The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
How Immigration Restrictions Reduce Housing Construction and Exacerbate Shortages
A new study shows deportation of undocumented migrants reduces housing construction by diminishing the supply of workers needed to do it.
The most significant factor inhibiting the construction of new housing in the United States—resulting in severe housing shortages in many areas—is exclusionary zoning. But a new study suggests immigration restrictions contribute to the problem, by reducing the supply of workers. Here's the abstract to the paper by Eeconomists Troup Howard, Mengqi Wang, and Dayin Zhang:
US housing markets have faced a secular shortage of housing supply in the past decade, contributing to a steady decline in housing affordability. Most supply-side explanations in the literature have tended to focus on the distortionary effect of local housing regulations. This paper provides novel evidence on a less explored channel affecting housing supply: shortages of construction labor. We exploit the staggered rollout of a national increase in immigration enforcement to identify negative shocks to construction sector employment that are likely unrelated to local housing market conditions. Treated counties experience large and persistent reductions in construction workforce, residential homebuilding, and increases in home prices. Further, evidence suggests that undocumented labor is a complement to domestic labor: deporting undocumented construction workers reduces labor supplied by domestic construction workers on both extensive and intensive margins.
The basic idea here is fairly intuitive Economics 101: immigrants—including undocumented immigrants—are an important part of the construction work force. Reducing the number of available workers increases the price of construction, and thereby reduces output.
More counterintuitive is the finding that reducing the number of undocumented construction workers also reduces employment for native workers. But, as the authors point out, this can occur when native-born and immigrant workers in the industry are complements, rather than substitutes. Previous studies document such effects in other industries, and it can occur in this one, too. The authors' findings are consistent with recent work by noted immigration economist Michael Clemens showing that mass deportation—on net—reduces job opportunities for native workers more than it expands them.
Obviously, as the authors recognize, immigration can also increase demand for housing, thereby increasing prices. Similarly, deporting immigrants (or any other group) can reduce demand, thereby lowering prices. But the authors show this effect is outweighed by the ways in which deportation reduces supply, thereby leading to a net increase in housing prices when more immigrants get deported. This makes intuitive sense: allowing in a group that is disproportionately represented in the housing construction industry can result in sufficient new construction to both meet the extra demand created by that group, and also build additional new housing for others.
None of this proves that immigrant workers never displace native-born ones (or vice versa). Similarly, immigrants can sometimes outbid natives for housing (and, again, vice versa). But, on net, the two groups benefit each other economically far more than the reverse. That appears to be true in the housing sector, as in the economy more generally.
If this seems implausible, consider the impact on white males of allowing more women and minorities to compete on a more equal basis in the labor force in the twentieth century. I summarize this comparison in my last post on the impact of deportation:
One helpful way to think about the issue is to ask whether the twentieth-century expansion of job market opportunities for women and blacks helped white male workers, on net, or harmed them. Some white men likely were net losers. If you were a marginal white Major League Baseball player displaced by Jackie Robinson or other black baseball stars after MLB was integrated, it's possible that you would never find another job you liked as much as that one. But the vast majority of white men were almost certainly net beneficiaries by virtue of the fact that opening up opportunities for women and blacks greatly increased the overall wealth and productivity of society.
If, today, we barred women from the labor force, or restricted them to the kinds of jobs open to them a century ago, some male workers would benefit….
But, overall, men would be much poorer, by virtue of living in a far less productive and innovative society. And many men would lose jobs or suffer decreases in wages because their own productivity depends in part on goods and services produced by women….
Similar consequences would occur if we were to reinstitute racial segregation, thereby severely restricting the job opportunities of black workers. While some whites would come out ahead, most would be net losers, as our economy becomes much less productive.
The key point to remember is that the economy—including the labor market—is not a zero-sum game. Men and women, blacks and whites—and immigrants and natives—can all prosper together, if only the government would let them.
UCLA Chancellor's Statement
Just circulated:
Our community is in deep pain. We are reeling from days of violence and division. And we hope with all our hearts that we can return to a place where our students, faculty and staff feel safe and, one day, connected again.
Our approach to the encampment that was established on Royce Quad last week has been guided by several equally important principles: the need to support the safety and wellbeing of Bruins, the need to support the free expression rights of our community, and the need to minimize disruption to our teaching and learning mission.
