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Some Reflections On The Lateral Hiring Market

2026-10-29T06:29:41.684-04:00

By Josh Blackman - October 28, 2026 at 11:39PM

Every year, professors move from lower-ranked institutions to higher-ranked institutions. But for the lateral market to sustain itself, schools have to continue to play the game: recruit laterals, hoping they improve the school's standing before they move onto greener pastures.

One way to measure this market is to analyze the track record of a new school that built its faculty from scratch. Over the past quarter century, the American Bar Association has granted provisional accreditation to about 20 law schools. Only three of those institutions have cracked the top 100 U.S. News rankings. Last year, FIU was at #77 and Drexel was at #82. U.C. Irvine, founded in 2007, is the outlier. The new state school has hovered between #20 and #40 over the past decade. A lot of the credit should go to Founding Dean Erwin Chemerinsky. But even after Chemerinsky departed for Berkeley in 2017, the rankings have stayed fairly consistent.

Starting from a blank slate, Irvine was able to build a faculty from the ground up, using both entry-level hires as well as laterals. I thought it might be worthwhile to analyze lateral hires and departures from Irvine over the past two decades. Here, I owe a debt to Brian Leiter and Dan Filler, who have charted these moves since 2006. Many of the posts on the Faculty Lounge, Concurring Opinions, and Leiter Reports can now be found on the Internet Archive.

I include the raw results below the jump. Here, I will offer some broader observations about the lateral hiring market. I don't think these patterns are limited to Irvine, but that institution is a useful measuring stick because it started so recently. All of my counts here are tentative. Please let me know if there are any errors.

By my count, between 2008 and 2026, at Irvine there were a total of about 40 lateral hires (including two deans).

Between 2008 and 2026, sixteen of these forty lateral hires later departed. Here, I will note the year they were hired and the year they departed.

Erwin Chemerinsky (Hired in 2008, lateraled to Berkeley in 2017)
Catherine Fisk (Hired in 2008, lateraled to Berkeley in 2017)
Jennifer Chacon (Hired in 2009, lateraled to UCLA in 2018)
Christopher Tomlins (Hired in 2009, lateraled to Berkeley in 2018)
Olufunmilayo Arewa (Hired in 2009, lateraled to Temple University in 2014)
Rick Hasen (Hired in 2011, lateraled to UCLA in 2022)
Douglas NeJaime (Hired in 2013, lateraled to UCLA in 2015)
Michele B. Goodwin (Hired in 2014, lateraled to Georgetown in 2023)
Gregory Shaffer (Hired in 2014, lateraled to Georgetown in 2023)
Sarah Lawsky (Hired in 2010, lateraled to Northwestern in 2016)
Alexandra Natapoff (Hired in 2017, lateraled to Harvard in 2020)
David S. Law (Hired in 2019, lateraled to Virginia in 2020)
Rachel Moran (Hired in 2019, lateraled to Texas A&M in 2023)
Aziza Ahmed (Hired in 2021, lateraled to Boston University in 2022)
Jamelia Morgan (Hired in 2021, lateraled to Northwestern in 2022)
Courtney Cahill (Hired in 2022, lateraled to USC in 2026).

In most of these moves, the professor transferred to a higher-ranked school. The average duration of a lateral hire who departed was about six years.

I exclude in this count two professors (L. Song Richardson and Mario Barnes) who departed for administrative positions, but then returned to Irvine. I also exclude Katie Porter who left teaching to serve in the House, but then returned to the faculty. Those aren't exactly laterals in the traditional sense of the term.

At least four of the lateral hires seem to have taken emeritus status: Bryant Garth, Kaaryn Gustafson, Robert Solomon, and Grace Tonner. As best as I can tell, sixteen recruited laterals are still teaching in a full-time status at Irvine: Christopher Leslie, Tony Reese, Mario Barnes, Katherine Porter, Sameer Ashar, Kenneth W. Simons, Victor Fleischer, Ji Li, Austen Parrish (Dean), Veena Dubal, Kevin Haeberle, Ari Waldman, Robert S. Chang, Andrew Gold, Trevor G. Reed, and Charles Tyler.

If my math is right, out of a total of forty laterals, twenty-four remained and sixteen departed. The departure rate of hired laterals is about 40%. Or, you might say the retention rate is 60%, but that number is harder to rely on because some professors took emeritus status or retired, so were not really on the move.

Moreover, based on my count, there are four professors that Irvine hired on the entry-level market who lateraled out of Irvine: Alejandro Camacho (UCLA), Seth Davis (Berkeley), Jonathan Glater (Berkeley), and Leah Litman (Michigan). If you factor in these departures, the retention rate is even lower.

In an ideal world, the number of lateral hires should far exceed the number of lateral departures. Schools that recruit scholars should be able to retain them. But the world is far from ideal. Professors who lateral to one school will often be recruited elsewhere. Indeed, I think it is a positive that a school recruits and develops scholars who go onto other institutions. More realistically, the number of lateral hires should roughly match the number of lateral departures to keep the faculty at parity: for every lateral that departs another lateral should be hired. At least at Irvine, the number of lateral hires that remained is fairly close to the number of lateral hires that depart. I don't know how Irvine's retention rate compares to other schools. This is something I might compute in the future.

Still, with all of those caveats, to keep a law school's reputation at parity, the rate of lateral departures needs to approximate the rate of lateral hires. If more scholars depart, and cannot be replaced, a school's standing might drop. Indeed, the public might wonder why so many scholars are heading for the door. One might reply that new scholars can be recruited through entry-level hiring. The entry-level market can be unpredictable, and junior scholars can take many years to develop. And again, those entry-level hires who make a name for themselves are likely to be recruited by a higher-ranked institution. It's hard to keep home-grown talent, unless the school either pays up, or the professor has some personal reason to stay.

Another premise is that laterals are expensive. It often takes a lot of money to persuade a professor to move their family from a place they built a strong reputation. Very often professors will sign a retention bonus to promise they will stay at a new law school for a few years. But once those contractual terms lapse, the professor can move up to another school that will pay a greater sum. This happens all the time.

I welcome comments, feedback, and corrections.

***

	Lateral Hires	Lateral Departures
2008	Erwin Chemerinsky from Duke (to be dean) Catherine Fisk from Duke Dan Burk from Minnesota Grace Tonner from Michigan
2009	Christopher Leslie from Chicago-Kent R. Anthony Reese from Texas Jennifer Chacon from UC Davis Christopher Tomlins from American Bar Foundation Mario Barnes from University of Miami
2010	Sarah Lawsky from George Washington
2011	Katherine Porter (Iowa) Robert Solomon (Yale) Olufunmilayo Arewa (Northwestern) Sameer Ashar (CUNY) Rick Hasen (Loyola – LA)
2012	Bryant Garth (legal profession, civil procedure) from Southwestern Law School to the University of California, Irvine.
2013	Douglas NeJaime (family law, law & sexuality, legal ethics) from Loyola Law School, Los Angeles to the University of California, Irvine. Benjamin van Rooij (Chinese law and regulation, comparative law) from the University of Amsterdam to the University of California, Irvine.
2014	Kaaryn Gustafson (law & inequality, poverty law, criminal procedure) from the University of Connecticut to the University of California, Irvine. Michele B. Goodwin (law & technology, bioethics, constitutional law) from the University of Minnesota, Twin Cities to the University of California, Irvine. *Gregory Shaffer (international law, international trade) from the University of Minnesota, Twin Cities to the University of California, Irvine.	L. Song Richardson (criminal law & procedure) from the University of Iowa to the University of California, Irvine. Christopher Tomlins (legal history) from University of California, Irvine to the University of California, Berkeley.
2015	*Kenneth Simons (torts, criminal law, law & philosophy) from Boston University to the University of California, Irvine.	*Douglas NeJaime (family law, law & sexuality, constitutional law) from the University of California, Irvine to the University of California, Los Angeles.
2016		*Sarah Lawsky (tax, law & philosophy) from the University of California, Irvine to Northwestern University.
2017	*Alexandra Natapoff (criminal law & procedure) from Loyola Law School, Los Angeles to University of California, Irvine.	Erwin Chemerinsky (constitutional law, civil procedure) from the University of California, Irvine to the University of California, Berkeley (to become Dean). Catherine Fisk (labor & employment law, intellectual property, legal history, civil rights) from the University of California, Irvine to the University of California, Berkeley.
2018	Victor Fleischer (tax, corporate law) from the University of San Diego to the University of California, Irvine. Dalié Jiménez (bankruptcy, consumer law) from the University of Connecticut to the University of California, Irvine. *Joshua Blank (tax) from a professor of practice position at New York University to the University of California, Irvine.	Olufunmilayo Arewa (intellectual property, international trade, entrepreneurship, law & technology) from the University of California, Irvine to Temple University. Mario Barnes (constitutional law, criminal law, national security law, race & the law) from the University of California, Irvine to the University of Washington (to become Dean). Jennifer Chacon (immimgration law, constitutional law, criminal law & procedure) from the University of California, Irvine to the University of California, Los Angeles. Seth Davis (administrative law, federal courts, federal Indian law, fiduciary law) from the University of California, Irvine to the University of California, Berkeley.
2019	Mehrsa Baradaran (banking law, bankruptcy) from the University of Georgia to the University of California, Irvine. David S. Law (comparative constitutional law, law & social science) from Washington University, St. Louis to the University of California, Irvine. Ji Li (Chinese law and politics) from Rutgers University to the University of California, Irvine. Rachel Moran (education law, civil rights, race & the law) from the University of California, Los Angeles to the University of California, Irvine.	*Leah Litman (constitutional law, federal courts) from the University of California, Irvine to the University of Michigan, Ann Arbor (untenured lateral).
2020		Jonathan Glater (higher education law) from the University of California, Irvine to the University of California, Los Angeles. David S. Law (comparative constitutional law, law & social science) from the University of California, Irvine to the University of Virginia (effective fall 2021). *Alexandra Natapoff (criminal law & procedure) from the University of California, Irvine to Harvard University.
2021	Aziza Ahmed (health law, constitutional law, gender/race & law) from Northeastern University to the University of California, Irvine. Jamelia Morgan (criminal law, Critical Race Theory, disability law) from the University of Connecticut to the University of California, Irvine (untenured lateral).	David S. Law (comparative constitutional law, law & social science) from the University of California, Irvine to the University of Virginia. L. Song Richardson (criminal law & procedure, law & social science) from the University of California, Irvine (where she is Dean) to Colorado College (to become President of the College).
2022	Mario Barnes (constitutional law, criminal law, national security law, race & the law) from the University of Washington, Seattle (where he is Dean) back to the University of California, Irvine (effective January 2022). Courtney Cahill (constitutional law, law & sexuality) from Florida State University to the University of California, Irvine *Austen Parrish (transnational law, international law) from Indiana University, Bloomington (where he is currently Dean) to the University of California, Irvine (to become Dean).	Richard Hasen (election law, voting rights) from the University of California, Irvine to the University of California, Los Angeles. Jamelia Morgan (criminal law, disability law) from the University of California, Irvine to Northwestern University. *Aziza Ahmed (health law, constitutional law, law & gender, law & race) from the University of California, Irvine to Boston University.
2023	Veena Dubal (employment law, Critical Race Theory) from the University of California College of Law, San Francisco to the University of California, Irvine. Kevin Haeberle (securities regulation, corporate) from the College of William & Mary to the University of California, Irvine.* Ari Ezra Waldman (law & technology, privacy) from Northeastern University to the University of California, Irvine.	Michele Goodwin (health law, constitutional law) from the University of California, Irvine to Georgetown University. Rachel Moran (education law, civil rights, race & the law) from the University of California, Irvine to Texas A&M University. *Gregory Shaffer (international law, international trade) from the University of California, Irvine to Georgetown University.
2024	Robert Chang (Critical Race Theory; race, ethnicity & law) from Seattle University to the University of California, Irvine. Andrew Gold (corporate, torts, private law theory) from Brooklyn Law School to the University of California, Irvine. *L. Song Richardson (criminal law & procedure; law & social science) from Colorado College (where she is President) back to the University of California, Irvine.
2025	Trevor Reed (Federal Indian law, intellectual property) from Arizona State University to the University of California, Irvine. Charles Tyler (federal courts, constitutional law, civil procedure) from George Washington University to the University of California, Irvine (effective January 2025).
2026		Courtney Cahill (constitutional law, anti-discrimination law, family law) from the University of California, Irvine to the University of Southern California. Alejandro Camacho (environmental law, natural resources law) from the University of California, Irvine to the University of California, Los Angeles (effective January 2026).

