Delilah and Me

Back in 2002, I heard a great question, from Betchen and Paul Barber: Who cut off Samson’s hair?

Of course I said “Delilah”—I knew that had to be wrong (or why would they have asked?), but I didn’t have any better answer. The answer is Delilah’s servant (or at least her agent, in legal parlance): “Having put him to sleep on her lap, she called a man to shave off the seven braids of his hair, and so began to subdue him.”

The point isn’t that people remember incorrectly—rather, it’s that much of what we remember is oversimplified, and often along rational pathways: In particular, the actions of an agent are easily remembered as (not simply treated as) the actions of the principal who instructed the agent to act.

I was reminded of this by this item from Judge Aleta Trauger’s decision Wednesday in Volokh v. Williamson County Archives & Museum, a case in which I’m challenging a Tennessee law that appears to allow only Tennesseeans to request court records:

The defendants argue that Volokh lacks standing to bring his claims against … Circuit Court Clerk Barrett because he never “made any request of or otherwise communicated with the Circuit Court Clerk’s Office.” Instead, only Nantuna [Volokh's assistant] corresponded with Barrett. Further, the defendants argue, Volokh lacks third-party standing to bring claims on behalf of Nantuna.

Volokh responds that it does not matter who sent the email; it was his request, and he was injured when the defendants denied it. And he argues that third-party standing is inapplicable because he is asserting his own interests, not his assistant’s.

The defendants respond that Volokh is mistaken: he “cannot establish standing where the public records request at issue was made by someone else, Ms. Nantuna.” … [But] Nantuna’s email expressly states that she is writing on behalf of the plaintiff. She writes: “I am writing on behalf of Eugene Volokh. He would like” several documents. For purposes of standing, the request for documents was Volokh’s.

And there’s a footnote:

The interpretation of the public records request as the plaintiff’s is so irresistible that the defendants sometimes refer to it this way in sections of their briefs that do not concern standing. (Contrast Doc. No. 18 at 4 (“Plaintiff attempts to circumvent McBurney by claiming a fundamental First Amendment right to the judicial records he requested[.]“), with id. (“Plaintiff argues that he has standing to challenge the response to a public records request made by another person[.]“); see also Doc. No. 14 at 11 (“There is no allegation that the court proceedings related to the records requested by Plaintiff were not open to the public.” (emphasis added)); Doc. No. 18 at 3 (same); id. at 4 (referencing the “denial of Plaintiff’s request for records” (emphasis added)); see also Email from defense counsel to plaintiff’s counsel, Doc. No. 14-1 at 2 (referring to “documents requested by your client” (emphasis added)).) Intervenor the State of Tennessee also interprets the request as Volokh’s. (Doc. No. 22 at 1 (“Plaintiff … allege[s] that the denial of his records request by Defendants …”).)

If Delilah had called a man to request the court records in Samson v. Philistines, she would have had standing to sue when the request is denied; and we would have remembered her as the person who had requested the records.

For more on our substantive arguments in the case, see here. The decision doesn’t resolve those substantive arguments, but calls for more briefing on them; I will blog more after the court does issue a decision resolving the substance.

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