Logos, ethos and pathos (not to be confused with Athos, Porthos and Aramis)

Aristotle and later Cicero wrote about argument being composed of logos, ethos and pathos. Most people know the “logos” as logic and “pathos” as emotion (easy to remember because of words such as “pathetic” and especially “pathos”). But it’s easy to misremember “ethos” as an appeal to ethics, or to (say) the ethos of an era or a law.

But ethos actually means something different: It’s an appeal to the audience’s perception of the speaker’s character, or (especially in Cicero’s view) the character of the person whom the speaker represents. This perception can stem from the speaker’s reputation, but also the speaker’s manner on the present occasion:

People’s minds are won over by a man’s prestige, his accomplishments, and the reputation he has acquired by his way of life. Such things are easier to embellish if present than to fabricate if totally lacking, but at any rate, their effect is enhanced by a gentle tone of voice on the part of the orator, an expression on his face intimating restraint, and kindliness in the use of his words, and if you press some point rather vigorously, by seeming to act against your inclination, because you are forced to do so.

Indications of flexibility, on the part of the orator and the client, are also quite useful, as well as signs of generosity, mildness, dutifulness, gratitude, and of not being desirous or greedy. Actually, all qualities typical of people who are decent and unassuming, not severe, not obstinate, not litigious, not harsh, really win goodwill, and alienate the audience from those who do not possess them. And these same considerations must likewise be employed to ascribe the opposite qualities to our opponents. [Quoted from James M. May’s translation of Cicero’s De Oratore.]

To be sure, Cicero acknowledges that there are times when there is an “opportunity to use some form of sharp and violent emotional arousal to set the juror’s heart aflame,” and then presumably mildness has to be set aside — but Cicero’s general view is that an ethos-based argument should take advantage of the virtues (real or perceived) outlined in the block quote above.

Of course, in our legal system an overt appeal to this ethos might itself be unethical (as my colleague Steve Yeazell has pointed out): A lawyer, for instance, is often barred from personally vouching for his client’s innocence or other qualities of character. And of course both judges and jurors are supposed to attend to the merits of the case, not the personal qualities of the lawyers.

But human nature being what it is, listeners and readers — I’m most familiar with judges as listeners, but I suspect this is true of jurors as well — can’t help but be affected by the ethos component of a lawyer’s manner, personality and (especially for judges) reputation. Advice from the ancients that is worth remembering even today, just not under the obvious mental translation as “ethics.”

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/logos-ethos-and-pathos-not-to-be-confused-with-athos-porthos-and-aramis/

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Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

This week on the podcast: No qualified immunity for officer who forced teen to masturbate, no habeas for man convicted after prosecutor lied, and no eminent domain for private development. Click here for iTunes.

