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Justice Clarence Thomas is well known for writing separate opinions highlighting the gap between the Supreme Courts contemporary jurisprudence in a given area and the original constitutional understanding or original public meaning of the relevant constitutional provisions. Earlier this week, for example, Thomas suggested that the court should reconsider its qualified immunity jurisprudence.

Friday, inMurr v. Wisconsin, Thomas suggested that the court shouldreconsider the constitutional foundation of regulatory takings doctrine. Although he joined the dissent authored by Chief Justice John G. Roberts Jr., Thomas also wrote separately to highlight the tension between the courts doctrine and the original meaning of the Fifth Amendments takings clause. He wrote:

I join THE CHIEF JUSTICEs dissent because it correctly applies this Courts regulatory takings precedents, which no party has asked us to reconsider. The Court, however, has never purported to ground those precedents in the Constitution as it was originally understood. In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922), the Court announced a general rule that if regulation goes too far it will be recognized as a taking. But we have since observed that, prior to Mahon, it was generally thought that the Takings Clause reached only a direct appropriation of property, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent of a practical ouster of [the owners] possession, Transportation Co. v. Chicago, 99 U. S. 635, 642 (1879). Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992). In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions).

The paper Thomas cites at the end of his opinion is by University of San Diego law professor Michael Rappaport, a prominent originalist scholar (and contributor to the Originalism Blog). Here is the abstract to Rappaports paper:

This article explores the widely disputed issue of whether Takings Clause protects against regulatory takings, offering a novel and intermediate solution. Critics of the regulatory takings doctrine have argued that the original meaning of the Fifth Amendment Takings Clause does not cover regulatory takings. They have quickly moved from this claim to the conclusion that the incorporated Takings Clause under the Fourteenth Amendment also does not cover regulatory takings.

In this article, I accept the claim that the Fifth Amendment Takings Clause does not cover regulatory takings, but then explore the possibility that the incorporated Takings Clause does cover such takings. Applying Akhil Amars theory of incorporation, I argue that there are strong reasons, based on history, structure, and purpose, to conclude that the Takings Clause had a different meaning under the Fourteenth Amendment. Amar argues that the Bill of Rights was dominated by republican ideas, but that the Fourteenth Amendment was founded on more liberal notions intended to protect individual rights. This would suggest that a broad reading of the Takings Clause would further the principles underlying the Fourteenth Amendment.

Moreover, that some state courts had come to apply takings principles to regulatory and other nonphysical takings in the period between the enactment of the Bill of Rights and the Fourteenth Amendment provides additional support for the possibility that the Fourteenth Amendment enactors would have understood it to apply to regulatory takings. While the paper does not attempt to prove that the Fourteenth Amendment Takings Clause applies to regulatory takings, leaving that task to others, it argues that critics of regulatory takings doctrine should no longer simply assume that the Constitutions original meaning does not apply to state regulatory takings.

Regulatory takings is not the only context in which property rights activists may be asking the Fifth Amendment to do the constitutional work better done by the 14th Amendment (if it is to be done at all). Eminent domain may be another (for reasons I briefly sketch in this exchange).

If there is to be greater clarity about regulatory takings, it might help if the entire doctrine rested on a more secure and constitutionally sound foundation.

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Should regulatory takings doctrine be reconsidered from the ground up? - Washington Post

SAN FRANCISCO (CN) Despite multiple orders directing Uber to hand over evidence in a trade secrets brawl with Google spinoff Waymo involving driverless car technology, attorneys for both companies were back in court Friday debating which documents Uber must share.

U.S. Magistrate Judge Jacqueline Scott Corley handed Uber its first discovery victory Friday, ruling that the ride-hailing giant does not have to produce communications with its attorneys at Morrison and Foerster, which are listed on a privilege log it gave Waymo in March.

Corley didnt buy Waymos argument that even if the communications are privileged, they must be produced under the crime-fraud exception.

I do not find that the crime-fraud exception applies, so Im not going to order those documents which are just between Uber and MoFo [Morrison & Foerster] be produced, Corley said.

The crime-fraud exception states that communications are not privileged when a client consults an attorney for advice on furthering a crime.

Waymo sued Uber and its driverless car company, Otto, in February, claiming its former engineer, Anthony Levandowski, stole 14,000 confidential files from Waymo related to its self-driving car technology. Waymo accused Uber of using those files to set up Otto, which Uber quickly acquired. Waymo did not name Levandowski as a defendant.

The following month, Uber gave Waymo a privilege log that contained a due-diligence report, which it had commissioned to evaluate the Otto acquisition. Stroz Friedberg, the investigation firm that prepared the report, purportedly saw the stolen files during its review. Fearing criminal prosecution, Levandowski invoked his Fifth Amendment rights. This allowed him to avoid testifying at his deposition about the report and also prohibited Uber from giving Waymo a revised privilege log with more information about it, including whether Levandowski had any of the documents Stroz Friedberg reviewed.

