Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.


I may not live to see Justice Souter’s Papers

April 22nd, 2015

In 2009 when Justice Souter retired, the Blog of the Legal Times reported that his papers would be released in 50 years. My buddy Mike Sacks and I made a pact to visit the New Hampshire Historical Society in 2059. In that year, god willing, I will be 75, which is Justice Souter’s age today.

It turns out the papers won’t be available in 2059, or 2060, or even 2064. We don’t know when they will be available, because Justice Souter instructed the New Hampshire Historical Society to release them 50 years after his death. Thanks to the inquisitiveness of Gerard Magliocca, and the reporting of Tony Mauro, we now know that Souter threatened to incinerate his papers if they were not embargoed for half a century after his death.

Justice Souter told Gerard:

“I have given such papers as I’ve retained to the New Hampshire Historical Society, to be opened for inspection after the 50th anniversary of my death. By that time, they will be of interest only to the historians taking the long view.”

“As I’ve retained” suggests there are other papers that are not retained–in other words, destroyed.

Tony reported that the Executive Director of the Historical Society said Souter was “emphatic” about the embargo.

Bill Veillette, the historical society’s executive director in 2009, also confirmed on Wednesday that Souter’s wish all along was for release of his papers 50 years after his death, not his retirement.

“He was very emphatic about it,” Veillette recalled. “He told me, ‘I’ve got an incinerator outside my house, and either you agree to 50 years after my death, or they go into the incinerator.’” Since many papers are donated by families decades or centuries after a notable person’s death, Veillette said Souter’s 50-year delay seemed relatively brief. Veillette is now the executive director of the Northeast Document Conservation Center in Massachusetts.

If Justice Souter lives to be Justice Stevens’s current age, then the papers will not be released until 2085. I will be 101 in that year. If I’m even still around, there is a distinct possibility that I will be one of the few remaining lawyers who knew of Justice Souter as an active Justice. What a travesty. I hate to break it to Justice Souter, but by the time 2085 comes along, I don’t think any historians will care much about him, or his role on the Court. And that’s exactly the way he wants it.

The Gruber Tape and Federal Rule of Evidence 801(d)(1)(B)

November 8th, 2014

Gerard Magliocca notes that he has “severe reservations” about relying on the Gruber tape because it is not in the record, and we don’t know if he actually mispoke in 2012,or is lying now. “The way we figure these things out is through a fact-finder.  The way not to do this is through appellate briefs.”

Fair enough. We don’t know if he mispoke then, or is lying now. But the exact same rule applies to ALL of the briefs filed by members of Congress, staffers, and other people involved with the crafting of the bill. When a brief is filed in 2014 telling us what they thought in 2009, we have every reason to question the veracity of their statement. These post-hoc briefs, the most egregious type of post-enactment legislative history because they are filed to persuade in a case, should be entitled to the least deference.

What should get more deference, are post-enactment statements made outside the threat of litigation–which is exactly what Gruber’s 2012 statement was. So to the extent that we can look at post-enactment statements by members of Congress, then Gruber’s 2012 statements are certainly fair game.

One of my first papers considered Federal Rule of Evidence 801(d)(1)(B) in the context of assessing post-enactment statements made under the Lemon Test. The rule considers the reliability of evidence based on a motivation to fabricate the truth. It provides:

“A statement is not hearsay if . . . [t]he declarant testifies at the trial or hearing and is subject to cross- examination concerning the statement, and the statement is . . . consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive . . . .”

This rule determines the admissibility of statements that opposing counsel argues are untrue due to an alleged motivation to fabricate the truth. Under the rule, testimony is not hearsay—and is, therefore, admissible—if it is consistent with previous statements made prior to the existence of a motivation to fabricate the truth. Here, the motivation to fabricate the truth would be the Halbig/King litigation.

As I explained in the context of Lemon:

Rule 801(d)(1)(B) can provide useful insights when relying on historical sources charged with being unrepresentative of the original meaning or a form of “pitched political debates”192 subject to bias. This rule could allow a judge to answer the question of whether histor- ical sources were written consistently with the original meaning of a statute or whether they were written based on a motivation to alter the record for various subjective purposes. This rule also allows judges to flesh out conflicting versions of what happened, which is a common problem when relying on historical evidentiary accounts. If there is a charge that a legislative history is a fabrication of reality, then statements made before the motivation to fabricate existed that confirm the later statement render the questioned legislative history more reliable, and thus admissible.

But the flipside to that is when the post-enactment rationalizations are not consistent with contemporary statements, the latter statements would not be admissible. Presumably, under the rules of evidence, the change was motivated by a fabrication.

As even the 4th Circuit acknowledged, the legislative history in the record on this point is entirely unhelpful. In the end, that leaves us just with the statute, and contemporary statements by Gruber.