  • Area landowner must feel like he’s Back in the U.S.S.R. after reading this Beatles-themed First Circuit opinion barring his claims for damages after the feds removed 25 shade trees from his property to combat invasive Asian longhorned beetles.
  • The Supreme Court recently held that prolonging a traffic stop by making investigatory inquiries unrelated to the traffic infraction in question violates the Fourth Amendment. Second Circuit: So detaining a red-light runner for five minutes to inquire after his suspected drug dealings was unconstitutional. No need to suppress the evidence though, as the traffic stop here happened before the Supreme Court issued its ruling.
  • College students agree to work at media corporation for no pay. Are they employees, and thus entitled to minimum wage, or are they interns? Second Circuit: Interns, by light of a seven-factor test we created last year to deduce which party is the “primary beneficiary” of the work experience.
  • Can auditor, who is seeking out property Delaware can escheat, audit two companies’ Ohio-based subsidiaries? Sure thing, says the Third Circuit. If, as the companies allege, the audit process is an abusive one designed to force a settlement, they can stop complying and see if Delaware comes after them. (We discussed escheatment, from which the verb “to cheat” is derived, on the podcast.)
  • Allegation: Manassas City, Va., officer investigating illicit images sent to 15-year-old girl orders her 17-year-old boyfriend to masturbate — in front of armed officers — to compare his erect penis with the illicit images. District court: Qualified immunity. Fourth Circuit: Reversed. There may be no prior cases on point, but some things are so obviously unconstitutional that officers shouldn’t need to be told. Dissent: The officer had a warrant. (Related: The officer killed himself as police tried to arrest him for molesting other boys.)
  • Conroe, Tex., officers board Greyhound bus at rest stop. One passenger seems suspicious, and indeed his luggage contains contraband. District court: Suppress the evidence. Hassling a bus full of people without any individualized suspicion offends the Constitution. Fifth Circuit: Reversed. The Supreme Court is fine with such stops; defendant could have just declined to speak with the officers.
  • Knox County, Tenn., inmate falls from bunk, breaks neck, does not receive proper medical attention for 70 days. Jury: The county must pay him $140K. Sixth Circuit: Indeed, it must.
  • In year when tax assessments fell for over 99 percent of Roscoe Township, Ill., properties, couple who started petition against town assessors entering property without notice or permission are hit with sizable tax increase. Seventh Circuit: Can’t sue over that in federal court.
  • Indiana’s new teacher-tenure rules allowed a school district to retain an untenured teacher while laying off an otherwise-satisfactory tenured teacher who had “received critiques about his interpersonal skills” — and that, says the Seventh Circuit, violates the Contracts Clause.
  • Allegation: Cook County, Ill., jail officers hold inmate several months past his release date (more than doubling his ordered time behind bars), hinder his efforts to reach court, which eventually orders him freed posthaste. He sues two years and two weeks after his release. Seventh Circuit: That’s two weeks too late.
  • Montana’s ban on judicial candidates seeking, accepting, or using endorsement from political parties does not violate the First Amendment, says a Ninth Circuit panel; the public might perceive that a judge so endorsed is insufficiently impartial or independent (when interpreting legislation favored or opposed by the endorsing party, for instance).
  • Man seeks to host weddings on his rural Ventura County, Calif., property, but the neighbors object, and county officials deny him a permit. Ninth Circuit: The permitting scheme gives officials way too much power to withhold permits for any reason or no reason. The man’s First Amendment claim should not have been dismissed.
  • Mayes County, Okla., officer shoots into home 10 times, kills man. Officer: The man was on the porch; he fired a gun at me. Family: He was inside; he didn’t fire the gun; the officer never identified himself. Tenth Circuit: No qualified immunity. The house had 10 bullet holes, and two bullets were found in the man. Which indicates he was inside the house (with several children and his wife) when the officer fired.
  • Auto dealers do not have standing to challenge Missouri officials’ decision to allow Tesla to sell its cars directly to the public, says a Missouri appeals court, which suspects the dealers are more interested in squelching competition than defending the public’s interests.
  • And in en banc news, the Eleventh Circuit will not reconsider its decision that a company that requires employees to remove dreadlocks can’t be sued for racial discrimination. Dissent: The complaint adequately alleged dreadlocks are a natural state of black hair; this should have gotten past a motion to dismiss.

Last year, Washington, D.C. officials imposed new regulations requiring daycare workers to obtain college credentials in early childhood education. But according to the very report that officials cite as the impetus for the change, there is no empirical support for the city’s position that the rules will benefit kids. Instead, the requirements will reduce parents’ options and drive up child care costs, which are already the highest in the nation for kids below preschool age. There is no reason why someone working with two-year-olds needs to take math, English literature, and public speaking classes, all of which are required by local colleges’ programs. But it’s not too late! The city has reopened a public comment period. Learn more here and submit a comment here.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/short-circuit-a-roundup-of-recent-federal-court-decisions-84/

Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

This week on the podcast: No qualified immunity for officer who forced teen to masturbate, no habeas for man convicted after prosecutor lied, and no eminent domain for private development. Click here for iTunes.

