Oct 19, 2014

Even for the Constitution, Everything is Bigger in Texas

In two recent Supreme Court cases, the sheer size of Texas has played into the constitutional calculus. First, with respect to Texas’s new abortion laws, the District Court, in finding an undue burden, noted that some people would have to drive up to 5 hours to visit a clinic. Second in her dissent from the Court’s denial of a stay in the Texas Voter ID case, Justice Ginsburg noted that some people in Texas would have to drive up to three hours to a government office in order to obtain a new ID. (Having to go to any DMV should be an undue burden in my eye. Forget the 5 hour drive. I’ve waited 3 hours once I got there! But I digress).

In this post, I won’t draw any conclusion of whether these laws are unconstitutional. Rather, I want to draw attention to a fact that most people are aware of, but maybe haven’t connected in the context of the state imposing burdens on people by making them travel further. Everything is bigger in Texas. The state is huge. In various parts of the state, you will have to drive very, very far to go anywhere.

Simply stating the number of hours one has to drive to get somewhere, in my mind, is not sufficient to illustrate how big of a burden someone suffers as a result of some law. Rather, that distance must be viewed in the context of where this place is. When someone chooses to live in a remote area of a humongous state, quite remote from many of the comforts readily available along the I-95 Amtrak Corridor, they generally accept the fact that they will have to drive far to go places they may need to go. I’ve done the math, and in various parts of Texas, the nearest Wal-Mart is a 2 hour drive. Now, I am not suggesting that visiting a Wal-Mart is on the same constitutional plane as the right to vote. Rather, I am trying to set a baseline for expectations of what would constitute a burden to people living in these remote areas, accustomed to traveling huge distances.

Let’s call this an “Everything’s Bigger in Texas” principle of undue burdens. An undue burden to travel 5 hours in a small state like New Hampshire or Maine cannot be considered along the same lines as 5 hours in a huge state like Texas. Any analysis that looks at distances has to consider how large the state, how densely populated an area is, and how far that area is from other essential services. The people are generally accustomed to driving longer distances.

Now there is an obvious rejoinder to that. The poorest people–who are most likely to be impacted by these laws–may not have the means to drive this far, nor take that much time out of the day for a 10-hour roundtrip. That is absolutely true, and is a factor that can be considered when assessing the burden imposed by requiring someone to travel to a further destination. But that rejoinder must be tempered by the general understanding that people of all socio-economic classes living in certain sparsely populated areas have to travel further, when having to go somewhere that is not available locally.

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Oct 19, 2014

Events in Philadelphia on Monday and Tuesday

Monday at 5:00 p.m., I am speaking to the Philadelphia Federalist Society Chapter on the constitutionality of the President’s Executive Actions, aptly titled “ISIS, Immigration, and Obamacare.”

On Tuesday at 1:35 p.m., I am speaking at the Forbes 30 under 30 Summit, also in Philadelphia, on millennials and politics. Here is the panel description:

The Lost Vote
Studies have shown that younger voters no longer feel a major draw to a political party and don’t trust their government given the recent barrage of party politics occurring in DC. But how will politicians sell themselves to voters in the upcoming elections? And how are they going to win back the trust of young voters?Josh Blackman, Assistant Professor of Law, South Texas College of Law, Houston
Nate Levine, Founder, OpenGov
Nathaniel Loewentheil, Policy Advisor, The White House National Economic Council

Moderator: McKay Coppins, Senior Political Writer, Buzzfeed


If anyone is in the City of Brotherly Love on Monday and Tuesday, I hope to see you around.

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Oct 17, 2014

Arizona AG Does Not Appeal SSM Decision For Fear of Rule 11 Sanctions

Today, a Federal District Court, in a 4-page decision (it was not necessary to write a “lengthy and detailed opinion”), invalidated Arizona’s ban on same-sex marriage. The judge denied any request of a stay, citing the Supreme Court’s “deaf ear” to any relief, explaining it would be “futile.”

A stay of this decision to allow defendants to appeal is not warranted. It is clear that an appeal to the Ninth Circuit would not succeed. It is also clear—based on the Supreme Court’s denial of petitions for writs of certiorari filed in connection with several circuit court decisions which held that same-sex marriage must be recognized in Indiana Oklahoma,Utah, Virginia, and Wisconsin—that the High Court will turn a deaf ear on any request for relief from the Ninth Circuit’s decision.

In a remarkable statement, Attorney General Tom Horne–who has to date defended the law–said he would not appeal the judgment. Why? Rule 11.

“A number of Attorneys General have refused to defend laws defining marriage as between a man and a woman. I have not been among that group. I have fought to defend the laws as passed by the voters of Arizona, which I believe is the duty of the Attorney General.

Both the Federal District Court and the 9th Circuit Court of Appeals have ruled against us, and the United States Supreme Court has shown an unwillingness to accept review in the case of three other circuits in essentially identical circumstances.

The decision I make today has to be based on legal considerations rather than policy considerations. I believe the first duty of the Attorney General is to be a good lawyer.

Lawyers live under a rule called Rule 11, which provides that it is unethical for a lawyer to file a pleading for purposes of delay rather than to achieve a result.

The probability of persuading the 9th circuit to reverse today’s decision is zero. The probability of the United States Supreme Court accepting review of the 9th circuit decision is also zero.

Therefore, the only purpose to be served by filing another appeal would be to waste the taxpayer’s money. That is not a good conservative principle.

I have decided not to appeal today’s decision, which would be an exercise in futility, and which would serve only the purpose of wasting taxpayers’ money.