U.S. District Judge William Alsup, who is overseeing the case, denied Levandowskis Fifth Amendment motion, writing in a May 15 order that Levandowki had likely concealed troves of self-incriminating evidence by trying to invoke the Fifth Amendment.

Waymo still wants the due-diligence report, but Uber insisted that it was protected by work-product and attorney-client privilege. Corley, however, ruledearlier this month that Uber must produce it, and Alsup affirmed the decision this week.

Fighting now for the communications on Ubers privilege log between Uber and its lawyers, which may relate to the due-diligence report, Waymo attorney Charles Verhoeven made his case Friday about the crime-fraud exception.

If you are aware that someone has stolen files and you come into possession of these stolen files, it is a crime to continue to conceal that from the competitor and work with the person, in this case Mr. Levandowski, who has taken the Fifth, to continue to destroy that evidence or maintain it in some confidential way, he said.

Bolstering that argument is a Wednesday filing by Waymo telling the court that Uber admitted that Levandowski told Uber CEO Travis Kalanick more than a year ago that he had five discs containing information from Google, and that Kalanick told him not to bring the information to Uber. Shortly after, Levandowski told Uber that he had destroyed the discs.

Ive reviewed in-camera the due-diligence report, and I dont find that, Corley replied. What the due-diligence report is about, I found, in order to evaluate acquiring Otto, they were doing an investigation into Mr. Levandowski, including whether they had taken any documents and to create a record should any indemnification obligation arise. Thats not crime-fraud. There is no evidence they consulted MoFo [Morrison & Foerster] in order to receive stolen property. The communications have to be in furtherance of that scheme.

Uber attorney Martha Goodman told Corley that an exhaustive search of Ubers servers for the files hasnt turned them up.

All of the evidence [shows] that Uber does not possess these files, she said. In fact, all of the evidence shows that Uber is doing all it can to make Levandowski return anything that belongs to Google.

Uber fired Levandowski last month for refusing to cooperate with its internal investigation into the files.

Verhoeven countered that Morrison & Foerster has admitted that it has the files. And in a brief, Waymo contends that the firm has been sitting on some of the stolen files for over a year.

Corley remained unconvinced, telling Verhoeven that there is an inference to be drawn that Morrison & Foerster received the files along with the due-diligence report while reviewing the Otto acquisition.

You cant prove by the preponderance of the evidence that that is receipt of stolen property, she said, before reminding Verhoeven that Waymo will still get the due-diligence report.

Although Alsup has ordered Uber to turn over the report, he stayed his ruling until June 30 so Uber and Levandowski can appeal his decision.

Uber still faces an uphill battle over producing evidence. The company failed to meet a May 31 deadline to make Levandowski return the files, prompting Waymo to move earlier this week for an order to show cause why Uber should not be held in contempt for missing the deadline.

A hearing on that motion is set for July 27.

Verhoeven is with Quinn Emanuel Urquhart & Sullivan in San Francisco, and Goodman is with Boies Schiller Flexner in Washington.

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Uber Can Witthold Attorney Files in Driverless Car Discovery - Courthouse News Service

Uber admitted that it hired a former Google employee despite being warned that he possessed sensitive documents from the Silicon Valley giant, adding a new twist to a court battle over trade secrets.

Waymo, the self-driving car developer created by Alphabets (GOOGL) Google, has accused Uber of using stolen trade secrets in its own software that would serve as the backbone of autonomous vehicles. Uber has denied the charges. However, the ride-sharing company fired Anthony Levandowski, the ex-Google engineer and Uber executive, for failing to cooperate with an internal investigation.

Waymos lawsuit maintains that Uber then transplanted the intellectual property allegedly stolen by Levandowski into its own fleet of self-driving vehicles a charge that Uber has adamantly denied since Waymo filed its complaint in federal court four months ago.

In May, U.S. District Judge William Alsup ordered Uber to return the stolen files, writing that evidence indicated the company "knew or should have known that he possessed over 14,000 confidential Waymo files."

Now, Uber has for the first time has acknowledged that Levandowski informed its now-departed CEO, Travis Kalanick, that he had five disks filled with Google's information five months before joining Uber. The disclosure, made in March 2016, lends credence to Waymo's allegation that Levandowski downloaded 14,000 documents on to a computer before leaving Google.

The admission was contained in a Thursday court filing.

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Uber, though, says Kalanick told Levandowski not to bring any of the Google information with him to Uber. At that time, a deal had been reached for Uber to buy Levandowski's startup, Otto, for $680 million, though the acquisition wasn't completed until August 2016.

The filing asserts that Levandowski destroyed the disks containing Google's material not long after Kalanick told him that Uber didn't want the information on them.

