George Mason Law School gets $30 million gift, names itself after the late Justice Antonin Scalia

Here is the press release, and an article from the Wall Street Journal.

My understanding is that this is not an endowment, which would limit the law school to spending a small percentage of the gift each year indefinitely, but funds that will be disbursed over a period of years, substantially increasing the law school’s budget for that period of time. Much of the money will be used for scholarships.

Congratulations are due to Dean Henry Butler for finalizing the largest gift in George Mason University’s history, and great thanks are due to a generous anonymous donor, who gifted $20 million, to the Charles Koch Foundation, which donated $10 million, and to the Scalia family for allowing us to honor the late Justice in this way.

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Originalism and the “one person, one vote” principle

One Person One Vote

Prominent legal scholar Earl Maltz has an important new article arguing that Reynolds v. Sims (1965) and other Supreme Court decisions requiring state governments to follow the “one person, one vote” rule for apportioning legislative districts cannot be squared with the original meaning of the Constitution. Maltz also contends that this conclusion greatly weakens the case for originalism, perhaps to the point of undermining it completely. He emphasizes that an originalist judge faced with unequally apportioned state legislatures where some voters have much greater representation than others, will be “powerless to act against regimes that are structured in a manner that is completely inconsistent with the most fundamental tenets of democracy.” These issues are particularly significant, as the Supreme Court is now considering a case about the meaning of the “one person, one vote” principle, and what it entails.

Maltz makes a strong case that the one person, one vote cases are incompatible with the original meaning. But his argument that this is a major strike against originalism is unpersuasive. Like Maltz, I agree that originalism should be judged at least in large part on consequentialist grounds: based on whether following its dictates will effectively promote such values as liberty, justice, and happiness. By its fruits shall originalism be known; and the same goes for rival theories, such as living constitutionalism. But this particular fruit is far more palatable than Maltz suggests. While no constitutional theory should be discarded because it leads to bad results on any one issue, it would indeed give me pause if – as some critics claim – originalism requires judges to uphold laws mandating racial segregation or forbidding interracial marriage. I have no such hesitation about allowing unequal apportionment.

Consider that not only originalists, but most living constitutionalists accept the highly unequal apportionment of the US Senate. California and Rhode Island have the exact same number of senators, even though the former has almost forty times the population of the latter. Yet few argue that this state of affairs “is completely inconsistent with the most fundamental tenets of democracy” and even fewer say we must reject any constitutional theory that allows the malapportionment of the Senate to continue. If highly unequal apportionment is defensible (or at least tolerable) at the federal level, why not among the states? A malapportioned state legislature is actually less dangerous than Congress. Its laws affect fewer people, and those who suffer from them have better exit options; moving to another state is generally easier than leaving the country entirely. Moreover, most state constitutions are easier to amend than the federal Constitution is. States such as Arizona and Nebraska have addressed the problem of gerrymandering by delegating the task of drawing district lines to independent commissions. Perhaps the same approach would work with apportionment. State malapportionment is easier to fix through the political process than that at the federal level. Indeed, Article V of the the Constitution forbids depriving any s state “of its equal Suffrage in the Senate” even by constitutional amendment, except in the unlikely event that the state gives its consent.

It is also worth noting that there are multiple plausible (and very different) interpretations of the “one person, one vote” principle. Should seats be apportioned based on total population, total number of citizens, total number of eligible voters, or the total number of legal residents? It would be unwise to have the Supreme Court impose any one of them on every part of the nation, thereby cutting off potentially useful experimentation – at least not unless it really was clear that one of them is required by the Constitution, or at least by any reasonable interpretation of democratic theory.

