Montana bill aims to prevent enforcement of some foreign judgments — but goes too far

The Montana legislature is considering SB97, which would prohibit “the application of foreign law when it violates a fundamental right guaranteed by the Montana or United States Constitution.” Sounds good, right — who wants applications of foreign law that violates fundamental rights?

Not so fast. It turns out that this bill, like others enacted in recent years (though too recently to generate a lot of appellate litigation), would have at least two serious problems:

  1. It would interfere with the enforcement of perfectly legitimate foreign orders, just because the foreign country uses trials before judges rather than jury trials.
  2. It would require Montana courts to ignore foreign divorces from certain countries, even when the divorces took place decades ago, before any of the affected parties came to Montana.

I doubt that this is what the author of the bill (state senator Keith Regier) intends, but it’s what the bill, as written, is likely to do.

First, the relevant text:

A court … decision violates the public policy of Montana and is void and unenforceable if … [based] on a law, legal code, or system that would not grant the parties affected by the ruling or decision the fundamental liberties, rights, and privileges granted under the Montana constitution or the United States constitution, including but not limited to due process, equal protection, freedom of religion, speech, or press, the right to keep and bear arms, and any right of privacy or marriage….

Without prejudice to any legal right, this act does not apply to a person, corporation, partnership, limited liability company, business association, or other legal entity that contracts to subject itself to foreign law in a jurisdiction other than this state or the United States.

Now, consider two scenarios:

1. Say Mike Montanan sues Carl Canadian for some tort. Maybe Mike and Carl had a business dispute, and Mike gets a $1 million verdict against Carl for fraud. Mike gets that verdict in Canadian court, because that’s where Carl lives, and where the dispute took place. So far, no problem; these sorts of transnational lawsuits are pretty common.

Now the Canadian court sits without a jury, because Canadian courts, like the courts of many countries, often do that. That’s not the way we generally do things, but Mike is suing a Canadian in Canada, so he gets a verdict under Canadian procedures. Again, so far no problem.

But now Carl moves to Montana, together with his assets. Mike thinks that’s fine — he can just collect the assets in Montana. Yet if SB97 is enacted, that couldn’t be done. After all, the right to civil trial by jury is a fundamental right under the Montana Constitution. The Canadian court decision in Mike Montanan’s favor thus “violates the public policy of Montana and is void and unenforceable,” because it’s based on a “law, legal code, or system that would not grant the parties affected by the ruling or decision the fundamental liberties, rights, and privileges granted under the Montana constitution” (the right to trial by civil jury). Mike has to go back into Montana court and sue Carl again.

2. Or say that Connie Canadian sues Mary Montanan in Canadian court; assume that the Canadian court has jurisdiction, because this stems from an incident that happened when Mary was doing business in Canada. But Mary wins, again in a trial before a judge, since a jury was unavailable in this proceeding in Canada. I’m done with all that trouble and expense, Mary thinks.

But Connie now sues Mary again in Montana. “Wait,” Connie says to the court, “I have a verdict in my favor from the Canadian court; throw Mary’s case out.” But remember that Canadian courts don’t allow parties a fundamental right provided by the Montana constitution — under SB97, then, the Canadian verdict would be void. Connie gets to relitigate the case against Mary in Montana, and Mary has to pay her lawyers again (and run the risk of losing again), even though before SB97 she’d have been done with the case once she won in Canada.

Now all this might be fine if the foreign system was corrupt, or allowed judgments that violate Americans’ free speech rights, or discriminated against litigants based on race or sex or religion. But this is Canada, a civilized country. Much as American law respects the right to trial by jury, does it really make sense to refuse to enforce Canadian judgments (or English or French or German judgments), just because we have a somewhat different system of civil procedure?

3. Let’s move from tort law to family law. Say that Wanda married Xavier in Elbonia, then divorced him in Elbonia. Then she married Harry in Elbonia, and 10 years later came to America.

