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United States v. DeBorba, decided on June 3, is the latest Ninth Circuit decision that seeks to exclude firearm parts from protection in the reference to the "arms" that the people have a right to keep and bear.  The court held that "'optional accessories' to firearms—such as gun slings, scopes, and, importantly, silencers—fall outside of the Second Amendment's plain text because they are 'accoutrements' and not arms."  The test for whether an object is included in "arms" is supposedly based on whether it "is necessary to the ordinary operation of the weapon."  "Ordinary" means anything you want it to mean.

That conclusion derives from the Ninth Circuit's 2025 en banc decision in Duncan v. Becerra, which claimed that a ten (or fewer) round magazine is necessary to operate a semiautomatic firearm and is thus protected, but a magazine that holds over ten is not necessary and therefore has no protection.  For the basis for this illogic, see my post here.

It's no surprise that the DeBorba court applied that "test" to the much-derided suppressors, but gun slings and scopes?  Perhaps the court is laying the groundwork for the California legislature to ban "assault slings" and "assassin scopes."  After all, slings may be used in the standing (off-hand) position to shoot more accurately, as they often are at shooting matches.  But that could make spray firing more accurate as well.  And despite their use in hunting, scopes are inherently "military-style" as depicted in the movie American Sniper, making them adaptable to political assassinations.

Absurdities aside, slings and scopes should be considered within the term "arms" as they are very much part of the arms on which they are used.  Bruen held that the "general definition [of 'arms'] covers modern instruments that facilitate armed self-defense."  The Court said "facilitate," not just barely essential for a shot to go off.  That necessarily includes instruments equipped with various features, whether characterized as so-called "accoutrements" or not, that enhance or otherwise affect the functionality of a firearm.

Under the Militia Act of May 8, 1792, a citizen was required to "provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges."  Reference was made to "the arms, ammunition and accoutrements, required as aforesaid."  Taken together, these items constituted "arms."  A musket would not fire without a flint, even though Duncan listed flints as accoutrements, not arms.  And ammunition was necessary to fire a shot.  There was nothing about use of the term "accoutrements" that excluded items from Second Amendment protection.

That brings us to the facts in DeBorba, which involved an unregistered suppressor.  It is noteworthy that the Gun Control Act itself defines "firearm" to include a "firearm silencer or firearm muffler."  And in DeBorba, "When the ATF attached DeBorba's device to a portable firearm and fired the gun, the device 'reduced sound reporting by at least twelve decibels.'"  That certainly made it, to use Bruen's terms, an instrument that could "facilitate" armed self-defense.

The Ninth Circuit's test is that anything that the legislature may ban that is not absolutely necessary for a gun to go bang is a mere accessory excluded from the term "arms."  If that includes a scope, it also includes just regular sights.  Indeed, that's been the antigun argument all along, that features (like a pistol grip or adjustable stock) that make a firearm more accurate and comfortable to fire make it "unusually dangerous" and thus subject to prohibition.  Under that logic, a firearm could be stripped of every feature other than the barrel and firing mechanism, and since it would still go bang, that's all that is protected by the Second Amendment.

Even if suppressors have Second Amendment protection, DeBorba continues, footnote 9 in Bruen creates a presumption of constitutionality for permitting processes that "do not require applicants to show an atypical need for armed self-defense" and for which "'narrow, objective, and definite standards' guid[e] licensing officials."  The NFA is a "shall-issue" scheme under which one need only file a written application with fingerprints and photograph and await ATF to register the suppressor.

But that overlooks that footnote 9 concerns permits to carry firearms, not authorization merely to possess a firearm as does the NFA.  Licensing involves checking whether a person is disqualified from possessing arms, while registration involves the government tracking who possesses what guns.  No national consensus has ever existed that mere possession of a firearm warrants permanent registration with the government, including the persons' fingerprints, photograph, and address.  Carrying firearms in public has always been distinguished by law from possession of firearms in the home.  Whatever the historical justification for the "shall-issue" permitting schemes, no historical analogues exist for NFA-type restrictions as applied to the private keeping of arms.