Finally, states might have good reasons to give extra weight to some districts, relative to others. Before Reynolds, the most common form of unequal apportionment was one in which rural districts got greater weight relative to urban ones. But urban areas have relatively greater concentrations of celebrities, intellectuals, academics, journalists, lobbyists, unionized public employees, and others who wield disproportionate political influence by means other than voting. Giving extra voting power to rural areas may, at least in part, simply counterbalance these advantages of city-dwellers. Other types of unequal apportionment might also help offset non-electoral forms of political inequality. Inequalities in apportionment might also, in some cases, help diminish the negative effects of widespread political ignorance by giving greater weight to areas with higher proportions of relatively well-informed voters. Because of concerns about ignorance and poor judgment, we already exclude large numbers of people from the franchise entirely (children, many of the mentally ill, convicted felons, and immigrants who can’t pass a civic knowledge test). It should not be entirely out of bounds to pursue the same objective through the less drastic remedy of unequal apportionment, which at least does not completely exclude anyone from the franchise.

None of this suggests that unequal apportionment is always a good thing, or even most of the time. Perhaps, on balance, it still does more harm than good. But unequal apportionment not the kind of great evil whose perpetuation should serve to discredit originalism or any other constitutional theory that allows it to continue. In some cases, it might even be a feature of the Constitution rather than a bug.

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Justice Department reinstates federal program that helps state cops act like robbers

Asset forfeiture

Back in December, the Justice Department suspended its dangerous “equitable sharing” program, which helps state law enforcement agencies get around state law restrictions on asset forfeiture: the seizure of property from people who, in many cases, have never been convicted of any crime, or even charged with one. Sadly, the program is now back in force:

The Justice Department has announced that it is resuming a controversial practice that allows local police departments to funnel a large portion of assets seized from citizens into their own coffers under federal law.

The “Equitable Sharing Program” gives police the option of prosecuting some asset forfeiture cases under federal instead of state law, particularly in instances where local law enforcement officers have a relationship with federal authorities as part of a joint task force. Federal forfeiture policies are more permissive than many state policies, allowing police to keep up to 80 percent of assets they seize.

Letting law enforcement agencies keep the assets they seize creates dangerous perverse incentives, and often leads to the victimization of innocent people – so much so that the practice has attracted opposition from across the political spectrum. In some states, owners must wait many months or even years before they can even begin to challenge the seizure of their property, a particularly severe burden for relatively poor people, who are the most common victims of such practices. Even those owners who have committed a crime don’t thereby deserve to have their property seized as a result, in addition to the usual punishment imposed on violators. There is no reason why an owner who happened to use, say, his car to commit Crime X should suffer the additional penalty of losing the car, while a criminal who committed the exact same offense without using a car will only suffer the usual fine or jail term associated with the offense.

Sadly, asset forfeiture has become so widespread that law enforcement agencies now use it to take more property than all the burglars in the entire United States. Something is obviously rotten in the legal system when cops steal more property than actual robbers.

In recent years, several states have adopted strong reform laws curbing asset forfeiture abuse. But such state reforms will not be fully effective so long as law enforcement agencies can use federal equitable sharing to get around them. As one of his final official acts before stepping down, Attorney General Eric Holder imposed some constraints on equitable sharing last year. But his reforms fell far short of terminating the program entirely. It is long past time that we get the federal government completely out of the business of helping state cops function as robbers.

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A most interesting Supreme Court lineup

This morning, the Supreme Court handed down its decision in Luis v. United States. The court split 5-3, concluding that the pretrial restraint of a criminal defendant’s legitimate, untainted assets (i.e. those assets not traceable to a criminal offense), when those assets are needed to retain counsel of choice, violates the Sixth Amendment right to counsel. In reaching this conclusion, the justices divided along highly untraditional lines and failed to produce a majority opinion.

Justice Stephen Breyer issued the opinion for the court, joined by Chief Justice John Roberts, Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor. Justice Clarence Thomas wrote separately, concurring in the judgment. Justice Anthony Kennedy dissented, joined by Justice Samuel Alito. Justice Elena Kagan also dissented separately.

Not only did the court not split along traditional liberal-conservative lines in deciding Luis, it also did not split along the formalist-pragmatist lines that sometimes divide the court in cases concerning the rights of criminal defendants. Insofar as we see a formalist-pragmatist split, it appears to be between Breyer’s plurality opinion, which adopts a balancing approach, and Thomas’s opinion concurring-in-the-judgment, which embraces a more formalistic analysis and bright-line rule based upon the constitutional text and common law understanding.

