Jun 30, 2016

Supreme Court of Texas Rules on “Ferae Naturae” Doctrine

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.

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Jun 30, 2016

Tweets on OT 2015 Stat Pack

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

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Jun 29, 2016

Justice Thomas “In an appropriate case”

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).




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Jun 28, 2016

AG Lynch on U.S. v. Texas: “We will be reviewing the case and seeing what, if anything else, we need to do in court”

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.

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Jun 28, 2016

Debate on “Airtalk” Los Angeles Public Radio to talk about Gun Restraining Orders

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:

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Jun 28, 2016

“The Process of Marriage Equality” Cited in Post-Obergefell Opinion by Southern District of Mississippi

Mississippi HB 1523 would allow county clerks to recuse from issuing marriage licenses to same-sex couples based on religious objections. The Campaign for Southern Equality sought to reopen and expand the injunction granted by the Southern District of Mississippi in 2015, after Obergefell was decided, to enjoin enforcement of HB 1523. (See Religion Clause and Buzzfeed for more background). Yesterday, the court granted limited relief, and allowed the case to be reopened to address the changes to the “landscape of Mississippi’s marriage licensing laws” by HB 1523.

The court found that HB 1523 “may in fact amend Mississippi’s marriage licensing regime in such a way as to conflict with Obergefell.” Therefore, the “significant change” warrants reopening the case to reconsider the Permanent Injunction. One of the key questions for the court was whether the 81 circuit clerks, who were not parties to the original action, are bound by the permanent injunction.

The court concluded that they are not bound, citing The Process of Marriage Equality, authored by Howard Wasserman and me.


This is exactly right. An injunction does not bind non-parties. It only serves as precedent, which can be the basis for a subsequent contempt action. Clerks in other counties that do not issue the licenses to same-sex couples will almost certainly be held in contempt–and be subject to paying fees–but the 2015 injunction is not enough, standing by itself, to cause that effect. This is such a fundamental misconception of civil procedure, and I am so, so glad the court got this neutral principle of procedure correct.

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Jun 27, 2016

Audio: Interview on Houston Public Radio about Whole Women’s Health

Today I was in studio on Houston Matters on Houston Public Radio to talk about Whole Women’s health. Here is the audio:

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Jun 24, 2016

Posner v. Scalia – The Final Round “I regard the posthumous encomia for Scalia as absurd”

After Justice Scalia’s passing, I assumed that I would be able to at last retire the long-running series of battles between Scalia and Posner, which finished at Round XXVI back in September of 2014. Once again, Judge Posner managed to prove me wrong.

In his contribution at Slate’s Breakfast Table, Posner took this posthumous swipe at Nino, albeit this time criticizing as “absurd” those who praised him–including Harvard Dean Martha Minow and Justice Kagan:

On a different subject, I worry that law professors are too respectful of the Supreme Court, in part perhaps because they don’t want to spoil the chances of their students to obtain Supreme Court clerkships. I think the Supreme Court is at a nadir. The justices are far too uniform in background, and I don’t think there are any real stars among them; the last real star, Robert Jackson, died more than 60 years ago. I regard the posthumous encomia for Scalia as absurd. Especially those of Harvard Law School Dean Martha Minow and Justice Elena Kagan.

I’m speechless.

Adrian Vermeule, inspired by The History of England from the Accession of James the Second, stated it better than I ever could:

I titled this post “The Final Round,” but knowing Posner, this is far from over. And now, Scalia won’t be able to reply.

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Jun 23, 2016

Audio: Interview on “Houston Matters” on U.S. v. Texas

In case you didn’t hear me talk about U.S. v. Texas enough today, I also did an interview on Houston Matters, a show that focuses on local matters. Every June, this involves Texas cases at the Court. You can listen here.

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Jun 23, 2016

Audio: Interview on “To The Point” about U.S. v. Texas

Today I was a guest on “To the Point” with Marielena Hincapie and Greg Stohr, discussing U.S. v. Texas. You can listen here:

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Jun 23, 2016

Audio: Federalist Society Teleforum on U.S. v. Texas

Today I recorded a Federalist Society Teleforum on U.S. v. Texas. You can listen here:

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Jun 22, 2016

#SCOTUS Book Royalties – 2015

The Justices are fairly limited in their ability to earn outside money. Other than teaching a class, book royalties are one of the few lucrative extra-curricular activities for the Nine.

Justice Breyer’s 2011 book, Making our Democracy work, earned $60,000 in 2011 and $29,980 in 2013. In 2015, he earned  $7,214 for his new book, The Court and the World. This  he notched $122,000 from Random House in royalty income and “nonemployee compensation.”

Justice Sotomayor’s book, My Beloved World, earned her more than $3 million, including $1.9 million in advances.  In 2015, she did not earn any royalties on the book, nor did the publisher spend any money promoting it. As I speculated a few years ago, I doubt she earned back her advance, which is why no additional royalties have been paid out.