I am issuing a letter today to the 15 county clerks of court with the directive that based on today’s decision by the Federal District Court, they can issue licenses for same sex marriages immediately.”

The effect of the Court’s denial of certiorari is stunning. Now, a conservative state AG would find it sanctionable to appeal a judgment that the Supreme Court would not reverse.

Six days ago I blogged that appealing a same-sex marriage decision to the Supreme Court was not sanctionable. While I think that was correct a week ago, I don’t think it is correct anymore! It is stunning how fast things have changed.

A similar event unfolded in Wyoming. A federal district court invalidated Wyoming’s ban, citing the 10th Circuit’s decision in Herbert v. Kitchen. The court, also citing 10th Circuit precedent (after the Supreme Court’s previous intervention), initially put the judgment on hold until October 23 to give the government time to appeal. But the Governor said he would not appeal.

In related news, Alaska unsuccessfully appealed the 9th Circuit’s judgment to the Supreme Court. The Court denied review in a one sentence order. Unlike with the Idaho appeal, it does not seem that Circuit Justice Kennedy even bothered asking for a response from the challengers. It was referred to the Court for denial in less than a day. Will this be the *last* appeal to the Supreme Court? Could it possibly be that the Court will avoid this entire issue by denying certiorari.

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Oct 17, 2014

“The Shooting Cycle” Published in Connecticut Law Review

The Shooting Cycle,” co-authored with my law-school bound friend Shelby Baird, has now been published in the Connecticut Law Review, as part of a symposium on the Second Amendment. Our article focuses on the perception of mass shootings, and how legislatures react, or don’t react to these tragedies. You can download it here. Here is the abstract:

The pattern is a painfully familiar one. A gunman opens fire in a public place, killing many innocent victims. After this tragedy, support for gun control surges. With a closing window for reform, politicians and activists quickly push for new gun laws. But as time elapses, support decreases. Soon enough, the passions fade, and society returns to the status quo.

We call this paradigm “the shooting cycle.” This article provides the first qualitative and quantitative analysis of the shooting cycle, and explains how and why people and governments react to mass shootings.

This article proceeds in five parts. First, we bring empirical clarity to the debate over mass shootings, and show that contrary to popular opinion, they are fairly rare, and are not occurring more frequently. Second, relying on cognitive biases such as the availability heuristic, substitution effect, and cultural cognition theory, we demonstrate why the perception of risk and reaction to these rare and unfamiliar events are heightened. Third we chronicle the various stages of the shooting cycle: tragedy, introspection, action, divergence, and return to the status quo. During the earlier stages, emotional capture sets in, allowing politicians and activists to garner support for reform. But, after the spike, soon support for reform fades, and regresses to the mean. Fifth, with this framework, we view the year following the horrific massacre in Newtown through the lens of the shooting cycle. We conclude by addressing whether the shooting cycle can be broken.

You can read the other articles in this symposium issue here.

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Oct 16, 2014

Buck v. Cornell: Three Generations of White Tail Deer Is Enough

In Buck v. Bell, the Supreme Court sanctioned the state performing tubal ligation surgeries on undesirable persons. Now, in Buck v. Cornell, the Ivy League college is performing tubal ligation on undesirable deer. Three generation of white tail deer is enough!

The Washington Post reports on Cornell’s ineffective methods of sterilizing deer in an effort to cull the surging deer population.

Typically, a deer boom is dealt with through hunting. Often, sharpshooting riflemen or archers are brought in to bait the animals into zones where shots can safely be taken. Cornell’s administrators took a different approach: They chose to experiment with sterilizing many of the wild deeron campus while allowing periodic hunting on nearby land — and the result was something that nobody anticipated.

Washington’s deer population has surged in recent years, particularly in Rock Creek Park, where last year an estimated 335 deer lived.

Much like Carrie Buck, the deer had their fallopian tubes cut:

The method of contraception chosen by Cornell was tubal ligation, in which a doe’s fallopian tubes are either blocked or severed. This prevents egg cells from reaching the uterus. Unlike chemical forms of birth control, tubal ligation is typically permanent and avoids the expense of capturing the same deer each year to maintain their infertility. At a cost of roughly $1,200 per deer, 77 does were captured and sterilized though tubal ligation. (Without the help of the Cornell University College of Veterinary Medicine, the costs would have been higher.)

But it didn’t work! How can it be that the population increased after performing tubal ligation on the deer?!

Bucks and does form temporary pairs for a few days in order to mate. Bucks can travel for miles to seek out does in heat, which means that a large number of females would need to be targeted for sterilization. …

Under normal conditions, all female whitetails go into heat within several weeks of each other and become pregnant at around the same time. This annual event is called the rut. However, if a doe is not impregnated during the rut, it will enter heat again the following month and again the month after that. Because the ligated does were unable to become pregnant, they continued to produce chemical signals of readiness to reproduce — signals that can attract bucks from miles away.

By preventing pregnancy in does, Cornell had accidentally invented a population of buck magnets that regularly drew in new deer from the surrounding area.

And, here’s the kicker–even deer that were sterilized still managed to give birth. So they gave them ovariectomies! And that still didn’t work! How is this even possible?

Cornell has begun experiments with ovary removal in deer, but Curtis’s team has already had a surprise.

“Three of the 77 tubal ligation deer gave birth to fawns,” Curtis said. “These three deer were recaptured and later were given ovariectomies. All three had ovarian anomalies, and at least one experienced tissue regrowth post-surgery.”

Even after the surgical removal of their ovaries, one of the three deer became pregnant again. It is not clear how this was possible. One supposition is that some ovarian tissue may have escaped the scalpel and regrown into a functioning ovary.