The events of the past several days, and especially the terrifying attack on our students, faculty and staff on Tuesday night, have challenged our efforts to live up to these principles and taken an immense toll on our community.
We approached the encampment with the goal of maximizing our community members' ability to make their voices heard on an urgent global issue. We had allowed it to remain in place so long as it did not jeopardize Bruins' safety or harm our ability to carry out our mission.
But while many of the protesters at the encampment remained peaceful, ultimately, the site became a focal point for serious violence as well as a huge disruption to our campus.
New Article on "Brown, Democracy, and Foot Voting"
My contribution to the American Journal of Law and Equality symposium on the 70th anniversary of Brown v. Board of Education.
This year is the 70th anniversary of Brown v. Board of Education, arguably the Supreme Court's most iconic decision. The American Journal of Law and Equality is publishing a symposium on the topic, and I am one of the participants. A draft of my contribution, entitled "Brown, Democracy, and Foot Voting," is now available on SSRN. Here is the abstract:
Traditional assessments of Brown's relationship to democracy and popular control of government should be augmented by considering the ways it enhanced citizens' ability to "vote with their feet" as well as at the ballot box. Brown played a valuable role in reinforcing foot voting, and this has important implications for our understanding of the decision and its legacy.
Part I of the article summarizes the relationship between foot voting and ballot box voting, and how the former has important advantages over the latter as a mechanism of political choice. Relative to ballot box voting, foot voting offers individuals and families greater opportunities to make decisive, well-informed choices. It also has special advantages for minority groups, including Blacks.
Part II considers traditional attempts to reconcile Brown and democracy, through arguments that the decision was actually "representation-reinforcing." While each has its merits, they also have significant limitations. Among other flaws, they often do not apply well to the Brown case itself, which famously originated in a challenge to segregation in Topeka, Kansas, a state in which – unlike most of the South – Blacks had long had the right to vote.
Part III explains how expanding our understanding of Brown to include foot voting opportunities plugs the major holes in traditional efforts to reconcile the decision and democratic choice. Among other advantages, the foot-voting rationale for Brown applies regardless of whether racial minorities have voting rights, regardless of whether segregation laws are motivated by benign or malevolent motives, and regardless of whether the targeted ethnic or racial groups can form political coalitions with others, or not.
In Part IV, I discuss the implications of the foot-voting justification of Brown for judicial review of other policies that inhibit foot voting, particularly in cases where those policies have a history of illicit racial motivations. The most significant of these is exclusionary zoning.
As noted in the article, producing a thesis on Brown that is both new and useful is a tall order. Few if any other judicial decisions have been analyzed so much. But, as the saying goes, "fools rush in where the wise fear to tread." And so I accepted the journal's invitation.
I welcome comments, suggestions, and criticisms.
Judges Encouraging Oral Argument Opportunities for Junior Lawyers
Various district courts have put out such orders; here's the most recent I've seen, a Standing Order on Requests for Hearings and Oral Arguments from Magistrate Judge David Horan (N.D. Tex.):
With regard to possible oral argument or an evidentiary hearing, the Court notes a trend today in which fewer cases go to trial and in which there are fewer speaking or "stand-up" opportunities in court, particularly for junior lawyers (that is, lawyers practicing for less than seven years). The Court encourages litigants to be mindful of opportunities for junior lawyers to conduct hearings or oral argument before the Court, particularly hearings or oral arguments as to which the junior lawyer drafted or contributed to the underlying motion or response.
In those instances in which the Court is inclined to rule on the papers, a representation that the oral argument would be handled by a junior lawyer – or by a lawyer who has more than seven years in practice but who has had less than five speaking appearances in any federal court – will weigh in favor of holding oral argument. The Court understands that there may be circumstances in which having a junior lawyer handle a hearing or oral argument might not be appropriate – such as where no junior lawyers were involved in drafting the motion or response or where the motion might be dispositive in a "bet-the-company" type case.
Even so, the Court believes it is crucial to provide substantive speaking opportunities to junior or other less experienced lawyers and that the benefits of doing so will accrue to junior lawyers, to clients, and to the profession generally. The Court encourages all lawyers practicing before the Court to keep this goal in mind.
This relates to a potentially complicated matter in many professions, I think.
Today in Supreme Court History: May 2, 1927
5/2/1927: Buck v. Bell decided.
Do Fourth Amendment Protections Change When Property Is Moved?
A new lecture on a recurring topic.