Now she gets involved in a legal dispute that requires the American legal system to decide whether Wanda is indeed properly married to Harry. Maybe this is relevant to deciding whether Wanda can refuse to testify against Harry, or can file a joint tax return with Harry, or inherits property when Harry dies. To figure out whether the marriage is valid, Montana courts would likely need to figure out if Wanda’s earlier Elbonian divorce was valid (since, if it was invalid, Wanda’s marriage with Harry is bigamous). And that can only be determined using Elbonian law.

But what if the Elbonian legal system doesn’t take the same view of various rights, including equality rights, that the United States now takes? What if, for instance, Elbonian law provides husbands more rights than wives in initiating divorces?

Or what if Elbonia — like Israel, Lebanon, India, and other places — provides that family law matters are to be resolved under the religious laws of the religious group to which the parties belong, which necessarily involves a form of religious discrimination that would violate First Amendment principles if done in the United States? Or what if Elbonian rules of evidence give more weight to men’s testimony or to the testimony of people who belong to certain religions, and those rules had been applied in the divorce?

This might be bad, but it’s the reality under which Elbonian law operates. Wanda has lived her life in Elbonia based on that reality. She may have remarried based on the effect of the divorce, however unfairly her divorce proceedings may have been conducted. She may have gotten certain property in the divorce, perhaps less than she should have gotten, but something that she now views as hers. That was life on the ground in Elbonia for her.

But if SB97 is enacted, the Elbonian divorce must be ignored, because it was entered under a legal system that denied “the fundamental liberties, rights, and privileges granted under the Montana constitution or the United States constitution,” such as equal rights regardless of sex, or the First Amendment right not to be treated differently based on religion. The divorce decree would therefore be “void,” and thus couldn’t be considered by American courts.

And Wanda would thus be treated as still married to Xavier (whom she had divorced under Elbonian law many years ago), and not to Harry. At best, she would considered Harry’s “putative spouse,” which means she’d be treated as Harry’s wife for this dispute — but would lose that status the moment the court informs her that her Elbonian divorce is invalid. She would have to somehow redivorce Xavier under Montana law, though he’s still back in Elbonia, and then remarry Harry.

Does that make sense? To be sure, in some circumstances, it might be proper for courts to ignore the effect of foreign divorces that are based on procedures that U.S. law views as improper. For instance, American courts might reject application of foreign law that they see as unfair when it affects the rights of people who were U.S. residents at the time of the divorce. Likewise, American courts may want to apply American norms to child custody rights when the children are living in the United States. But outside these special circumstances, courts shouldn’t categorically ignore the effect of foreign divorces that involve departures from American equality norms.

I agree that American courts should in some situations refuse to enforce foreign judgments that are inconsistent with American norms; the federal Speech Act, for instance, rightly bars the enforcement in the United States of foreign libel judgments that are based on libel rules that are inconsistent with U.S. free speech protections. Many courts have already incorporated such principles through their own decisions. And there is plenty of flexibility for courts to refuse to enforce judgments that are seen as against American “public policy.”

But, for the reasons I gave above, the current version of SB97 seems much broader than it ought to be. I’m not sure there’s that much need for SB97; but I hope that, if the Montana legislature does want to adopt such a law, it will at least narrow it to avoid these and other problems.

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San Francisco files suit against Trump’s executive order on sanctuary cities

San Francisco's famous Golden Gate Bridge.

San Francisco’s famous Golden Gate Bridge.

Earlier today, San Francisco’s City Attorney filed a lawsuit challenging the constitutionality of Donald Trump’s executive order pulling federal funds from sanctuary cities – jurisdictions that refuse to aid in federal efforts to deport undocumented immigrants. This is the first suit against the order. The complaint is available here.

In a previous post, I explained why Trump’s order is unconstitutional. If allowed to stand, it is likely to be a menace to both constitutional federalism and the separation of powers. For these reasons, among others, I strongly support San Francisco’s position and hope they prevail.

Earlier, I discussed some of the broader federalism issues raised by Trump’s attack on sanctuary cities, and explained why defenders of his position are wrong to claim that the Constitution permits the federal government to coerce state and local officials into turning over information about immigrants. To put it simply, there is no information-disclosure exception to the Tenth Amendment, and creating one would establish a dangerous precedent. San Francisco’s complaint makes many of the same arguments against the order as I did.