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The Midterms Offer a Choice Between Two Brands of Socialism

2026-10-28T11:29:42.338-04:00

By J.D. Tuccille - October 28, 2026 at 07:00AM

In the country with arguably the most successful market economy on Earth, it's not unreasonable to ask for just one major political party to favor a system of relatively unfettered voluntary exchange. And yet, the midterm elections offer Americans a "choice" between a party openly embracing socialism by name, and one that increasingly embraces state-directed economic activity in the cause of nationalism. Not every candidate running as a Democrat or Republican is on board with their parties' statist transformations, and there are certainly other issues separating the two dominant political tribes. But if you want reliable advocacy of economic freedom, you won't find it in the two major parties.

Open Socialism vs. Nationalist Economic Control

The shift in the Democratic Party's policy preferences from a heavily regulated market economy to outright government control has been well-documented, but it's worth noting Eric Bradner August report at CNN about "a growing list of victories by democratic socialists who are a prominent part of the Democratic Party's left-wing insurgency."

Before his election as mayor of New York City, Zohran Mamdani called for "seizing the means of production," as has congressional candidate Darializa Avila Chevalier. The Democratic Socialists of America (DSA), which backs many of the new breed of officeholders and candidates and organized their insurgency, boasts of its solidarity with the totalitarian regimes in Cuba and Venezuela. Just a year ago, it sent "a delegation of 40 DSA elected leaders and rank-and-file members" to Havana to learn "about the achievements and challenges of Cuban socialism."

At 65 percent support for socialism in Gallup polling, more Democrats favor a state-controlled economy than back capitalism (35 percent)—though the odd tie in favorability with free enterprise (also 65 percent, but declining) suggests the schools aren't doing a great job of explaining ideas.

Republicans nominally hold very different economic preferences, with only 14 percent favoring socialism, while 86 percent support free enterprise and 75 percent have positive views of capitalism. But when asked by CNBC's All-America Economic Survey whether government should have control of private businesses, "66% of Democrats found it not appropriate for the U.S. to take equity stakes in American companies, while only 34% of Republicans agreed."

That's likely because under the Republican Trump administration, the federal government has been grabbing a piece of the action from tech and resource firms—40 companies, at the current count—and party stalwarts are happy to go along so long as the S word isn't used to describe the arrangement. Instead, it's cloaked as top-down encouragement of domestic jobs and manufacturing.

Two Parties With a Similar Taste for Government Economic Intervention

"American political leaders on the left and right are rebelling against the market-first consensus that dominated Washington for four decades," concluded Axios's Courtenay Brown and Neil Irwin in July. "It's evident in everything from the Trump administration taking government stakes in dozens of private companies to socialist candidates winning Democratic primaries promising a more active government role in the economy."

A glimpse of a socialist future can be found not only in the rising tide of explicitly socialist Democrats, but in GOP heir apparent and Vice President J.D. Vance's repeated denunciation of free-market economic thinking and its emphasis on private choice.

"Do we serve pure, unfettered commercial freedom?" he asked in First Things in 2019. "Or do we serve something higher? And are we willing to use political power to actually accomplish those things?"

In a June interview with The Daily Wire's Michael Knowles, Vance returned to the topic to criticize the market-oriented ideas of economist Milton Friedman and called for a state-directed and Christian-infused "American developmentalist" approach to escape what he called "a hyper globalized economy."

"The policies supported by both major political parties suggest a growing embrace of state ownership of the economy," warns economist Daniel J. Smith for the American Institute for Economic Research. "The range of policies widely accepted as legitimate options, referred to as the 'Overton Window,' has shifted toward greater government direction of the economy, with some conservative politicians and voters now treating partial state ownership as an acceptable function of government."

Smith pointed out that the economist F.A. Hayek had observed this phenomenon among authoritarians of the right and left in the 1930s. It was why he dedicated his book, The Road to Serfdom, "to the socialists of all parties."

Rejecting Free Markets Means Losing Liberty and Prosperity

Why this is important is illustrated by Smith's recent research into the correlation, or lack thereof, between socialism and political liberty: "The record, from 1789 forward, is not ambiguous. High degrees of political freedom and heavy state ownership of the economy have not been sustained together."

Smith's observation is supported by the prominent socialist writer Robert Heilbroner's admission in his 1986 book, The Nature and Logic of Capitalism, that "political freedom in modern times…has only appeared in capitalist states." He added, "democratic liberties have not yet appeared, except fleetingly, in any nation that has declared itself to be fundamentally anticapitalist."

Also important, as the Fraser Institute's recently published Economic Freedom of the World: 2026 report points out, "economic freedom tends to be associated with better outcomes." Specifically, the report indicates strong correlations between free-market economies and higher GDP per capita, higher level of income for the bottom 10 percent of earners, lower poverty, higher life expectancy, and lower infant mortality. As with the sources cited above, the report found that "personal freedoms such as freedom of speech, association, and religion are highly correlated with economic freedoms."

So, the benefits of having a major political party that believes in and supports free markets with minimal government intrusion are found not just in expanded political choice, but also in policies that promote freedom, prosperity, and human well-being. Unfortunately, both the Democratic Party and Republican Party are retreating from economic liberty and embracing state control over how we produce, work, own, buy, and sell. Democrats' explicit embrace of socialism, and Republicans' dismissal of free markets in favor of state management and ownership, promise a future of less freedom and reduced wealth.

Maybe Americans would vote against socialism—both the open kind and the implicit nationalist variety—if given the choice. But it's increasingly difficult to find a free-market option on the ballot.

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Brickbat: The Perils of Posting

2026-10-28T06:29:33.419-04:00

By Charles Oliver - October 28, 2026 at 04:00AM

Iranian authorities have sentenced to death Najmeh Amini, an accounting student, for blasphemy over a social media post that reportedly insulted Muhammad. Amini, who is being held in Vakilabad prison in Mashhad, was also sentenced to more than 12 years in prison in a separate case involving charges of acting against national security and spreading propaganda against the government. She was reportedly arrested following online monitoring by the Iranian Cyber Police after nationwide anti-government protests. Amini told the court that she posted the remarks while hallucinating after taking psychedelic mushrooms, and her lawyer argued that the comments were unintentional, but the judge rejected this defense. The content of the offending post has not been made public.

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A Supreme Court Case Underlines the Absurdity of the Federal Ban on Home Distilling

2026-10-28T05:29:38.665-04:00

By Jacob Sullum - October 28, 2026 at 12:01AM

Years ago, I bought a contraption designed to separate and concentrate the most volatile components of a liquid mixture. I would tell you what I did with it, but I don't want to implicate myself in a federal felony.