If we learned nothing from, Jurassic Park, we can’t dinosaurs, and deer, from reproducing. As Jeff Goldblum said, life finds a way.


I have an idea. Invite Justices Scalia and Kagan to Cornell Law School, and they’ll take care of the excess population, and entertain the students. Boom. (Pun intended).

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Oct 16, 2014

Is Herbert v. Kitchen Still Good Law?

In his order dissenting from the denial of Alaska’s request for a stay, Judge O’Scannlain cited Herbert v. Kitchen (2014).



Is Herbert v. Kitchen still good law? How should we understand it? Is the precedent valid because it is still on the books? Is it invalid because we now know that (at least) 5, and perhaps 6 Justices no longer support that decision to stay the judgment? Is there a difference between Hebert granted a stay in an emergency context, but a stay is not appropriate following the formal certiorari process? Have the circumstances changed to render this precedent obsolete?

On the one hand, nothing the Supreme Court has done would, in the least, cast doubt on that precedent of super-recent vintage. On the other hand, what the Court has *not* done casts serious doubt on this precedent. By denying certiorari on the petition for certiorari from the 10th Circuit, the stay originally granted in Herbert v. Kitchen has been lifted.

I don’t think this is a valid citation. And,unless the Court says otherwise, Herbert should not be relied on in this context. Barely a year old, Herbert v. Kitchen (January 6, 2014), has been superseded before it even made it into the U.S. Reports. How often does that happen?

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Oct 16, 2014

I am interviewed on ABC 13 about the Houston Pastor Subpoena Case

Yesterday I was interviewed by the local ABC affiliate about a story that has since gone national–the City’s decision to subpoena pastors for copies of any sermons discussing “homosexuality.”

Here are my quotes:

South Texas College of Law Professor Josh Blackman says the current wording of the subpoena is definitely problematic.

“If the subpoena is narrowed I think that would be much better, but to the extent they’re still asking about sermons, that may have First Amendment problems depending on how broad it is,” said Blackman.

Feldman says that when the city responds to the response of the subpoena, it will revise the wording and narrow the scope. Whether that will satisfy the critics remains to be seen. Woodfill says he didn’t feel like anything said from the pulpit should be part of the lawsuit.

Blackman says in his opinion, the additional controversy on this issue could have been avoided, if the attorneys working for the city were more precise.

“I think if the city had taken the care about why they’re going after these four or five preachers it would be much less blundersome. Now it seems the city didn’t even know what they’re requesting in the first place and dialing it back.”

Allow me to elaborate. The City is represented pro bono by Susman Godfrey, one of the top litigation firms. They know what they are do. It would have been legal malpractice for them to subpoena the pastors without the City’s permission. I think the Mayor and City Attorney are now parsing words, and saying they didn’t approve the precise language. While this may be technically true, it is a shallow defense. They no doubt agreed to subpoena non-parties, and wanted to find out whether any instructions were provided concerning the referendum process. It is unavoidable that this would include “sermons.” These subpoenas should be withdrawn, and if not, quashed, with attorneys fees.

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Oct 16, 2014

$680,000 House Built on Wrong Lot

house-lotApparently, cases like Howard v. Kunto do happen in real life! This story proves the value of an accurate survey.

Six months after building a large custom house with an ocean view, Missouri residents Mark and Brenda Voss learned of a big problem – it’s on the wrong lot.

Their three-story vacation rental house with an estimated construction value of $680,000 actually sits on the lot next to the one they own in the gated Ocean Hammock resort community.

How did this happen? A mistaken survey.

The Vosses, who own 18 other residential lots in the Hammock Dunes master-planned community, paid $160,000 for one with a street address of 23 Ocean Ridge Blvd. North in June 2012, according to Flagler County property records. They hired Keystone Homes to design and build a 5,000-square-foot house there to use as a vacation rental managed by Vacation Rental Pros in St. Augustine.

The builder and Voss each say the error can be traced to the first survey in 2013. East Coast Land Surveying in Ormond Beach misplaced stakes, and the foundation survey and other documents and building activity were based on the error. During construction, dozens of subcontractors arrived each day to work at the wrong lot. And a final survey failed to note the error.

“We require a preliminary plat, foundation and final survey and they all indicate it’s the right lot where the house sits,” said Mark Boyce, Flagler County’s chief building official. “We rely on the surveyor. They are state licensed professionals and we count on them to get it right.”

Calls to East Coast Land Surveying last week were unreturned.

It was another survey who discovered the problem.

It wasn’t until September, six months after the Voss house was completed, that a survey crew working nearby uncovered the error and notified the community manager, who then called Keystone Homes.


And because they are aware of this error, there is no chance they could ever claim an adverse possession.

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Oct 15, 2014

Terrorists Love Waiving Miranda Rights

Apparently, it’s not just teens who waive their right to counsel during interrogations. The Times reports that captured terrorists talk willingly and proudly!

When Osama bin Laden’s son-in-law, who encouraged jihad against the United States, was arrested and flown from Jordan to this country last year, it might have seemed unlikely that he would be willing to say much.

But whatever reticence he might have had was quickly lost.

“I am willing to tell you anything, and will not hold back,” he said. He soon waived his Miranda rights, according to an F.B.I. summary of his interrogation. He also said, “You will hear things of Al Qaeda that you never imagined.”

The defendant, Sulaiman Abu Ghaith, who was sentenced to life in prison last month, offered a trove of information, some of which was later used against him in court.