How Difficult Is It To Print a 3D-Gun?

August 14th, 2014

Nick Bilton writes in the Times about how easy it is to download and print 3D-printed guns, and why this poses a significant threat.

If I had the time, a little technical know-how or was willing to sit through tutorials online, I could buy a three-dimensional printer (which makes objects by spraying thin layers of plastic that become shapes) and print and assemble some of these guns.

Among the files now sitting on my laptop are parts for an M16, AR-15, AK-47 and other semiautomatic guns. There are files for handguns, including a Glock, Beretta and a .22-caliber Ruger.

It took me about five minutes to find these gun schematics online. A teenager who grew up on the Internet could probably find them in half that time.

It is quite easy to find the blueprints online, no doubt. But actually printing a functional gun takes quite a lot of expertise and know-how. As I discuss in my article on 3D Printing and the Second Amendment, actually creating a workable 3D-printed gun is a lot harder than its worth. It is almost always going to be easier to find a readily available real gun somewhere. Bilton observes that even a single-shot gun is dangerous.

Gun lobbyists argue that 3-D printed guns are pointless because many of these weapons can be fired only a few times before the gun breaks, often overheating and cracking. But last I checked, one shot is enough to kill someone. (The Reprringer is based on the design of the derringer pistol, which killed President Lincoln.)

Well, yeah. It is really, really easy to make a homemade gun from parts available at any hardware store, that are not made out of metal.

This video on YouTube shows an improvised shotgun, which consists of two pieces of walled tubing, a nail, and a shotgun shell. It cost $7 of materials and took little time to make–much less time than a 3D gun. It is quite lethal, and will likely not set off a metal-detector. (Of course even with a plastic gun, bullets are made out of metal).

If young dumb kids wants to make an improvised explosive, they don’t need a 3D printer.

Bilton explains that these 3D guns are a problem:

“Weapons experts will tell you these guns are a joke and not that serious,” said Hod Lipson, director of the Cornell University Creative Machines Lab. “But that’s exactly the problem. Plastic guns are easy to fabricate, they can be used just a few times and you can make guns that don’t look like guns.”

What’s more, he noted, these weapons are very difficult to detect at security points, as they often don’t have metal parts or, if they do, just a spring and a couple of screws, all of which could easily pass through a metal detector.

Mr. Lipson, who is an author of the book “Fabricated: The New World of 3D Printing,” said the public should worry not so much about these weapons falling into the hands of terrorists or hardened criminals, who already have access to most any weapon they desire. “The real danger is kids and teenagers and hobbyists who will attempt to make these,” he said.

Bilton also alludes to one possible solution–companies that make 3D printers should block certain designs:

But it seems that the 3-D printing companies are the only ones in this equation that could offer some protection against the proliferation of 3-D printed guns, especially when it comes to children who may try to make them. These companies could ensure that 3-D printers can’t print certain parts, or can only access approved websites to download files.

But instead, most 3-D printing companies I reached out to did not respond to a request for comment. MakerBot simply referred me to their “terms of service” disclaimer, which prohibits sharing weapons files on their website.

Inserting DRM-style filters into 3D printers would be a very bad first step. More likely than not, through what I describe as a Baptist and Bootlegger coalition, media companies who seek to insert IP-style filters into the printers will ride the 3D-gun wave.

“[C]ompanies with a vested interest in the current system must not be allowed to use concerns about homemade guns or other distractions as an excuse to shackle 3D printing.” There is always the risk of a Baptist and Bootlegger coalition forming. Manufacturers who seek to shut down 3D-printing will ride the wave of opposition to 3D guns to stifle this innovative industry. Desai and Magliocca conclude that “[t]he understandable desire to prevent individuals from making untraceable or illegal guns should not cause undue alarm.”

I will be giving several talks on 3D guns at campuses across the country. Stay tuned.

The 4 NFIB Dissenters, and Not the En Banc D.C. Circuit, Will Decide What Happens Next

July 23rd, 2014

Yesterday I wrote two posts concerning the timing of the appeals in Halbig (CADC) and King (CA4). I then engaged with an extended twitter dialogue with Steve Vladeck and Ian Millhiser (that cost me way too much cruise wifi money). Here, let me add some additional thoughts.

The plaintiffs in both Halbig and King are represented by Mike Carvin at Jones Day (who represented NFIB in NFIB v. Sebelius). It would behoove Carvin to file, as soon as possible, a cert petition. The United States will be filing, not quite as soon, a petition for rehearing en banc in the D.C. Circuit. The United States will certainly oppose the cert petition, and ask the Court to let the Circuit split ripen. (Translation, let the nuclear panel eliminate the Circuit split).