There is some irony in one of the nation’s most liberal cities suing the Trump administration on the basis of federalism precedents authored by conservative Supreme Court justices, and opposed by most liberals at the time. It is a notable example of how the rise of Trump has led many on the left to take a more favorable view of constitutional limits on federal power.

Be that as it may, consistent supporters federalism should oppose Trump’s efforts to undermine it. And we should welcome all who are willing to join the fight – even if some of them may be “fair weather federalists,” whose past records include positions we many not approve of. Now is as good a time as any for both right and left to recognize that a renewed commitment to federalism can help save the troubled marriage between red states and blue ones.

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The path to Obama’s ‘Dear Colleague’ letter

On April 4, 2011, the same day that President Obama formally announced his reelection bid, his Education Department, with no advance notice, reinterpreted Title IX as giving the federal government authority to dictate the specific procedures that colleges must use to adjudicate student-on-student sexual assault allegations.

This “Dear Colleague” letter, issued by the Office for Civil Rights (OCR), told all of the more than 7,000 colleges that receive federal money to use the lowest possible standard of proof, a preponderance of evidence, in sexual assault cases (though not in less serious matters such as cheating and noise violations). The letter required universities to allow accusers to appeal not-guilty findings, a form of double jeopardy. It further told schools to accelerate their adjudications, with a recommended 60-day limit. And, perhaps most important, OCR strongly discouraged cross-examination of accusers, given the procedures that most universities employed.

The Obama administration never explained the timing of this document’s release. Nor did it explain how a plainly worded, 40-year-old anti-discrimination law had become a fount of such highly controversial mandates.

In early 2016, Oklahoma senator James Lankford, who has emerged as an important defender of campus due process, requested that the Education Department provide the legal basis for the Dear Colleague letter. The response was less than convincing, even though the Obama administration had nearly five years to come up with a rationale. In a single paragraph, then-OCR head Catherine Lhamon maintained that the 2011 letter merely “reminded” colleges and universities of a requirement to use the preponderance of evidence standard, which, she asserted, OCR had previously established in two unpublished letters with individual universities. (In one of these cases, the alleged perpetrator was a professor, rendering it of little use to analyzing student-on-student allegations.) Lhamon said nothing about the source of OCR’s claimed authority to require that colleges allow accusers to appeal not-guilty findings, that they discourage cross-examination of accusers or that they accelerate adjudications. She implied that these provisions were so obvious that OCR correctly issued them without seeking public comment.

The key section of Title IX, enacted in 1972, states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Congressional debate gave no hint of an intent to extend federal authority to the point of dictating procedures that colleges must use to adjudicate sexual assault allegations. Nor, for 20 years, did OCR take any steps in that direction.

While the passage of the Clery Act in 1990 highlighted the issue of campus crime, two years later, the Higher Education Amendments required all colleges and universities to “develop and distribute a statement of policy regarding [both] campus sexual assault programs, which shall be aimed at prevention of sex offenses; and procedures followed once a sex offense has occurred.” Congress thus distinguished between sexual assaults and other student-on-student felony allegations, for which universities have never been required to develop policy statements.

In 1994, OCR’s California regional office issued a resolution letter claiming Title IX gave it jurisdiction to investigate a university’s response to student-on-student sexual assault allegations. Bill Clinton’s OCR applied this principle nationally in 1997, after notice and comment rulemaking. And in Davis v. Monroe County Board of Education (1999), the Supreme Court held that educational institutions could be held liable, under Title IX, for alleged student-on-student sexual harassment — but only in unusually aggravated circumstances: where the schools “are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

It’s true, as Lhamon would later maintain, that in a single resolution agreement, Georgetown’s in 2003, an OCR regional office took from these developments a belief that it could order a university to use the preponderance of evidence standard. (It buried this finding in a single sentence, on the third page of a 17-page letter, suggesting it conferred on the decision far less significance than would Lhamon 13 years later in her letter to Lankford.) Yet other resolution letters from this same period envisioned sexual assault as a crime for which police, rather than universities, would have responsibility to investigate. That was the thrust of a 2004 resolution agreement with Oklahoma State University involving incidents that occurred off-campus and a 2005 agreement with Buffalo State University (first identified by Jacob Gersen and Jeannie Suk Gersen) involving incidents that had been reported to police. An important article by Stephen Henrick analyzes the pre-2011 sweep of these resolution letters.