And he was far from alone. …

Faisal Shahzad, the Pakistani immigrant who tried to detonate a car bomb in Times Square in 2010, spent two weeks being questioned about “sensitive national security and law enforcement matters,” after waiving his right to a lawyer and a speedy court appearance, the government said. He laterpleaded guilty and was sentenced to life in prison.

In his book, Leon Panetta explained that after the Underwear Bomber was Mirandized, he confessed and told everything. Panetta made it seem like good police work.

Less noted was what happened after Abdulmutallab was informed of his right to remain silent and to have a lawyer. After first shutting up, he then relented and talked at length. It was Abdulmutallab who revealed that Anwar al-Awlaki had personally sent him on his terrorist mission. And it was Abdulmutallab who told FBI agents that the person who made the bomb that he carried in his underwear that day was Ibrahim al-Asiri, brother of the young man who had tried to kill Prince bin Nayef. Those statements helped us better understand the workings of Al Qaeda in Yemen and ultimately led to Awlaki’s elimination. Importantly, investigators coaxed those admissions from Abdulmutallab without duress. He was not denied sleep or stripped naked, much less waterboarded. His confessions were the result of patient, clever interrogation of a suspect who had been read his rights and who nevertheless elected to cooperate with skillful questioners— proof that civil liberties and expert, aggressive investigations can and do coexist.

Or maybe they were just terrified of being waterboarded at a Black Site.

Some defendants in the civilian court system cite the specter of the government’s methods of torture, like waterboarding, at secret C.I.A. sites, for the extraction of information.

Nazih Abdul-Hamed al-Ruqai, an alleged Libyan Qaeda operative who was captured last year in Tripoli, waived his rights and gave an incriminating statement while being questioned by the Federal Bureau of Investigation, prosecutors have said.

He has pleaded not guilty and moved to suppress his statement on the grounds that it followed “countless hours of abusive interrogation” by the C.I.A. that left him confused, afraid and vulnerable to being pressured into waiving his rights, his lawyer wrote in a court filing.

“I was convinced that I would end up in one of C.I.A.’s black site torture prisons,” Mr. Ruqai, whose nom de guerre is Abu Anas al-Libi, said in a separate filing. By the time he spoke to the F.B.I., he said, his ability to make a voluntary decision about whether to speak “was long since gone.”

Prosecutors say that Mr. Ruqai’s statement was made only after he “knowingly and voluntarily waived his Miranda rights.” A judge is holding a hearing on the matter on Wednesday.

Fascinating and disturbing report.

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Oct 15, 2014

Study: Interrogated Teenagers Confess, Don’t Ask For Lawyers

Whenever I address any high school students, the first, middle, and last thing I tell them, is that if they are ever arrested to demand a lawyer immediately and not talk to the police without one. I even recorded this ultra-hip YouTube video teaching this lesson. Unfortunately, not enough teenagers heed this advice.

The Times reports on a new study about teenagers who are interrogated–none ask for lawyers, many make confessions or incriminating statements:

What none did, however, was exercise his constitutional rights. It was not clear whether the youths even understood them.

Therefore none had a lawyer at his side. None left, though all were free to do so, and none remained silent. Some 37 percent made full confessions, and 31 percent made incriminating statements.

These were among the observations in a recent study of 57 videotaped interrogations of teenagers, ages 13 to 17, from 17 police departments around the country. The research, published in Law and Human Behavior, adds to accumulating evidence that teenagers are psychologically vulnerable at the gateway to the criminal justice system. Youths, some researchers say, merit special protections.

The study shows that police, as they often do, are allowed to lie, but the teens don’t know this. Whenever I tell teenagers that the police can and do lie, they are appalled. Remember when they taught us in school that we should always trust the police. Ha!

Teenagers, he added, are also less likely than adults to know that the police can lie during interrogations.

“The police often promise kids things in the present. ‘If you just tell me you did it, you can go see your mom,’ ” he continued. “And because the brain’s reward systems are hypersensitive during adolescence, that immediate reward of confessing will trump the thinking of, ‘What will happen when I come back to court in a month?’ ”

Moreover, research shows that teenagers aged 15 and younger will unwittingly comply with authority figures. They are very suggestible, so that during an interrogation, they are more likely than adults to change their answers in response to interviewers.

Also, I make sure to tell the teens that they demand a lawyer, not just their parents. Why? Their parents have no clue either.

In Dr. Cleary’s study, only 12 suspects were accompanied by parents during portions of the interviews, whose duration ranged from six minutes to five hours, with the average about 45 minutes.

But if parents are not legally savvy, their presence may not serve young suspects well.

In the videos, five parents remained largely silent. Some lectured their children and then questioned them, taking on the interrogator’s role. A few parents urged their children to come clean, inadvertently sealing their fate.

Parents have conflicting roles, Dr. Cleary said. “They want to defend their children against accusations of wrongdoing. But we also socialize children to obey the law and tell the truth.

“Some parents might have felt compelled to use the situation as a teachable moment, or they might have felt their parenting skills were being threatened.” Dr. Cleary said. “It’s not fair to put parents in that situation, particularly without a lawyer.”But how do parents balance encouraging children to respect authority against the harm that can befall them by speaking with interrogators?

Dr. Steinberg suggests that parents tell teenagers: “If you’re being questioned by police because they think you’ve done something bad, say you need to talk to your parents first.” Parents can decide whether to call a lawyer.

No. You always call a lawyer. Even if your kid is in trouble, your first duty as a parent is to make sure the child is adequately represented. Parental punishment can always come later.

The Court recently held in J.D.B. v. North Carolina that age was a relevant factor in deciding whether a person is in custody for purposes of Miranda. Children should always know that they are required to ask for a lawyer.