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Jun 22, 2016

The NY TImes on the Changed Relationship Between Students and Professors

Take a minute to read Frank Bruni’s take in NYT on the changed relationship between students and professors. In short, an increasingly large number of students view college (and I would add law school) as a way to cater to their needs, rather than providing them an education. The sense of responsibility is completely lacking. Students are not in a particularly good position to understand what getting that education entails–they haven’t done it before. Yet, they are disappointed when school does not conform with their expectations. I doubt much of this will be new for readers of this blog, but the article does a good job at crystalizing a complex dynamic. Here is the key part of the argument:

The rightful passing of that paradigm created a need for new ones, and Mr. Haidt said that the two in vogue now were “the therapeutic model and the consumer model.” In accordance with the first of those, students regard colleges as homes and places of healing. In accordance with the second, they regard colleges as providers of goods that are measurable and of services that should meet their specifications.

And that has imperfections all its own, the best laundry list of which appeared in “Customer Mentality,” an essay by Nate Kreuter, an assistant professor of English at Western Carolina University, that was published by Inside Higher Ed in 2014.

He noted a “hesitance to hold students accountable for their behavior,” be it criminal or a violation of what is too frequently a “laughable university honor code.” He noted an expectation among many students that their purchase of a college education should be automatically redeemable for a job, as if college were that precisely vocational and the process that predictable.

“That’s simply not how life works,” he said in a recent interview. “So we have a lot of students who are disenchanted.”

But what does the customer model do to their actual education?

“There’s a big difference between teaching students and serving customers,” said Mr. Schwartz at Swarthmore. “Teachers know things, and they should be telling students what’s worth knowing and what’s not, not catering to demands.”

Too often, he said, “we’ve given students a sense that they’re in just as good a position to know what’s worth knowing as we are, and we’ve contributed to the weakening of student resilience, because we’re so willing to meet their needs that they never have to suffer. That makes them incredibly vulnerable when things go wrong, as they invariably do.” He was speaking in the context of sharp upticks at many colleges in the number of students reporting anxiety and depression, and turning to campus mental health clinics for help.

“I see this as a collective abdication of intellectual and even moral responsibility,” he said.

The focus is on what they should expect, not what is expected of them. Students “have a responsibility in exchange for the subsidy that they get from either the public or nonprofit status of our schools,” said Ms. Hill, the Vassar president. “But the changed culture has suggested to students that they are owed or entitled to the education, and that sense of responsibility doesn’t seem to be there.”

I don’t mean to pick on millennials (for the time at least, I’m not much older than my students), but there is a distinct shift from previous generation of students. This changing demographic poses distinct challenges to faculty–in particularly untenured faculty. One way to ensure evaluations are strong is to make the class as easy as possible, and coddle the delicate snow flakes. They’ll love you–the education they receive may be substandard, but for a rationally self-interested untenured faculty member, it is not an irrational decision. Or, you can choose to make hard choices that make students fee unloved, in the hope they receive a better education, which will serve them in the profession. I’ve chosen the latter approach. I post all of my evaluations, and you can see how it is reflected in the comments. My sincere hope is that toughness will teach them a lesson–often when students do something particularly immature, I style it as a lesson they can internalize for the future. Will it actually work? Maybe for a few students, but who knows. It is a moral responsibility I take seriously, even if the kiddos don’t like it, and me.

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Jun 22, 2016

Property Exam Question: Star Wars Episodes I-III

For my second Property exam question, I traced the events of Star Wars Episodes I-III. (The second question followed Episode IV-VI,). Here is the A+ answer if you want to play along at home.


Even longer ago–thirty-two years earlier to be precise–in a galaxy far, far away, there was a series of contentious property disputes that gave rise to the conflicts in Part 1. This case involves Obi (yes, the same person from the previous Part), Padme, Binks, and Anakin. You are still a law clerk for Chief Justice Yoda of the Jedi Council. He has asked you to write another memorandum of no more than 1,000 words addressing five issues implicated in Part 2. The Jedi Council applies all common law property rules, as articulated in the Restatement (First) of Property. The Council does not adhere to the Rule Against Perpetuities, or any other principle that destroys future interests. There is no statute of limitations or other jurisdictional bar that prohibits the Jedi Council from hearing these disputes.

*Complete the questions in order: complete Part 1 first, and Part 2 second.*

Thirty-two years before the events in Question 1, turmoil has engulfed the Galactic Republic. A much-younger Obi journeys to rescue Padme who is in danger. Padme is the key to galactic peace. But before she can leave, Padme must take care of her property.

Five years earlier, she had entered into a lease for Redacre with Binks. The conveyance stated: “Starting on January 1, Redacre from Binks to Padme for a lease, with a payment of 1,000 credits due the first of each month, which Binks has the power to terminate at a date of his choice.” On May 30, Padme announces that pursuant to the lease, she was terminating the lease, effective immediately. Binks ignores her, and says “You can’t do that.” Instead, Binks executes a new conveyance: “Binks hereby consents to the subletting of Redacre to Obi, but on the condition that Padme remains responsible for any damage to Redacre.” Binks, Padme, and Obi then sign the conveyance.

Immediately after the lease is signed, Redacre is bombed from above, and the premises are destroyed. Obi and Padme narrowly escape, and run to their spaceship. As they take off, Binks yells “Pay me’sa for damages!”