This past fall, I had the pleasure of being the Michael A. Doyle '62 and Bunny Winter Distinguished Visiting Professor at Yale Law School. As part of that appointment, I recently delivered a lecture on a topic that is the subject of my most recent (as-yet-unavailable) draft article: What happens to Fourth Amendment protection when property is moved? Three quick examples from recent cases give you a flavor of the problem:
- Officers arrest a man who is carrying a backpack. For their own safety, officers initially remove the backpack, place it twenty feet away. They return to the backpark and search it later. The Fourth Amendment permits a warrantless search of property on the person incident to his arrest, but it does not allow a search outside the person's area of immediate control. Did the officers' placing the backpack outside the area of immediate control mean the government could no longer search it?
- Officers want to arrest a suspect at home, but they lack the arrest warrant needed to enter the home to make the arrest. From their position outside, officers point their guns at the suspect inside and order him to exit the house. The man complies with the order, leaves his house, and he is arrested outside. Was a warrant needed?
- Fourth Amendment protections are weak at the international border. Officials seize a suspect's computer at the border, but they lack the expertise to search it there. Officials bring the computer a few hundred miles inland to a computer forensics expert who searches the computer there. Is the search governed by the weak rules of searches at the border or the strong rules of searches inland?
The lecture, "Searching, Seizing, and Moving," is available below, preceded by an overly kind introduction by Dean Heather Gerken:
I plan to finish the draft of this article over the summer, and I'll post it when it's available. In the meantime, comments on the lecture version are very welcome.
Ninth Circuit Puts An End to the Kids Climate Case
A unanimous panel orders dismissal of Juliana v. United States, bringing this zombie litigation to a close.
Today a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit granted the U.S. Department of Justice's petition for a writ of mandamus seeking dismissal of Juliana v. United States, the so-called "Kids Climate Case."
The brief order was short and direct. It noted that the Ninth Circuit had previously concluded that the plaintiffs lacked standing and ordered the case dismissed. Contrary to the plaintiffs' claims, no intervening decisions changed that fact, and that there was no basis for the district court to allow the plaintiffs to amend the complaint.
This decision should not have been a surprise. It should also be a relief to those who hope to see further climate litigation, as the Ninth Circuit panel saw no need to consider issues beyond the plaintiffs' Article III standing, and dismissal of the case obviates any need for the DOJ to seek Supreme Court review. Judge Aiken was wrong to revive this case, and now the Ninth Circuit has killed it for good.
Meanwhile, there are other (more well-grounded) climate cases proceeding in state courts under state law. More on those cases in future posts.
I've reproduced the Ninth Circuit's order after the jump.
Ohio State University President's Statement on Clearing of Protest Encampments
Released Monday by OSU President Ted Carter; I'm not up on the factual details, but I agree that such encampments can and should be forbidden under content-neutral time, place, and manner rules, and those rules should be enforced:
Listening to the feedback from our community over the last several days, I want to set the record straight regarding the events that took place on the South Oval on April 25.
I value and welcome free speech. I have spoken to this since the day I arrived here at Ohio State. As many of you know, I wore the cloth of our nation for 38 years to support and defend these rights. What occurred on our campus on April 25 was not about limiting free speech. It was an intentional violation of university space rules that exist so that teaching, learning, research, service and patient care can occur on our campuses without interruption.
As a public university, demonstrations, protests and disagreement regularly occur on our campus — so much so that we have trained staff and public safety professionals on-site for student demonstrations for safety and to support everyone's right to engage in these activities. Sadly, in recent days, I have watched significant safety issues be created by encampments on other campuses across our nation. These situations have caused in-person learning and commencement ceremonies to be canceled. Ohio State's campus will not be overtaken in this manner.
We have been abundantly clear in a multitude of communications that Ohio State has and will enforce the law and university policy, which is what we did on April 25. I most recently stated this in a campus message on April 22. Dr. Shivers again reinforced this and the rules that apply to Finals Week in a message to all students on April 23.
The university's long-standing space rules are content neutral and are enforced uniformly. Thursday's actions were taken because those involved in creating the encampment on the South Oval were in violation of these rules and had been notified of this beginning at 4:30 a.m. when the first encampment was attempted, and continuing repeatedly throughout the day. During and after the attempted encampment on Thursday morning, students asked our demonstration staff pointed questions about the space rules and received answers, confirming they were aware of the rules.