Watch the video!

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Oct 15, 2014

Prop1 Class 16 – Co-Ownership II

The lecture notes are here, and the live chat is here.

Courtesy of the Dukeminier & Krier web site, here is a map of the property at issue in Delfino v. Vealencis.



Here was the map for the proposed subdivision:


And here is the Vealencis family.

vealencis vealencis

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Oct 15, 2014

Prop2 Class 16 – Zoning I

Today we will begin covering covenants, and spend most of the class of Village of Euclid v. Ambler Realty.

The lecture notes are here and the live chat is here.

Here is the text of the 5th Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Here is the text of the Section 1 of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This diagram will be helpful to explain Euclid.

As best I can tell, the lot is currently bounded by E 196th St and E 204th St, between Euclid Avenue and the train tracks.

Here is the map.

View Larger Map

It seems to be some kind of business park today. Here are some photographs of what the lot looks like today, courtesy of Michael Alan Wolf.

And in case you were wondering (I know you were!) what the Supreme Court looked like in 1926, here it is:

Chief Justice William Howard Taft Associate Justices Oliver W. Holmes, Jr. Willis Van Devanter James C. McReynolds Louis D. Brandeis George Sutherland Pierce Butler Edward T. Sanford Harlan Fiske Stone


Here is some information about Houston’s lack of zoning.

Here are some articles about the Ashby High Rise, which should be completed in 2014.

View Larger Map

There was massive opposition to the site, which will be completed in Spring 2014 at Bissonnet and Ashby, north of Rice University.







Here is a recent article from the Houston Chronicle about “income segregation.”

Also, here is a graph that illustrates how eminent domain takings focus on areas of minorities and those with low education. It will be relevant to our discussion on zoning.

Here is a February 2013 Houston Chronicle article on mobility in Houston, based on a Texas A&M report:

  • $1,090: Cost to each commuter in Houston, due to congestion, in lost time and fuel.
  • 23: Gallons of fuel wasted in 2011, per motorist, in the Houston area because of congestion.
  • 5.75: Hours daily that Houston is a “rush hour” commute pattern.
  • 6: Houston’s rank for having the nation’s most stressful commute.
  • 81.9 million: Number of unlinked public transportation trips, a 20 percent decrease from 2006.

Washington D.C. is ranked with the worst traffic in America,followed by Los Angeles, San Francisco, and New York.

Here is a good comparison of New York City & Waco.


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Oct 14, 2014

Houston City Attorney Subpoenas Pastor Sermons About Equal Rights Ordinance

Earlier this year, the Houston City Council enacted the Equal Rights Ordinance, that provides certain legal protections for LGBT people. In response to this ordinance, a repeal effort was launched, supported mainly by religious leaders in the Houston community. Though, ostensibly enough signatures were gathered, the City Attorney invalidated many of them, and found the referendum failed. Then, supporters of the referendum challenged that decision in state court. Houston then removed the case to federal court.

The Houston Chronicle reports on the latest development in this saga–during discovery, the Houston City Attorney has subpoenaed sermons given discussing the equal rights ordinance.

City attorneys issued subpoenas last month during the case’s discovery phase, seeking, among other communications, “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”

The subpoenas were issued to several high-profile pastors and religious leaders who have been vocal in opposing the ordinance.

The article notes that the Alliance Defending Freedom is on the case, and moving to quash the subpoenas. I have not seen any of the papers, but I suspect they raised a Free Exercise challenge, arguing that these subpoenas intrude on church matters, and can be used to chill sermons.

This issue often comes up when Priests politic from the pulpit, and opponents argue that their tax-exempt status should be repealed. But this subpoena seems really broad, as it requests any sermons related to “homosexuality.” That is a topic priests often discuss, totally apart from the Equal Rights Ordinance. This subpoena seems like a really bad idea, and potentially unconstitutional.

Update: The Motion to Quash is here.

2. The discovery requests served on the Nonparty Pastors do not comport with these requirements of Texas law. They are not reasonably calculated to lead to the discovery of admissible evidence, they are overly broad, irrelevant, and cause undue burden or harassment.

3. Additionally, the discovery requests demand materials that are protected by the First Amendment privilege governing discovery of nonpublic documents and communications relating to a political campaign and political strategy.

4. Also, the discovery requests demand materials that are protected by the deliberative-process privilege, the attorney-client privilege, and the work-product doctrine.

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Oct 14, 2014

Breaking: 5th Circuit Stays Voting ID District Court Decision, Citing Recent SCOTUS Decisions Maintaining Status Quo

Judge Clement, joined by Judges Brown and Costa (in judgment) have put on hold the district court’s order in the Texas Voter ID case. Citing Purcel v. Gonzales, the court aimed to avoid creating uncertainty so close before an election. The court cited the recent appeals to the Court from North Carolina, Ohio, and Wisconsin, as proof of this principle:

The Supreme Court has continued to look askance at changing election laws on the eve of an election. Just this term, the Supreme Court halted three Court of Appeals decisions that would have altered the rules of this fall’s general election shortly before it begins. See Frank v. Walker, 14A352, 2014 WL 5039671 (U.S. Oct. 9, 2014); North Carolina v. League of Women Voters of N. Carolina, 14A358, 2014 WL 5026111 (U.S. Oct. 8, 2014); Husted v. Ohio State Conference of N.A.A.C.P., 14A336, 2014 WL 4809069 (U.S. Sept. 29, 2014).