Since 1868, it has been illegal for Americans to locate a "distilled spirits plant" in "any dwelling place," an offense currently punishable by a maximum $10,000 fine and up to five years in prison. The federal ban on home distilling is at the center of a case that the Supreme Court recently agreed to hear, which raises a specific constitutional issue but also highlights the absurdity of treating this hobby as a crime.

That policy, the U.S. Court of Appeals for the 5th Circuit ruled last April, cannot be justified as an exercise of the federal government's tax power. To the contrary, Judge Edith Jones said in the court's opinion, the ban is "an anti-revenue provision that prevents distilled spirits from coming into existence," meaning its effect is "to reduce revenue instead of raising it."

Nor is the provision consistent with "the Supreme Court's explanation of how the federal power of taxation works," Jones wrote. When Congress imposes a tax, the Court explained in 2012, it "leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice." But in this case, Jones noted, would-be home distillers "have only the choice not to do as they wish or risk fines and imprisonment."

The government argued that the ban helps collect liquor taxes by prohibiting a form of production that is difficult to detect. But "Congress cannot prohibit intrastate activity solely because it might produce products hard to tax," Jones said. If it could, she warned, there would be "no limit whatsoever" to its tax power.

Under the government's logic, Jones noted, "Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity. Home-based businesses may be forbidden. Remote work may be deemed a crime."

The Trump administration, which wants the Supreme Court to overturn the 5th Circuit's decision, argues that threatening to imprison home distillers is a "necessary and proper" safeguard against tax evasion. But whatever your take on the constitutional question, that policy is morally indefensible, haphazardly enforced, and inconsistent with the federal government's treatment of wine and beer.

The lead plaintiff in this case is Scott McNutt, a member of the Hobby Distillers Association. In 2014, McNutt received a "Notice of Potential Civil and Criminal Liability" from the Treasury Department, which said it had reason to believe he "may have purchased a still capable of producing alcohol and/or equipment and materials that may be used in the manufacture of a still."

The notice warned that "federal law provides no exemptions for the production of distilled spirits for personal or family use." It added that "unlawful production of distilled spirits is a criminal offense," which it erroneously claimed was "punishable by a fine of up to $500,000" as well as "imprisonment for not more than 5 years."

Meanwhile, online retailers such as Amazon sell a wide variety of home stills, many of which are explicitly advertised as appliances designed to produce alcoholic beverages such as vodka, gin, brandy, and whiskey. Customers could be forgiven for assuming that's legal, especially since federal law has long permitted home wine and beer production "for personal or family use."

McNutt's lawyers say he "owns a still that he has used to lawfully distill fuel alcohol and seeks to 'tinker around' with beverage spirits." Another plaintiff, Thomas Cowdrey, "likewise seeks to experiment in creating new beverage spirits, including 'apple pie vodka,' for which he has developed a recipe."

Because of a law Congress enacted 158 years ago, McNutt and Cowdrey would be felons if they acted on those desires. It might be time to rethink that policy.

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Open Thread

2026-10-27T06:29:22.825-04:00

By Eugene Volokh - October 27, 2026 at 03:00AM

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The Wall Street Journal Praises The Old Gray Lady

2026-10-27T00:29:31.764-04:00

By Josh Blackman - October 26, 2026 at 08:55PM

I am pleased that my interview with the New York Times continues to resonate. James Freeman features the piece in the Wall Street Journal's "Best of the Web" column. It begins:

This column sometimes notes the shortcomings of the New York Times so it seems only fair to credit the Gray Lady when she gets it right. With refreshing humility and openness to constructive criticism, a Times editor considers the manner in which the newspaper addresses a speaker's point of view.

And it ends:

Kudos to Patrick Healy. Let's hope that people across the media industry will take Josh Blackman's criticism to heart.

Let's hope so!

After reading about Bob Woodward's new book this morning, I've reflected about the relationship between journalists and sources. I take very seriously my connections to reporters, though I never pretend they are friends who owe me anything. The bond is transactional, sometimes counterproductive, but often fruitful. Some of these relationships have developed over the course of nearly two decades.

Most reporters do not finish their career where they started. More often than not, they start at smaller outlets, and if they're successful, move up the ranks. I always take care to respond to journalists at smaller outlets, in part, knowing that that is a relationship I can foster over time. Indeed, one reporter who started out at the Houston Chronicle moved onto the Wall Street Journal. Other reporters who started out in print moved into TV. And os on.

You never know when a relationship with a reporter will come in handy. Over the years, I've had pieces of information that I could provide to just the right person at just the right time, only because of the relationship I've built. Anecdotally, I've noticed that the reporters who are best at fairly reaching out to both sides are the ones most likely to move up in the world. I hope the reporters at the Times can now set the tone for media balance, and it trickles down.

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America Is Spending Billions To Fight the War on Terror in Africa. The Terrorists Are Winning.

2026-10-26T10:29:31.523-04:00

By Matthew Petti - October 26, 2026 at 06:00AM

The first state to be ruled by Al Qaeda might not be in Afghanistan or the Arab world—and its ruler might be a former whiskey-drinking rock star. In April, the Group for the Support of Islam and Muslims ("JNIM" in Arabic) led an uprising in the African nation of Mali, killing Defense Minister Sadio Camara, breaking open a prison holding thousands of inmates, and besieging Bamako, the capital. The fighting was still underway as of August.

Mali is not the only place threatened by a JNIM takeover. The West African branch of Al Qaeda is active in a belt of countries known as the Sahel. Its leader, Iyad Ag Ghali, was the former percussionist for the rock band Tinariwen. He now leads a campaign to stamp out the "music of Satan." Perhaps the one saving grace for Sahelian metalheads is that puritans can't get along with each other: The JNIM is locked in a war with the rival Islamic State Sahel Province.

The Sahelian civil wars are a testament to the failure of the global war on terror. Despite spending $355 billion on African counterterrorism from 2001 to 2021, the U.S. government has been unable to stop Al Qaeda or related Islamist groups from taking root across the continent. A study by the Pentagon's Africa Center for Strategic Studies found a 101,300 percent increase in terrorism fatalities from 2002 to 2022, mostly concentrated in the Sahel and Somalia.

These wars demonstrate that the solution to terrorism isn't maximum violence. President Donald Trump launched four times as many airstrikes against Somalia in his first 18 months of his second term as the U.S. did over the past four years combined. U.S. military aid has flowed to repressive governments across Africa with little respect for their citizens' rights. Since 2020, there have been coups d'etat across the Sahel by military men promising that they can do the dirty work that civilian leaders are afraid of. Many of them were trained by the U.S. government. The new regimes have imported Russian mercenaries with a reputation for brutality and no real restraints on their activities.

"People need to forget about the question of democracy," Ibrahim Traoré, leader of Burkina Faso, declared in April.

Instead of restoring order, these heavy-handed tactics have caused more chaos. The military juntas in the Sahel are plainly losing to the JNIM. While the Russian fighters have no difficulties massacring civilians or mutilating prisoners, they have found it much harder to face people who can actually shoot back, facing repeated battlefield humiliations. Meanwhile, the U.S.-led campaign against al-Shabab, the Somali branch of Al Qaeda, has stalled out despite the heavier use of airpower.

The African war on terror began shortly after the U.S. campaigns in Afghanistan and Iraq. To some extent, the U.S. created the very threats that it is trying to fight in Africa. Somalia had been at civil war since the fall of socialism, and in the early 2000s, the CIA began funding Somali warlords to stop the rise of Islamist revolutionaries. The (relatively moderate) Islamic Courts Union took over anyway in 2006—uniting Somalia for the first time in more than a decade—and the U.S. encouraged neighboring Ethiopia to invade. When al-Shabab emerged to fight the Ethiopian invaders, the U.S. tapped a former leader of the Islamic Courts Union to lead a new Somali government.

Soon after the Ethiopian-Somali war, President George W. Bush created the Pentagon's Africa Command, and Congress budgeted $500 million in aid to militaries in the Sahara Desert and the Sahel. At the time, the main Islamist threat to that region was a mostly defeated insurgency in Algeria.

But the Libyan civil war in 2011 created terrible new monsters. Soon after President Barack Obama intervened in support of the Libyan revolution, weapons and hardened fighters from Libya flooded the ethnic Tuareg region of Mali, which declared independence a few months later. Soon after, Al Qaeda and its affiliates took over the Tuareg rebellion. With the Malian government coming close to collapse, France intervened in January 2013 and made many of the same mistakes that the U.S. did in its own war on terror.

Ag Ghali, the current leader of the JNIM, got his start as a Tuareg nationalist. A leaked U.S. embassy cable from 2008 called him a "proverbial bad penny" who enjoyed "playing both sides" and had ties to Islamist and secular nationalist rebels. By the time of the French intervention, he was fully committed to Islamic theocracy. In 2017, he united Islamist rebels across the Sahel under the banner of Al Qaeda. That same year, four U.S. Special Forces troops were killed in Niger by the Islamic State group, which was busy uniting Ag Ghali's rivals.

Despite the failures of the Sahelian governments to stop Ag Ghali—and their willingness to ally with Russia—the Trump administration is eager to double down on supporting them. The U.S. government increased intelligence sharing with Mali in 2025, and as of July it was considering a direct military intervention against the JNIM, according to The Washington Post. But every American escalation on the continent has produced the enemy that the next one had to fight.