Stanford Message to Students About Protests
Sent out yesterday:
This post provides an update from Stanford University about the encampment recently set up on Stanford's White Plaza. It follows the message sent to students by the president and provost last Friday, April 26. Additional updates will be posted to this page as needed.
Stanford welcomes and encourages the peaceful expression of free speech by members of our Stanford community. Students have been pursuing many opportunities to do so over the course of this year, in a variety of ways. Among other options, student groups are welcome to engage in advocacy on White Plaza in a manner consistent with campus policies. There is a process for registering to do so, in order to allow for equitable access to this space by members of our community.
Alongside its support for the peaceful expression of free speech, the university has viewpoint-neutral time, place, and manner policies. Among these are policies regarding the use of White Plaza, prohibiting overnight camping, and prohibiting the disruption of classes and university events.
With respect to the encampment on White Plaza, the university is continuing to submit names of students who are violating campus policies to the Office of Community Standards (OCS) for disciplinary proceedings. This is being done in a viewpoint-neutral manner and based on evidence of students' conduct in violation of university policy. Students who are involved will have the opportunity to provide a defense to OCS.
Victims of Communism Day — 2024
May Day should be a day to honor victims of an ideology that took tens of millions of lives. But we should also be open to alternative dates if they can attract broad enough support.
NOTE: This post largely reprints last year's Victims of Communism Day post, with some modifications.
Today is May Day. Since 2007, I have advocated using this date as an international Victims of Communism Day. I outlined the rationale for this proposal (which was not my original idea) in my very first post on the subject:
May Day began as a holiday for socialists and labor union activists, not just communists. But over time, the date was taken over by the Soviet Union and other communist regimes and used as a propaganda tool to prop up their [authority]. I suggest that we instead use it as a day to commemorate those regimes' millions of victims. The authoritative Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century's other great totalitarian tyranny. And May Day is the most fitting day to do so….
Our comparative neglect of communist crimes has serious costs. Victims of Communism Day can serve the dual purpose of appropriately commemorating the millions of victims, and diminishing the likelihood that such atrocities will recur. Just as Holocaust Memorial Day and other similar events promote awareness of the dangers of racism, anti-Semitism, and radical nationalism, so Victims of Communism Day can increase awareness of the dangers of left-wing forms of totalitarianism, and government domination of the economy and civil society.
While communism is most closely associated with Russia, where the first communist regime was established, it had comparably horrendous effects in other nations around the world. The highest death toll for a communist regime was not in Russia, but in China. Mao Zedong's Great Leap Forward was likely the biggest episode of mass murder in the entire history of the world.
November 7, 2017 was the 100th anniversary of the Bolshevik seizure of power in Russia, which led to the establishment of the first-ever communist regime. On that day, I put up a post outlining some of the lessons to be learned from a century of experience with communism. The post explains why the lion's share of the horrors perpetrated by communist regimes were inherent flaws of the system. For the most part, they cannot be ascribed to circumstantial factors, such as flawed individual leaders, peculiarities of Russian and Chinese culture, or the absence of democracy. Some of these other factors, especially the last, probably did make the situation worse than it might have been otherwise. But, for reasons I explained in the same post, some form of dictatorship or oligarchy is virtually inevitable in a socialist economic system where the government controls all or nearly all of the economy.
While the influence of communist ideology has declined since its mid-twentieth century peak, it is far from dead. Largely unreformed communist regimes remain in power in Cuba and North Korea. In Venezuela, the Marxist government's policies have resulted in political repression, the starvation of children, and a massive refugee crisis—the biggest in the history of the Western hemisphere.
In Russia, the authoritarian regime of former KGB Colonel Vladimir Putin has embarked on a wholesale whitewashing of communism's historical record. Putin's brutal and indefensible invasion of Ukraine owes more to Russian nationalist ideology than communism. But it is nonetheless fed in part by his desire to recapture the supposed power and glory of the Soviet Union, and his long-held belief that the collapse of the USSR was "the greatest geopolitical catastrophe of the century." It is also telling that most communists in Russia and elsewhere have joined with many far-right nationalists in backing Putin's line on the war.
In China, the Communist Party remains in power (albeit after having abandoned many of its previous socialist economic policies), and has recently become less tolerant of criticism of the mass murders of the Mao era (part of a more general turn towards greater repression).