Kennedy’s dissent argues that the majority opinion conflicts with prior court precedent and could create perverse incentives for criminal defendants. Kagan’s separate dissent likewise notes the conflict between today’s decision and prior precedents, but limits her dissent to that. Whereas Kennedy seems to embrace the wisdom of prior cases, Kagan finds them “troubling” but argues that they should control the outcome since the petitioner here did not ask the court to reconsider those holdings.

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Donald Trump won’t make federalism great again

Last night, at the CNN Republican candidate town hall in Wisconsin, Anderson Cooper pressed leading GOP contender Donald Trump about the proper role of the federal government. The following exchange was revealing in so many ways.

From the CNN transcript:

QUESTION:  Good evening, Mr. Trump.  In your opinion, what are the top three functions of the United States government?

TRUMP:  Say it again?

QUESTION:  In your opinion, what are the top three functions of the United States government?

TRUMP:  Well, the greatest function of all by far is security for our nation.  I would also say health care, I would also say education.  I mean, there are many, many things, but I would say the top three are security, security, security.

We have to have security for our country so that we can continue to exist as a country.  We are in danger.  Thousands and thousands of people are infiltrating our country.  We don’t know who they are.

There’s a very vicious world.  We’re living in a very vicious world and we’re doing something that is against a lot of very smart people’s wishes.  I can tell you, it’s totally against my wishes.

COOPER:  So top three, you’re saying, security.

TRUMP:  Security.  I say all top three are security, but health care, education, would be probably three that would be top.  And then you can go on from there.

But the military and the secure country, so that we have a country.  Believe me, we’ve never been in a position, in my opinion, where our country is so vulnerable.  Our military is being eaten away.

When General Odierno left recently, a year ago, I was watching him on maybe your show, one of the shows, and he said that the United States Army, the United States military forces have never been so – and I think he used the word depleted.  But basically he said they’re exhausted.

COOPER:  So just to follow-up, though…

TRUMP:  And that’s a pretty – that’s a pretty sad commentary.  And honestly, even though he was retiring at the time – and I had a lot of respect for him, good man, but even though he was leaving at the time, people shouldn’t say that because you’re giving the enemy ideas.

But if I get in, our military will be bigger, better, stronger than ever before.  It’s the cheapest thing we can do.

COOPER:  So in terms of federal government role, you’re saying security, but you also say health care and education should be provided by the federal government?

TRUMP:  Well, those are two of the things.  Yes, sure.  I mean, there are obviously many things, housing, providing great neighborhoods…


COOPER:  Aren’t you against the federal government’s involvement in education?  don’t you want it to devolve to states?

TRUMP:  I want it to go to state, yes.  Absolutely.  I want – right now…

COOPER:  So that’s not part of what the federal government’s…


TRUMP:  The federal government, but the concept of the country is the concept that we have to have education within the country, and we have to get rid of common core and it should be brought to the state level.

COOPER:  And federal health care run by the federal government?

TRUMP:  Health care – we need health care for our people.  We need a good – Obamacare is a disaster.  It’s proven to be…

COOPER:  But is that something the federal government should be doing?

TRUMP:  The government can lead it, but it should be privately done.  It should be privately done.  So that health care – in my opinion, we should probably have – we have to have private health care.  We don’t have competition in health care.

The problem that we have in our country is we don’t have competition.  It’s made because the politicians – by the way, I’m self-funding.  I am self-funding.  So the health care companies aren’t taking care of me.  But they’re taking care of everyone else.

For what it’s worth, Trump’s claim that he’s self-funding his campaign is also not true. Indeed, as many folks noted last night during the event, the front page of Trump’s campaign website solicits donations (something else he sought to deny during the town hall).

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Firearms law seminar

Is your idea of a good time an all-day continuing legal education program on firearms law and the Second Amendment? If not, then avert your eyes from the rest of this post.

But if a full day of CLE sounds fun, then consider attending the 19th Annual National Firearms Law Seminar; it will be held in Louisville on May 20, in conjunction with the National Rifle Association’s annual members meeting. You can register here.