Lhamon never explained why the Georgetown resolution letter could serve as the basis for nationwide guidance, even as her OCR issued other guidance explicitly repudiating the terms of the Oklahoma State and Buffalo State resolution letters.

In her letter to Lankford, Lhamon cited no pre-2011 court decisions to bolster the authority claimed by the “Dear Colleague” letter. With the exception of an outlying decision in the District Court of Connecticut, decisions between 2001 and 2011 detected Title IX liability only in limited circumstances, usually when universities recruited star athletes with records of sexual misconduct at their previous institutions. The 11th Circuit, for instance, explained its justification for invoking Title IX: The University of Georgia’s basketball coach knew that the accused student had “had disciplinary and criminal problems, particularly those involving harassment of women, while attending other colleges,” and had still worked hard to get him admitted.

So what changed between 2001 and 2011? Not the percentage of sexual assaults on campus — according to Joe Biden, that percentage was the “same” in 1995 as in 2017. Rather, the election of Barack Obama had two critical effects.

First, as with any modern Democratic administration, strong advocates of identity politics occupied key bureaucratic positions, which they could use to implement regulatory policies outside of rigorous congressional oversight. In a 2010 interview, OCR’s new head, Russlynn Ali, all but begged sexual assault accusers to file Title IX complaints against their colleges, promising that “we will use all of the tools at our disposal including referring to Justice or withholding federal funds or going to adjudication to ensure that women are free from sexual violence.”

Second, the Democratic defeat in the 2010 midterm elections focused Obama’s attention on how identity politics could rally his base. This model had worked well in one of the few major Democratic victories that year, the Colorado Senate race. So the administration took high-profile positions in favor of marriage for same-sex couples, permitting “dreamers” to remain in the United States and mandating contraceptive coverage in Obamacare. The “Dear Colleague” letter, which appealed to feminists and campus activists, reflected this broader campaign agenda — except that, unlike these other Obama initiatives, it initially encountered no legislative criticism.

In the end, OCR’s selective interpretation of Title IX combined elements of a few past resolution letters that would increase the chances of guilty findings with unrelated items (such as discouraging cross-examination) that accomplished the same purpose. The effects have been disastrous, leaving the courts as the most reliable protector of accused students’ rights. Tomorrow, we’ll look at some of the recent key court decisions on this issue.

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Acting attorney general orders Justice Department attorneys not to defend immigration executive order

Sally Yates in Washington in 2015. (Evelyn Hockstein for The Washington Post)

Here, via the Huffington Post, is the announcement from acting attorney general Sally Yates:

On January 27, 2017, the President signed an Executive Order regarding immigrants and refugees from certain Muslim-majority countries. The order has now been challenged in a number of jurisdictions. As the Acting Attorney General, it is my ultimate responsibility to determine the position of the Department of Justice in these actions.

My role is different from that of the Office of Legal Counsel (OLC), which, through administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.

Similarly, in litigation, DOJ Civil Division lawyers are charged with advancing reasonable legal arguments that can be made supporting an Executive Order. But my role as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.

Consequently, for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.

A few quick observations. First, the statement seems to indicate that the executive order was reviewed by the Justice Department’s Office of Legal Counsel, which apparently concluded that the executive order was lawful. Second, Yates does not claim that she cannot defend the executive order because it is unconstitutional or because the Justice Department would be unable to offer good-faith arguments in defense of its legality. To the contrary, Yates claims she is ordering the Justice Department not to defend the executive order because it is not “wise or just.” This is quite significant. I am not aware of any instance in which the Justice Department has refused to defend a presumptively lawful executive action on this basis.

Yates is supposed to remain the acting attorney general until Sen. Jeff Sessions (R-Ala.) is confirmed. The question now is whether she will remain in office that long.