Levandowski's lawyers didn't immediately respond to requests for comment. They have been advising Levandowski to assert his Fifth Amendment right against self-incrimination since Waymo filed its lawsuit.

Based on the evidence he has seen so far, Alsup has already referred the case to the Justice Department for a potential criminal investigation.

The scenario sketched by Uber comes a few weeks after the company fired Levandowski for refusing to relinquish his Fifth Amendment rights and cooperate with its efforts to defend itself against Waymo's suit.

Kalanick resigned as Uber's CEO Tuesday week after investors demanded he step down. The investors who have financed Uber's growth had concluded Kalanick had to go following revelations of sexual harassment in the company's office, a federal investigation into company tactics used to thwart regulators, and the threat of even more trouble posed by the Waymo lawsuit.

The Associated Press contributed to this report.

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Uber admits it knew ex-Google engineer kept trade secrets - Fox Business

Editor's note: This story contains homophobic language some readers might find offensive. The non-binary pronouns "they" and "them" have been used in the singular form to refer to individuals who do not identify as a specific gender. "LGBTI+" refers collectively to people who identify as lesbian, gay, bisexual, trans, intersex or another sexual minority.

Ankara, Turkey (CNN) -- It was a warm summer night in July 2015 and Kemal Ordek, a sex worker at the time, was waiting at home for the next client to arrive.

Two men, posing as customers, entered Ordek's apartment in Ankara. They beat Ordek -- whose gender is non-binary-- stole their phone and one raped them. At one point a third man, a relative of the other two, entered the apartment and demanded money.

The men dragged Ordek, 32, out into the street and towards a nearby cash machine. There, Ordek spotted a police car and ran to tell the officers what had happened. The attackers followed, telling the police they were "family men" who had been lured into Ordek's home. They denied doing anything wrong.

Ordek's version of events was dismissed by police on the spot, Ordek says. The officers threw Ordek and the men into their patrol car and drove to the police station. "Don't even dare make a criminal complaint. I'll chop off your head, we'll kill you," one attacker said, according to Ordek.

Later that night, police released Ordek's attackers without explanation. Ankara police declined to comment by phone or text message, asking that CNN send its request by handwritten letter.

According to Ordek's attorney, it was only after they filed a civil complaint, and sought legal representation that police launched a criminal investigation.

For the next year, Ordek says the attackers unleashed a campaign of intimidation against them. Ordek also claims that pressure was applied by police to drop the complaint.

Police arrested the attackers last November. They were ultimately convicted for their crimes and sentenced to seven and a half years each for looting. One of the attackers had faced 20 years in prison for aggravated sexual assault but his lawyer was able to get that charge dropped upon appeal.

While the case gained support from human rights organizations and attention from the national media, Ordek's family disowned them.

"My father told me, 'you better get killed instead of being raped because this is against our honor,'" Ordek said.

Although homosexuality has been legal in Turkey since 1923, Turkey has one of the worst records of human rights violations against LGBTI+ people in Europe, according to a 2016 report from the European Region of the International LGBTI Association. A separate 2016 report to the United Nations by Turkish LGBTI+ advocacy groups identified at least 41 hate crimes against lesbian, gay, bisexual, or transgender people that resulted in death from 2010 to June 2014.

Ordek survived the brutal attack, but many others haven't.

In 2009, Eda Yildirim, a transgender sex worker was decapitated and burned alive; her breast implants cut out of her before she was murdered. In 2015, another transgender sex worker died after being stabbed 200 times by a client. In 2016, a young transgender woman named Hande Kader, a prominent member of the LGBTI+ community, was raped and burned alive. Her killer has not been found. Even when identified, many of the murder suspects have not been prosecuted.

Mustafa Yeneroglu, the Chief of Turkey's Parliament's Human Rights Observation Commission, told CNN that he had personally researched some of these incidents, but described them as "mostly individual cases" that didn't point to abuse of the LGBTI+ community.

Highlighting that the victims were sex workers, Yeneroglu said: "It should be researched sociologically and psychologically why these people are found in a criminal situation ... like (roadside) prostitution."

But Ordek -- the director of the Red Umbrella Sexual Health and Human Rights Association, an NGO promoting health and rights for sex workers in Turkey -- says that according to their research, roughly 90% of the country's transgender people feel sex work is the only way they can make a living.

Betul, a transgender woman who asked CNN to refer to her only by her first name for her safety, spent nearly ten years of her life trying to work a "regular job" after graduating from university but was repeatedly sexually assaulted.

Eventually Betul turned to sex work, but faced more violence than before. Last year, an organized crime gang attacked Betul in her home, nearly severing her hand from her wrist.

Before Erdogan became Prime Minister in 2003, he garnered support by giving a voice to minority groups, including the LGBTI+ community, declaring in 2002, "homosexuals must also be given legal protection for their rights and freedoms." But two years later, Erdogan's ruling Justice and Development Party (AKP) removed the phrase "sexual orientation" from a draft law, describing it as "unnecessary."