To laypersons, firearms law is best-known via high-profile cases on Second Amendment rights. But in the practice of firearms law, by far the largest number of hours are spent on less-newsworthy issues — such as regulatory compliance for small businesses or the transfer of firearms collections via bequests. So, as always, this year’s seminar embraces the diversity of firearms law practice:

Stephen Halbrook will report on major Second Amendment cases around the nation. As a litigator, Halbrook has a 5 to 0 record in the Supreme Court; as a scholar, Halbrook has written extensively on the original meaning of the Second and 14th amendments, and his research has been cited by the Supreme Court and many others.

Along with Joseph G.S. Greenlee, I will be presenting a draft law review article, “The Federal Circuits’ Second Amendment Doctrines.” The article provides a detailed synthesis of the structure of Second Amendment analysis in the U.S. Circuit Courts of Appeal. Based on the nearly 150 Second Amendment cases that the federal circuit courts have decided post-Heller, it is now possible to describe a standard model used by most courts in analyzing Second Amendment issues.

Chris Zealand, an attorney with NRA’s Institute for Legislative Action, will discuss “Gun Control through Executive Action.” The Veterans Administration (past and present) and the Social Security Administration (prospectively) are theaters of operations for large expansions of firearms prohibitions without congressional consent. The presentation will examine the legality of various executive actions regarding gun control, as well as potential responses by Congress.

Teresa Ficaretta served for 28 years with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the last two of those as deputy assistant director of enforcement programs and services. Now in private practice with Reeves & Dola, Ficaretta will explain how lawyers can counsel clients to prepare for ATF compliance inspections. (The ATF is allowed to conduct annual warrantless inspections of federal firearms licensees; inspections are allowed at other times when pursuant to a warrant or as part of a bona fide criminal investigation.) She will also discuss the informal guidance that ATF issued in January, regarding the statutory definition of “engaging in the business” as it applies to dealers in firearms.

Sarah Gervase, of the NRA general counsel’s office, will elucidate ATF’s new 41F regulations regarding gun trusts. She will also cover how attorneys can help clients plan gifts of firearms and how to handle such gifts in probate and trust administration.

Brent Weil, an insurance defense attorney in Indiana, will analyze the potential tort claims that could be be brought against firearms instructors and how to minimize risks.

Florida attorney Ernest J. Meyers will deliver the legal ethics presentation, on issues that should be considered when representing firearms owners and federal firearms licensees.

Derek DeBrosse serves as general counsel of Ohioans for Concealed Carry, and he will address restoration of rights. Citizens are often denied the rights to keep or bear arms because of problems such as overdue child support or a long-ago conviction for disorderly conduct. The presentation will discuss practical solutions for lawyers to help restore their clients’ rights.

(Incidentally, the Independence Institute recently joined an amicus brief in a cert. petition for a case about the interplay between federal and state law for restoration of rights. Billy York Walker v. United States, no. 15-1027. I’ll write more about that brief in a future post.)

Finally, Pennsylvania’s Jonathan Goldstein will discuss “Preemption: The Next Frontier in Firearms Regulation & Litigation.” Almost every state has a statute preempting some or all local gun control laws. Today, these laws are under a coordinated assault. Goldstein will discuss how attorneys can fight back to ensure that firearms laws remain uniform within a state.

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My talks this week in New Orleans

Tomorrow morning I fly to New Orleans to give five talks on Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, which will be published by HarperCollins on April 19th (but available now at the supremely affordable price of $18.10 for hard cover).  Unfortunately, I won’t have copies of the book to sell and sign, as the book is not yet out (though I received an advance copy yesterday and it looks terrific). But, if you have a chance to make one of these talks, come say Hi and identify yourself as a Volokh reader:

Wednesday, March 30:

2:30 – 3:30, Tulane University (Law School room: 214)
5:00 – 6:30, Loyola University (Business School room: 114)

Thursday, March 31

2:00 – 3:15, Dillard University (room: PBS 151)
5:00 – 6:15, University of New Orleans (room: LA 236)

Friday, April 1

11:30 – 1:00, NOLA Chapter of the Federalist Society (Palace Cafe, 605 Canal St.) Registration info at the  link.

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