Blog

The Supreme Court of Texas, per Chief Justice Hecht, issued a fascinating opinion applying the “Ferae Naturae” doctrine to the question of whether an employer is liable under the FELA when an employee contracts West Nile Virus from a mosquito. For those of you who don’t remember, or weren’t paying attention in Property, ferrae naturae refers to a wild animal–as opposed to a domesticated animal. This distinction at common law was critical with respect to the rule of capture.

Here is the canonical holding from the majority opinion in Pierson v. Post:

We are the more readily inclined to confine possession or occupancy of beasts feræ naturæ, within the limits prescribed by the learned authors above cited, for the sake of certainty, and preserving peace and order in society. If the first seeing, starting, or pursuing such animals, without having so wounded, circumvented or ensnared them, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation.

The ferrae naturae doctrine also extended to tort law. A property owner was not liable for injuries caused by wild animals on his property, because these animals could not be controlled. It was on this basis that the Supreme Court of Texas ruled that that Union Pacific Railroad was not liable under the Federal Employers’ Liability Act when a mosquito bit a worker, who contracted the West Nile virus.

Here is the beginning of the analysis section:

Human dominion over animals28 entails, under the common law, responsibility for their actions in some circumstances but not in others. The common law divides animals into two groups: animals domitae naturae or mansuetae naturae—that is, tame or tamed, domestic animals—and animals ferae naturae—that is, wild, usually found at liberty.29 Insects are treated as wild animals.30 Broadly speaking, and with various exceptions, the owner of a domestic animal is liable, and sometimes strictly liable, for dangerous propensities of which the owner knows, but usually not for its unexpected actions,31 while a person who owns, possesses, or harbors a wild animal is strictly liable for its actions.32 The rule of strict liability is old, dating at least to the 1846 English decision in May v. Burdett.33 “[I]t is important to observe, that the gist of the action is the keeping of the animal after knowledge of its mischievous propensities.”34

…

Thus, as a rule, under the doctrine of ferae naturae, a property owner owes an invitee no duty of care to protect him from wild animals indigenous to the area unless he reduces the animals to his possession, attracts the animals to the property, or knows of an unreasonable risk and neither mitigates the risk nor warns the invitee.38

Even better is Footnote 28, which cites (what else) the Book of Genesis.

28 See Genesis 1:28 (English Standard Version) (“And God said to them [i.e. man and woman], ‘Be fruitful and multiply and fill the earth and subdue it, and have dominion over the fish of the sea and over the birds of the heavens and over every living thing that moves on the earth.’”).

God bless the state of Texas.

Here is the holding of the case:

On the facts before us, the ferae naturae doctrine applies, and thus Union Pacific owed Nami no duty to prevent his infection with mosquito-borne West Nile virus. Following carefully the analysis prescribed by the United States Supreme Court in Gottshall, we are bound to conclude that as a matter of law, Union Pacific could not be negligent and liable to Nami under FELA.

Somewhere, the property professors of Chief Justice Hecth’s law clerks are smiling. I always tell my students that understanding the common law rules about capturing animals is important. They never believe me. Now, I have proof.

H/T Jason Steed.

Some miscellaneous thoughts on the final Stat Pack for OT 2015.

JGR only had 6 opinions, fewest of Justices not named Scalia.

— Josh Blackman (@JoshMBlackman) June 30, 2016

Once again CT had the most opinions – 39 (7 majority, 14 concurring, and 18 dissents).

— Josh Blackman (@JoshMBlackman) June 30, 2016

Thomas wrote a total of 341 slip pages. The Chief wrote only 155 pages. CT deserves an additional clerk!

— Josh Blackman (@JoshMBlackman) June 30, 2016

There were four 4-4 affirms this year. Over the previous decade, there were only 4 (two in OT07 and two in OT10)

— Josh Blackman (@JoshMBlackman) June 30, 2016

AMK was in majority 98% of cases. Excuse me if I skip articles about the burgeoning new liberal court. We are still in Kennedy’s world.

— Josh Blackman (@JoshMBlackman) June 30, 2016

Last year there 26% of 5-4 decisions were Conservatives+Kennedy. This year, 25% (if we count 4-4s).

— Josh Blackman (@JoshMBlackman) June 30, 2016

Once again Paul Clement and SG Verrilli led the pack with 6 arguments. Dreeben, Fredereick, and Katyal had 4.

— Josh Blackman (@JoshMBlackman) June 30, 2016

National Review invited me to write a short piece for a symposium on Justice Thomas’s quarter-century on the Court. My focus was on originalism, and where it led him. In the course of my research, I identified sixteen concurring or dissenting opinions where Justice Thomas indicated that “in an appropriate case” he would revisit some long-settled doctrine that conflicted with the original meaning of the Constitution.

Here are all of the “appropriate case” concurring/dissenting opinions from CT (drop me a line if I’m missing any).