  • Area landowner must feel like he’s Back in the U.S.S.R. after reading this Beatles-themed First Circuit opinion barring his claims for damages after the feds removed 25 shade trees from his property to combat invasive Asian longhorned beetles.
  • The Supreme Court recently held that prolonging a traffic stop by making investigatory inquiries unrelated to the traffic infraction in question violates the Fourth Amendment. Second Circuit: So detaining a red-light runner for five minutes to inquire after his suspected drug dealings was unconstitutional. No need to suppress the evidence though, as the traffic stop here happened before the Supreme Court issued its ruling.
  • College students agree to work at media corporation for no pay. Are they employees, and thus entitled to minimum wage, or are they interns? Second Circuit: Interns, by light of a seven-factor test we created last year to deduce which party is the “primary beneficiary” of the work experience.
  • Can auditor, who is seeking out property Delaware can escheat, audit two companies’ Ohio-based subsidiaries? Sure thing, says the Third Circuit. If, as the companies allege, the audit process is an abusive one designed to force a settlement, they can stop complying and see if Delaware comes after them. (We discussed escheatment, from which the verb “to cheat” is derived, on the podcast.)
  • Allegation: Manassas City, Va., officer investigating illicit images sent to 15-year-old girl orders her 17-year-old boyfriend to masturbate — in front of armed officers — to compare his erect penis with the illicit images. District court: Qualified immunity. Fourth Circuit: Reversed. There may be no prior cases on point, but some things are so obviously unconstitutional that officers shouldn’t need to be told. Dissent: The officer had a warrant. (Related: The officer killed himself as police tried to arrest him for molesting other boys.)
  • Conroe, Tex., officers board Greyhound bus at rest stop. One passenger seems suspicious, and indeed his luggage contains contraband. District court: Suppress the evidence. Hassling a bus full of people without any individualized suspicion offends the Constitution. Fifth Circuit: Reversed. The Supreme Court is fine with such stops; defendant could have just declined to speak with the officers.
  • Knox County, Tenn., inmate falls from bunk, breaks neck, does not receive proper medical attention for 70 days. Jury: The county must pay him $140K. Sixth Circuit: Indeed, it must.
  • In year when tax assessments fell for over 99 percent of Roscoe Township, Ill., properties, couple who started petition against town assessors entering property without notice or permission are hit with sizable tax increase. Seventh Circuit: Can’t sue over that in federal court.
  • Indiana’s new teacher-tenure rules allowed a school district to retain an untenured teacher while laying off an otherwise-satisfactory tenured teacher who had “received critiques about his interpersonal skills” — and that, says the Seventh Circuit, violates the Contracts Clause.
  • Allegation: Cook County, Ill., jail officers hold inmate several months past his release date (more than doubling his ordered time behind bars), hinder his efforts to reach court, which eventually orders him freed posthaste. He sues two years and two weeks after his release. Seventh Circuit: That’s two weeks too late.
  • Montana’s ban on judicial candidates seeking, accepting, or using endorsement from political parties does not violate the First Amendment, says a Ninth Circuit panel; the public might perceive that a judge so endorsed is insufficiently impartial or independent (when interpreting legislation favored or opposed by the endorsing party, for instance).
  • Man seeks to host weddings on his rural Ventura County, Calif., property, but the neighbors object, and county officials deny him a permit. Ninth Circuit: The permitting scheme gives officials way too much power to withhold permits for any reason or no reason. The man’s First Amendment claim should not have been dismissed.
  • Mayes County, Okla., officer shoots into home 10 times, kills man. Officer: The man was on the porch; he fired a gun at me. Family: He was inside; he didn’t fire the gun; the officer never identified himself. Tenth Circuit: No qualified immunity. The house had 10 bullet holes, and two bullets were found in the man. Which indicates he was inside the house (with several children and his wife) when the officer fired.
  • Auto dealers do not have standing to challenge Missouri officials’ decision to allow Tesla to sell its cars directly to the public, says a Missouri appeals court, which suspects the dealers are more interested in squelching competition than defending the public’s interests.
  • And in en banc news, the Eleventh Circuit will not reconsider its decision that a company that requires employees to remove dreadlocks can’t be sued for racial discrimination. Dissent: The complaint adequately alleged dreadlocks are a natural state of black hair; this should have gotten past a motion to dismiss.

Last year, Washington, D.C. officials imposed new regulations requiring daycare workers to obtain college credentials in early childhood education. But according to the very report that officials cite as the impetus for the change, there is no empirical support for the city’s position that the rules will benefit kids. Instead, the requirements will reduce parents’ options and drive up child care costs, which are already the highest in the nation for kids below preschool age. There is no reason why someone working with two-year-olds needs to take math, English literature, and public speaking classes, all of which are required by local colleges’ programs. But it’s not too late! The city has reopened a public comment period. Learn more here and submit a comment here.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/short-circuit-a-roundup-of-recent-federal-court-decisions-84/

Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

This week on the podcast: No qualified immunity for officer who forced teen to masturbate, no habeas for man convicted after prosecutor lied, and no eminent domain for private development. Click here for iTunes.