UPDATE: Perhaps coincidentally, the Honorable William Pryor, one of the federal judges reportedly under consideration for President Trump’s initial Supreme Court nomination delivered a lecture in 2014 discussing when it is (and is not) appropriate for an executive branch official to refuse to enforce and defend a duly enacted law. His lecture was published in the Case Western Reserve Law Review here.

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President Trump’s Executive Order on Regulatory Costs Imperils the Rest of His Regulatory Agenda

This morning President Trump issued an executive order entitled “Reducing Regulation and Controlling Regulatory Costs.” It requires that every proposal for agency regulation must also identify two regulations to be repealed, and it has additional hurdles for regulations that entail new incremental costs.

There are other executive orders on OMB review of proposed regulations in light of their costs (including Executive Order 12,866 from 1993, which the new executive order cites), but those executive orders focus on costs and benefits — they allow for approval of regulations when the benefits justify the costs. Under today’s order, by contrast, an agency could not proceed with a regulation with a trivial cost and a much greater benefit unless it identified two other regulations to be repealed. And every regulation has some costs: the money that private parties spend on a lawyer who can tell them what the executive order actually means is a cost, the money spent on implementing the order is a cost, etc. Anyway, the “two for one” requirement would apply even to regulations that somehow have no costs at all.

So if, for example, the Department of Homeland Security wants to issue regulations to implement the Jan. 27 executive order on entry into the United States or the Jan. 25 executive order on border security and immigration enforcement, under the terms of today’s executive order it can’t do so unless it is able to identify two existing Homeland Security regulations to repeal for every regulation it wants to promulgate. And it doesn’t matter if it can show that its new regulation has benefits that greatly exceed its costs. Furthermore, it doesn’t matter if the two regulations for repeal have benefits that greatly exceed their costs. So a cost-justified regulation would be delayed until the agency found two other regulations for repeal despite their being cost justified. And a delay in a cost-justified regulation is itself an additional cost (an opportunity cost). The costs are everywhere. Beyond the delay, the executive order prohibits adding net new Department of Homeland Security regulations. If you want more national security regulations, this is not the order for you.

The executive order does allow the OMB director to make exceptions, and to tell agencies what “costs” actually means (strikingly, the order nowhere defines the key term “regulatory costs”). So the OMB director will have discretion to reduce the hassles that this executive order creates.

But, at a minimum, this executive order will create confusion and add delays to the implementation of agency agendas. So if you want to throw sand in the gears of Trump’s regulatory agenda, you could do worse than this order. Absent exceptions, it would undermine his regulatory agenda. Even with exceptions, it will impose significant costs (costs, again!) on his agency heads.

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The dangers of gutting due process in campus sexual assault cases

A decade ago, after we wrote a book on the Duke lacrosse case, we assumed that universities and the media would see events in Durham as a reminder of why fair procedures matter. Given a tendency, for both structural and ideological reasons, to rush to judgment when considering sexual assault allegations, universities especially need procedures that will safeguard against the passions of the mob.

The past few years, however, have witnessed the emergence of an even more one-sided campus atmosphere. Federal mandates, beginning with a 2011 Obama administration directive reinterpreting Title IX, combined with pressure from activists, professors and administrators, have resulted in campus tribunals where students accused of sexual assault are effectively presumed guilty, while encountered considerable obstacles to prove their innocence. We’re grateful to Eugene for inviting us to blog about our new book, which takes readers inside about 40 of these campus sexual assault adjudications, while also discussing debates over misleading statistics and the “rape culture” myth.

The system currently in place at colleges and universities runs far too great a risk of innocent students being found guilty. A recent study from UCLA’s John Villasenor estimated that as many as 1 in 3 innocent students suffer this fate. The actual percentage is likely higher, since Villasenor’s study couldn’t take into account some aspects of the college process (such as the ability of the accuser to appeal not-guilty findings and the lack of direct cross-examination at most schools) that increase the chances of a finding of guilt.