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Brickbat: Ghost in the Machine

2026-10-26T07:29:27.505-04:00

By Charles Oliver - October 26, 2026 at 04:00AM

San Diego County, California, has sued Polymaker, a company that manufactures filament for 3D printers. The lawsuit accuses the company of illegally marketing its products to people who make unregistered firearms, often called "ghost guns." The county admits that the filament itself is legal but objects to how the company markets it. The lawsuit alleges that Polymaker worked with a firearm-printing influencer, promoted products for making guns, and provided technical advice to online communities interested in 3D-printed firearms. The county argues that this marketing violates California consumer protection laws. It is seeking the return of revenue linked to the allegedly illegal marketing, a court order stopping the company from continuing the challenged practices, and civil penalties of up to $2,500 per violation—with each day counting as a separate violation.

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Open Thread

2026-10-26T07:29:26.521-04:00

By Eugene Volokh - October 26, 2026 at 03:00AM

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Vinay Prasad on Anthony Fauci, COVID-19 Restrictions, and RFK Jr.

2026-10-25T11:29:30.024-04:00

By Zach Weissmueller - October 25, 2026 at 06:00AM

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Vinay Prasad: Public Health in This Country Is So Broken

Vinay Prasad has been on both sides of the public health establishment. A physician, author, and professor at the University of California, San Francisco, he went from prominent COVID-era critic to Food and Drug Administration (FDA) insider when he was tapped to lead the agency's Center for Biologics Evaluation and Research in May 2025. His tenure there included an abrupt resignation in July 2025, a return a few weeks later, and his final departure in April 2026.

Prasad joined Reason's Zach Weissmueller in August to discuss what he learned from his time inside the FDA, what he was able—and unable—to change, and whether the agency can ever regain public trust. Their conversation ranges from Anthony Fauci and the origins of COVID-19 to vaccine policy, plus regulatory barriers, his growing sympathy for libertarian critiques of the FDA, and whether the agency is ready for an era of AI-driven medicine.

Reason: The FDA saw a clearing out of the old guard and a replacement with a new one—COVID dissidents such as yourself, former FDA Commissioner Marty Makary, and National Institutes of Health Director Jay Bhattacharya. What was that like? Did you have any misgivings about stepping away from academia and your role as an outside critic to join the public health bureaucracy?

Prasad: Maybe we changed 4 percent, 2 percent of the FDA. The FDA is an 18,000-person agency. There's tens of thousands of people still there. Before Marty, the commissioner, and I got there, DOGE [the Department of Government Efficiency] had just struck and they got rid of a couple thousand people. But the system is largely the same as it's always been.

There are critics of the COVID pandemic response and then there are critics. Although Marty, Jay, and I are critics of many aspects of the response, we don't go as far as some of the most extreme critics out there.

Am I glad I did it? Yes, I'm glad I did it. It was an adventure. It was a learning experience. I learned more in one year than I'd learned in the prior decade about how the world works. I'm glad to have improved some aspects of government, which I think will be enduring, and at least tried to improve other aspects of government, which may not be enduring.

Anthony Fauci personified the old guard. He's recently been in the news because he appeared before Congress and pleaded the Fifth after Sen. Rand Paul (R–Ky.) published his diary. What did those diary entries reveal to you about Fauci's character and about the way he operated?

Probably the greatest news story is that the mainstream media refuses to be honest about his legacy. Fauci was in his late 70s when the pandemic began. Had he retired at a ripe old age of 75, he'd be leaving behind a stellar legacy. But he continued. He pushed it. He stayed through the whole pandemic. He was the face of many things that his diaries get into, what he privately thought while he was publicly saying different things.

Fauci has not only been a proponent that the only answer to where the virus came from is a natural spillover event. He's gone further than that. He orchestrated a paper published in Nature Medicine called the "Proximal Origin" paper, written by a bunch of people who bolstered that point of view. He edited that paper before it was published. Then in public, he pretended like he didn't know those people; it was an independent group that validated what he was saying. Whereas in many respects, he puppeted that paper. The people who wrote that paper—Rand Paul has released their Slack channel messages showing they didn't really even believe what they were writing. Their messages reveal considerable ambiguity about lab leak vs. natural spillover event.

Photo: Paul Alexander

In terms of the origin, he also funded EcoHealth Alliance, which had a subcontract to Wuhan. He had a huge role in the origins and trying to frame the narrative, making lab leak—you couldn't even discuss it. Facebook put a ban on even talking about the topic. Then masking 2-year-olds. He played a huge role in that. Lockdowns, school closure. He said he didn't close any schools. In his own diary, he says, "I told [Mayor] Bill de Blasio, you need to close schools in New York City."

At some point, the man's got to take ownership over the decisions he did make and advocated for. When [Gov. Ron] DeSantis in Florida reopened schools in 2020, he went on every television show to say what a bad idea that was. Now, it's very clear—many of us said so at the time—school reopening was always the right decision. Maybe it could have been closed for a week or two, but certainly not beyond that. Fauci kept it closed much longer.

Vaccines make a lot of sense for elderly people who had not yet had COVID. But do they need to be given to a 4-year-old, a 7-year-old, a 12-year-old, a 22-year-old who'd already had COVID? This is where considerable ambiguity exists. But for Fauci, the answer was clear: You need all the shots. You need the initial series. You need a yearly booster. It doesn't matter how young you are or how many times you've had COVID. Fauci was wrong about almost every single pandemic policy he advanced.

Some of his defenders say to me, "At least he didn't tell people to drink bleach." And I said, "Is that the bar for a guy who's a doctor and a scientist?" Drinking bleach is not a good idea, but that's not the bar for a Fauci-level figure. He should be saying things that are correct. If they're not correct, he should be collecting evidence to weigh in. He did none of that.

Fauci's pardon stretches back to 2014, when he was authorizing funding in contravention of U.S. policy on gain-of-function research. Do you think he actually committed a crime?

Yes. The other thing about it is people will say, did that money go directly for this research? The money went for viral genomic research at a Chinese institute, very similar to the sorts of things we would be worried about. That was a crime for which he's been pardoned. It's not just my assessment. That's what Joe Biden's autopen thought, or whoever signed that pardon, that he committed a crime. That's why he has a pardon that goes that far back. It was a crime. Now that he's been pardoned for it, I don't know what you can do about it.

You rode in on this wave of anti-Faucism. What was your biggest hope for what a new version of public health might look like, or for the kinds of changes that could be made?

I had a very narrow mandate because I was just in charge of biologics at the FDA. The hope continues, which is that public health could aspire to be honest, to use its powers proportionately and judiciously, to exercise humility. Public health is far from these things. Public health could actually aspire to be bipartisan. Public health is not. It's becoming an increasingly entrenched left-wing discipline run by left-wing ideologues, reaching even more and more absurd conclusions. What public health can be and what it is are still light-years apart.

You don't think that has changed very much?

Not much at all. Changing an entrenched organization with tens of thousands of people is very difficult. There have been some changes. The pandemic has been a catalyst. But I don't think a real reform is possible. I suspect it'll splinter into different public health groups.

Your role was at the part of the FDA that oversees biologics, such as vaccines and gene therapies. Vaccines became an increasingly polarized and politicized issue during COVID. What was your goal specifically pertaining to vaccines when you took over after the pandemic?

The right drug given to the right person at the right time is lifesaving, but the wrong drug given to the wrong person at the wrong time can be harmful. Vaccines are the same way. You can't say anything about all vaccines, just like you can't say anything about Tylenol, aspirin, and Plavix all in the same breath. They're all very different drugs.

Is this the same phenomenon we observed during COVID, where you're either for the vaccine or you're against it, for a medicine or against it, without breaking things down by age, health, or other individual factors? Everything has to be flattened or compressed.

Same phenomenon. One-size-fits-all public health—where the shoe doesn't fit the guy with the big foot or the person with the small foot—is a completely wrong view of public health. COVID is a great example. An 80-year-old who's never had COVID, and we're talking about February of 2021, should they get a vaccine? Absolutely. A 7-year-old who's had COVID and we're talking about 2022? No, a healthy 7-year-old makes no sense. Public health is, in this country, so broken. It cannot appreciate these distinctions.

Something you've been writing about for a long time is poor experimental design in drug trials. Was that something you wanted to change when you came into the FDA? Do you feel like you made any progress toward that goal?

In one year, we did more than what our predecessors have done in a decade. You can look at just the sheer number of announcements and policy changes we made. We're talking a lot about one side of the coin, which is where the companies are not doing the right study to inform the American public. We're not talking about the other side of the coin, where the FDA is asking them to do things that don't make any sense at all, that burden them, that cost money, and that are wasteful. We did a lot of work in that space too. The FDA makes both errors. They also do a lot of things right, but they make both errors and they can get better.

You mentioned there were two sides of this FDA reform. One was raising standards for things like vaccines. The other was acknowledging how expensive and cumbersome it can be to get something approved in the United States. What were the biggest barriers you saw at the FDA on that side of the equation?

So many. During my time at the FDA, I was often sympathetic to the people who work at companies who told me about the hurdles they were forced to jump through. The FDA does two things: We regulate what's approved and can be marketed and sold on the U.S. market, but also what you can study.

Imagine you're a researcher and you want to study something. We're not talking about approving. You want to gather people together who may be interested in trying something new, have an informed consent, get them to volunteer, but they know that we don't know for sure it's going to work. We do so many things in that space, regulating what you can study and how you can study it, that I think are sensible. You don't want to let people sign up for something that's going to blind them or maim them. But some things that aren't sensible, that are overly burdensome, that are quality controls that don't make sense for small companies and super-rare diseases that don't have a huge budget to study these things. The regulation in this early side of research is tremendous in the United States. A lot of it is well-intentioned, but not all of it is fit for purpose.

You said that your time within the FDA made you somewhat more sympathetic to the libertarian critiques of the FDA.

