court does try to engage with some precedents:
  • The court cherrypicks stray language from cases like Barnes v. Yahoo (but not the part where the Ninth Circuit concluded that Section 230 preempts claims for negligent content removal), Doe v. Internet Brands (the Section-230-isn’t-a-get-out-of-jail-free language–as I’ve said before, some puppy has a bad day every time a judge cites this expression), and (the lawless-no-man’s-land language, which also saddens puppies).
  • The court cites several cases for the proposition that Section 230 applies when the defendant is treated like the publisher/speaker, even though that proposition isn’t in doubt, and the court doesn’t actually discuss any cases that defined or examined the meaning of the words “publisher” or “speaker.”
  • The court distinguishes Doe v. Backpage and Herrick v. Grinder (the Jan. 2018 ruling that I haven’t blogged yet) because they “are effectively reading into the Act language that is not present, to the effect that the Act provides general immunity for all activities that consist of designing or operating a website that includes content from others.”
  • The court distinguishes Zeran v. AOL, Klayman v. Zuckerberg, and the defense-favorable parts of because the court cannot “tie these case-law applications to the Act’s specific language and, for that reason, do[es] not find the cases Armslist relies on helpful.”
Here’s my non-exhaustive list of what went wrong:
  • the court aggressively applied the doctrine that federal preemption should be narrowly construed
  • despite the purported “plain language” analysis, the court bypasses Congress’ findings recited in Section 230(a) and (b), which (if considered) would have counseled a broader reading of the statute
  • the court preferences independent statutory analysis over 20 years of persuasive caselaw precedent. The court also didn’t consult Congress’ post-Section 230 amendments, which would have confirmed that Congress did intend to read the law broadly.
  • the court had strong–and narrow–views about how a plaintiff’s claim would treat an online service as publishing or speaking third party content
  • the court may have strong normative views about gun control or victim compensation
  • perhaps Armslist could have done a better job relying on more than precedent. Still, I get the feeling this court was going to reach this result regardless of the strength of Armslist’s advocacy.
Unfortunately, the opinion does not detail the exact circumstances when its statutory reading would support a Section 230 defense. It only says: “We note that our interpretation of the Act does not deprive it of value to defendants in tort cases, but instead provides concrete, if narrow, immunity. For example, websites cannot be held liable under the Act merely because they allow the posting of third-party defamatory comments, because that would treat the websites as the publishers or speakers of the comments.” As a result, I think this opinion could embolden plaintiffs on two fronts:

1) Plaintiffs could argue that Section 230 only applies when the word “publisher” or “speaker” appears in the claim’s elements. If true, this would functionally narrow Section 230 into a defamation-only defense–a truly shocking result given what’s happened in the 20 years in the courts and Congress.

2) Plaintiffs can always say they are suing for the website’s design and operation, not third party content. We’ve seen that sophistry many times over the years, and courts have rightly shut it down. But this case apparently categorically puts those claims outside of Section 230.

Because of these new opportunities for plaintiff mischief, this opinion horks Section 230 jurisprudence. Indeed, I think it’s the most pernicious Section 230 ruling since Hassell v. Bird (also from a state appeals court gone rogue–what’s up with that?). Thus, this case is an excellent candidate for appeal to the Wisconsin Supreme Court. If there is an appeal, it would be an all-hands-on-deck situation for amicus intervention.

This case has several parallels to the “material support for terrorism” cases against social media sites, such as Fields v. Twitter. In both types of cases, the website-defendant allegedly published content that the plaintiff alleges constitutes a but-for cause of offline murder. The social media defendants have won all of their cases based on a combination of Section 230, failure of the prima facie elements, and lack of causation. So even if this court jeopardizes Section 230’s applicability, those cases could still end on other grounds.

Even without Section 230, Armslist has a high chance of defeating the negligence claim. First, there are serious causation problems with the plaintiff’s arguments, as is the case with the “material support for terrorism” cases. Second, in 2014, the Seventh Circuit issued a strong victory to Armslist in a fairly analogous negligence lawsuit, holding that Armslist had no duty to the decedent because it lacked the required “special” relationship (indeed, it had no relationship with the decedent at all). If that reasoning applies here, Armslist should eventually win this case one way or another. I could see this opinion leading to the same outcome as the Doe v. Internet Brands case–where the Ninth Circuit said that Section 230 didn’t apply to failure to warn claims, but later cases held that websites don’t have a duty to warn, so bypassing Section 230 didn’t lead to any greater success for plaintiffs. However, the Internet Brands case only helped failure-to-warn claims get past Section 230, while this Armslist ruling applies all types of Section 230 cases and therefore causes substantially more problems.

* * *

The author of this stinker is Judge Brian Blanchard, who worked as a newspaper reporter before law school. Perhaps this opinion reflects a former journalist’s idiosyncratic views of what “publication” means? Recall that Ken Zeran had taken journalism classes in college, so maybe there’s something about how people trained as journalists see Section 230. Then again, Judge Wilkinson, the author of Zeran v. AOL, was a former journalist too and had no problem reading Section 230 very broadly, so the journalism background doesn’t dictate this result.