We lead the book, for instance, with a case at Amherst, in which the accusing student sent multiple texts on the night of the incident talking about her need to construct a lie. (The male student was the boyfriend of the accuser’s roommate, who was out of town for the weekend.) Amherst initially didn’t discover the texts, because the college couldn’t subpoena the accuser’s phone and didn’t bother to ask her regular correspondents if they had any texts from her. When the accused student tracked down the students to whom his accuser had texted, the college said he had produced the evidence too late. He then sued, and in a deposition the college’s hired investigator said she was interested only in evidence that corroborated the accuser’s account — not in evidence showing that the accuser had lied.

Despite horror stories like the one at Amherst, the mainstream media has poorly covered the campus sexual assault issue. There has been a handful of good work (most notably this Emily Yoffe article in Slate). More typical, however, has been the approach of the New York Times, which has virtually ignored concerns expressed by civil libertarian organizations and cohorts of law professors about the campus system’s unfairness. To the contrary, in an article about Stanford the Times recently portrayed the university’s process — which uses the lowest possible standard of proof, bans direct cross-examination by accused students, and has featured panelists who have been trained to believe that is it a sign of guilt for an accused student to respond to an accusation in a “persuasive and logical” way — as unfair to accusers. The reason? The school’s one fair rule — that the three panelists must be unanimous to justify a finding of guilty.

Part of the mainstream media’s bias against accused students — almost all of whom are male — flows from a broader ideological commitment toward gender and racial identity politics. But understanding the dangers of gutting due process also calls for detailed exposure of the unfairness of campus procedures. And such analysis is not the strong suit of many journalists (or many of their readers), especially — though not only — those blinded by bias.

As for the universities, the power of identity politics has generally worked in tandem with the schools’ financial self-interest in appeasing federal officials who have the power to exact huge financial penalties to incubate unfairness toward accused students.

But not always. We identify at least two types of cases in which colleges and universities conform to the conventional stereotype of softness on rapists in their midst. The first involves allegations against athletes in revenue-producing sports (football and basketball) at large schools; Baylor is the best-known example. The second occurs at religious universities where a victim reporting a sexual assault would require confessing to his or her own violation of the university’s disciplinary code (premarital sex, sex with a partner of the same sex); BYU is the best-known example. For understandable reasons, these cases have received much media and political attention. But most accused students aren’t star quarterbacks or undergraduates at religious institutions.

While most of the troubling procedural changes have come from federal pressure or the ideological urges of colleges and universities, some states have also advanced the guilt-presuming bandwagon. Four blue states (California, New York, Illinois and Connecticut) have adopted “affirmative consent” (or “yes means yes”) laws. These states’ laws now have enormous inconsistencies between their definitions of sexual assault for campus tribunals and for criminal courts. In the former, an accused student must prove that he obtained “affirmative consent” throughout every sexual encounter, even with a longtime partner. This standard “is flawed and untenable if due process is to be afforded to the accused,” a Tennessee state judge has ruled. While the peculiarities of campus tribunals have not yet spread to the criminal-justice system, a powerful faction of the American Law Institute is seeking to import into the criminal law rules very much like those used by the campus kangaroo courts.


Perhaps the past decade’s biggest change has come in the attitude of college students. During the Duke lacrosse case, most of the university’s students resisted a rush to judgment. Many called for a fair process once District Attorney Mike Nifong’s vast abuses of power became manifest, and organized to defeat Nifong in the fall election. In the past few years, however, student defenders of accused students’ civil liberties have been few and far between. Indeed, some of the most aggressive advocates of stripping accused students of any meaningful protections have been students or student groups. The former op-ed editor of the Columbia student newspaper explained the atmosphere. “Campus media’s goal to promote discussion about sexual assault and to support survivors became conflated with a fear of rigorous reporting,” he noted in February 2015. “Personally, I felt that if I covered the existence of a different perspective — say, that due process should be respected — not only would I have been excoriated, but many would have said that I was harming survivors and the fight against sexual assault.”

Tuesday’s post will look at the policy and legal background to the current campus structure. Wednesday’s post will examine the growing body of law resulting from the dozens of lawsuits filed by accused students in the past few years. Thursday’s will discuss the first full-blown trial resulting from one of these lawsuits, a Brown University case. And Friday’s will conclude with some suggestions for future policy.