The court discerns a pattern:

While the Supreme Court has not explained its reasons for issuing these stays, the common thread is clearly that the decision of the Court of Appeals would change the rules of the election too soon before the election date. The stayed decisions have both upheld and struck down state statutes and affirmed and reversed district court decisions, so the timing of the decisions rather than their merits seems to be the key.3 Moreover, Justice Alito’s dissent from the stay in Walker casts some light on the Court’s rationale: “There is a colorable basis for the Court’s decision due to the proximity of the upcoming general election. It is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted.” Frank, 2014 WL 5039671, at *1 (Alito, J., dissenting).

I will draw your attention to the concurring opinion of Judge Costa, who seemed troubled by the law, but felt bound by the Court’s three recent decisions involving North Carolina, Ohio, and Wisconsin, which maintain the status quo before an election:

GREGG COSTA, Circuit Judge, concurring in the judgment:

The district court issued a thorough order finding that the Texas voter ID law is discriminatory. We should be extremely reluctant to have an election take place under a law that a district court has found, and that our court may find, is discriminatory. As always, however, we must follow the dictates of the Supreme Court. In two recent decisions, it stayed injunctions issued based on findings that changes in an election law were discriminatory. See North Carolina v. League of Women Voters of N. Carolina, 14A358, 2014 WL 5026111 (U.S. Oct. 8, 2014); Husted v. Ohio State Conference of N.A.A.C.P., 14A336, 2014 WL 4809069 (U.S. Sept. 29, 2014). It also lifted the Seventh Circuit’s stay of a district court’s order in place since the spring that enjoined Wisconsin’s voter ID law. See Frank v. Walker, 14A352, 2014 WL 5039671 (U.S. Oct. 9, 2014). I agree with Judge Clement that the only constant principle that can be discerned from the Supreme Court’s recent decisions in this area is that its concern about confusion resulting from court changes to election laws close in time to the election should carry the day in the stay analysis. The injunction in this case issued even closer in time to the upcoming election than did the two out of the Fourth and Sixth Circuits that the Supreme Court recently stayed. On that limited basis, I agree a stay should issue.

I think this is effectively the votes of Justices Breyer and Kagan, who voted for a stay, but likely won’t vote for North Carolina on the merits.

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Oct 14, 2014

FantasySCOTUS is Back! Win Cash Prizes, Beat {Marshall}+, and Unlock SCOTUS Badges

We have launched the 6th Season of FantasySCOTUS, and this is the best competition yet. This year, FantasySCOTUS is sponsored by Thomson Reuters, and is operated by my colleagues at LexPredict, a legal analytics and service provider. If you’ve played before, sign up and play again. If you haven’t we have three new reasons to join.

1. Cash Prizes

For the first time, thanks to our good friends at Thomson Reuters, we are offering significant cash prizes,  sponsored by Thomson Reuters.

  • Grand Prize – $10,000
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  • Honorable Mention (3) – $500

Beyond the grand prizes addition, we will offer Amazon gift cards, between $25 and $100, for making the most predictions with the highest accuracy.

2. Man v. Machine Competition

Marshall-AnimatedMy colleagues developed a revolutionary algorithm that can accurately predict Supreme Court cases. We call it {MARSHALL}+, after Chief Justice John Marshall.  This Term, {MARSHALL}will be competing against the players of FantasySCOTUS in a legal Man v. Machine contest.  It’s like IBM’s Watson on Jeopardy, except with the Supreme Court.  And we need your help.  By making predictions in all of the cases this term, you will contribute to the most sophisticated Supreme Court forecasting project of all time – with a shot at winning cash prizes to boot.

You can see all of our predictions in real time at the Prediction Tracker.

3. Unlock SCOTUS Justice Badges

If cash prizes and beating a computer were not enough incentives, if you make predictions, you can unlock your very own Justice Badges. Here are the badges for Chief Justice Roberts, Justice Scalia, Justice Kennedy, and (almost) everyone’s favorite, Justice Ginsburg.


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Oct 14, 2014

What are the odds?

Last week, I wrote that Ninth Circuit Judge Reinhardt has the “uncanny ability to be on the right panels.” Based on nothing more than intuition, I recalled that Reinhard somehow made it onto the panels of the three most important gay-rights cases in recent years: Prop 8 panel (confirming my 2010 prediction), SmithKline v. Abbott, and the Idaho/Nevada Same-Sex Marriage case. Derek Muller did some back-of-the-envelope calculations and figure that the odds Reinhardt was on all three panels was roughly 1:1,000. I was content to leave the thought experiment at just that.

Apparently I was not the only one who had the same idea. Monte Stewart, who represents several of the groups defending same-sex marriage bans, filed a petition for rehearing en banc in the 9th Circuit. I have no interest in most of his arguments, where he asserts that the 9th Circuit got the caselaw wrong with respect to equal protection and due process. The most significant aspect of the motion is Part 4. Stewart alleges that “The appearance is strong and inescapable that the assignment of this case to this three-judge panel was not done through a neutral process but rather was done in order to influence the outcome in favor of the plaintiffs.”