I'm really sympathetic in one way: We tax people a lot of money to pay for healthcare in America—trillions of dollars. We're taking trillions of dollars from people's paychecks, from taxation, and we're taking it for this thing that we think is a benefit to people, which is we're going to offer a service that's maybe a human right, a societal good. Surely, the service we offer, we do have some of that stuff in there. If you have a heart attack, you go to the doctor here with or without insurance, they're going to open up that blockage. That's a great thing. But along with that package deal, we're going to insert a few things that may or may not work, that cost a lot of money. All that's doing is taking lots of money from taxpayers and redistributing it to the shareholders of those companies.

It's a huge financial system with the rare adverse event of helping someone's health. The libertarian comes along and says, "I'd rather not pay the tax—have more skin in the game, decide what's right for me. I'm the best person to decide how to use my own money." I do feel a sympathy to that point of view, because this system has so many places where it can be taken advantage of, where people get something that doesn't help that much, that only may kill without any possibility of benefit. And we take a lot of other people's money to pay for that.

Dario Amodei, the CEO of Anthropic, recently called out the FDA, and I'm wondering what you think of this. He wrote, "Regulatory systems were designed for a slower pace of innovation and we are not prepared for the deluge of new products and advances that AI will bring. AI may also make these downstream technologies safer and more predictable in a way that violates the skeptical assumptions of regulatory agencies like the FDA."

If Amodei is right about the effect AI is going to have on the field, do you think the FDA will be able to adapt?

I see kernels of truth in what he's saying, but maybe I don't go all the way he goes. Where I see the big core truth is the FDA tries to regulate AI itself, medical AI. You wear a watch that's supposed to give you information and the FDA wants to do a lot of that regulation. That's a very tough thing to regulate, because this technology is changing so much faster than our ability to judge it. I do agree with Marty and others who think that that's probably not the best role for regulating all the potential aspects of digital health and health AI. For instance, you can imagine the absurdity where I'm a doctor, I'm seeing a patient later this afternoon, should government regulate the apps I can use to learn about the disease or ask questions? Should it regulate open evidence? I don't think it should.

I spoke to a company called Doctronic that is acting as an AI prescriber in Utah, where AI is being allowed to refill prescriptions. That's another example of where these questions are going to have to be answered: Where does the government step in, and where does it step back?

Government is much more likely to get in the way of these kinds of innovations. It's changing so quickly. It's going to be very difficult for government to regulate that. You talk about drug discovery and drug science and those kinds of aspects of AI. If I was a pharmaceutical firm, I would definitely invest in AI. There's so many things around running clinical trials that we can do better with AI, help us run them cheaper and faster and more efficiently.

But when it comes to molecule discovery and basic science, I'm not as optimistic as Dario for a couple of reasons. One, a lot of the information that is fed into models about cancer biology is basically as close to fraudulent research as you can imagine. We're talking about like the Stanford president whose Western blots look Photoshopped kind of research. You got research that's not reproducible. It's not just my opinion. Many companies have taken samples of the literature and they tried to replicate it in their own labs and they have massive strikeout rates. If you train AI on garbage, what can it learn? It's only trained on inaccurate information. That's a challenge it faces.

The second challenge is AI will be happy to give you hypotheses to study, but you'll still need to run it with a few people to validate those hypotheses. I suspect the limiting reactant is not coming up with ideas; we have more ideas than we can study with people. The limiting reactant is getting the people to consent and manufacturing the products and those kinds of things.

I hope he's right. If he is right, it sounds like a great future. But I'm a little bit skeptical that he's totally right, because I think the biology of it is a lot harder.

Do you think enough has happened for people to start regaining trust in public health?

No way. I wouldn't trust it at all.

What still needs to happen for public health to legitimately earn back the trust of the public?

I don't know if it's even possible. It's so fragmented now. People tell you with a straight face, people I know, "Anthony Fauci, he made no mistakes. Literally, did the best job he could with the information he had." Then I said, let's just focus on one tiny thing. He did say you should take your 24-month-old kid and put a cloth mask on that kid all day in daycare. He said that. You don't think he had any clues at the time that that was a dumb idea? It's so obviously dumb, right? That's their position on every issue.

Public health is so myopic. It doesn't understand that you have to look at the whole issue. Isn't that a perfect analogy for COVID? Don't go outside. Just stay in your house all day. As if human beings don't need contact with other people and see face to face as if that doesn't matter at all.

Public health has not learned its lesson. The problem with public health is that they're completely politically captured now. Public health and the far left wing of the Democratic Party are synonyms. There's no political balance there. A little balance would go a long way. A little bit of open-mindedness would go a long way in public health. A little bit of humility to just admit a few things we got wrong in the pandemic.

The federal public health apparatus is still staffed with Robert F. Kennedy Jr. at the top and Jay Bhattacharya is still head of the National Institutes of Health. Is that not having some sort of trickle-down effect or creating a countercurrent within the system?

I don't know.

Don't get me wrong, I love Jay and I think Jay's heart's in the right place. He's already made some really important changes. I agree a lot with the kernel of Bobby's ideas. I agree with the kernel. I always say the kernel because I can think of a way that makes sense and I can sometimes think of ways it doesn't make sense.

But before I went to government, people told me that there is a fourth branch of government and it's the career state employees. I never believed that to be true, but now I'm certain that it's true. You have a lot of people who are in government. They tend to be in just three or four counties in one area, the blue pocket of America. They have strong views, and they really do a lot of the governance of this country. They make the decisions that regulate all of us in a way that's unaccountable to Congress and unaccountable to the president. I suspect they'll continue to stay. The COVID pandemic revealed to so many people that we made mistakes and that distrust in medicine and public health will just continue to grow and that there will continue to be more of these reckonings in the years to come.

How did working at the FDA affect your own confidence as a consumer in the regulatory system?

It gives me a little bit of pause sometimes. I like to trust but verify. I am cautious always with new therapies and particularly cautious that some safety information is being missed. It also makes me a bit more libertarian. I can imagine a system where we give people in America greater flexibility in what kind of products they can try. Maybe there's some third-party agencies, Consumer Reports–style agencies, that give different levels of quality and seals of approval of different products, and people can choose what they want and also have a little bit more skin in the game and use their own money. The moment you start to use your own money, suddenly tiny changes in surrogate biomarkers and elevated liver enzymes take on greater importance in a way that might not exist if you're using commercial insurance to pay for it.

Is it that you saw something inherent to the process that creates problems, holes, or gaps?

The fundamental idea that there's this one-size-fits-all balance where safety and efficacy is acceptable. What might be acceptable to you and acceptable to me might be different. I might want a little bit more efficacy information, a little bit more safety validation, and you might be willing to try more. The idea that a single monolithic government agency in the suburbs of D.C. can set that bar for every single person in America, that to me is a tougher pill to swallow now.

This interview has been condensed and edited for style and clarity.

The post Vinay Prasad on Anthony Fauci, COVID-19 Restrictions, and RFK Jr. appeared first on Reason Magazine.

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Open Thread

2026-10-25T05:29:30.205-04:00

By Eugene Volokh - October 25, 2026 at 03:00AM

The post Open Thread appeared first on Reason Magazine.

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Some Communications by Rabbi Shmuley with AI Platforms May Be Discovered in Order to Determine Punitive Damages

2026-10-24T14:29:29.605-04:00

By Eugene Volokh - October 24, 2026 at 11:08AM

From Wednesday's decision in Fontainebleau Florida Hotel, LLC v. Botach [Rabbi Shmuley], decided by Magistrate Judge Marty Fulgueira Elfenbein:

Plaintiff's four subpoenas to the AI Providers and its Seventh RFP seek the same information, specifically Defendant's communications with AI platforms since December 3, 2024, concerning various categories of subjects:

All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to the Fontainebleau Hotel.

All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to this litigation.

All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to counsel for Plaintiff.

All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to any employee, owner, or representative of the Fontainebleau Hotel.

All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to any Court Order entered during this litigation.

All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to Judge K. Michael Moore or the undersigned.

In addition, to these six categories, Plaintiff seeks one more category of documents in the subpoenas to the AI providers (but not in the Seventh RFP), consisting of:

All of Defendant's AI Communications regarding Requests 1 through [6] that have, since their creation, been deleted….

Plaintiff [argued] that Defendant's AI communications may reveal the extent of his alleged malice toward Plaintiff, the intentionality underlying his conduct, and evidence relevant to the determination of punitive damages, including whether an exception to Florida's statutory cap [on punitive damages] applies….

Federal Rule of Civil Procedure 26(b)(1) permits discovery of nonprivileged matters relevant to a party's claims or defenses and proportional to the needs of the case. The Rule expressly recognizes that information within the permissible scope of discovery need not be admissible in evidence to be discoverable…. The District Court's Order at ECF No. [261], which authorized the Parties to conduct "discovery limited to damages," also governs the scope of discovery at this juncture…. Thus, the relevant inquiry is whether the particular AI communications sought by Plaintiff bear a sufficient relationship to the damages issues remaining in this action….

The degree of reprehensibility, the defendant's intent, and the circumstances surrounding the wrongful conduct are … relevant to determining an appropriate punitive-damages award…. To the extent Defendant used AI platforms to generate, revise, or refine statements concerning Plaintiff, its counsel, or its representatives, those communications may reveal not merely the final content of Defendant's statements but also the purpose for which the statements were created, the instructions Defendant supplied, and the effects he sought to achieve. Such information may provide evidence of the intent underlying Defendant's conduct that cannot necessarily be discerned from the resulting public statements alone. The Court does not determine that those communications will establish malice or specific intent to harm; it determines only that they bear a sufficient relationship to those disputed damages issues to warrant discovery….