As Erdogan tightened his grip on power in the intervening years, activists say he and his government became more conservative, more Islamist and more homophobic.

In 2010, then former state minister for family affairs, Selma Aliye Kavaf told Turkish newspaper Hurriyet, "homosexuality is a biological disorder, a disease ... something that needs to be treated."

In 2013, Erdogan described homosexuality as a "sexual preference" that was incompatible with the "culture of Islam" in Turkey.

On a quiet lane in central Ankara, Ordek sat with peers who had gathered to discuss their future in post-referendum Turkey.

A lawyer, who asked for her identity to be concealed for her security, told CNN that Erdogan used the referendum campaign to usher in a new wave of homophobic hate speech, and said the President is fostering a culture of police hostility whipped up by his extreme rhetoric. Erdogan's press office did not respond to CNN's repeated requests for comment.

Hostility to the LGBTI+ community has also seeped into Turkey's pro-government news organizations. In the wake of the terror attack in Orlando in 2016, when 49 people were gunned down at a nightclub, popular among gay men, the headline in the far-right Yeni Akit paper read: "50 perverts killed in bar."

"If a family member decides to...kill you, they can because the government doesn't effectively investigate," she said. "They turn their backs to these 'honor killings.'"

Yeneroglu, the head of the Parliament's human rights commission, told CNN that the commission will be meeting with LGBTI+ organizations to follow up on their concerns, but he did not specify when.

Serkan, a gay 28-year-old PhD student from Istanbul who asked CNN not to publish his last name out of concerns for his safety, said his university has also become more intolerant as Erdogan has tightened his grip on power.

Serkan and his university's gender studies department is "almost non-existent." He says most of the academics in the department were fired following Turkey's post-coup crackdown, which has seen more than 110,000 people detained and almost 50,000 of them arrested.

"Since the purge started, the government's perspective on social science departments, specifically in gender studies, has changed," he told CNN. "It was a hostile change."

This atmosphere of fear permeates all levels of society, according to Tolga, a 21-year-old office worker who came out as gay only four years ago. He asked for his last name to be withheld out of concerns for his safety.

As he lists a number of political upheavals -- from the 2016 failed coup to a bloody fight against the resurgence of a Kurdish separatist movement in the south -- Tolga fears that the LGBTI+ community is increasingly becoming a scapegoat as President Erdogan seeks to consolidate power and eliminate all dissenting voices.

"When I go to sleep at night, I'm always worried about what will happen the next day," he said.

"Especially under the state of emergency [which was imposed in July 2016], everyone is feeling particularly concerned in their daily lives. I have started coming to work from a street that is safer than my usual route," Tolga told CNN.

Tolga fears that his way of life is being forced underground as Turkey's gay people lose public spaces where they can safely congregate. He cites the terrorist attack on a prestigious gay-friendly nightclub in Istanbul on New Year's Eve, and the state-ban on Ankara and Istanbul gay pride events last year.

"I fear I'm going to have to live a life where I meet with my friends in houses and in private -- I fear that socializing outside will stop," he said.

He also worries that Erdogan is pitting what many LGBTI+ people see his increasingly Islamist conservatism against the country's traditionally secular, urban society. "The political situation changes in the country very rapidly, so I don't know what it's going to be like the next day," he said.

"I fear for civil war in this country."

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Turkey: Violent homophobia festers in Erdogan's shadow - CNN.com - CNN

By Sinan Uslu and Enes Kaplan

SANLIURFA, Turkey

Turkish armed forces would never allow the establishment of a state in northern Syria", President Recep Tayyip Erdogan said Friday.

Erdogan highlighted a "possible threat" near the Turkish border in Syria, while speaking in the southeastern province of Sanliurfa.

"Nowadays, there is some negative progress in Syria. If that would cause any threat to our borders, the world should know that we would react the same as we did in Operation Euphrates Shield, Erdogan said.

Turkey launched Operation Euphrates Shield last August to eliminate the Daesh presence in northern Syria. The operation ended in late March.

Led by Free Syrian Army fighters, the operation aimed to improve security, support coalition forces and eliminate the terror threat along the Turkish border.

"Unfortunately, our strategic partner countries are acting together with terrorist countries," Erdogan said. "We told them to act against Daesh together. Can we not handle the business with nine coalition countries against Daesh? This PYD, YPG, are terrorist groups. They unfortunately insisted on going the other way."

The PKK/PYD is the Syrian offshoot of the PKK, designated a terrorist organization by Turkey, the U.S. and EU. However, the U.S. views the PKK/PYD as its ground ally against Daesh and has armed the group despite objections by its NATO ally, Turkey.

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Erdogan: Turkey would not allow state in northern Syria - Anadolu Agency