This claim is based on a statistical analysis performed by Texas A&M Statistics Professor Emeritus James H. Mantis, described in this appendix. In short, he argues that the odds that Judges Reinhardt and Berzon were consistently appointed to many panels concerning gay-rights cases is not consistent with a neutral selection process. The petition identifies 11 cases (“the relevant cases”) decided since 2010 that implicate some gay rights issue:

  1. Kemp v. Ryan (Rymer, Callahan, Ikuta)
  2. U.S. v. Osazuwa (Reinhardt, Wardlaw, Berzon)
  3. Diaz v. Brewer (Schroeder, Thomas, Bennett)
  4. Log Cabin Republicans v. United States (Alarcon, O’Scannlain, Silverman)
  5. Ward v. Carr (Wallace, Noon, M. Smith)
  6. Perry v. Brown (Prop 8) (Reinhardt, Hawkins, N.R. Smith)
  7. Barnes-Wallace v. City of San Diego (Canby, Kleinfeld, Berzon)
  8. Galario v. Adewundmi (Farris, D.W. Nelson, Nguyen)
  9. Golinski v. OPM (Alarcon, Thomas, Berzon)
  10. SmithKline Beecham Corp v. Abbott Labs (Schroeder, Reinhardt, Berzon)
  11. Jackson v. Abercrombine (Idaho/Nevada SSM) (Reinhardt, Gould, Berzon)

Of these 11 cases, Judge Berzon was on five panels, and Judge Reinhardt was on four panels. Three other judges were on two of these panels, and eighteen other active status judges were on none. The attached statistical analysis concludes that such a selection was not the result of a “neutral judge-assignment process.”

As an aside, not all of these cases generated a ruling favorable to gay-rights. This cuts against the argument that the mere presence of Reinhardt and Berzon implies an unfair draw. In my mind, the most significant cases from the lot are Perry v. Brown, SmithKline Beecham Corp v. Abbott, and Jackson v. Abercrombine. All three with Reinhardt, the latter two with Reinhardt and Berzon.

Accepting the 11 cases as a representative sample, depending on the methodology used, the professor calculates different probabilities of Reinhardt, Berzon, or both being on the same panel. The odds of the Reinhardt/Berzon selections range from 61:1 to 444:1.



To put this in terms that may be more understandable, in Poker, the odds of getting three of a kind are 47:1,  a straight 255:1, a flush 508:1, and a full house 694:1.

I haven’t done an independent verification of these numbers, but the high likelihood that these specific judges appear consistently on certain types of cases does raise a red flag. And it would not be unprecedented.

I write this as someone who clerked for a judge that made an allegation concerning non-neutral panel selections. In the University of Michigan Affirmative Action case, Judge Danny Boggs wrote in a “procedural appendix,” that then-Chief Judge Boyce Martin (now retired) deliberately delayed the circulation of a petition for rehearing en banc. He allegedly did this with the goal of waiting for two conservative judges to take senior status, making them ineligible to vote for rehearing. Boggs also asserted that Martin improperly placed himself on the three-judge panel.

A subsequent investigation found that Martin’s actions “raise an inference that misconduct has occurred.” Because corrective actions were taken, notwithstanding these findings of wrongdoing, Acting Chief Judge Batchelder deemed the matters concluded. No disciplinary action was taken against Judge Martin (although he would later be placed under investigation, and resign abruptly, due to allegations about improper reimbursements).

Part of me likes to think that federal judges are beyond interfering with the process of panel assignments, but Judge Martin’s chicanery in the 6th Circuit has disabused me of such optimism.


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Oct 14, 2014

Scalia, Thomas, and Ginsburg Dissental on “Substantive Unresonableness” Case: “This has gone on long enough”

You don’t see this every day.  Justice Scalia, joined by Justices Thomas and Ginsburg, dissented from the denial of certiorari on a substantive unreasonableness sentencing case:

A jury convicted petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing very small amounts of crack cocaine, and acquitted them of conspir- ing to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.

Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been “substantively unreasonable” and therefore illegal. See Rita v. United States, 551 U. S. 338, 372 (2007) (SCALIA, J., joined by THOMAS, J., concurring in part and concur- ring in judgment). If so, their constitutional rights were violated. The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either admitted by the defendant, or “proved to the jury beyond a reasonable doubt.” Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New Jersey, 530 U. S. 466, 483, n. 10, 490 (2000), and “must be found by a jury, not a judge,” Cunningham v. California, 549 U. S. 270, 281 (2007).* We have held that a substantively unreasonable penalty is illegal and must be set aside. Gall v. United States, 552 U. S. 38, 51 (2007). It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.

Here is the conclusion:

This has gone on long enough. The present petition presents the nonhypothetical case the Court claimed to have been waiting for. And it is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense. Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs. The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. The Guidelines, petitioners claim, recommend sentences of between 27 and 71 months for their distribution convictions. But in light of the conspir- acy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months’ imprisonment.

On petitioners’ appeal, the D. C. Circuit held that even if their sentences would have been substantively unreasona- ble but for judge-found facts, their Sixth Amendment rights were not violated. 744 F. 3d 1362, 1369 (2014). We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment—or to eliminate the Sixth Amendment difficulty by acknowledg- ing that all sentences below the statutory maximum are substantively reasonable.

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Oct 14, 2014

The Costs of Unanimity

One of the emerging themes on the Roberts Court has been a paramount interest in unanimity and the avoidance of partisan 5-4 splits. But this agreement–or what Dahlia Lithwick has deemed a faux unanimity–is not without costs. Perhaps the most recent example of this dynamic has been the Court’s decision to deny certiorari on the same-sex marriage petitions. As I noted, at some point between August and September, something changed, and (at least) five Justices who voted to enter a stay turned into (at least) six Justices who denied certiorari. It’s very hard to believe that this change was motivated entirely by an evolved view of the constitutional law issues at play–especially coming from four Justices who recent dissented in Windsor. The votes I think reflect this broader pattern in the Court’s preference to display unanimity, when it is in fact fractured on the inside.