According[] to Defendant, his alleged hostility does not necessarily prove constitutional actual malice, and it therefore should not be considered when deciding whether punitive damages are appropriate. Constitutional actual malice in a defamation action concerns knowledge of falsity or reckless disregard for truth. By contrast, the reprehensibility inquiry and the specific-intent exception under section 768.73(1)(c) require consideration of the defendant's culpability and intent to harm the claimant. Evidence of hostility, planning, or deliberate efforts to inflict or amplify injury to Plaintiff may be relevant to those questions when sufficiently connected to the alleged wrongful conduct here.

Plaintiff seeks evidence not simply to establish that Defendant disliked the Hotel, but to determine whether Defendant deliberately engaged in conduct intended to cause injury and whether that intent bears on the reprehensibility and statutory treatment of the punitive damages sought. The Court therefore rejects Defendant's argument that because hostility does not necessarily prove constitutional actual malice, it should not be considered when deciding whether punitive damages are appropriate.

Nor does the fact that some requested communications postdate the original publications render them categorically undiscoverable. Subsequent statements and conduct may, depending on their content and context, provide circumstantial evidence of a defendant's earlier intent or reveal a continuing course of conduct relevant to the injury. The temporal relationship between a communication and the alleged injury may affect its probative value, but it does not create an absolute bar to discovery….

The Court does not hold that every subsequent statement by Defendant may support an award of punitive damages. The Supreme Court has cautioned that punitive damages may not be used to punish a defendant for unrelated or dissimilar conduct merely because that conduct reflects poorly on the defendant's character. But the permissible scope of discovery is broader than the scope of evidence that may be ultimately admitted at trial. The present inquiry is whether the requested information is relevant and proportional under Rule 26(b)(1) to the damages issues remaining in this case.

Here, Plaintiff alleges a continuing course of conduct directed toward the Hotel, its personnel, and its representatives, including conduct involving AI-generated content. Plaintiff has also identified testimony from its damages expert concerning the alleged cumulative effect of Defendant's continuing online activity on the Hotel's reputation and business. As such, Defendant's communications with AI platforms concerning the Hotel and the Hotel's employees, owners, or representatives, including Plaintiff's counsel, may reveal information relevant to Defendant's alleged intent to harm Plaintiff, the nature and persistence of the challenged conduct, and the extent to which that conduct allegedly amplified Plaintiff's injuries. The Court therefore concludes that Request Nos. 1 (seeking AI communications about the Hotel), 3 (seeking AI communications about Plaintiff's counsel), and 4 (seeking AI communications about any employee, owner, or representative of the Hotel) in the subpoenas to the AI providers and the Seventh RFP fall within the scope of damages discovery authorized by the District Court….

Further, to the extent Request No. 7 in the subpoenas to the AI providers … seeks Defendant's AI communications regarding Requests Nos. 1 through [6] that have been deleted since their creation, the Court concludes that this Request is authorized by the District Court's Order only to the extent it seeks any deleted AI communications regarding Request Nos. 1, 3, and 4….

But the court rejected the other requests, which dealt with AI communications "concerning or relating to this litigation" (2), "concerning or relating to any Court Order entered during this litigation" (5), and "concerning or relating to Judge K. Michael Moore or the [Magistrate Judge]" (6):

Starting with Request No. 2 in the subpoenas and the Seventh RFP, it seeks all AI communications concerning or relating to "this litigation." That formulation is exceptionally broad. It encompasses potentially every AI exchange on matters having no meaningful connection to the amount of damages or Defendant's alleged intent to harm Plaintiff. Plaintiff has not established that every communication relating to this litigation bears on an issue remaining for the damages trial….

Turning to Request No. 5 in the subpoenas and the Seventh RFP, it seeks all AI communications concerning or relating to any Court Order entered during this litigation. Such communications may include Defendant's attempts to understand an Order, research its consequences, consider procedural options, or evaluate the litigation. The fact that Defendant may have expressed disagreement with, frustration about, or hostility toward a Court Order does not, without a sufficient connection to the alleged injury, make the communication relevant to Plaintiff's damages. Although Plaintiff contends that Defendant's reactions to Court Orders reflect the depth of his hostility and the reprehensibility of his conduct, that theory is too attenuated to justify discovery of every AI exchange concerning every Order entered in this case. The Court therefore finds that Request No. 5 exceeds the permissible scope of damages discovery.

Finally, Request No. 6 in the subpoenas and the Seventh RFP seeks all AI communications concerning or relating to District Judge K. Michael Moore or the undersigned Magistrate Judge. The Court likewise finds that Defendant's private communications with AI platforms concerning judicial officers, without more, do not bear a sufficient relationship to the damages Plaintiff seeks for the alleged harm to the Hotel. The discovery inquiry is not whether Defendant has criticized the judiciary; it is whether the requested information is relevant and proportional to the damages issues remaining in this action. A request encompassing every AI communication about the judges presiding over this litigation exceeds that scope. The Court thus finds that Request No. 6 exceeds the permissible scope of damages discovery.

The Court recognizes Plaintiff's argument that Defendant's criticism of the judicial process may demonstrate the persistence of his alleged hostility. But the Supreme Court has cautioned against using dissimilar conduct as a basis for punishing a defendant for being an objectionable person rather than for the conduct that injured the plaintiff….

And the court rejected the argument that the communications were categorically "protected work product":

Federal Rule of Civil Procedure 26(b)(3)(A) generally protects "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative." The doctrine is designed to protect the adversarial process by preserving the privacy necessary for litigation preparation….

The Eleventh Circuit's interpretation of Rule 26(b)(3)(A) confirms that work-product protection is not limited to materials prepared by counsel but extends to materials prepared by or for a party or its representative in anticipation of litigation….

When determining whether a document is protected under the work-product doctrine, "litigation need not necessarily be imminent … as long as the primary motivating purpose behind the creation of the document was to aid in possible litigation." The document must have been "created principally or exclusively to assist in anticipated or ongoing litigation." "Just because a document may have been used later to assist in litigation … does not mean it was principally prepared for such purpose." …

Here, communications independently generated by Defendant to create, revise, or disseminate content concerning the Hotel, its personnel, or Plaintiff's counsel are not transformed into attorney work product merely because Defendant is a litigant or because the resulting content may bear on this action. To the extent such communications were created for the purpose of producing public-facing statements or pursuing Defendant's independent activities, rather than preparing the defense of this litigation, they ordinarily would not satisfy Rule 26(b)(3)(A). The Court therefore rejects Defendant's blanket work-product objection to Request Nos. 1, 3, 4, and 7.

However, that conclusion does not foreclose a properly supported, document-specific claim of protection. If a particular communication was prepared because of this litigation and otherwise satisfies Rule 26(b)(3), Defendant may assert the protection in accordance with the Federal Rules. Defendant must, however, identify the withheld material and describe the nature of the asserted protection sufficiently to permit Plaintiff to assess the claim without revealing the protected information itself….

[I]f Plaintiff serves the subpoenas on the AI providers and requires them to produce the document directly to Plaintiff's counsel, Defendant will be deprived of the opportunity to determine whether there are any work-product protected documents within the production that should otherwise be withheld and identified on a privilege log. For that reason, the Parties are DIRECTED to meet and confer to discuss the logistics of how the AI providers, to the extent they have responsive materials, will be instructed to produce such materials….

Some backstory on the lawsuit from an earlier post, Magistrate Judge Recommends Massive Sanctions on Rabbi Shmuley Boteach for Violating Court Order in Anti-Semitism Lawsuit (District Judge K. Michael Moore had since adopted the Magistrate Judge's Report):

This case arises from an incident that occurred at the Fontainebleau Florida Hotel …. Plaintiff alleges that the following events occurred:

After more than an hour of loitering, Defendant Boteach engaged in an uneventful conversation with a registered guest of the Hotel and the two parted ways. More than an hour later (after midnight on Sunday, December 2, 2024), Defendant Boteach engaged in a verbal altercation with the same registered guest wherein the guest and Defendant Boteach exchanged hateful words at each other.

The guest used language that was heinous and accused Defendant Boteach of being a "baby killer" and other words that are easily interpreted as antisemitic. Defendant Boteach, in turn, hurled anti-Islamic words at the registered guest and repeatedly shouted, "Allahu Akbar? Are you going to blow yourself up or something? … he uses the expressions of, like, suicide bombers." Within hours, Defendant Boteach posted an edited video of the exchange on Instagram and began his campaign of threats against the Hotel, its ownership, its outside lawyer, and its employees—who had nothing to do with the altercation except that Hotel security de-escalated and ended it.

Plaintiff alleges that following the altercation, the Defendant, who the FAC [First Amendment Complaint] describes as a "social media influencer and rabbi" with "hundreds of thousands of social media followers[,]" went on a "multi-week assault on the [Hotel], its personnel, and representatives—creating AI videos purporting to show them celebrating antisemitism, comparing them to Nazi collaborators, falsely accusing them of banning Jews from the property, and fabricating statements that they embraced a policy of Judenrein, i.e., the extermination of six million Jews." The FAC alleges that Defendant falsely stated that he was denied entry to the Hotel because he is "too Jewish," that the Hotel refused to cooperate with law enforcement's investigation of the incident, and that he "was trespassed from the Hotel for being 'too Jewish[.]'"

Plaintiff further alleges that "Defendant Boteach published a statement that, in part, called for guests 'who have booked' at the Hotel to 'cancel your reservations'" and to "'be smart and cancel and give your hard-earned money to a hotel that doesn't abide antisemites.'" Moreover, Plaintiff alleges:

At all hours of the day and night, Defendant Boteach proceeded to harass the Hotel and its representatives. For example, he posted a "headshot" photograph of the head of the Hotel's outside counsel with the words "DIGITALLY DECAPITATED" and later, at 3:49 am, menacingly threatened that counsel was "about to have a really interesting Shabbat" when he arrived at his synagogue, which Defendant Boteach identified by name and location. Defendant Boteach directly contacted counsel's clergy and posted harassing images of them.