Padme and Obi travel to the planet Tatooine, where they meet Anakin. Soon Padme and Anakin fall in love, and get married. Tatooine has a community-property system for marital property. The trio execute the following conveyance: “Whiteacre from Obi to Padme and Anakin as joint tenants.” The couple moves onto Whiteacre, and Padme soon becomes pregnant with fraternal twins–a boy and a girl.

Anakin has a dream that his wife will die during childbirth. He knows that the only way to save her will be through the powers of the force. The force is a mystical power that exists inside the cells of all people that allows them to do amazing things–including regenerate life. Anakin knows that the force is strong in Obi. While Obi is asleep, using a painless process, Anakin extracts the force from Obi’s body. Anakin then injects it into his own body.

The next morning, Obi awakens, and realizes Anakin stole his force. Obi goes to confront Anakin. Soon, the two engage in a lightsaber battle. As the two fight each other, Padme suddenly goes into labor and delivers two healthy twins. She names them Luke and Princess.

Moments after the twins are born, Obi strikes his lightsaber through Anakin’s heart. With his last breath, Anakin handed Obi his lightsaber, and said, “On my death, give this lightsaber to my son.” Without saying anything, Obi took the lightsaber, and leaves him for dead.

Anakin took his last breath, and his heart stopped beating. Then, the force took over, regenerating his body. He rose back to life as a new person: “My name is now Darth,” he said. Anakin was no longer. Now there was only Darth. Rather than saving his wife’s life with the force, he saved his own. At that moment, Padme–greatly weakened by the childbirth–dies.

Obi separates the infants, leaving Luke on the planet Tatooine with friends, and sends Princess to another planet. Luke and Princess would grow up not knowing who their parents were. They did not even know that they had a sibling (hence the awkward embrace three decades later). Obi would live on Tatooine, so he could keep an eye on Luke, waiting for him to be old enough to lead the resistance against Darth.

Furious, Darth sets out to seek revenge against Obi. Empowered by the force, Darth constructs the ultimate weapon, the Death Star, an armored space station the size of a moon. The Death Star has a laser powerful enough to destroy an entire planet. Darth then executes the following conveyance: “Death Star, from Darth to Darth for life, then to Luke, but if Luke does not have legal title to my light saber at my death, then to Princess and her heirs.” Darth hides the conveyance in a secret room on the Death Star, and does not tell anyone about it about it.

After the the issues in the Part I are resolved, Princess discovers Darth’s conveyance. This triggers a second round of litigation.

Chief Justice Yoda has asked you to write another memorandum, of no more than 1,000 words, addressing the following five issues that affect Binks, Obi, Luke, Princess, the executor of Padme’s estate, and the executor of Darth’s estate.

1. Binks files suit, seeking to recover the cost of damages to Redacare. (Binks is not seeking lost rent). First, Binks sues Obi. Obi defends that he is not liable, and files a countersuit against the executor of Padme’s estate. The executor claims that the estate is no longer liable. What is the strongest arguments that Obi can make, and strongest argument that Padme’s executor can make? How should the court resolve this dispute?

2. The executor of Darth’s estate files suit to quiet title on Whiteacre, claiming that the property belongs to Darth’s estate. The executor of Padme’s estate counterclaims, and asserts that Whiteacre belongs to Padme’s estate. Luke and Princess intervene, both claiming an interest in Whiteacre. How should the court resolve this dispute?

3. Obi files suit against Darth’s estate, seeking 10% of the profits generated by the Death Star (in addition to destroying planets, the Death Star had a successful manufacturing plant). Obi asserts that Darth was only able to construct the Death Star with the power of the force he stole from him. (Obi did not file suit for conversion of the force from his body). What is the estate of Darth’s strongest defense? How should the court resolve this dispute?

4. In light of the discovery of Darth’s conveyance concerning Death Star, Chief Justice Yoda has asked you to supplement your answer to the third question in Part 1.  Specifically, identify the present and future interests, if any, that existed at the time the conveyance was drafted for Darth, Luke, and Princess. In light of the newly-discovered conveyance, who now has the strongest claim to Death Star?

5. Chief Justice Yoda asks you to discuss the strengths and weaknesses of marital property laws based on a community-property model, rather than a common law model. Please pay special attention to the situation that confronts married couples that migrate from a state with one type of laws, to the other.

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Jun 21, 2016

Property Exam Question: Star Wars Episodes IV-VI

For my first Property exam question, I traced the events of Star Wars Episodes IV-VI. (The second question followed the prequels, Episodes I-III). Here is the A+ answer if you want to play along at home.


A long time ago in a galaxy far, far away, there was a decisive property battle between the forces of good and evil. This case involves Princess, Luke, Obi, and Darth. You are a law clerk for Chief Justice Yoda of the Jedi Council. He has asked you to write a memorandum of no more than 1,000 words addressing five issues implicated in Part 1. The Jedi Council applies all common law property rules, as articulated in the Restatement (First) of Property. The Council does not adhere to the Rule Against Perpetuities, or any other principle that destroys future interests. There is no statute of limitations or other jurisdictional bar that prohibits the Jedi Council from hearing these disputes.