  • Area landowner must feel like he’s Back in the U.S.S.R. after reading this Beatles-themed First Circuit opinion barring his claims for damages after the feds removed 25 shade trees from his property to combat invasive Asian longhorned beetles.
  • The Supreme Court recently held that prolonging a traffic stop by making investigatory inquiries unrelated to the traffic infraction in question violates the Fourth Amendment. Second Circuit: So detaining a red-light runner for five minutes to inquire after his suspected drug dealings was unconstitutional. No need to suppress the evidence though, as the traffic stop here happened before the Supreme Court issued its ruling.
  • College students agree to work at media corporation for no pay. Are they employees, and thus entitled to minimum wage, or are they interns? Second Circuit: Interns, by light of a seven-factor test we created last year to deduce which party is the “primary beneficiary” of the work experience.
  • Can auditor, who is seeking out property Delaware can escheat, audit two companies’ Ohio-based subsidiaries? Sure thing, says the Third Circuit. If, as the companies allege, the audit process is an abusive one designed to force a settlement, they can stop complying and see if Delaware comes after them. (We discussed escheatment, from which the verb “to cheat” is derived, on the podcast.)
  • Allegation: Manassas City, Va., officer investigating illicit images sent to 15-year-old girl orders her 17-year-old boyfriend to masturbate — in front of armed officers — to compare his erect penis with the illicit images. District court: Qualified immunity. Fourth Circuit: Reversed. There may be no prior cases on point, but some things are so obviously unconstitutional that officers shouldn’t need to be told. Dissent: The officer had a warrant. (Related: The officer killed himself as police tried to arrest him for molesting other boys.)
  • Conroe, Tex., officers board Greyhound bus at rest stop. One passenger seems suspicious, and indeed his luggage contains contraband. District court: Suppress the evidence. Hassling a bus full of people without any individualized suspicion offends the Constitution. Fifth Circuit: Reversed. The Supreme Court is fine with such stops; defendant could have just declined to speak with the officers.
  • Knox County, Tenn., inmate falls from bunk, breaks neck, does not receive proper medical attention for 70 days. Jury: The county must pay him $140K. Sixth Circuit: Indeed, it must.
  • In year when tax assessments fell for over 99 percent of Roscoe Township, Ill., properties, couple who started petition against town assessors entering property without notice or permission are hit with sizable tax increase. Seventh Circuit: Can’t sue over that in federal court.
  • Indiana’s new teacher-tenure rules allowed a school district to retain an untenured teacher while laying off an otherwise-satisfactory tenured teacher who had “received critiques about his interpersonal skills” — and that, says the Seventh Circuit, violates the Contracts Clause.
  • Allegation: Cook County, Ill., jail officers hold inmate several months past his release date (more than doubling his ordered time behind bars), hinder his efforts to reach court, which eventually orders him freed posthaste. He sues two years and two weeks after his release. Seventh Circuit: That’s two weeks too late.
  • Montana’s ban on judicial candidates seeking, accepting, or using endorsement from political parties does not violate the First Amendment, says a Ninth Circuit panel; the public might perceive that a judge so endorsed is insufficiently impartial or independent (when interpreting legislation favored or opposed by the endorsing party, for instance).
  • Man seeks to host weddings on his rural Ventura County, Calif., property, but the neighbors object, and county officials deny him a permit. Ninth Circuit: The permitting scheme gives officials way too much power to withhold permits for any reason or no reason. The man’s First Amendment claim should not have been dismissed.
  • Mayes County, Okla., officer shoots into home 10 times, kills man. Officer: The man was on the porch; he fired a gun at me. Family: He was inside; he didn’t fire the gun; the officer never identified himself. Tenth Circuit: No qualified immunity. The house had 10 bullet holes, and two bullets were found in the man. Which indicates he was inside the house (with several children and his wife) when the officer fired.
  • Auto dealers do not have standing to challenge Missouri officials’ decision to allow Tesla to sell its cars directly to the public, says a Missouri appeals court, which suspects the dealers are more interested in squelching competition than defending the public’s interests.
  • And in en banc news, the Eleventh Circuit will not reconsider its decision that a company that requires employees to remove dreadlocks can’t be sued for racial discrimination. Dissent: The complaint adequately alleged dreadlocks are a natural state of black hair; this should have gotten past a motion to dismiss.