China's horrific repression of the Uighur minority is reminiscent of similar policies under Mao and Stalin, though it has not—so far—reached the level of actual mass murder. But imprisoning over 1 million people in horrific concentration camps is more than bad enough.
Far-left support for Hamas since the horrific October 7, 2023 terrorist attack is yet another reminder of the inherently evil nature of communist ideology. Backing terrorism is part of a long history of support for repression and mass murder. Not all extreme socialists of the type who support Hamas are communists. But the latter are a subset of the former.
In a 2012 post, I explained why May 1 is a better date for Victims of Communism Day than the available alternatives, such as November 7 (the anniversary of the Bolshevik seizure of power in Russia) and August 23 (the anniversary of the Nazi-Soviet Pact). I also addressed various possible objections to using May Day, including claims that the date should be reserved for the celebration of labor unions.
But, as explained in my 2013 Victims of Communism Day post, I would be happy to support a different date if it turns out to be easier to build a consensus around it. If another date is chosen, I would prefer November 7; not out of any desire to diminish the significance of communist atrocities in other nations, but because it marks the establishment of the very first communist regime. November 7 has in fact been declared Victims of Communism Memorial Day by three state legislatures.
If this approach continues to spread, I would be happy to switch to November 7, even though May 1 would be still more appropriate. For that reason, I have adopted the practice of also commemorating the victims of communism on November 7.
I would also be happy to back almost any other date that could command broad support. Unless and until that happens, however, May 1 will continue to be Victims of Communism Day at the Volokh Conspiracy.
No Pseudonymity for Alleged Jeffrey Epstein Victims Suing FBI Over Failure to Properly Investigate Epstein
From Doe v. U.S., decided yesterday by Judge Mary Kay Vyskocil (S.D.N.Y.):
Plaintiffs allege that for over two decades, the Federal Bureau of Investigation … allowed [Jeffrey] Epstein and others to sex traffic and sexually abuse children and young women by failing to investigate the reports, tips, and evidence it had of "rampant sexual abuse and sex trafficking by Epstein."
Plaintiffs sought leave to proceed under pseudonyms, but the court said no (note that at this stage there is no discussion yet of whether plaintiffs can sue FBI on this sort of failure-to-investigate theory):
Plaintiffs here allege that due to the FBI's failure to take appropriate action to investigate Epstein, they continued to be "sexually abused, raped, assaulted, tormented, violated, harassed, [and] intimidated," among other trauma. The Court agrees that Plaintiffs' allegations of sexual assault are "highly sensitive and of a personal nature," and, thus, the first factor of Sealed Plaintiff weighs in favor of anonymity. However, this factor is not dispositive. Courts in this district have explained that "allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym." Indeed, courts have denied motions to proceed under a pseudonym in similar circumstances….
Plaintiffs [also] argue that these factors weigh in favor of anonymity because "identification poses a further risk of mental harm." They assert that their experiences are "deeply traumatic" and "[p]laying out those experiences in a public forum would retraumatize them." Specifically, they argue that "certain Plaintiffs have sought out mental health treatment in connection with the abuse described in the complaint and would certainly experience additional significant harm if [they are] forced to reveal [their] identity to the public."
However, Plaintiffs' allegations of potential harm are too speculative and insufficient to outweigh the presumption in favor of openness in judicial proceedings. "The risk of psychological injury stemming from identification is a cognizable harm that can serve as a legitimate basis for proceeding anonymously." However, the potential injury alleged must be more than "mere embarrassment" or "social stigmatization." For example, a court in this Circuit allowed a plaintiff to proceed anonymously when she "provided specific evidence from medical professionals predicting that revelation of her identity would likely 'cause psychological and emotional pain so intense that it would threaten her stability, her safety, and even her life.'"
"Plaintiff Threatened the District Staff's Jobs, Reputation, Careers, and Legal Liability—Not Their Physical Safety"
Tenth Circuit upholds preliminary injunction in favor of volunteer football coach, high school founder, and school district critic.
From Pryor v. School Dist. No. 1, decided yesterday by the Tenth Circuit, in an opinion by Judge Joel Carson, joined by Judges Timothy Tymkovich and Scott Matheson:
The First Amendment protects those who petition the government for redress of grievances, even though such speech may offend government officials or damage their public reputation. Plaintiff Brandon Pryor passionately—and at times profanely—criticized actors within Defendant Denver School District No. 1 ("District") when he advocated for change within the District. In response, Defendants stripped him of his volunteer position and restricted his access to District facilities. Because the District likely acted in retaliation against Plaintiff's First Amendment rights, we exercise jurisdiction under 28 U.S.C. § 1292 and affirm the district court's preliminary injunction….