KC Johnson, a professor at Brooklyn College and the CUNY Graduate Center, and Stuart Taylor Jr., a journalist and National Journal contributing editor, are authors of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.”

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Sen. Orrin Hatch on the Supreme Court: ‘Activist Justices have rewritten our laws’

Sen. Orrin Hatch (R-Utah) in 2014. (Rick Bowmer/Associated Press)

Sen. Orrin Hatch’s office passed along this item, which I thought would be very interesting for our readers, since it tells us something about how at least some Senate Republicans will be arguing about the forthcoming nomination; naturally, if a Democratic senator wants to pass along something similar from the other side, I’d love to publish it as well:

President Trump is expected to announce his nominee to the Supreme Court soon. My Senate colleagues and I will then assess the qualifications of the President’s choice and, if we determine he or she is acceptable, confirm the nominee. Replacing the late Justice Antonin Scalia will be a critical moment for our country and our Constitution.

Before our evaluation of the nominee begins, I wish to outline the principles that have guided me in assessing the qualifications of the last twelve Justices appointed to the Supreme Court. These same principles will guide me — and should guide my Senate colleagues and the public as well — in considering President Trump’s nominee. They are not new principles. Indeed, they come from the Constitution itself, which the Founders of our great nation wrote and ratified nearly 230 years ago.

The Constitution establishes a government of limited powers — one that promotes self-governance, is grounded in the rule of law, and ensures a proper separation of powers between three branches of government. Of these three branches, the judicial branch was expected to be — in the words of Alexander Hamilton — “the least dangerous” because it would lack power to control revenue or command the armed forces. Knowing that the Founders intended the judiciary to be limited in scope and influence helps us to better understand the type of judge who should serve on the Supreme Court.

Specifically, nominees to the Supreme Court must have a judicial philosophy of restraint and humility so that they view their role as limited to faithfully interpreting the law. It is not a Justice’s role to make or change laws by imposing his own policy preferences instead of what Congress actually passed. It is not her role to prejudge issues by looking beyond the text of the law to consider her personal views and feelings. And it is not a Justice’s role to choose winners and losers based on subjective beliefs that favor one group over another.

Unfortunately, past presidents have not always nominated Justices who understand their proper role under the Constitution. Nor have my Senate colleagues always focused on these guiding principles, opting instead to assess whether a particular nominee will advance certain policy preferences. As a consequence, we have had to endure activist Justices who have viewed themselves more as super-legislators than as impartial interpreters of the law.

Through their decisions, these activist Justices have rewritten our laws. They have interpreted the Constitution in ways that take power from the people and their elected representatives to make laws. They have also narrowed the meaning of other provisions, such as the First Amendment, in ways that limit the people’s ability to follow their conscience and moral convictions.

Such impermissible “power judging,” as Justice Scalia called it, has changed our laws in ways that give the President and unelected bureaucrats vast lawmaking power that the Constitution vests exclusively in Congress or else leaves to the states. For example, courts have allowed past presidents to rewrite by regulation a number of laws that were enacted by Congress. Our last President even made sweeping changes to federal immigration law by executive memorandum instead of through the legislative process. Four current Justices on the Supreme Court would have allowed such executive overreach.

The only way to prevent such abuses of executive and judicial power is to appoint impartial judges to the court. Unlike activist judges, impartial judges let the law — not their own political beliefs or personal ambitions — pick the winners and losers. To the best of their ability, impartial judges bracket their own biases and let the law decide judicial outcomes, even when they may not like the results that may follow.

In the days and weeks ahead, advocates and interest groups will say many things about the President’s nominee to the Supreme Court. They will want to know how the nominee will decide particular cases before those cases ever reach the Court to make sure the nominee is on the right team. Our nation’s Founders would have been embarrassed by such questions. Instead, the questions we ask should focus on whether the nominee will interpret and apply the law faithfully and neutrally, no matter what the issue is. That is, after all, what our Constitution demands.

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