1. Confrontation Clause – For the foregoing reasons, I respectfully suggest that, in an appropriate case, we reconsider how the phrase “witness against” in the Confrontation Clause pertains to the admission of hearsay. I join the Court’s opinion except for its discussion of the narrow reading of this phrase proposed by the United States. White v. Illinois, 502 U.S. 346, 366, 112 S. Ct. 736, 748, 116 L. Ed. 2d 848 (1992). (Greg Katsas, who clerked for Justice Thomas during his first term on the Court, recounted this story during a FedSoc podcast, start at 7:35).
2. Commerce Clause  – In an appropriate case, I believe that we must further reconsider our “substantial effects” test with an eye toward constructing a standard that reflects the text and history of the Commerce Clause without totally rejecting our more recent Commerce Clause jurisprudence.Today, however, I merely support the Court’s conclusion with a discussion of the text, structure, and history of the Commerce Clause and an analysis of our early case law. My goal is simply to show how far we have departed from the original understanding and to demonstrate that the result we reach today is by no means “radical,” see United States v. Lopez, 514 U.S. 549, 585, 115 S. Ct. 1624, 1642-43, 131 L. Ed. 2d 626 (1995)
3. Export-Import Clause – Our Civil War era decision in Woodruff v. Parham, 8 Wall. 123, 19 L.Ed. 382 (1869), of course, held that the Import-Export Clause applied only to foreign trade. None of the parties to these proceedings have challenged that holding, but given that the common 18th-century understanding of the words used in the Clause extended to interstate as well as foreign trade, it is *625 worth assessing the Woodruff Court’s reasoning with an eye toward reconsidering that decision in an appropriate case.The Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 624-25, 117 S. Ct. 1590, 1622, 137 L. Ed. 2d 852 (1997)
4. Second Amendment – Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.” Printz v. United States, 521 U.S. 898, 939, 117 S. Ct. 2365, 2386, 138 L. Ed. 2d 914 (1997).
5. Ex Post Facto Clause – In an appropriate case, therefore, I would be willing to reconsider Calder and its progeny to determine whether a retroactive civil law that passes muster under our current Takings Clause jurisprudence is nonetheless unconstitutional under the Ex Post Facto Clause. E. Enterprises v. Apfel, 524 U.S. 498, 539, 118 S. Ct. 2131, 2154, 141 L. Ed. 2d 451 (1998).
6. Privileges or Immunities Clause – Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth *528 Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case. Before invoking the Clause, however, we should endeavor to understand what the Framers of the Fourteenth Amendment thought that it meant. Saenz v. Roe, 526 U.S. 489, 527-28, 119 S. Ct. 1518, 1538, 143 L. Ed. 2d 689 (1999)
7. Fourth Amendment (Reasonableness requirement) – In light of this historical evidence, I would be open to considering, in an appropriate case, whether the Fourth Amendment *248 mandates the notice requirement adopted by the majority today. See Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) (relying on common-law antecedents to define a “reasonable search”). I am unwilling, however, to endorse the majority’s ahistorical reliance on procedural due process as the source of the requirement. City of W. Covina v. Perkins, 525 U.S. 234, 247-48, 119 S. Ct. 678, 685, 142 L. Ed. 2d 636 (1999).
8. Self-Incrimination – We have previously recognized that stare decisis is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Agostini v. Felton, 521 U.S. 203, 235, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). Given their indefensible foundations, I would be willing to reconsider Griffin and Carter in the appropriate case. Mitchell v. United States, 526 U.S. 314, 343, 119 S. Ct. 1307, 1322, 143 L. Ed. 2d 424 (1999).
9. Non-Delegation Doctrine – As it is, none of the parties to these cases has examined the text of the Constitution or asked us to reconsider our precedents on cessions of legislative power. On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers. Whitman v. American Trucking Association (2001).
10. Eighth Amendment (Conditions of Confinement) – I continue to believe that “[c]onditions of confinement are not punishment in any recognized sense of the term, unless imposed as part of a sentence.” Farmer v. Brennan, 511 U.S. 825, 859, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (THOMAS, J., concurring in judgment). As a result, I do not think, as an original matter, that attaching petitioner to the restraining bar constituted “punishment” under the Eighth Amendment. See ibid. Nevertheless, I recognize that this Court has embraced the opposite view—that the Eighth Amendment does regulate prison conditions not imposed as part of a sentence, see, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)—so I will apply that jurisprudence in evaluating whether respondents’ conduct violated clearly established law. I note, however, that I remain open to overruling our dubious expansion of the Eighth Amendment in an appropriate case. See Farmer, supra, at 861–862, 114 S.Ct. 1970 (THOMAS, J., concurring in judgment). Hope v. Pelzer, 536 U.S. 730, 759, 122 S. Ct. 2508, 2525, 153 L. Ed. 2d 666 (2002)
11. Sixth Amendment (Sentencing) – Almendarez-Torres, like Taylor, has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided. See 523 U.S., at 248-249, 118 S.Ct. 1219 *28 SCALIA, J., joined by STEVENS, SOUTER, and GINSBURG, JJ., dissenting); Apprendi, supra, at 520-521, 120 S.Ct. 2348 (THOMAS, J., concurring). The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres ‘ continuing viability. Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres, despite the fundamental “imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements.” Harris v. United States, 536 U.S. 545, 581-582, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (THOMAS, J., dissenting). Shepard v. United States, 544 U.S. 13, 27-28, 125 S. Ct. 1254, 1264, 161 L. Ed. 2d 205 (2005)
12. Takings Clause (Williamson County) – I joined the opinion of the Court in Williamson County. But further reflection and experience lead me to think that **2510 the justifications for its state-litigation requirement are suspect, while its impact on takings plaintiffs is dramatic. Here, no court below has addressed the correctness of Williamson County, neither party has asked us to reconsider it, and resolving the issue could not benefit petitioners. In an appropriate case, I believe the Court should reconsider whether plaintiffs asserting a Fifth Amendment takings claim based on the final decision of a state or local government entity must first seek compensation in state courts.All Citations San Remo Hotel, L.P. v. City & Cty. of San Francisco, Cal., 545 U.S. 323, 352, 125 S. Ct. 2491, 2509-10, 162 L. Ed. 2d 315 (2005)
13. First Amendment (Commercial Speech) – Accordingly, I would be willing to reexamine Zauderer and its progeny in an appropriate case to determine whether these precedents provide sufficient First Amendment protection against government-mandated disclosures. Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 256, 130 S. Ct. 1324, 1343, 176 L. Ed. 2d 79 (2010).
14. Jury Clause (Cross-Section) Accordingly, in an appropriate case I would be willing to reconsider our precedents articulating the “fair cross section” requirement. But neither party asks us to do so here, and the only question before us is whether the state court’s disposition was contrary to, or an unreasonable application of, our precedents. Berghuis v. Smith, 559 U.S. 314, 334, 130 S. Ct. 1382, 1396, 176 L. Ed. 2d 249 (2010).
15. Treaty Power  – I doubt the Treaty Power creates such a gaping loophole in our constitutional structure. Although the parties have not challenged the constitutionality of the particular treaty at issue here, in an appropriate case I believe the Court should address the scope of the Treaty Power as it was originally understood. Bond v. United States, 134 S. Ct. 2077, 2103, 189 L. Ed. 2d 1 (2014)
16. Deference (Seminole Rock) – Although on the surface these cases require only a straightforward application of the APA, closer scrutiny reveals serious constitutional questions lurking beneath. I have “acknowledge[d] the importance of stare decisis to the stability of our Nation’s legal system.” “But stare decisis is only an ‘adjunct’ of our duty as judges to decide by our best lights what the Constitution means.” McDonald v. Chicago, 561 U.S. 742, 812, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (THOMAS, J., concurring in part and concurring in judgment) (citation omitted). By my best lights, the entire line of precedent beginning with Seminole Rock raises serious constitutional questions and should be reconsidered in an appropriate case. Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1225, 191 L. Ed. 2d 186 (2015)
17. Deference (Chevron) – In an appropriate case, this Court should reconsider that fiction of Chevron and its progeny. Cuozzo Speed Techs., LLC v. Lee, No. 15-446, 2016 WL 3369425, at *22 (U.S. June 20, 2016).