Case citation: Daniel v. Armslist, LLC, 2018 WL 1889123 (Wis. App. Ct. April 19, 2018)

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From: TimF7/17/2018 5:44:59 PM
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An Otter Travesty by the Administrative State
By Ilya Shapiro

In the 1980s, there was concern regarding the endangered sea otter population in California, so Congress passed a law by which a group of otters would be relocated to an island off the coast where they might flourish. Congress was concerned, however, that the relocated otters might cause problems for the fishermen who made their living in those same waters, and so the legislation mandated that the agency in charge set up a management zone which would prevent the otters from damaging the fisheries. It also gave legal protection to well-meaning fishermen who accidentally caused the death of a sea otter—an accident which would otherwise have grave consequences under the Endangered Species Act.

The otters flourished, the fisheries were protected, and everything worked well enough for the next few decades—until some environmental groups convinced the federal government to remove the fisheries’ protections. Congress had balanced the interests at stake when crafting the legislation, but now the feds considered that balance inconvenient. The agency rescinded the fisheries’ regulation, yet left the otters in their new home. A number of groups that depend on the fisheries were nonplussed by this change, and filed a lawsuit.

Under existing Supreme Court precedent, when agencies interpret the statutes for which they are responsible, courts grant them what is known as Chevron deference. This framework has two steps: first, the court asks whether the language of the statute is ambiguous; if it is, the court then asks whether the agency’s interpretation is anything but “arbitrary and capricious.” In other words, the agency doesn’t have to be right, but it can’t be crazy. But this framework is predicated on a text that the court can examine to judge the clarity or lack thereof. Here the statute says nothing about the circumstances whereby the fisheries protection can be rescinded; it says only that the agency must issue it.

The U.S. Court of Appeals for the Ninth Circuit didn’t care about the legal niceties. It declared that Chevron applies not only to unclear congressional commands, but to congressional silence. If the statute doesn’t say the agency can’t do something, they court will defer to the agency’ judgement as long as it is a “reasonable policy choice.” The plaintiffs have now filed a petition asking the Supreme Court to take up their case and reject the extension of Chevron from mere ambiguity to silence.

The Cato Institute, joined by the Goldwater Institute and Cause of Action Institute, filed a brief in support of the petition. We argue that Congress alone has authority to authorize federal action. If there is no express grant of authority, then the agency is by definition not empowered to act. Allowing agencies to make up their own rules anytime Congress has neglected to preempt them would run afoul of the principles of “nondelegation,” a constitutional doctrine that holds that it is Congress that legislates, not the executive branch.

We urge the Court to take up California Sea Urchin Commission v. Combs and put a stop to this perfunctory rubber-stamping of the unaccountable administrative state.

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From: TimF7/17/2018 6:57:03 PM
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Supreme Court Should End Class Actions that Don’t Help the Class
By Ilya Shapiro

When a user clicks on a Google search result, the web browser transmits a “referral header” to the destination website, unless a user has disabled them. The referral header contains the URL of the search results page, which includes the user’s search terms. Websites use this information for editorial and marketing purposes.

In 2010, Paloma Gaos filed a class action in the Northern District of California, seeking damages for the disclosure of her search terms to third-party websites through referral headers, claiming fraud, invasion of privacy, and breach of contract, among others. She eventually settled with Google on behalf of an estimated class of 129 million people in return for an $8.5 million settlement fund and an agreement from Google to revise its FAQ webpage to explain referral headers. Attorneys’ fees of $2.125 million were awarded out of the settlement fund, amounting to 25 percent of the fund and more than double the amount estimated based on class counsel’s actual hours worked.

But no class members other than the named plaintiffs received any money! Instead, the remainder of the settlement fund was awarded to six organizations that “promote public awareness and education, and/or…support research, development, and initiatives, related to protecting privacy on the Internet.” Three of the recipients were alma maters of class counsel.

This diversion of settlement money from the victims to causes chosen by the lawyers is referred to as cy pres. “Cy pres” means “as near as possible,” and courts have typically used the cy pres doctrine to reform the terms of a charitable trust when the stated objective of the trust is impractical or unworkable. The use of cy pres in class action settlements—particularly those that enable the defendant to control the funds—is an emerging trend that violates the due process and free speech rights of class members.

Accordingly, class members objected to the settlement, arguing that the district court abused its discretion in approving the agreement and failed to engage in the required rigorous analysis to determine whether the settlement was “fair, reasonable, and adequate.” The U.S. Court of Appeals for the Ninth Circuit affirmed the settlement, so two objecting class members, including Competitive Enterprise Institute lawyer Ted Frank, asked the Supreme Court to take the case (with a supporting brief from Cato)—which it has.

Cato has filed an amicus brief at this merits stage, arguing that the use of cy pres awards in this manner violates the Fifth Amendment’s Due Process Clause and the First Amendment’s Free Speech Clause. Specifically, each class member has a right to his claim, any compensation that arises from it, and representation that will defend the first two rights. The aggregate nature of class actions makes it easy to forget that their sole foundation is individual rights; class counsel and defendants end up ignoring that foundation and using the class as an aggregate tool for self-interest and collusion. When the settlement includes a cy pres award, it’s worse because class members’ property is involuntarily transferred to strangers. That those strangers are charitable organizations does not improve the situation, because it just gives class counsel and defendants’ collusion a philanthropic veneer. In the end, cy pres awards guarantee that every participant in the litigation derives some benefit except for the class members, the owners of the property being doled out. This perversion of the role of the judiciary is a gross violation of due process, and only a shift to an opt-out system and rigorous supervision by the courts can salvage individual rights.

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From: TimF7/18/2018 3:30:36 PM
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Mississippi Supreme Court Rejects Chevron Deference to State Administrative Agencies

This is the state-law version of the debate now happening at the federal level.
[UPDATE: A Wisconsin Supreme Court decision a couple of weeks ago took the same view.]
Eugene Volokh

Jul. 10, 2018

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From: TimF7/18/2018 3:39:21 PM
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New Calls for the Supreme Court to Reconsider Qualified Immunity
Some unusual amicus briefs filed in support of cert. in Allah v. Milling
Will Baude|Jul. 12, 2018

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From: TimF8/12/2018 11:11:41 PM
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West Virginia’s Supreme Court Is So Corrupt, EVERY JUSTICE Faces Impeachment
3:37 PM 08/12/2018
Kevin Daley | Supreme Court Reporter

Who presides over the impeachment trial of a state Supreme Court justice if the entire state Supreme Court is being impeached?

It’s an absurd constitutional hypothetical West Virginians are left to grapple with, after the West Virginia House of Delegates Judiciary Committee drafted articles of impeachment against four justices on the state’s highest court.

Five justices sit on the state Supreme Court in West Virginia. The state legislature has drafted articles of impeachment against Chief Justice Margaret Workman and Justices Robin Jean Davis, Beth Walker, and Allen Loughry. The court’s fifth justice, Menis Ketchum, retired in late July. Ketchum will plead guilty to two federal corruption charges on Aug. 29.

Loughry was placed on unpaid administrative leave in June after a state commission lodged a 32-count complaint against him, alleging pervasive violations of the state ethics code. He has since been indicted in federal court for fraud, witness tampering, and making false statements to investigators. (RELATED: First Justice Suspended From Scandal-Ridden State Supreme Court)

The remaining three justices — Workman, Davis, and Walker — face impeachment for wasting government resources and failing to effectively administer the state courts. All three spent large sums of taxpayer dollars on lavish improvements to their chambers in the state capital, which cumulatively totaled almost $750,000, and allegedly abused state travel resources. Workman and Davis also allegedly authorized compensation for other state judges in excess of the amounts allowed by West Virginia law.

“There appears to be, based on the evidence before us, an atmosphere that has engulfed the court of cavalier indifference to the expenditure of taxpayer funds, to the protection of taxpayer-paid assets, and an almost incomprehensible arrogance that for some reason they are not a coequal branch but a superior branch of government,” Delegate John Shott said during a judiciary committee hearing on Aug. 7.

West Virginia’s constitution provides that the chief justice shall preside over impeachment trials in the state Senate. As Chief Justice Workman herself, however, is subject to impeachment, she is ineligible to preside, as are the rest of her colleagues.

Workman appointed Cabell County Circuit Judge Paul Farrell to the high court on an interim basis late Friday. Farrell will serve in Loughry’s seat, pending the election of a successor in November. Farrell will also preside over impeachment proceedings in the legislature — though Walker disputes his power to do so.

In a short statement issued late Friday, Walker argued against Farrell’s installation as the presiding officer for impeachment.

“I believe it is improper to designate any justice as acting chief justice for impeachment proceedings in which I or my colleagues may have an interest and that have not yet commenced in the Senate,” she wrote.

Prior to this summer’s abrupt turn of events in West Virginia, Davis was cited in the press for possible ethics violations in unrelated matters. The Daily Caller News Foundation reported in March 2017 that a series of contributions made to her 2012 re-election campaign strongly resemble an illegal straw donation scheme, conducted at the behest of an attorney defending a $92 million civil judgment in the state Supreme Court. (RELATED: New Evidence Of Illegal Donations To West Virginia Judge Emerges)

That attorney, Michael Fuller of the McHugh Fuller Law Group, also purchased the Davis family private jet in December 2011.

Davis issued a ruling in 2014 preserving a large portion of Fuller’s $92 million award.

GOP Gov. Jim Justice will appoint new justices if any of the court’s current members are impeached.

Message 31741611

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From: TimF10/13/2018 3:02:07 PM
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Democrats still control eight of the circuit courts, Republicans four, one tied

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From: TimF2/10/2019 11:48:50 AM
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Neomi Rao for the D.C. Circuit
President Trump announces a superlative pick for to replace Brett Kavanaugh on the U.S. Court of Appeals for the D.C. Circuit
Jonathan H. Adler
Nov. 13, 2018

Neomi Rao Under Fire
Senate Democrats and progressive groups launch unfounded attacks against a judicial nominee.
Jonathan H. Adler
Feb. 5, 2019

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