It is a period of civil war. Darth has constructed the ultimate weapon, the Death Star, an armored space station the size of a moon. The Death Star, which has a laser powerful enough to destroy an entire planet, poses a risk to the peace and stability of the galaxy. Princess sneaks aboard the Death Star, and secretly takes a picture of the station’s blueprints, which were posted on a bulletin board. The blueprints reveal that there is a vulnerability on the station: if a missile is fired directly into an exhaust port, the entire Death Star will explode. Princess narrowly escapes from the Death Star, and gives the copy of the blueprints to her robot, known as R2. R2 was sent to the desert planet Tatooine to protect the blueprints.

After a crash landing, Luke finds R2 buried in the sands of Dryacre, and says “Finder’s keepers. He’s mine!” Luke works on a moisture farm on Blackacare. With R2’s sophisticated navigational system, Luke spends the next three weeks searching for water, and finally locates a stream of fresh water on Wetacre. Luke starts to build a pipeline to transport the water from Wetacre back to Blackacre. Obi, who owns the adjacent Dryacare, notices that Luke is building the pipeline. Obi diverts the stream, and directs all of the water to Dryacre. Luke demands that Obi remove the diversion of the water, claiming that he spent three weeks searching for it, and was already in the process of building the pipeline to transport the water. Obi refuses, and claims that he was the first to actually divert the water away from Wetacare. Obi added that Luke was only able to find the water with R2’s help, and R2 belonged to Obi.

However, soon Luke and Obi became friends. One day, Obi turns to Luke and hands him a lightsaber–a mystical sword with a laser for a blade. Luke asks if this is Obi’s lightsaber. Obi replies, “No, it belonged to your father.” Obi explains that Luke’s father was mortally wounded by Darth three decades ago. With his last breath, Luke’s father handed Obi the lightsaber, and said, “On my death, give this lightsaber to my son.” Without saying anything, Obi took the lightsaber, and leaves him for dead. But Luke’s father would survive.

Once Luke held the lightsaber in his hand, he sensed that Princess had been kidnapped by Darth, and was being held hostage on the Death Star. Luke travels to the Death Star, and tries to rescue Princess. However, Darth accuses Luke of trespassing, and blocks his entry to Princess’s room.

The two then engage in a dramatic lightsaber battle. Just as Darth is about to kill Luke, he pauses, and says, “Obi never told you what happened to your father.” Luke replied, “He told me you killed him.” Darth shot back, “No, I am your father.” Obi had lied to Luke. Astonished, Luke asks, “So this is your lightsaber?” Darth replies, “Yes. I want you to have it during my life, and after my life it should go to your sister.” Luke didn’t even know he had a sister.

At that moment, Princess emerges, and runs to Luke. The two share an awkward embrace, and then look at each other closely. They realize that they look exactly alike. Then it hits them: they are fraternal twins, and Darth was their father. The siblings miraculously escape the Death Star.

As they escape, Darth becomes furious and activates the Death Star’s laser. He seeks to destroy the planet of Tatooine. As the laser is powering up, Luke flies a spaceship alongside the Death Star, and fires a missile into the vulnerable exhaust port. It was a direct hit! The moon-sized space station explodes into hundreds of pieces. One of the pieces is so large that it enters the gravitational pull of Tatooine, and orbits the planet like a moon. Luke lands on the new celestial body, and plants a flag. “I claim this moon in the name of Luke.” He called it the Luke Star. Darth lands his spaceship, and tells Luke, “That’s no moon. That is the Death Star. And it’s still mine.” In a final dramatic battle, Luke kills his father with his lightsaber. Luke says, “Now it’s mine.”


With the star wars completed, the legal wars begin. Please write a memorandum of no more than 1,000 words for Chief Justice Yoda addressing the following five issues affecting Princess, Luke, Obi, and the executor of Darth’s estate:

1. Luke files suit against Obi, seeking an injunction to divert the water away from Dryacre and towards Blackacre. Obi files a countersuit, and claims that he has the stronger claim to the water. Please discuss the strongest arguments in favor of each claim.

2. The executor of Darth’s estate files suit against Princess, charging that her reproduction of the Death Star’s blueprints was a common-law misappropriation of property. (There are no statutory claims raised). Please discuss the merits of this claim, and Princess’s strongest defenses.

3. Luke files suit to quiet title of Luke Star, claiming that he had the strongest claim to the new moon. The executor filed a countersuit, claiming that there is no new moon, and Darth’s estate retained the strongest claim to what is still Death Star. Please address the strongest arguments in favor of each claim.

4. Luke files suit to quiet title on the lightsaber, claiming that he has the strongest claim to the weapon. Princess intervenes, and asserts that after Darth’s death, she now has the strongest claim to the weapon. Obi intervenes, and asserts that he has the strongest claim because Darth had already relinquished his possession of the lightsaber three decades earlier. How should the court resolve these three competing claims?

5. The executor of Darth’s estate brings a trespass claim against Luke for trespassing onto the Death Star. Luke counters that he entered Death Star in order to rescue the Princess, who was being held hostage. Please address how the Court should resolve this claim, and pay special attention to the policy arguments for and against the “right to exclude.”

To Be Continued in Part II…

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Jun 20, 2016

Breyer does not defer to parochial U.S. Government because DOJ did not consult with foreign nations

This may be the most Breyer concurring opinion I’ve ever read, from RJR Nabisco, Inc. v. European Community:

Unlike the Court, I cannot accept as controlling the Government’s argument as amicus curiae that “[a]llowing recovery for foreign injuries in a civil RICO action . . . presents the . . . danger of international friction.” Ante, at 21. The Government does not provide examples, nor apparently has it consulted with foreign governments on the matter. See Tr. of Oral Arg. 26 (“[T]o my knowledge, [the Government] didn’t have those consultations” with foreign states concerning this case). By way of contrast, the European Community and 26 of its member states tell us “that the complaint in this case, which alleges that American corporations engaged in a pattern of racketeer- ing activity that caused injury to respondents’ businesses and property, comports with limitations on prescriptive jurisdiction under international law and respects the dignity of foreign sovereigns.” Brief for Respondents 52– 53; see also Tr. of Oral Arg. 31 (calling the European Union’s “vett[ing] exercise” concerning this case “compre- hensiv[e]”). In these circumstances, and for the reasons given by JUSTICE GINSBURG, see ante, at 7–8, I would not place controlling weight on the Government’s contrary view.

Do you see what’s going on? Because the Solicitor General could not represent the United States actually checked with foreign nations about the issue of extraterritoriality, and those foreign nations told the Court that the SG was wrong about their views, Breyer would not defer to the United States on a question of foreign relations! It’s come to this: the Supreme Court is second-guessing the State Department’s foreign policy interests because foreign nations tell the Supreme Court otherwise. Where’s Justice Scalia when you need him.

Three other bits about RJR Nabisco.

First, Justice Sotomayor was recused because she previously ruled on this case on the Second Circuit. The Court split 4-3 on the second question of whether a domestic-injury requirement should be read into RICO’s extraterritoriality reach. Presumably, if Sotomayor voted the same way she did as a Circuit Judge, the Court would have split 4-4 on this question. Now we get to determine whether a 4-3 decision is precedential. I do not know the answer to this question, but if other questions present the same issue are in the pipeline, where there are no recusals, this case may quickly go the other way.

Second, Justice Alito referenced then-Judge Sotomayor’s decision:

4 At an earlier stage of respondents’ litigation against RJR, the Sec­ ond Circuit “held that the revenue rule barred the foreign sovereigns’ civil claims for recovery of lost tax revenue and law enforcement costs.” European Community v. RJR Nabisco, Inc., 424 F. 3d 175, 178 (2005) (Sotomayor, J.), cert. denied, 546 U. S. 1092 (2006). It is unclear why respondents subsequently included these alleged injuries in their present complaint; they do not ask us to disturb or distinguish the Second Circuit’s holding that such injuries are not cognizable. We express no opinion on the matter. Cf. Pasquantino v. United States, 544 U. S. 349, 355, n. 1 (2005).

Third, Justice Ginsburg’s dissent referred to her colleague’s “sound judgment.”

I would resist reading into §1964(c) a domestic-injury requirement Congress did not prescribe. Instead, I would affirm the Second Circuit’s sound judgment:

“To establish a compensable injury under §1964(c), a private plaintiff must show that (1) the defendant ‘en- gage[d] in a pattern of racketeering activity in a man- ner forbidden by’ §1962, and (2) that these ‘racketeer- ing activities’ were the proximate cause of some injury to the plaintiff ’s business or property.” 764 F. 3d, at 151 (quoting Sedima, 473 U. S., at 495; Holmes, 503 U. S., at 268)).

Because the Court overturns that judgment, I dissent.

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Jun 20, 2016

#SCOTUS Analytics: How many people clicked on Justice Kagan’s goo.gl Link?

This morning I praised Justice Kagan for using the goo.gl URL shortener in her opinion. Though these links are much more aesthetically pleasing, I was reminded by Mike Lissner that Google makes the analytics for its links publicly available. Let’s walk through this. The link was copied from the Respondent’s merits brief (p.2), so Justice Kagan didn’t create it. The link was created on November 30, 2015–two months after cert was granted, and four days before the petitioner filed its opening brief. This gives us a hint when the eager-beavers at Stuart Banner’s UCLA Law Clinic started working on the brief.

Google also indicates when, and how many times the link was clicked on. It was clicked twice on 12/1/15, shortly after it was created. The brief was filed on 1/22/16. The link was clicked twice on 1/31/16–perhaps by a curious clerk? The case was argued on 2/22/16. The link was clicked twice, again on 3/1/16. It was clicked once on 5/1/16. There was one click on 5/27/16. Perhaps when the dissent was circulated? On June 14 and 15, it was clicked once. Perhaps by the cite checkers in the printing office? And once it was published, it had over 40 clicks. Although 22% of those referrals came from my blog. 75% came from unknown, so presumably, those were clicks straight from the PDF itself.

If you’d like to learn more about the browser preference of #SCOTUS followers, 26 clicked with Chrome, 15 with Firefox, 3 with Safari, and one lonely Internet Explorer/Edge users. Windows users far outnumber Mac users: 24-15. And to make Justice Breyer happy, internationalists are interested–we had one click each from China, Germany, and Canada.

I suspect this will be the last time the Court uses a link shortener.




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Jun 20, 2016

Audio: “Is the Split Supreme Court Shifting into Neutral?”

On June 20, I was a guest on Public Radio International’s To The Point with Warren Olney. I discussed the Supreme Court’s remaining cases with Bob Barnes, Erwin Chemerinsky, and Susan Hays. You can listen to the exchange here:

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Jun 20, 2016

#SCOTUS Speculation: Possible Assignments for the Remaining 8 Cases

After today’s hand-down, there are eight outstanding decisions. The Court has scheduled a special sitting on Thursday, so the final day of the term will likely be on Monday. (They may add a special sitting on Friday, but that seems unnecessary with only seven cases left over).

Let’s play our favorite end-of-the-term game, guess the assignments! (Please note that I’ve tried this in the past, and do not have a particularly good track record, so read at your own peril). What complicates this further is the fact that opinions may have been assigned to Scalia, and then reassigned.

During the December sitting, ten cases were argued. So far, Kennedy has 1 , Thomas has 1, Ginsburg has 1, Alito has 1, Sotomayor has 1, Kagan has 1, and Breyer has 2. Roberts and Scalia have 0. Outstanding from the December sitting are Fisher v. University of Texas and Dollar General v. Choctaw. It is possible that one of Breyer’s decisions was originally assigned to Scalia, and it was reassigned to him afterwards. Breyer wrote Franchise Tax Box Board, a 6-2 decision released on 4/19, and Harris v. AZ, an 8-0 decision released on 4/20. If Scalia was originally in the majority in Franchise Tax Board, then he would have assigned the opinion, because the Chief was in dissent. Harris seems like an unlikely assignment for Scalia, as it is a unanimous voting rights decision–give it to the jurist who loves making Democracy work. So may guess is that Scalia was assigned Dollar General, which raises meaty issues of tribal court jurisdiction–something Nino can really sink his teeth into. If in fact Scalia was assigned Dollar General, that would mean the Chief Justice originally assigned himself Fisher–not Justice Kennedy. Perhaps there were finally five votes to reverse the Fifth Circuit–with an AMK concurring opinion like in Parents Involved? But, down to seven Justices, whatever the Chief may have had in mind for Fisher is probably not what will happen. So if I had to guess, the Chief will write in both Fisher and Dollar General.

(Update on December. A commenter reminded me that Franchise Tax Board divided 4-4 on the first question of whether Nevada v. Hall ought to be overruled. Then Justice Breyer’s opinion moved onto the second question, finding that Nevada’s taxation is unconstitutional. Roberts and Thomas were in dissent. So it is possible that Scalia assigned himself that opinion, and was the fifth vote. If there were five votes, there would be no need to reach the second question. But with Justice Scalia’s passing, Kennedy would have assigned Breyer had to write Part II of the opinion. In any event, I don’t think this affects my prediction that the Cheif will write Fisher. If Scalia originally had Franchise Tax Board, Dollar General may be assigned to someone else).

During the January sitting, nine cases were argued, seven were decided on the merits, Freidrichs v. California Teachers Association was affirmed on a four-to-four margin, and Duncan v. Owens was DIG’d eight days after it was argued. There are no outstanding cases. I can say with great certainty that Alito was slated to write Freidrichs, in light of his prior decisions in Knox v. SEIU and Harris v. Quinn. It was possible that Scalia was not assigned an opinion for this sitting–it happens with a DIG. In any event, nothing left to predict. But we can guess what could have been.

During the February sitting, 10 cases were argued. Only Voisine and Whole Women’s Health are outstanding. Both cases were argued after Justice Scalia’s passing, so predicting the authorship is even more complicated. So far from that sitting, Thomas and Alito have 2, and with one opinion are Roberts, Kennedy, Ginsburg, and Sotomayor. Breyer and Kagan have zero. Williams v. Pennsylvania (the 5-3 judicial bias case) and Whole Women’s Health were argued on the same week. Justice Kennedy was the most senior Justice in both cases. He kept Williams for himself. Could it be that Justice Kennedy assigned Whole Women’s Health to Kagan? And over Ginsburg, who was assigned Hughs v. Talen the week before? In that case, Breyer is stuck with Voisine, yet another 922(g) case.  My predictions: Kagan for Whole Women’s Health and Breyer for Voisine. 

All of the cases from the March sitting have been decided, so there is nothing left to predict. Notably, Ginsburg and Kennedy both had two opinions, and the rest had one.

This brings us to the April sitting, the final sitting of the term. There were ten cases argued, and there are four cases outstanding: US v. Texas, Birchfield v. ND, Mathis v. US, and McDonnell v. US. One opinion has been assigned to Thomas, Kennedy, Kagan, Breyer, Sotomayor, and Ginsburg. Kennedy wrote the majority opinion today in Encino v. Navarro. If this is is only June assignment, what a letdown from last year! With zero assignments are Roberts, Breyer, and Alito. I predict that Justice Breyer was assigned the opinion in McDonnell because he was very agitated during oral arguments against the federal prosecution, because it would make it harder for democracy to work. Flip a coin, and assign Birchfield or Mathis to Alito, and one other burdened Justice. I won’t lose any sleep over those.