 

 

 

Reuters interviewed the Attorney General, and asked if it could do anything about U.S. v. Texas. Her answer is, well, intriguing.

The Obama administration is looking into whether it can challenge the Supreme Court’s decision to block President Barack Obama’s plan to spare millions of illegal immigrants from deportation, U.S. Attorney General Loretta Lynch said Tuesday.

“We will be reviewing the case and seeing what, if anything else, we need to do in court,” Lynch told Reuters in an interview.

Lynch did not say what legal options the Obama administration may pursue following a split decision by the Supreme Court justices last week that left in place a block on the executive action by a lower court.

She said any future executive actions Obama may take on immigration would be left to the White House.

I hope AG Lynch’s statements are anodyne, as the DOJ must proceed to defend the policy on summary judgment back in Brownsville. But based on how Reuters framed it, it seems to suggest that perhaps the DOJ could do something else to put DAPA into effect.

In April, I addressed the argument that states can seek enforcement of DAPA in a more favorable circuit–it makes no sense because the policy (according to the government at least) is purely discretionary. But could the United States seek a declaratory judgment in another circuit about the constitutionality of DAPA, for the sole purposes of creating a circuit split? The effect would be that DAPA remains enjoined only in Texas, Mississippi, and Louisiana? Would they allow a non-uniform approach to immigration laws?

Let’s hope her comment was anodyne.

I was a guest on “Airtalk” on Los Angeles Public radio KPCC to talk about the constitutionality of gun restraining orders in the cases of domestic violence. I was debating Mike McLively, a Staff Attorney from the Law Center to Prevent Gun Violence.

These laws are problematic under the 4th Amendment (seizure of guns without probable cause they are used in a crime), 5th Amendment (compelled self-incrimination by shifting burden to accused to prove why he should keep his guns), and the 6th Amendment (depriving someone of a constitutional right without a conviction based on proof beyond a reasonable doubt by a jury). To the argument that these restraining orders may be helpful to prevent domestic violence, I explain that the bill of rights is awfully dangerous. As I discuss in The Constitutionality of Social Cost, protections like Miranda and the exclusionary rule sometimes allow the bad guy to go free and do bad stuff. We don’t relax constitutional protections, which focus on the accused.

Listen here: