volokh conspiracy

LIBTARD? REason mag 9 25

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9 25

AG Pam Bondi Says "We Can Prosecute You" for Refusing to Print Posters for Charlie Kirk Vigil

But there doesn't seem to be any federal law actually authorizing such prosecutions (or civil lawsuits).

Eugene Volokh | 9.16.2025

Attorney General Pam Bondi on Monday said the Justice Department was investigating an incident involving a Michigan Office Depot employee who refused to print flyers advertising a vigil for conservative activist Charlie Kirk…. Office Depot said last week they removed the employee responsible for denying the order placed by the Kalamazoo County Republican Party.

Here's the Bondi quote, from Hannity on Fox, starting about 4:42:

Businesses cannot discriminate. If you wanna go in and print posters with Charlie's pictures on them for a vigil, you have to let them do that. We can prosecute you for that. But I have Harmeet Dhillon right now in our Civil Rights unit looking at that immediately, that Office Depot had done that. We're looking at that.

But no federal law, to my knowledge, purports to ban stores from discriminating based on the political expression of the material they're asked to print.

Title II of the Civil Rights Act of 1964 bans discrimination by certain places of public accommodation—such as restaurants, hotels, theaters, and places of public amusement—based on race, religion, and national origin. But it doesn't ban discrimination based on political views, and it doesn't apply to retailers, so it wouldn't apply here. It also bans discrimination based on disability, but that's not applicable here either. Businesses candiscriminate, just not on bases that the law forbids; and here, federal law doesn't appear to forbid this sort of discrimination.

Now some jurisdictions do ban political discrimination in places of public accommodation (see this article). If such a ban were applied to a print shop that deliberately refused to process an order based on its political content, then it might violate the First Amendment (see the concurrence in *Lexington-Fayette Urban County Human Rights Comm'n v. Hands On Originals* (Ky. 2019), a case in which Cato Institute and I filed an amicus brief making the First Amendment argument).

That First Amendment claim would be strengthened, of course, by 303 Creative LLC v. Elenis (2023), which recognized a First Amendment right not to create a website for same-sex weddings. It's conceivable that a court might limit the First Amendment defenses to small businesses where the owner would have to do the work personally; cf. Rumsfeld v. FAIR(2006), which upheld certain requirements that universities host certain speech, and distribute related speech, though perhaps the reasoning of 303 Creativewould apply even to a large business such as Office Depot.

But none of that even arises here, because those jurisdictions are certain cities and counties, some territories, D.C., and perhaps a few states. None of those laws applies to the Office Depot involved in this incident; and even if there was such a law in Michigan or in the town of Portage (where the store was apparently located), it wouldn't be enforced by the U.S. Justice Department. Perhaps I'm missing something here, but it's hard to see a credible legal basis for AG Bondi's statements.

Start your day with Reason

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OzoneGate

by Eric Posner on December 7, 2009 in Climate Change, Uncategorized

In 1974, a pair of scientists published a paper claiming that chlorofluorocarbons, a compound used in refrigerators, air conditioners, aerosol spray cans, and other devices, migrated into the atmosphere, where they damaged the ozone layer. The ozone layer protects human beings from some of the harmful effects of the sun; the predictable consequence of its loss would be millions of skin cancer cases. The scientists’ work was hotly contested; it eventually gained support in the scientific community, but there were also dissenters. EPA would later regulate the use of CFCs in aerosols, but it was clear that unilateral regulation by the U.S. government would not solve the problem. CFCs manufactured and used in any country could damage the ozone layer.

The American government turned to the Europeans, the other major manufacturers and users of CFCs. Europeans, however, did not trust the science and expressed skepticism about the CFC theory. After further scientific research established that an ozone hole had opened up above Antarctica, and that the likely cause was the emission of CFCs, the Americans dragged the still skeptical Europeans into a treaty regime that tightly regulated the use of CFCs and other ozone-depleting gases. The Montreal Protocolis the most successful environmental treaty ever (the only successful environmental treaty?). The hole has been gradually shrinking and is expected to disappear later this century.

The odd part of this story is that, while not everyone agreed with the scientists who found the link between CFCs and ozone depletion, and that indeed, like everything else, the link was uncertain, albeit likely, governments were able to agree on a treaty regime. The leading supporters of a treaty werethose tree-huggers in the Reagan administration, who were persuaded by a cost-benefit analysisthat the benefits from a ban on CFC greatly exceeded the costs—with the benefits properly discounted given residual scientific uncertainty. There were ozone skeptics, but no Ozone Skeptics. There was a reasonable scientific theory but no models that got everything right all the time. There was an observable hole (if you believed the scientists who measured it) but the physical processes that linked it to refrigerators and aerosol cans could obviously not be demonstrated to the public.

Where were the Climate Skeptics back then? Or was ozonegate, like asteroidgate, a non-event because the climate is a “complex system” whereas, um…. Why didn’t “hierarchical and individualist” citizens find the Montreal Protocol “threatening to their identities”? (Cf. Dave Hoffmanon asteroidgate.) Were scientists more honest in those days? Commentators more sober? The public more credulous?

:{:(style="margin:0px;padding:0px;border:0px;outline:0px;vertical-align:baseline;background:none 0px 0px repeat transparent;-webkit-font-smoothing:antialiased;display:inline;width:auto;height:auto"):}: Physicists Ask American Physical Society to Rescind Its Statement on Global Warming Because It Was Based on “Cheat[ing]” and “Corrupted” Work

http://volokh.com/2009/12/07/ozonegate-and-climategate/

OzoneGate and ClimateGate

by Jonathan H. Adler on December 7, 2009 9:06 am in Climate Change, Environment

In his post below, Eric Posner asks why ozone depletion and the phaseout of CFCs and other ozone-depleting substances did not produce the same degree of backlash as does global warming.

Where were the Climate Skeptics back then? Or was ozonegate, like asteroidgate, a non-event because the climate is a “complex system” whereas, um…. Why didn’t “hierarchical and individualist” citizens find the Montreal Protocol “threatening to their identities”? (Cf. Dave Hoffmanon asteroidgate.) Were scientists more honest in those days? Commentators more sober? The public more credulous?

I would challenge some of Eric’s assumptions. There were climate skeptics back then(indeed, some of the ozone skeptics back then are climate skeptics now) and “hierarchical and individualist” citizens (as represented by right-of-center authors, commentators, and think tanks) challenged the scientific claims. Accepting his implicit assumption that the scientific case for a link between CFCs and ozone depletion at the time was no greater than for apocalyptic climate change today, there was still much less at stake, so the scientific debate had less salience, and there was less political controversy. I’ll briefly expand on each point.

First, there was significant skepticism about initial ozone depletion claims, skepticism that was echoed and amplified by those who opposed government regulation. Questions about ozone depletion were raised in Dixy Lee Ray’s best-selling *Trashing the Planet* and echoed by Rush Limbaugh. In 1989, National Reviewpublished the article “My Adventures in the Ozone Layer” by Dr. Fred Singer, a prominent skeptic of both ozone depletion concerns and climate change. Early on, such skepticism was warranted, but as scientific evidence accumulated, many of those inclined toward skepticism accepted the basic claim that CFCs could and did cause ozone depletion. Ronald Bailey’s 1993 *Eco-Scam*, for instance, accepted the basic scientific claims and acknowledged that ozone depletion could have been a significant concern. Still, even today there are pockets of skepticism related to ozone depletion, particularly about the contribution of certain chemicals, such as methyl bromide.

Second, policies to control ozone depletion are not nearly as far-reaching or intrusive as policies to limit the emission of greenhouse gases. CFCs and other ozone-depleting substances were always specialized chemicals. They were in widespread use as coolants, but they still don’t compare to carbon dioxide, the most ubiquitous by-product of modern industrial civilization. Buying new refrigerators and retrofitting car air-conditioners may be expensive or inconvenient, but it hardly compares to the sorts of measures contemplated to reduce greenhouse gas emissions. So it’s not surprising that there was less outrage or resistance to the scientific claims. This also highlights an important difference between climate change and [Eric’s asteroid example: the anti-asteroid rockets would presumably be financed by general tax revenues and provided as a public good, whereas climate policies will impose disproportionate costs and controls on specific sectors of the economy.]

Third, there’s an important wrinkle in the history of U.S. policy on ozone depletion that Eric omits. Initially, the U.S. government was adamantly opposed to controlling CFCs, beyond the initial 1978 ban on their use in aerosol cans. In the 1980s, however, the U.S. government did not support a CFC phase-out until industry was on board. And industry was not on board until the leading CFC manufacturer, DuPont, faced significant competition for its patented CFC compounds and and was well-positioned to dominate the replacement market. When DuPont joined the call for a complete phaseout in 1988, the CFC trade industry still voiced some skepticism about the science, but DuPont was ready to sell more expensive CFC substitutes — compounds for which there would have been no real market without the phaseout. For those interested, I summarized this history near the end of my 1996 article, [*Rent-Seeking Behind the Green Curtain*.]

In retrospect, the CFC phaseout was a good idea, but even assuming that the level of scientific certainty was no greater when the CFC phaseout was adopted than there is with climate change today, there are many important differences between the two policy debates. First,there was less reason for skepticism to blossom into sustained political opposition because there was less at stake — the phaseout’s costs were concentrated on a few industries, not spread economy wide, and a CFC phaseout did not threaten regulatory controls on ordinary Americans. Second, the potential economic benefits to dominant industry players meant powerful economic interests supported the phaseout, interests that far outweighed those sectors likely to experience significant costs (and, in these sectors as well, groups rapidly emerged to capture the rents a phaseout could produce). So there were powerful “bootleggers” to support the environmental “baptists.” Third, the most significant effects of a phaseout were likely to be felt overseas, in those nations in which a CFC phaseout would diminish the availability of affordable refrigeration technologies, and those nations could be easily bought off. I also think the nature of the CFC threat — a potential increased risk of skin cancer — generates more political traction than a change in temperature.

Another important difference between ozone depletion and climate change, is that there was reason to believe that a near-total phaseout of CFCs was the only meaningful way to address the threat of ozone depletion, whereas there may be ways to address climate change concerns that don’t involve empowering a massive regulatory bureaucracy. While most climate policy proponents advocate far-reaching regulatory programs, covering everything from industrial emissions and transportation to product design and land-use, there are alternative ways of reducing greenhouse gas emissions, atmospheric concentrations, or the threat of enhanced greenhouse warming (if not all three), ranging from revenue-neutral carbon taxes to technological fixes, to various forms of geoengineering. Because there is a disproportionate emphasis on regulatory controls, some opponents of clmate policies suspect some climate policy advocates are as interested in imposing such controls as they are in saving the planet — as then-Senator Tim Wirth said some 20 years ago, global warming was an excuse to “do the right thing” even if the problem wasn’t real.

To reiterate my own views, I believe that human activity contributes to global warming, and that it is a serious concern (even if I don’t accept claims that global warming threatens human civilization). ClimateGate is a real scientific scandal that may justify increased caution about some of the more definitive or apocalyptic statements about climate science, but I do not see it compromising the essential case for a human contribution to climate change. My policy preference is for measures that do the most to address the actual threats posed by warming while minimizing consequent restrictions on liberty or the imposition of costs on those who have not contributed signficantly to the problem. I think massive regulatory programs are ill-adivsed, and that proposed cap-and-trade programs will provide massive opportunities for rent-seeking while doing little to reduce actual emissions or enhance our capacity to deal with the problem. On the other hand, I would welcome a revenue-neutral carbon tax, combined with other policies to enhance technological innovation, and believe that industrialized nations should help more vulnerable nations adapt to the inevitable, and at this point unavoidable, near to medium term effects of projected warming. I’ve also argued (in this article) that principled adherence to libertarian principles justifies greater action on climate change.

wikifluff

David E. Bernstein (born 1967) is a professor at the George Mason University School of Law in Arlington, Virginia, where he has taught since 1995.^[1] His primary areas of scholarly research are constitutional history and the admissibility of expert testimony. Bernstein is a contributor to the legal blog, The Volokh Conspiracy. Bernstein is a graduate of the Yale Law School, where he was a John M. Olin Fellow in Law, Economics and Public Policy, a Claude Lambe Fellow of the Institute for Humane Studies, and a senior editor of the Yale Law Journal. He received his B.A. degree summa cum laude with honors in History from Brandeis University.

Publications

Books

A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (co-author with several others) Palgrave MacMillan, 2013, ISBN 1137363746
Rehabilitating Lochner: Defending Individual Rights against Progressive Reform University of Chicago Press, 2011, ISBN 978-0-226-04353-1
*You Can't Say That: The Growing Threat to Civil Liberties from Antidiscrimination Laws*, Cato Institute, 2003, ISBN 978-1-930865-53-2
The New Wigmore: Expert Evidence (treatise, with Kaye and Mnookin) Aspen Publishers, 2004, ISBN 978-0-7355-4555-7
*Only One Place of Redress: African Americans, Labor Regulations and the Supreme Court from Reconstruction to the New Deal*, Duke University Press, 2001, ISBN 978-0-8223-2583-3 *Beito Review*
Phantom Risk: Scientific Inference and the Law (co-editor, with Foster and Huber) The MIT Press, January 29, 1999, ISBN 978-0-262-56119-8

Selected law review articles and review essays

"The Misbegotten Judicial Resistance to the Daubert Revolution", 89 Notre Dame L. Rev. 27 (2013)
"Excluding Unfit workers: Social Control Versus Social Justice in the Age of Economic Reform," 72 L. & Contemp. Probs. 177 (2009) (with Thomas C. Leonard)
"Revisiting Yick Wo v. Hopkins", 2008 Ill. L. Rev. 1393
"Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution", 93 Iowa L. Rev. 451 (2008)
"The Red Menace Revisited", 100 Nw. U. L. Rev. 1295 (2006)
"Learning the Wrong Lessons from an American Tragedy", 104 Mich. L. Rev. 1961 (2006)
"Judicial Power and Civil Rights Reconsidered", 114 Yale L.J. 593 (2004) (with Ilya Somin)
"Lochner's Feminist Legacy", 101 Mich. L. Rev. 1960 (2003)
"Lochner's Legacy's Legacy", 82 Tex L. Rev. 1 (2003)
"Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism", 82 Geo. L.J. 1 (2003)
"Lochner, Parity, and the Chinese Laundry Cases", 41 Wm. & Mary L. Rev. 211 (1999) (symposium)
"The Breast Implant Fiasco", 87 Calif. L. Rev. 457 (1999)
"Philip Sober Restraining Philip Drunk: Buchanan v. Warley in Historical Perspective", 51 Vand. L. Rev. 799 (1998)
"The Law and Economics of Post-Civil War Restrictions on Interstate Migration by African-Americans", 74 Tex. L. Rev. 781 (1998)

References

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External links

Official sites

Online publications

Authority control

Categories:

off bs bio

https://web.archive.org/web/20160220125014/http://faculty.law.gmu.edu/dbernste/

David E. Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, Virginia, where he has been teaching since 1995.

He has been a visiting professor at Brooklyn Law School, Georgetown Law Center, University of Michigan Law School, and William and Mary Law School.

Professor Bernstein teaches Constitutional Law I and II, Evidence, Expert and Scientific Evidence, and Products Liability. He is a contributor to the popular Volokh Conspiracyblog.

A prolific and often controversial scholar, Professor Bernstein is the author of several books:

Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law (Encounter Books 2015)

A Conspiracy against Obamacare: The Volokh Conspiracy and the Health Care Case (Palgrave Macmillan 2013) (pb and hc) (co-author)

Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011; pb 2012)

The New Wigmore: Expert Evidence (Aspen Law and Business 2004; 2nd edition 2010) (co-author)

:{You Can’t Say That! The Growing Threat to Civil Liberties from :(style="background-color:#ffffff;"):}::{Antidiscrimination Laws:(style="background-color:#ffff66;"):}: (Cato Institute 2003; pb 2004)

Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke University Press 2001)

Phantom Risk: Scientific Inference and the Law (MIT Press 1993; pb 1999) (co-editor)

In addition to his books, Professor Bernstein is the author of dozens of scholarly articles, book chapters, and think tank studies. The law reviews that have published his work include the Boston University Law Review, California Law Review, Georgetown Law Journal (2), Illinois Law Review, Iowa Law Review. Journal of Supreme Court History (3), Law and Contemporary Problems (2), Michigan Law Review (2), North Carolina Law Review, Northwestern University Law Review, Notre Dame Law Review (2), Texas Law Review (2), Vanderbilt Law Review, Washington University Law Review, and the Yale Law Journal (2).

freq wapo opinion?

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/31/george-mason-law-school-gets-30-million-gift-names-itself-after-the-late-justice-antonin-scalia/?utm_term=.afde0d60c484

The Volokh Conspiracy Opinion

George Mason Law School gets $30 million gift, names itself after the late Justice Antonin Scalia

By David Bernstein March 31, 2016

Here is the press release, and an article from the Wall Street Journal.

My understanding is that this is not an endowment, which would limit the law school to spending a small percentage of the gift each year indefinitely, but funds that will be disbursed over a period of years, substantially increasing the law school’s budget for that period of time. Much of the money will be used for scholarships.

Congratulations are due to Dean Henry Butler for finalizing the largest gift in George Mason University’s history, and great thanks are due to a generous anonymous donor, who gifted $20 million, to the Charles Koch Foundation, which donated $10 million, and to the Scalia family for allowing us to honor the late Justice in this way.

adler PERC

http://www.sourcewatch.org/index.php?title=Smoking_as_a_civic_duty

CSE smoking as civic duty

Only a tobacco-funded think tank would ever go so far as to describe smoking as a civic duty. The tobacco industry has been a regular funder of the Competitive Enterprise Institute, (CEI) which in turn has gone to bat repeatedly and eagerly for tobacco in its battles with government agencies such as the Food and Drug Administration (FDA) and the Environmental Protection Agency (EPA). Following the 1993 release of EPA's risk assessment linking secondhand cigarette smoke to lung cancer, CEI cranked out opinion articles for major newspapers with titles such as "A Smoking Gun Firing Blanks," "EPA's Bad Science Mars ETS Report," and "Safety Is a Relative Thing for Cars; Why Not for Cigarettes?"

CEI policy analyst Alexander :{Volokh:(style="background-color:#fff200"):}: went even further. "Perhaps, in the fine tradition of civil disobedience championed by Thoreau, we should even think of smoking as a civic duty," he wrote in the July 1994 issue of the CEI Update. "Perhaps," he continued, "every January 11th -- the anniversary of the Surgeon General's original 1964 report on smoking -- we should all light up, giving a filter-tipped finger, as it were, to a health-obsessed government." Volokh admitted that the government's efforts to discourage smoking "may further the cause of health," but concluded that "there are things more valuable than health."

Who are we?

All of us are law professors, except David Kopel, John Elwood, and Stewart Baker, who are lawyers. Naturally, we speak only for ourselves, and not for the institutions that employ us.

Dale Carpenter, University of Minnesota.

David Kopel, Independence Institute.

David Bernstein, George Mason University.

David Hyman, University of Illinois.

David Post, Temple University.

Eugene Kontorovich, Northwestern University.

Eugene Volokh, UCLA.

Ilya Somin, George Mason University.

Jim Lindgren, Northwestern University.

John Elwood, Vinson & Elkins.

Jonathan Adler, Case Western Reserve University.

Ken Anderson, American University.

Nick Rosenkranz, Georgetown University.

Nita Farahany, Duke University.

Orin Kerr, George Washington University.

Paul Cassell, University of Utah.

Randy Barnett, Georgetown University.

Russell Korobkin, UCLA.

Sasha (Alexander) Volokh, Emory University. CEI? ETS?

Stewart Baker, Steptoe & Johnson.

Stuart Benjamin, Duke University.

Todd Zywicki, George Mason University.

Will Baude, University of Chicago.