And everyone knew how this Term would end. The Chief will announce the outcome in U.S. v. Texas. Either he writes a majority opinion ruling against Texas, or he announces the case is rescheduled for argument next term, or it is affirmed 4-4. I think the last option is the most unlikely. If the Court was going to affirm 4-4, they would have done so much earlier, as we saw with Friedrichs. A 4-4 doesn’t sit around till the last day of the term. However, the second option, restoring to the calendar, does wait around till the last day of the term. The Court did this with Citizens in June 29, 2009, the last day of the term. So if the Court does not decide the case on Thursday, there is a slightly greater chance the Court reargues it.

But we all know how this ends. Every June, the Chief finds a different way to break my heart. (Zubik doesn’t count for this year, because it broke my heart in May).

Whenever I write these posts, #LawTwitter quickly tells me why I’m wrong. I’m sure they’re right. This is all pure speculation, made even harder by the Senior Associate Justice missing more than half the term.

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Jun 20, 2016

Death of a “Salesman” Exemption: No Chevron Deference for Obama Administration Regulation That Changed Thirty-Year Old Practice, Ignored Proposed Rulemaking, With No “Reasoned Explanation”

The Fair Labor Standards Act generally requires employers to pay workers who labor more than forty hours a week overtime (1.5x the “regular rate”). However, the law has a number of exemptions, including for “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” at a covered dealership.” In 1970, the Labor Department interpreted “salesman” to mean “any salesman, parts-man, or mechanic primarily engaged in selling or servicing automobiles” at a covered dealership.” “Service Advisors” were not exempt, under this interpretation. Several courts rejected the interpretation that “service advisors” were not covered by the “salesman” exemption, because they are involved in sales. In 1978, the Department, through an opinion letter, stated that service advisors could be exempt. In 1987, the Department in its Field Operations Handbook confirmed that the service advisors would be exempt, and would not be eligible for overtime.  In 2008, the Department of Labor issued a notice of proposed rulemaking, which acknowledged that every court, and the Department itself, treated service advisors as exempt since 1987. The proposal would conform the regulation with practice and prevailing judicial interpretations.

But then we had hope and change. Justice Kennedy’s majority opinion in Encino Motorcars, LLC v. Navarro explains what happened next:

In 2011, however, the Department changed course yet again. It announced that it was “not proceeding with the proposed rule.” 76 Fed. Reg. 18833. Instead, the Depart­ ment completed its 2008 notice-and-comment rulemaking by issuing a final rule that took the opposite position from the proposed rule. The new final rule followed the original 1970 regulation and interpreted the statutory term “salesman” to mean only an employee who sells automo­ biles, trucks, or farm implements. Id., at 18859 (codified at 29 CFR §779.372(c)(1)).

That is, the interpretation that was rejected by courts for four decades, and which the Labor Department had rejected in practice for three decades. Why did they do it?

The Department gave little explanation for its decision to abandon its decades-old practice of treating service advisors as exempt under §213(b)(10)(A). It was also less than precise when it issued its final rule. As described above, the 1970 regulation included a separate subsection stating in express terms that service advisors “are not exempt” under the relevant provision. 29 CFR §779.372(c)(4) (1971). In promulgating the 2011 regula­ tion, however, the Department eliminated that separate subsection. According to the United States, this change appears to have been “an inadvertent mistake in drafting.” Tr. of Oral Arg. 50.

Drafting error? Like “established by the state”? This is not the first time the Court has criticized the Obama administration for arbitrarily changing its positions. Based on political reasons. That last part wasn’t from the Court. It was from me. See earlier rebukes in Marvin M. Brandt Revocable Trust v. United States, Kiobel v. Royal Dutch Petroleum, Levin v. United States, US Airways v. McCutchen, and Myriad Genetics.

The Court unanimously held that this final regulation, which disregarded the proposed rulemaking, and offered no explanation, did not receive Chevron deference.

When Congress authorizes an agency to proceed through notice-and­ comment rulemaking, that “relatively formal administra­ tive procedure” is a “very good indicator” that Congress intended the regulation to carry the force of law, so Chev- ron should apply. Mead Corp., supra, at 229–230. But Chevron deference is not warranted where the regulation is “procedurally defective”—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation. 533 U. S., at 227; cf. Long Island Care at Home, Ltd. v. Coke, 551 U. S. 158, 174–176 (2007) (reject­ ing challenge to procedures by which regulation was is­ sued and affording Chevron deference). Of course, a party might be foreclosed in some instances from challenging the procedures used to promulgate a given rule. Cf., e.g., JEM Broadcasting Co. v. FCC, 22 F. 3d 320, 324–326 (CADC 1994); cf. also Auer v. Robbins, 519 U. S. 452, 458– 459 (1997) (party cannot challenge agency’s failure to amend its rule in light of changed circumstances without first seeking relief from the agency). But where a proper challenge is raised to the agency procedures, and those procedures are defective, a court should not accord Chev- ron deference to the agency interpretation. Respondents do not contest the manner in which petitioner has chal­ lenged the agency procedures here, and so this opinion assumes without deciding that the challenge was proper.

The agencies are allow to change their positions, but they must provide a “reasoned explanation” for doing so.

Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change. See, e.g., National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 981–982 (2005); Chevron, 467 U. S., at 863–864. When an agency changes its existing position, it “need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate.” FCC v. Fox Televi- sion Stations, Inc., 556 U. S. 502, 515 (2009). But the agency must at least “display awareness that it is chang­ ing position” and “show that there are good reasons for the new policy.” Ibid. (emphasis deleted). In explaining its changed position, an agency must also be cognizant that longstanding policies may have “engendered serious reli­ ance interests that must be taken into account.” Ibid.; see also Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996). “In such cases it is not that further justi­ fication is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Fox Television Stations, supra, at 515–516. It follows that an “[u]nexplained inconsistency” in agency policy is “a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.” Brand X, supra, at 981. An arbitrary and ca­ pricious regulation of this sort is itself unlawful and re­ ceives no Chevron deference. See Mead Corp., supra, at 227.

Based on this framework, the Obama Labor Department’s 2011 regulation was not entitled to Chevron deference.

Applying those principles here, the unavoidable conclu­ sion is that the 2011 regulation was issued without the reasoned explanation that was required in light of the Department’s change in position and the significant reli­ ance interests involved. In promulgating the 2011 regula­ tion, the Department offered barely any explanation. A summary discussion may suffice in other circumstances, but here—in particular because of decades of industry reliance on the Department’s prior policy—the explanation fell short of the agency’s duty to explain why it deemed it necessary to overrule its previous position.

Whatever potential reasons the Department might have given, the agency in fact gave almost no rea­ sons at all. In light of the serious reliance interests at stake, the Department’s conclusory statements do not suffice to explain its decision. See Fox Television Stations, 556 U. S., at 515–516. This lack of reasoned explication for a regulation that is inconsistent with the Department’s longstanding earlier position results in a rule that cannot carry the force of law. See 5 U. S. C. §706(2)(A); State Farm, supra, at 42–43. It follows that this regulation does not receive Chevron deference in the interpretation of the relevant statute.

I haven’t read this carefully, but this opinion may have a bearing on the Net Neutrality litigation, where the FCC radically altered several decades of its position on common carriage.

Ultimately, the Court remands the issue back to the 9th Circuit, with instructions to decide it without applying Chevron.

RBG, joined by Sotomayor, concurred to write that even on remand, the regulation is not arbitrary and capricious. She also stresses that nothing in the opinion alters settled law.

I write separately to stress that nothing in today’s opin­ ion disturbs well-established law. In particular, where an agency has departed from a prior position, there is no “heightened standard” of arbitrary-and-capricious review. Id., at 514. See also ante, at 9. An agency must “display awareness that it is changing position” and “show that there are good reasons for the new policy.” Fox, 556 U. S., at 515 (emphasis deleted). “But it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.” Ibid.

Justice Thomas–who believes all administrative law is unlawful–concurred, joined by Justice Alito. The dynamic duo (who write together very often on the Scalia-less Court), explain that there is no reason to remand the case: the Court should resolve the issue properly before it.

I agree with the majority’s conclusion that we owe no Chevron deference to the Department’s position because “deference is not warranted where [a] regulation is ‘proce- durally defective.’ ” Ante, at 8. But I disagree with its ultimate decision to punt on the issue before it. We have an “obligation . . . to decide the merits of the question presented.” CBOCS West, Inc. v. Humphries, 553 U. S. 442, 472 (2008) (THOMAS, J., dissenting). We need not wade into the murky waters of Chevron deference to de- cide whether the Ninth Circuit’s reading of the statute was correct. We must instead examine the statutory text. That text reveals that service advisors are salesmen pri- marily engaged in the selling of services for automobiles. Accordingly, I would reverse the Ninth Circuit’s judgment.

CT’s opinion offers a grammatical discourse on the difference between a “salesman” and a “service advisor,” with citations to two dictionaries, and  a discussion of gerunds.

I start with the uncontroversial notion that a service advisor is a “salesman.” The FLSA does not define the term “salesman,” so “we give the term its ordinary mean- ing.” Taniguchi v. Kan Pacific Saipan, Ltd., 566 U. S. ___, ___ (2012) (slip op., at 5). A “salesman” is someone who sells goods or services. 14 Oxford English Dictionary 391 (2d ed. 1989) (“[a] man whose business it is to sell goods or conduct sales”); Random House Dictionary of the English Language 1262 (1966) (Random House) (“a man who sells goods, services, etc.”). Service advisors, whose role it is to “interact with customers and sell them services for their vehicles,” ante, at 2, are plainly “salesm[e]n.” See ibid. (cataloguing sales-related duties of service advisors).

A service advisor, however, is not “primarily engaged in selling . . . automobiles.” §213(b)(10)(A). On the contrary, a service advisor is a “salesman” who sells servicing solu- tions. Ante, at 2. So the exemption applies only if it cov- ers not only those salesmen primarily engaged in selling automobiles but also those salesmen primarily engaged in servicing automobiles.

The exemption’s structure confirms that salesmen could do both. The exemption contains three nouns (“salesman, partsman, or mechanic”) and two gerunds (“selling or servicing”). The three nouns are connected by the disjunc- tive “or,” as are the gerunds. So unless context dictates otherwise, a salesman can either be engaged in selling or servicing automobiles. Cf. Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979).

And for good measure, there is a citation to Justice Scalia:

There is no basis to infer that Congress means anything beyond what a statute plainly says simply because the legislation in question could be classified as “remedial.” See Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 581–586 (1990).

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