Under normal circumstances, this would be the prudent course of action. Let the full En Banc D.C. Circuit take a stab at it, and then review that cert petition.

But we aren’t in normal circumstances. This is Obamacare. Four justices were very, very bitter that the Chief upheld the mandate in NFIB. Four justices now have the opportunity to strike down–effectively–the mandate in 36 states. Four votes are all you need for certiorari. Plus, even if the United States requests a extension, this case would still be argued during OT 14. If en banc goes forward, the decision would come OT 15, right before another presidential election.

In fact, I had this odd premonition that if the Court grants cert on King before Halbig en banc proceedings, there may even be a dissent from the grant of certiorari (Sotomayor), arguing that this case should be allowed to ripen. (Remember Justice Breyer did something like that two years ago in a campaign finance case from Montana).

Gerard Magliocca offers similar thoughts at Balkin:

First, I think that there are four Justices who will be waiting on the front steps of the Court for the certiorari petition from the Fourth Circuit (which ruled in favor of the Administration on the same issue yesterday).  Thus, the question of whether the DC Circuit will go en banc in Halbig is, to my mind, largely beside the point.  In an ordinary case, one would expect the Justices to wait and see if a circuit split could be healed before acting, but this is not an ordinary case.  The Justices who lost in 2012 on the individual mandate challenge would love to get another at-bat.

All this talk about the nuclear option is besides the point. The 4 NFIB dissenters will hold the key to when this case reaches the Supreme Court.

Update: Harry Reid continues to extoll the benefits of the nuclear option:

Asked by reporters if his decision to employ the nuclear option to fill the circuit was vindicated, Reid said based on “simple math, you bet.”

Senate Majority Whip Richard J. Durbin, D-Ill., said he wouldn’t be surprised if the full court ruled in the White House’s favor.

“There was a strong conservative Republican majority on the D.C. Circuit until we filled the vacancies,” Durbin said. “Now it’s a balanced circuit, so since one of the Republicans of the three who ruled was on our side I wouldn’t give up on a…ruling coming our way, toward the administration.”


Is Obamacare Entrenched?

December 17th, 2013

One of the common refrains during the never-ending battle against Obamacare is that it has to be stopped before it begins. Once it begins, the argument goes, and people come to rely on it, repealing it back becomes impossible. This is the conventional narrative. But is it? The Monkey Cage blog addresses “Five myths about the future of Obamacare.”

It would not be unprecedented (see what I did there) for a massive entitlement to end. Though, not a sudden demise. More like death by a thousand cuts.

Given how difficult it is to revise an existing law, it might seem that a program’s entrenchment is assured once it has been enacted. In his 1976 book “Are Government Organizations Immortal?” political scientist Herman Kaufman argued that “government activities tend to go on indefinitely.” More recent research demonstrates, however, that policy entrenchment has limits. According to a study by Christopher R. BerryBarry C. Burden and William G. Howell, a spending program has a 1 percent chance of death every year in its first 10 years of life, after which the probability of termination slowly begins to decline. New policies are trial and error affairs, and they don’t always pan out. Programs can be killed. An example is the Medicare Catastrophic Coverage Act of 1988, which Congress terminated in 1989 when senior citizens soured on the measure. Short of formal repeal, programs can simply fade away, as did Lyndon Johnson’s Model Cities initiative and Richard Nixon’s revenue-sharing program. The main danger the ACA faces is not outright repeal, but the gradual whittling away of its subsidies, regulations and tax provisions.

Also, the authors echo a point Gerard Magliocca made about the law being settled, based on the fact that it was enacted on a straight partyline vote.

Political conflict over a program can last for decades. Congress passed the Voting Rights Act in 1965, and opponents continued to attack the legislation through 2013, when the Supreme Court invalidated one of its central components. The potential for conflicts over existing laws to persist has only increased as a result of partisan polarization. While both the Social Security Act of 1935 and the Medicare Act of 1965 had some bipartisan support on final passage, the ACA was passed on a party-line vote.Forrest Maltzman of George Washington University and Charles Shipan of University of Michigan have shown that the greater the roll call opposition when a bill is passed, the more likely the law is to be amended by a future Congress. An open question is whether partisanship exacerbates the problem of divisive enactment. While systematic research has not been done, there are good reasons to think it might. AsDavid R. Mayhew of Yale argues, while a cross-party opposition to a policy might fade, “a party that loses on a congressional issue and stays angry may have an  incentive to keep the conflict going.”

At a book talk this semester, a professor said I was “bordering on irresponsible” for suggesting that the finality of the law is unsettled. The fact that half of America didn’t buy into this law, and another huge chunk will be worse off, makes the stability of this leviathan unsteady. Maybe Judges Sutton and Kavanaugh were right in one sense. Let the law unravel, so the political branches repeal this law.