Last year, Washington, D.C. officials imposed new regulations requiring daycare workers to obtain college credentials in early childhood education. But according to the very report that officials cite as the impetus for the change, there is no empirical support for the city’s position that the rules will benefit kids. Instead, the requirements will reduce parents’ options and drive up child care costs, which are already the highest in the nation for kids below preschool age. There is no reason why someone working with two-year-olds needs to take math, English literature, and public speaking classes, all of which are required by local colleges’ programs. But it’s not too late! The city has reopened a public comment period. Learn more here and submit a comment here.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/short-circuit-a-roundup-of-recent-federal-court-decisions-84/

Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

This week on the podcast: No qualified immunity for officer who forced teen to masturbate, no habeas for man convicted after prosecutor lied, and no eminent domain for private development. Click here for iTunes.

  • Area landowner must feel like he’s Back in the U.S.S.R. after reading this Beatles-themed First Circuit opinion barring his claims for damages after the feds removed 25 shade trees from his property to combat invasive Asian longhorned beetles.
  • The Supreme Court recently held that prolonging a traffic stop by making investigatory inquiries unrelated to the traffic infraction in question violates the Fourth Amendment. Second Circuit: So detaining a red-light runner for five minutes to inquire after his suspected drug dealings was unconstitutional. No need to suppress the evidence though, as the traffic stop here happened before the Supreme Court issued its ruling.
  • College students agree to work at media corporation for no pay. Are they employees, and thus entitled to minimum wage, or are they interns? Second Circuit: Interns, by light of a seven-factor test we created last year to deduce which party is the “primary beneficiary” of the work experience.
  • Can auditor, who is seeking out property Delaware can escheat, audit two companies’ Ohio-based subsidiaries? Sure thing, says the Third Circuit. If, as the companies allege, the audit process is an abusive one designed to force a settlement, they can stop complying and see if Delaware comes after them. (We discussed escheatment, from which the verb “to cheat” is derived, on the podcast.)
  • Allegation: Manassas City, Va., officer investigating illicit images sent to 15-year-old girl orders her 17-year-old boyfriend to masturbate — in front of armed officers — to compare his erect penis with the illicit images. District court: Qualified immunity. Fourth Circuit: Reversed. There may be no prior cases on point, but some things are so obviously unconstitutional that officers shouldn’t need to be told. Dissent: The officer had a warrant. (Related: The officer killed himself as police tried to arrest him for molesting other boys.)
  • Conroe, Tex., officers board Greyhound bus at rest stop. One passenger seems suspicious, and indeed his luggage contains contraband. District court: Suppress the evidence. Hassling a bus full of people without any individualized suspicion offends the Constitution. Fifth Circuit: Reversed. The Supreme Court is fine with such stops; defendant could have just declined to speak with the officers.
  • Knox County, Tenn., inmate falls from bunk, breaks neck, does not receive proper medical attention for 70 days. Jury: The county must pay him $140K. Sixth Circuit: Indeed, it must.
  • In year when tax assessments fell for over 99 percent of Roscoe Township, Ill., properties, couple who started petition against town assessors entering property without notice or permission are hit with sizable tax increase. Seventh Circuit: Can’t sue over that in federal court.
  • Indiana’s new teacher-tenure rules allowed a school district to retain an untenured teacher while laying off an otherwise-satisfactory tenured teacher who had “received critiques about his interpersonal skills” — and that, says the Seventh Circuit, violates the Contracts Clause.
  • Allegation: Cook County, Ill., jail officers hold inmate several months past his release date (more than doubling his ordered time behind bars), hinder his efforts to reach court, which eventually orders him freed posthaste. He sues two years and two weeks after his release. Seventh Circuit: That’s two weeks too late.
  • Montana’s ban on judicial candidates seeking, accepting, or using endorsement from political parties does not violate the First Amendment, says a Ninth Circuit panel; the public might perceive that a judge so endorsed is insufficiently impartial or independent (when interpreting legislation favored or opposed by the endorsing party, for instance).
  • Man seeks to host weddings on his rural Ventura County, Calif., property, but the neighbors object, and county officials deny him a permit. Ninth Circuit: The permitting scheme gives officials way too much power to withhold permits for any reason or no reason. The man’s First Amendment claim should not have been dismissed.
  • Mayes County, Okla., officer shoots into home 10 times, kills man. Officer: The man was on the porch; he fired a gun at me. Family: He was inside; he didn’t fire the gun; the officer never identified himself. Tenth Circuit: No qualified immunity. The house had 10 bullet holes, and two bullets were found in the man. Which indicates he was inside the house (with several children and his wife) when the officer fired.
  • Auto dealers do not have standing to challenge Missouri officials’ decision to allow Tesla to sell its cars directly to the public, says a Missouri appeals court, which suspects the dealers are more interested in squelching competition than defending the public’s interests.
  • And in en banc news, the Eleventh Circuit will not reconsider its decision that a company that requires employees to remove dreadlocks can’t be sued for racial discrimination. Dissent: The complaint adequately alleged dreadlocks are a natural state of black hair; this should have gotten past a motion to dismiss.