Some may think this is a good thing, because they agree with the Court’s refusal to accept the SSM petitions, which paved the way for gay marriages in many states. (Jeff Sutton probably does not agree, as this passes him an increasingly weighty burden that is more properly placed at One First Street). Others may think this is a good thing, because they don’t want the Court to be perceived as partisan, and issue a series of divided 5-4 decisions. Why shouldn’t the Justices pretend to agree even if they don’t?

I take neither position. If the Justices don’t agree, they shouldn’t vote together. These nine individuals were nominated to be Justices, and interpret the law as they saw it (I’ve watched the confirmation hearings–we heard this message ad nauseum). When Justices not-so-transparently start putting other motivations ahead of how they view the law, in a quixotic effort to maintain unanimity, the ability to profess unanimity becomes very hard to justify. As bizarre as it sounds, I would prefer a sharp 5-4 split where I know the Justices believe what they voted, and the pros and cons of a position can be laid bare, to a superficial 9-0 split, where it is painfully obvious the Justices don’t all agree, and they took some wishy-washy middle of the ground route that satisfies no one–McCullen v. Coakley for example.

Consider NFIB. I’m often asked on the book tour whether the Chief Justice believed in his vote. I answer with a qualified yes–I’m sure he believed his position was the right one, based on factors endogenous to the commerce and necessary and proper clauses. (We know this because he spent page after page explaining why this law is not actually a tax, and fails under commerce and necessary and proper). I also suspect he believes his decision to deny certiorari was also the right one, based on factors endogenous to the due process and equal protection clauses. (We know this because of his Windsor dissent not two years ago). But it’s hard to imagine that either opinion was not driven by his pledge to strive for unanimity. But, denying certiorari looks like a clear case of politicking, rather than a genuine change in the view of constitutional law. In my mind this is more injurious to the Court in the long-term, than the Justices dissenting from the denial of certiorari, if that is what they believe.

I think this approach sets a dangerous precedent going forward for the Roberts Court. Sooner rather than later the costs of unanimity will become clearer, as the Justices continue setting aside what they clearly see as the legal solution, by focusing on other factors, which create just as much of an appearance of partisanship.

Richard Wolf, who interviewed me about this topic last week, summarized my position into two quotes in the USA Today article titled.

Here are they are, with the complete context above:

But eventually, many on the right say, the court’s conservatives must stand and fight, if only to make clear their view of the law.

“If you’re a judge, you were put in the position to interpret the law as you see fit,” says Josh Blackman, a conservative legal blogger and assistant law professor at South Texas College of Law. “I think this is a very dangerous pattern. … You put aside your own jurisprudence. You put aside your own view of the law.” …

For that reason, much of the criticism has focused on Roberts, the former Reagan administration official and federal appeals judge who sided with the liberals on Obamacare.

“The chief justice has this preference for showing unanimity and not showing divisiveness,” Blackman said. “The pattern is always avoid a fractured 5-4 by capitulating. That doesn’t bode well for the future.”

I usually can’t explain myself fully in two quotes, so I hope this post explains my thoughts in depth.



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Oct 13, 2014

Final Version of “Obamacare and Man at Yale” in Illinois Law Review

My contribution to a symposium in the Illinois Law Review about how the academy “misunderestimated” the constitutional challenge to Obamacare is now final. You can download it here. Here is the abstract.

After the most significant Supreme Court oral argument of the Roberts Court, elite law professors were stuck sitting on the sidelines at the Hogwarts-esque castle that is Yale Law School, mystified how they were likely headed towards an unprecedented defeat. Rather than accepting the validity of the arguments against Obamacare, leading academics directed their ire towards the recalcitrant Solicitor General, who, unlike his predecessor, shunned academics, and put forth losing arguments in Court. Further, the professors blamed the media (the New York Times in particular), that gave a “false equivalence” to libertarian law professors, and made their arguments legitimate.

In writing Unprecedented: The Constitutional Challenge to Obamacare, I conducted over one-hundred interviews with the lawyers, journalists, professors, and politicos involved on both sides of the case. These insights shed light on the question Professor David Hyman seeks to answer in his important and timely new article: “Why Did Law Professors Misunderestimate the Lawsuits against PPACA?” For this contribution to a symposium in the Illinois Law Review, I highlight how the sentiments at this Ivy-League confab served as a fitting testament to the law professors’ “misunderestimation” of NFIB v. Sebelius.


The other pieces from David Hyman, Andy Koppelman, and others are here:

Issue 4 next presents 5 essays responding to Professor Hyman’s article “Why did Law Professors Misunderestimate the Lawsuits against PPACA?” Professors Ramseyer, Blackman, Blumstein, Mazzone, andKoppelman all contribute to this discussion on the Affordable Care Act. The final article, by Professor Hymanresponds to and summarizes the foregoing discussion.

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Oct 13, 2014

The Clinton Administration Opposed A “Political” Contraceptive Mandate

From the Clinton Archives, we see that the Administration considered, but rejected, the idea of requiring employers to provide contraceptives to their employees, as it would make coverage decisions “political”:

In June 1998, Clinton’s advisers recommended that the administration support a proposal requiring contraceptive coverage for federal employees. But what about a proposal to require all employers to offer birth control coverage? With memories fresh of the collapse of the health overhaul pushed by Hillary Clinton, that was a step too far.

“Be silent” on that point, says a memorandum from advisers Bruce Reed and Chris Jennings.

“The health policy community usually opposes mandating particular benefits for fear that coverage decisions will become political rather than substantive and, in most cases, will add to the cost of health insurance,” the memo says. “We generally agree with the policy community on this point, and worry that if we go down this road any further, we will find it difficult to oppose benefits mandates that are politically popular but poor policy.”

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