That post also explains the Magistrate Judge's conclusion that the defendant had repeatedly and willfully violated a court order, and therefore ought to have default judgment entered against him as to liability (with further proceedings to take place as to damages).

Sean Alexander Burstyn (Burstyn Law PLLC), Christopher Ara Ajizian (Christopher Ajizian P.A.) and Todd Rapp Friedman represent the hotel.

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Today in Supreme Court History: October 24, 1894

2026-10-24T09:29:32.644-04:00

By Josh Blackman - October 24, 2026 at 07:00AM

10/24/1894: U.S. v. E.C. Knight argued.

The American Sugar Refining Company

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Open Thread

2026-10-24T04:29:34.923-04:00

By Eugene Volokh - October 24, 2026 at 03:00AM

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Brickbat: Don't Slap Me Five

2026-10-23T08:29:27.948-04:00

By Charles Oliver - October 23, 2026 at 04:00AM

Philip Morant School and College, a public secondary school in England, faced strong criticism after introducing a rule banning physical contact between students, including high-fives, hugs, and linking arms. The controversy grew after a student received detention for high-fiving a friend. School leaders say the rule was introduced after an increase in overly physical behavior disrupted classes. But many parents and students argue that it treats normal, friendly behavior as misconduct and prevents students from learning the difference between appropriate and inappropriate contact. A petition calls on the school to replace the blanket ban with rules that allow normal, consensual interactions while still addressing fighting, bullying, and unwanted touching. After receiving criticism, the school scrapped the policy.

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Open Thread

2026-10-23T05:29:27.970-04:00

By Eugene Volokh - October 23, 2026 at 03:00AM

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Today in Supreme Court History: October 22, 1915

2026-10-22T11:29:37.407-04:00

By Josh Blackman - October 22, 2026 at 07:00AM

10/22/1915: Hadacheck v. Sebastian argued.

The White Court (1914-1916)

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Crime Is Down in D.C., but Trump's National Guard Deployment Probably Isn't the Cause

2026-10-22T07:29:28.903-04:00

By C.J. Ciaramella - October 22, 2026 at 06:00AM

One month after Washington, D.C., celebrated America's 250th anniversary, it marked a more ignominious milestone: a full year since President Donald Trump deployed thousands of National Guard soldiers to the capital.

The approximately 4,600 National Guard members have been an unavoidable presence in D.C., wandering the National Mall and downtown streets in groups of three or four, or standing idly in Metro stations chatting. Occasionally, they're tasked with picking up trash at parks. Tourists take selfies with them by the now-fenced-off Lafayette Square in front of the White House.

They're not going anywhere. The Trump administration is moving forward with plans to acquire up to 2,000 housing units to support long-term National Guard deployments. The Department of Defense has estimated that extending the mission from October 2026 through to the end of the Trump administration in January 2029 will cost about $1.4 billion.

According to the Trump administration, all of this has been necessary to transform D.C. "from a crime-ridden city into a safe and beautiful haven for residents and visitors alike."

Crime in D.C. is down 20 percent from 2025, according to the Metropolitan Police Department, but an August Reuters investigation found National Guard soldiers were involved in only a tiny fraction of arrests in the safer parts of the city, mostly for minor offenses such as shoplifting and turnstile jumping. Crime has been dropping nationwide, a trend that started before Trump took office and includes cities that aren't occupied by federal law enforcement and soldiers.

Even if the Guard presence has contributed to a drop in crime, it's a civil liberties nightmare. It puts untrained military in the role of policing civilians. It usurps local police departments that are ostensibly answerable to the communities they police, and it normalizes the deployment of military forces domestically—a red line for a free society.

"There's a deep irony that here we are in the capital of the free world, and our president is treating it like a police state," Scott Michelman, legal director of the ACLU of the District of Columbia, told PBS in August. "D.C. residents have lived with our National Guard troops in our neighborhoods for about a year, despite the absence of any genuine emergency and really any reason for them to be here."

Last November, a federal court preliminarily ruled that the deployment was illegal. However, an appeals court allowed the Trump administration to keep troops deployed in D.C. while it considers the administration's appeal of that ruling.

The appeals court decision is absurd. The appellate panel is fully aware that every day the case drags on is another day that D.C. residents are being subjected to a potentially illegal military occupation, and another day that taxpayers will foot the bill for a wasteful fit of presidential hubris.

The damages are compounding. The first anniversary of Trump's deployment of National Guard soldiers to D.C. should be the last.

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Open Thread

2026-10-22T07:29:23.853-04:00

By Eugene Volokh - October 22, 2026 at 03:00AM

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Atlanta's Former Mayor Is Running for Georgia Governor. The 2020 Protests Could Cost Her the Race.

2026-10-21T09:29:38.889-04:00

By Joe Lancaster - October 21, 2026 at 06:30AM

When Americans vote in the midterm elections next month, it seems likely that Democrats will see decisive victories across the country.

This trend seems likely to affect Georgia's two most high-profile races differently. Sen. Jon Ossoff, a Democrat, is running for reelection against Rep. Mike Collins, a Republican who represents the state's 10th congressional district, while in the race to replace Gov. Brian Kemp, former Atlanta Mayor Keisha Lance Bottoms faces Republican billionaire Rick Jackson.

Ossoff and Bottoms may both be Democrats, but their prospects look very different: A recent poll put Ossoff nearly seven points ahead of Collins, but Bottoms was a point and a half behind Jackson, trailing the senator from her own party by more than five points.

Democrats hope that if Ossoff does well enough, it will boost their other candidates. But it's worth asking why Bottoms, who was feted as a possible vice presidential candidate, is struggling to break even against someone with no prior name recognition, in a year expected to be a boon for her party.

It's possible that the crime and protests of 2020 could be weighing down Bottoms' candidacy in an otherwise auspicious year for Democrats.

Mayor Bottoms and the 'COVID Crime Wave'

Bottoms' single term as mayor of Georgia's capital city would be defined by summer 2020. Amid the COVID-19 pandemic, violent crime rose across the country, but it was worse in Atlanta—homicides were up 59 percent, while most other cities averaged 33 percent. Bottoms herself later called it the "COVID crime wave."

Then on May 25 in Minneapolis, a police officer killed George Floyd, an unarmed black man accused of passing a counterfeit $20 bill. Footage went viral, and protesters across the country took to the streets.

In some places, including Atlanta, protests turned destructive, and the police responded in kind.

Bottoms called for peace. "If you care about this city, then go home," she exhorted rioters in a news conference. "When you burn down this city, you're burning down our community."

She won bipartisan praise. "Your passion, your composure, your balance, has been really incredible," then-presidential candidate Joe Biden told her.

But just days later, Atlanta police officers shot and killed a black man, Rayshard Brooks, in a Wendy's parking lot. Protesters gathered the next day and burned the restaurant to the ground.

Meanwhile, after the district attorney announced charges against the cops involved in Brooks' shooting, more than 170 officers called out sick in protest. Bottoms admitted that officer morale "is down tenfold."

Then on July 4, less than half a mile away from the site of Brooks' death, protesters shot into a car, killing 8-year-old Secoriea Turner.

The crime spike persisted into 2021, and in May of that year, Bottoms announced that she would not run for a second term.

Officially, she said, it was "time to pass the baton on to someone else," though her announcement "came as the city faces a homicide rate topping that of this time last year—a historically deadly one in Atlanta," Henri Hollis wrote at the Atlanta Journal-Constitution.

Indeed, it seems the "COVID crime wave" had caught up with her: A September 2021 poll found that while 57 percent of city residents approved of the job she was doing, 53 percent also felt the city was on the wrong track, including 48 percent of Democrats. The top issue was crime, which 70 percent of respondents felt was headed in the wrong direction.

She later told New York that by stepping down, she was "putting my emotional and mental health first"—a worthy reason, though a bit odd since she now seeks an even higher office.

Then again, she also had higher aspirations. Bottoms was one of the first officeholders to endorse Biden for president in 2020, and she later made his shortlist of potential running mates. After the end of her term, she joined Biden's White House as director of the Office of Public Engagement, after which she moved over to the President's Export Council for the remainder of his term.

Bottoms announced her run for governor just four months after leaving Washington. And while she locked up the Democratic nomination easily, winning 56 percent of the vote among seven candidates, she didn't exactly fire up the base, and it seems like she just expected to coast to victory.

"It feels a lot like she gained the nomination…largely from name identification," progressive journalist Zaid Jilani tells Reason. "She really wasn't raising that much money or spending that much on television….It should be a high-profile race in many ways, but the ideas she's putting forward are fairly rehashed," and "she doesn't have that much creative advertising."

Rick Jackson's Deep Pockets and Shallow Record

Rick Jackson, meanwhile, seemed to come out of nowhere.

President Donald Trump endorsed Lt. Gov. Burt Jones in August 2025, and Jones led the Republican primary field at the end of that year.

While Kemp famously resisted Trump's efforts to subvert Georgia's presidential election results in 2020, Jones was a willing participant in the scheme.

"I've been the Trump guy since 2015, not '16," Jones bragged. "I've taken all the battle scars and everything else. I know who ran and hid during 2020 and everything else."

Then in February 2026, just three months before the primary, Jackson entered the race. He was a septuagenarian with no name recognition, but he was also quite wealthy, so he blanketed the state with ads to introduce himself to voters.

In six weeks, he spent over $30 million—"more than any candidate has ever spent in a primary race for Georgia governor, with more than two months before the May 19 election," wrote Jeff Amy of the Associated Press.

It worked: Jackson beat Jones in a primary runoff with 53 percent of the vote. By then, he had spent $108 million on his campaign while raising less than $400,000 from donors.

Jackson has made much of his background, as a child of poverty who entered the foster system at age 13 to escape a dysfunctional household. As an adult, he started in sales and worked his way up to entrepreneurship, starting Jackson Healthcare in 2000 and growing it to more than $1 billion in annual revenues. He is also a generous donor to charitable causes, particularly those relating to foster care.

But with no political record, Jackson can be hard to pin down on certain issues.

For example, one Jackson ad criticizes Bottoms for the rise of data centers in Atlanta, even though he has also spoken positively of their economic potential.

Georgia Democrats have tarred Jackson as a Trumpian election denier, singling out a comment he made at a campaign event: When asked if the 2020 election was stolen, Jackson replied, "That was totally ridiculous what happened in 2020 and our people really let us down." ("Just as Governor Kemp did, Rick acknowledges both Biden's win and that there were issues in the 2020 election that needed to be resolved in order to ensure Georgians have faith in our electoral system," a campaign spokesperson told CNN.)

During the primaries, he even took heat from both sides on abortion: Jones accused Jackson's company of working with Planned Parenthood, while Jackson himself seemed to suggest he wanted to change the state's abortion ban to remove exceptions for rape or incest. ("Rick believes we have a strong pro-life law in place and he wants to keep it as it is," his campaign said in a statement.)

And while he made Trump-like pledges, like to "make Georgia No. 1 in the nation for criminal deportations" and keep "the religion of woke ideology" out of schools, his platform calls for an "intelligent Medicaid expansion" in the state.

Jackson has also pivoted just over the course of the campaign.

He bragged in his campaign announcement video that he "donated a million bucks to Trump," and he's said that if elected, he would be "just like" Trump but "with a southern tone."

He said Trump had "no bigger supporter" than himself, and he could not name a single Trump policy he disagreed with. When Trump endorsed Jackson at a campaign rally in July, the candidate pointed to the president and said, "I'm going to be this man's favorite governor."

But like many other Republicans, Jackson has distanced himself from the president, whose approval rating is at an all-time low. The Atlanta Journal-Constitution reports that in campaign appearances, Jackson has stopped mentioning Trump directly, preferring to compare himself to Kemp, the sitting governor who remains popular.

He apparently also scrubbed all mentions of the president from his campaign website.

But one thing that has remained consistent in Jackson's campaign strategy is criticizing Bottoms' record as mayor.

Will the 'COVID Crime Wave' Sink Bottoms?

Some of Jackson's campaign ads feature grateful children who grew up in foster care and benefited from his philanthropy, but for the most part, they have targeted Bottoms over her record.

One ad, titled "Disaster," paints Bottoms' tenure as exactly that, with the city becoming practically unlivable during summer 2020.

"Keisha ended cash bail, gutted the corrections budget, let Atlanta burn, and unleashed a crime wave," Jackson wrote on X to accompany another ad. "Then she walked away."

"If Keisha wants to run from her record," according to a campaign email, "we're going to make sure Georgia remembers exactly what that record was."

Many Jackson ads, flyers, and mailers have featured images of Secoriea Turner, the 8-year-old girl killed by gunfire. (Turner's parents have asked Jackson's campaign to stop.)

But is it fair to blame everything on Bottoms? While Atlanta was worse than most, many major cities saw large homicide spikes: Chicago's murder rate climbed more than 50 percent that year, while New York City's went up nearly 40 percent. Murders in Columbus, Ohio, rose a staggering 67 percent.

Regardless, Bottoms was in charge at the time. And the attacks do seem to have an effect, as she's locked in a dead heat against Jackson.

Granted, Bottoms was never a particularly strong candidate. When she ran for mayor in 2017, she won the runoff election by fewer than 800 votes, even with the endorsement of the outgoing mayor.

Georgia also has not elected a Democratic governor in nearly three decades, though it has elected Democrats to the U.S. Senate three times since 2020 and seems poised to reelect one this year.

There's also the fact of Jackson's money, saturating the state with eight-figure ad buys while Democrats were spending only a fraction of that.

Of course, money alone can't buy a victory: Kemp defeated Stacey Abrams in each of the last two races for governor, despite being comfortably outraised and outspent each time.

But Bottoms currently trails Ossoff by five points in an election cycle expected to be quite beneficial to their party.

It seems the race will serve as an indicator of how fresh the summer of COVID-19 still feels for Georgians.

"To the kind of voter that Jackson is courting, it probably is true that had Democrats [instead] nominated the mayor of Macon [a smaller Georgia city], they would be in a stronger position than nominating the mayor of Atlanta, especially one who was in power during those years," Jilani tells Reason. "If he wins, it demonstrates that that is still a fairly potent line of attack."

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Brickbat: Teaching While Intoxicated

2026-10-21T05:29:33.509-04:00

By Charles Oliver - October 21, 2026 at 04:00AM

Katharine Viviano, a first-grade teacher at Pleasant Valley Elementary School in Peters Township, Pennsylvania, faces a charge of public drunkenness after officials said she became intoxicated at school and left her students unattended. According to police, Viviano left during the school day to buy alcohol, and when she returned, she hit another vehicle in the school parking lot. She later went into the bathroom attached to her classroom and refused to come out; another teacher found her in the bathroom semi-conscious. School staff initially believed Viviano was having a medical emergency, and they moved her students to another classroom and then to a playground while they dealt with the situation. Viviano reportedly smelled of alcohol, with slurred speech and bloodshot eyes. Authorities say she admitted drinking vodka earlier in the day.

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Open Thread

2026-10-21T05:29:32.264-04:00

By Eugene Volokh - October 21, 2026 at 03:00AM

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2 Recent Cases Illustrate the Limits of a Doctrine That Often Blocks Civil Rights Claims

2026-10-21T03:29:19.793-04:00

By Jacob Sullum - October 21, 2026 at 12:01AM

Since 1871, a federal statute has authorized Americans to sue state and local officials for violating their constitutional rights. But since 1982, thanks to the court-invented doctrine of qualified immunity, such claims have been allowed only when they allege violations of "clearly established" law.

Because courts often require plaintiffs to meet that standard by citing precedents involving closely similar facts, qualified immunity can prove insurmountable even for victims of outrageous abuses. But as two recent cases illustrate, there are limits to this license for misconduct, meaning officials may still be held accountable when they flout longstanding constitutional principles, even when they do so in novel ways.

In 2022, Mario Rosales and Gracie Lasyone sued two Alexandria, Louisiana, police officers, Samuel Terrell and Jim Lewis, alleging that they had pulled Rosales over without legal justification. The cops ordered Rosales and Lasyone, his girlfriend, out of the car and detained them for 21 minutes, during which they grilled the couple about illegal drugs, frisked Rosales, and instructed him to empty his pockets.

Terrell and Lewis sought refuge in qualified immunity. But last month, the U.S. Court of Appeals for the 5th Circuit ruled that Rosales and Lasyone had plausibly alleged several Fourth Amendment violations, including a stop based on a "fabricated traffic violation," an improperly prolonged detention, and unjustified searches.

In reaching that conclusion, the 5th Circuit relied mainly on a 1968 decision in which the Supreme Court said police may detain someone only if they reasonably suspect he is involved in criminal activity and may frisk him only if they reasonably suspect he is "armed and dangerous." Assuming the facts alleged in the lawsuit are true, the three-judge panel unanimously held, Terrell and Lewis had failed both of those tests.

When the officers stopped Rosales, the principles that the 5th Circuit applied had been the law of the land for more than half a century. Terrell and Lewis nevertheless argued that "any constitutional violation arising from the traffic stop was not clearly established," which gives you a sense of the chutzpah that qualified immunity invites.

Police commonly pull drivers over, ostensibly for traffic violations, in the hope of implicating them in drug crimes. A case that the U.S. Court of Appeals for the 8th Circuit considered this month involved a much more unusual scenario: a judge who locked two children in jail cells because he was frustrated by their resistance to a parental custody decision.

During a 2019 hearing in Taney County, Missouri, a divorced couple agreed that the mother would have primary custody of their two children, then 12 and 14. But contrary to that agreement, the children did not want to go home with their mother, which led to an argument in the courthouse lobby.

Judge Eric Eighmy intervened, telling the children they had to leave with their mother and repeatedly warning them that they could end up in foster care if they refused to do so. When that did not work, Eighmy jailed them until they became more cooperative.

"The time spent in the holding-cell area was between twenty and forty minutes," the 8th Circuit noted. And since Eighmy did not have probable cause to believe the children had committed any offense, "much less one that justified placing them in a holding cell," the court said, their confinement clearly violated the Fourth Amendment.

If so, Eighmy argued, he had no way of knowing that. The 8th Circuit panel unanimously disagreed: "As we put it over a decade and a half ago, long before the events in this case, 'it is clearly established that a warrantless arrest, unsupported by probable cause, violates the Fourth Amendment.'"

Notably, the 8th Circuit did not think the bizarre details of the case counted in Eighmy's favor. "We are not concerned about the lack of a prior case" with "fundamentally similar" facts, it said. "Indeed, given how clear the law is, it would have been surprising to find one."

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Today in Supreme Court History: October 20, 1973

2026-10-20T10:29:14.214-04:00

By Josh Blackman - October 20, 2026 at 07:00AM

10/20/1973: The Saturday Night Massacre occurs.

President Richard Nixon

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Open Thread

2026-10-20T06:29:37.271-04:00

By Eugene Volokh - October 20, 2026 at 03:00AM

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