Last year, Washington, D.C. officials imposed new regulations requiring daycare workers to obtain college credentials in early childhood education. But according to the very report that officials cite as the impetus for the change, there is no empirical support for the city’s position that the rules will benefit kids. Instead, the requirements will reduce parents’ options and drive up child care costs, which are already the highest in the nation for kids below preschool age. There is no reason why someone working with two-year-olds needs to take math, English literature, and public speaking classes, all of which are required by local colleges’ programs. But it’s not too late! The city has reopened a public comment period. Learn more here and submit a comment here.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/short-circuit-a-roundup-of-recent-federal-court-decisions-84/

Justice Sotomayor unintentionally highlights the danger of having too many laws

U.S. Supreme Court Justice Sonia Sotomayor speaks at St. Francis College in New York in February. (Kathy Willens/AP)

During last week’s Supreme Court oral argument in Christie v. NCAA, an important federalism case, Justice Sonia Sotomayor noted a dangerous feature of our legal system. We have far more laws than the state and federal governments can effectively enforce:

[I]f every governor enforced every law on the book, the state would be more than bankrupt. It would have no way of surviving…

There are countless laws, and even laws that are in force, that are not enforced totally….

States make choices [about which laws to enforce] all the time.

Justice Sotomayor is absolutely right. At both the state and federal levels, we have so many laws that law enforcement officials can only target a small fraction of offenders; so many that the vast majority of adult Americans have violated state or federal law at one time or another. The executive therefore exercises enormous discretion about which lawbreakers to go after and which ones to leave alone.

This, in turn, has dire consequences for the rule of law in our society: It makes it very difficult for ordinary citizens to determine what laws apply to them and how to avoid violations, and ensures that whether a given lawbreaker gets prosecuted depends far more on the exercise of police, prosecutorial, and executive discretion than on any objective application of legal rules. Thus, the rule of law is in large part supplanted by the rule of whatever men and women control the levers of power at any given time. As Sotomayor notes, those people have vast discretion in deciding which of the “countless laws” on the books they want to enforce, and when.

Ironically, Sotomayor did not mean to condemn this aspect of our legal system, but instead to portray it as a positive – at least in one limited sense. She raised the issue in response to New Jersey’s argument that a federal law barring the state from “authorizing” legal sports gambling under their own law amounted to unconstitutional “commandeering” of the states. According to Sotomayor, the state may not really be commandeered because “[t]here is nothing here telling this state that it has to enforce this law.” All it has to do is keep the anti-sports gambling law on the books. Executive officials could still turn a blind eye to sports gambling, even if it is illegal.

Sotomayor’s argument strikes me as weak. Even if the federal law does not require states to enforce laws against sports gambling, it does require them to keep such laws on the books, unless – perhaps – the state legalizes gambling with no restrictions whatsoever. As Justice Anthony Kennedy pointed out during the oral argument, mandating the continuation of a law “the state doesn’t want but that the federal government compels the state to have” surely qualifies as commandeering.

Moreover, mandating the continuation of anti-sports gambling laws is a major imposition on states, even if law enforcement officials currently have no desire to enforce it. It prevents the state legislature from credibly assuring businesses and consumers that their gambling activities are actually legal, and thereby immune from prosecution. Legitimate businesses will be reluctant to invest in an enterprise that could be targeted by law enforcement any time executive branch decision-makers change their minds, or are replaced by a new set of officials with different views than the old.