Plaintiff Brandon Pryor advocates for quality educational opportunities in Far Northeast Denver ("FNE Denver"). His advocacy takes many forms: he texts privately with District administration, speaks with officials in person, appears on local podcasts and news media, posts on social media, attends board meetings and work groups, and participates in public comment sessions. He has also served as a volunteer football coach in FNE Denver for many years. In 2019 he co-founded a school in FNE Denver: the Robert W. Smith STEAM Academy ("STEAM Academy").
In October 2022, the District served on Plaintiff a letter from Aaron Thompson, the District's general counsel ("Thompson Letter"). The Thompson Letter alleged that Plaintiff had displayed "abusive, bullying, threatening, and intimidating conduct directed at [District] staff." As support for its allegations, the Thompson Letter described interactions between Plaintiff and District staff throughout the previous two years. The Thompson Letter also quoted Plaintiff's text messages, personal Facebook posts, and statements from phone calls and a local podcast.
The Thompson Letter explained that Neisa Lynch, newly hired principal of Montbello High School in FNE Denver, had complained to the District that Plaintiff subjected her to harassment, defamation, and slander and that he had intimidated and threatened her and her husband. In her complaint, Lynch cited many of Plaintiff's Facebook posts—including a post that specifically called for Lynch's resignation or termination; a post in which Plaintiff stated that she (and others) "are a disgrace to the entire community"; and a post that included Lynch's husband's LinkedIn profile and stated: "What are the chances that Neisa Lynch and her husband Mike Lynch worked together to steal our kids [sic] game? … I'm sure they've talked about it all …" Lynch also complained that Plaintiff told community members not to enroll children at her school; called her derogatory names such as "plantation builder"; and—according to the Thompson Letter—"suggest[ed] her colleagues have endured hate speech, harassment, defamation, and slander by [Plaintiff] as well."
{Lynch was not the first District employee to complain about Plaintiff. Other District employees had complained that Plaintiff had become angry with them and had yelled and cursed in personal interactions. In response to these complaints, the District investigated and found that Plaintiff acted unprofessionally but did not violate District policies on harassment. The District ultimately did not enforce restrictions on Plaintiff based on these prior complaints.}
Each conversation, post, or interaction that the Thompson Letter listed related in some manner to Plaintiff objecting to or calling for changes in District operations. In many posts, Plaintiff called for the resignation or termination of District officials; in others, he criticized District officials for operational missteps or decisions with which he disagreed. The text messages between Plaintiff and District staff included specific demands, sometimes coupled with derogatory statements directed at the staff. Some of Plaintiff's statements, as quoted in the Thompson Letter, were cryptic, such as "Warning! Don't poke a resting bear!" And a few statements contained expletives—such as the following: "Watch out for the Black folks trying to Whitesplain this bullshit" (in a Facebook comment related to a post criticizing Lynch for hiring decisions); and "Stay the fuck away from me" (in a phone conversation with the District's Regional Instructional Superintendent after Plaintiff learned she had canceled a planning meeting for the school he founded).
Today in Supreme Court History: May 1, 1871
5/1/1871: Knox v. Lee decided.
The Difference Between Justice and the Rule of Law
The two are not the same, and may sometimes be in conflict with each other.
In the course of an interview mostly devoted to other issues, a Japanese reporter recently asked me whether there is a difference between justice and the rule of law. Some of his (understandable) confusion was purely linguistic. Both "justice" and "rule of law"are fuzzy terms that different people use in different ways. It's easy to see how non-native English speakers could get confused.
Nonetheless, there are differences between the two concepts that go beyond semantics. Sometimes, of course, "rule of law" might be used in ways that preemptively rule out the possibility that legislation that meets rule-of-law requirements could ever be unjust. In the famous Hart-Fuller debate of the 1950s, Lon Fuller argued that gravely unjust rules and regulations (like those of Nazi Germany) could never be real laws. If so, enforcing such mandates can never be squared with the rule of law.