But whether or not it helps to refute New Jersey’s position in Christie v. NCAA, Justice Sotomayor’s statement highlights a dangerous reality of our legal system. One that too many of us tend to ignore. So long as there are vastly more laws on the books than the government can realistically hope to enforce, the rule of law will continue to be imperiled.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/justice-sotomayor-unintentionally-highlights-the-perils-of-having-too-many-laws/

Sen. Orrin Hatch on President Trump’s appointments to the judiciary

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

The office of Sen. Orrin Hatch (R-Utah) passed along this item, which I thought would be very interesting for our readers, as it tells us something about how Republicans are continuing to argue about judicial appointments; naturally, if a Democratic senator wants to pass along something similar from the other side, I’d love to publish it as well:

In Washington, it can sometimes be difficult to focus on what counts. Today’s information environment is increasingly atomized and persistently polarized. Almost all will inevitably focus on who is up, and who is down, in the endless cycle of partisan gamesmanship. But none should forget that what matters, at the end of the day, is policy. And the first year of new Republican government has delivered plenty of that.

Here in the Senate, despite fits and starts, we are moving the ball forward. Notwithstanding often vicious treatment by the media and the constant obstruction of the Democrats here in Congress, President Trump is managing his domestic policy agenda like a true leader does: he names his agenda, he picks his team, and he executes. The results speak for themselves.

We are closing in on a historic tax reform package, which itself includes an important first step on healthcare reform. Regulatory burdens are falling, as the administrative state faces its first substantial pushback in decades. From labor to environmental to fiscal and monetary policy, from education to justice issues, there’s substantial progress on nearly every front. Only a year into the new administration, we are making good on the pledge for a historic change in Washington.

But, of course, there is perhaps no greater legacy that a President leaves behind than the judicial appointments he makes. President Trump’s choices there will echo for generations. Further, there was perhaps no more distinguishing promise that then-candidate Trump made to the American people than the restoration of the judiciary. And thus, it is particularly gratifying to recognize that in no area have promises made more fully ripened into promises kept.

Neil Gorsuch was a superb choice for the Supreme Court. At a historic juncture for our courts, he stands poised to seize the mantle left by Justice Antonin Scalia, and carry the cause of originalism and textualism forward for a new generation. But Justice Gorsuch was only the beginning. From the circuits courts to the district courts, judicial nominations, across the board, have been outstanding. The results will be felt for decades to come.

From the outset, President Trump has brought to this process the same acumen and drive that made him so successful in business. First, he has clearly named his agenda: a judiciary recommitted to the impartial administration of justice and refocused on the rule of law. Second, he has wisely picked his team: White House Counsel Don McGahn and his staff have been, in a word, exceptional. And third, the President is executing flawlessly: as a former Chairman of the Judiciary Committee, I can say confidently that we’ve never seen such a high-quality stable of nominees, and nominated at such a rapid pace.

As is not much of a secret in Washington these days, Republicans tend to disagree among themselves quite a bit. Through the effort to deliver on our promises to the American people, there will be differences of opinion on the best policy means to reach shared policy goals. But one thing that continues to unify the Conference here in the Senate, and Republicans across the country, is the conviction that an independent, impartial judiciary is simply too important to lose. And that is why, whatever our differences on other issues, conservatives across the board heartily approve of the way this administration has handled judicial nominations. I’ll continue to work with my colleagues here in the Senate Judiciary Committee, as well as Leader McConnell, to confirm these judges. As the rest of our agenda gains steam, judicial selection will remain the vanguard.

Through the 2016 campaign, the President promised to pull the best people onto his team, and to deliver real results for the American people. On judicial nominations, that’s precisely what he is doing. By installing and empowering such a capable White House Counsel’s office, he has signaled the seriousness with which he takes this effort. And by keeping up the pace of nominations, he has assured that this enormous opportunity for improvement in the judiciary will not go to waste. The product of the administration’s efforts, and the good that can still be done, will carve a defining legacy of which we can all be proud.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/sen-orrin-hatch-on-president-trumps-appointments-to-the-judiciary/