More commonly, however, "rule of law" is used to denote crucial procedural elements of a legal system, particularly that that ordinary people should be able to readily determine what laws they are required to obey, and that whether or not you get charged by the authorities depends mostly on objective legal rules rather than the exercise of official discretion (thus, the contrast between the rule of law and the "rule of men"). We might add that the rule of law bars—or at least presumptively forbids—discrimination on the basis of certain morally irrelevant characteristics, such as race, ethnicity, and gender.
By contrast, "justice" is a broader notion that focuses on the substantive rightness of the legal rule in question. Laws protecting freedom are (at least usually) just. Laws promoting slavery are not. And so on.
Understood in this way, it is easy to see how legislation that meets the requirements of the rule of law can nonetheless be profoundly unjust. Consider a law mandating the death penalty for jaywalking. It's certainly clear and unequivocal. Assume, further, that there is no enforcement discretion; no discrimination on the basis of race, gender, or any other morally arbitrary trait. Nor is there any favoritism. It is enforced against the rich and powerful no less than the poor and weak. If the governor of the state jaywalks, he or she will be executed just as readily as a homeless person who commits the same offense.
This rule meets the requirements of the rule of law. But it is still blatantly unjust. The death penalty is a hugely disproportionate punishment for the offense of jaywalking, no matter how evenly it is applied.
The same can be true of laws where "crime" itself is something that should not be illegal, even aside from the severity of the punishment. Imagine a law imposing forced labor on a large swathe of the population, such as one requiring all able-bodied adult citizens to do a month of forced labor each year. In Butler v. Perry (1916), the Supreme Court actually upheld a Florida law that required all able-bodied male citizens between the ages of 21 and 45 to either do road repair work for six days each year, provide a substitute, or pay a $3 tax (a much larger amount in inflation-adjusted terms in 1916 than it would be today).
In 1916 Florida, this law was likely enforced much more aggressively against blacks and poor people than against affluent whites. Such unequal enforcement arguably violated rule-of-law principles. Perhaps the rule of law was also undermined by the fact that the law only mandated forced labor for men, exempting women. But we could easily imagine a version of the law that is enforced equally, and also covers women. That version would satisfy the requirements of the rule of law. And, unlike the death penalty for jaywalking law, the punishment seems at least reasonably proportional to the offense.
The forced labor law would nonetheless be terribly unjust, because forced labor (including forced labor for the state) is itself unjust—no matter how equally enforced. Indeed, fully equal enforcement might in some ways make things worse, because it would increase the number of people who are victimized.
If laws that meet the requirements of the rule of law can still be unjust, we might also consider whether justice might sometimes require dispensing with rule-of-law constraints. At the very least, it seems like such a possibility cannot be categorically ruled out.
Elsewhere, I have argued that the rule of law is undermined by our having too many laws.
Because of the vast scope of current law, in modern America the authorities can pin a crime on the overwhelming majority of people, if they really want to. Whether you get hauled into court or not depends more on the discretionary decisions of law enforcement officials than on any legal rule. And it is difficult or impossible for ordinary people to keep track of all the laws they are subject to and to live a normal life without running afoul of at least some of them….
Scholars estimate that the vast majority of adult Americans have violated criminal law at some point in their lives. Indeed, a recent survey finds that some 52 percent admit to violating the federal law banning possession of marijuana, to say nothing of the myriad other federal criminal laws. If you also include civil laws…. even more Americans are lawbreakers….
For most people, it is difficult to avoid violating at least some laws, or even to keep track of all the laws that apply to them….
Ignorance of the law may not be a legally valid excuse. But such ignorance is virtually inevitable when the law regulates almost every aspect of our lives and is so extensive and complicated that few can hope to keep track of it….
Most Americans, of course, never face punishment for their lawbreaking. But that is true only because the authorities lack the resources to pursue most violators and routinely exercise discretion in determining which ones are worth the effort….
In this way, the rule of law has largely been supplanted by the rule of chance and the rule of executive discretion.
I think the way to fix this problem is to drastically reduce the number of laws, and the range of behavior regulated by the state. But it's easy for me to say that. As a libertarian, I would like to abolish a vast range of current laws for reasons unrelated to rule-of-law considerations. I think a high proportion of current laws are substantively unjust; if I didn't think that, I would not be a libertarian in the first place.
But if you believe that extensive government regulation of many aspects of society is necessary - and especially if you think it's necessary to promote justice - then you are likely to face serious tradeoffs between justice and the rule of law. In some situations, you might choose to promote the former, at the expense of the latter. Note the implication that a libertarian society could stick to the rule of law much more consistently than one based on most other ideologies.
But even libertarians might sacrifice the rule of law to substantive justice in at least a few situations. What if, for example, giving government broad discretion to suppress potentially dangerous movements is the only way to prevent Nazis or communists from coming to power? Perhaps that was, in fact, the situation faced by the Russian Provisional Government in 1917, or by the Weimar Republic in the years right before 1933. If so, deviating from the rule of law might be the only way to avoid horrific injustice. I think such dilemmas are rare. But the possibility they might arise can't be categorically ruled out.
If you believe civil disobedience is sometimes justified (as Martin Luther King and others argued), the distinction between justice and the rule of law implies there may be situations where there is no obligation to obey a law, even if it meets rule-of-law requirements. As described above, such a law could still be horrifically unjust. For example, people would be justified in evading a rule-of-law compliant forced labor regime, and in helping others to do so.
Both justice and the rule of law are important values. But they are not the same thing. And there can be situations where the two come into conflict.
Free Speech Unmuted: Free Speech on Campus
The latest video podcast episode from Prof. Jane Bambauer and me.
You can watch on YouTube (see here for past episodes), or subscribe on any podcast platform. This series put together by the Hoover Institution at Stanford University, where I'll be starting as the Thomas M. Siebel Senior Fellow on May 11.
"If He Did Not Want to Be Called a 'Rioter,' Plaintiff Should Not Have Admitted … to 'Participation in … [a] Riot'"
Plus, the significance of omitting "IDK."
An excerpt from Hiles v. CNN, decided yesterday by Judge Arenda L. Wright Allen (E.D. Va.), where plaintiff sued for libel in a CNN article (read the whole opinion for more):
Factual Allegations …
Although Plaintiff is referred to as a "rioter" in the Article, he alleges that he was never charged with or accused of rioting at the U.S. Capitol. Plaintiff further quotes definitions of "riot" from Virginia and federal law and alleges that his activities do not meet these definitions. CNN had made distinctions between rioters and demonstrators in prior reports, including when covering the 2015 Baltimore riots, when CNN analyst Mark Lamont Hill pointed out that not all demonstrators present were rioters. Likewise, in April 2021, Schneider had published an article differentiating conspiracy cases brought against about 20 members of paramilitary groups from "hundreds of rioters facing trespassing charges."
The Article also omits certain matters…. [Among others,] [t]he Facebook post quoted by the Article … is accompanied by "an obviously tongue-in-cheek" caption, "Feelin cute … might start a revolution later. IDK – in Capitol Hill." … The Article … omits the phrase "IDK" (short for "I don't know") from the Facebook post….
The Virginia Fair Report Privilege …
"Virginia's fair report privilege protects the publication of 'accounts of public proceedings or reports'—for example, records of judicial proceedings." … Here, the challenged statements all derive from publicly available court materials in Plaintiff's criminal case and are substantially accurate and fair abridgements of those materials….
Robert Leider on Sources of Presidential Immunity
I've benefited from much thoughtful commentary about last week's arguments in Trump v. United States, the presidential immunity case (besides posts at this blog, see e.g. these posts by Jack Goldsmith and by Marty Lederman).
In addition I wanted to pass along these additional thoughts by Professor Robert Leider from George Mason, an expert in both constitutional law and criminal law, which I thought would be of interest to readers:
Sources of Presidential Immunity
On Thursday, the Supreme Court heard arguments in Trump v. United States, which concerned whether presidents have criminal "immunity" for their official acts while in office. Some arguments seemed perplexing. Trump's counsel, for example, argued that a prosecutor could charge private acts, but not official acts. So if a president accepted a bribe to appoint an ambassador, prosecutors could charge the bribe (which he declared a private act) but not the appointment, which he classified as an official act. Official acts, in his view, could only be the subject of criminal charges if there was first an impeachment and conviction, followed by a prosecution under a criminal statute that explicitly mentions the president.
The Court struggled with these arguments, and many others. In large part, I think these struggles occurred because "immunity" is not a good way to describe when a president may not be prosecuted. In this post, I want to lay out what I believe to be the exceptions to when a president may be prosecuted in the same manner as a private citizen. This post comes with the caveat that this is not my usual academic area, and I do not have a high degree of confidence that what I framed here is complete and correct. But at the very least, I think it is a better starting place than the all-encompassing term "immunity."