In Heller II (D.C. Cir. 2011), D.C.'s witnesses admitted that no crimes were ever solved with the District's registration scheme.  As then-Judge Brett Kavanaugh wrote in his dissent:

D.C.'s articulated basis for the registration requirement is that police officers, when approaching a house to execute a search or arrest warrant or take other investigative steps, will know whether the residents have guns. But that is at best a Swiss-cheese rationale because police officers obviously will assume the occupants might be armed regardless of what some central registration list might say. So this asserted rationale leaves far too many false negatives to satisfy strict or intermediate scrutiny with respect to burdens on a fundamental individual constitutional right.

The Ninth Circuit's devotion to excluding various firearm features from being included in protected "arms" recalls the pre-Heller days when some federal courts were only too happy to exclude actual people from "the people" in the Second Amendment, when it would have sufficed to hold that some people, like violent felons, lose their rights under the Amendment.  João Ricardo DeBorba's real crimes included repeated violations of restraining orders, being an illegal alien, and lying on firearm forms, all the while being in unlawful possession of firearms based on such status.  Nothing in the court's coverage of those issues raise any red flags for purposes of the Second Amendment.  Inventing "tests" that infringe on the rights of law-abiding citizens does a disservice to the Constitution.

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Today, the US and Iran announced an agreement to end the war between them. The agreement may also lead to a ceasefire between Israel and Iran and its allies, such as Hezbollah. To put it mildly, this is not the "unconditional surrender" Trump promised us, and that defenders of the legality and wisdom of the war, such as co-blogger Steve Calabresi, expected. Hopes that the war would result in regime change - an objective endorsed by Trump early in the conflict - have evaporated. Indeed, it looks like we haven't gained much of value than we had before the war, and may even have lost some key ground.

The new agreement (whose terms have not yet been fully released) apparently includes the reopening of the Strait of Hormuz (though which much of the world's oil supply passes), and an end to the US blockade of Iran. There is also likely to be sanctions relief for Iran, and some kind of Iranian commitment not to pursue nuclear weapons. But, of course, the Strait was open before the War. And Iran has promised to forego nuclear weapons before, including in the Obama-era JCPOA agreement, which Trump repudiated during his first term, because it favored Iran too much. If Iran's regime could be trusted on these kinds of points, there would have been no need for conflict with them in the first place.

Moreover, international relations scholar-turned conservative political commentator Richard Hanania has explained in an insightful piece, Iran made one important gain in this conflict. They showed they can shut down the Strait of Hormuz, and that the US lacked either the ability or the will to force them to stop. That's leverage they can use in any future conflict, too, and perhaps to deter the US from taking action against them in the future at all.

In a Dispatch article written soon after the war began and a later post at this site, I explained why the war is illegal, because it lacks constitutionally required congressional authorization, and also violates the 1973 War Powers Act. In the Dispatch article, I also warned that this illegality made it more likely that the war will end in failure:

This [constitutional] limitation on presidential power is more than just a technical legal point. The requirement of congressional authorization for the initiation of war is there to ensure that no one person can take the country to war on his own, and that any major military actions have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents. Trump's failure to seek and secure that kind of broad public support has ensured that only about 27 percent of Americans approve of this military action, compared to 43 percent who disapprove, according to a Reuters poll. Other surveys show similar results. This is a historically low level of public support at the start of a major military action and bodes ill for U.S. staying power if we suffer reverses or a prolonged conflict results.

This dynamic of weak US will arising from low public support for the war is pretty much exactly what has happened. US and Israeli forces scored some impressive tactical successes. But Trump's failure to build up political support for the war ensured it was unpopular from the beginning, and got even more so over time. Once Iran closed the Strait of Hormuz and oil prices went up, the war's popularity fell still further, and Trump began seeking an easy way out.

Had Trump built up sufficient public support to get congressional authorization, the US would have had greater staying power, and would not have caved so easily. Alternatively, if he tried to get that support and failed, we could at least have avoided the war, and all the attendant expense and loss of life.

As noted in the Dispatch article, I am far from a categorical opponent of military intervention, and I would be happy to see regime change in Iran. But, as the saying goes, "war is a contest of wills." The constitutional requirement of congressional authorization helps ensure we don't start a major conflict without having a commitment strong enough to prevail. When the president forgets that and ignores the Constitution, he not only acts lawlessly, but also greatly increases the risk of defeat.

The post An Unconstitutional War Results in a Bad Deal appeared first on Reason.com.

Anyone who went to law school over the past three decades should be familiar with the arguments for and against the use of legislative history. Justice Scalia made it his mission to remind everyone, at every opportunity, why legislative history should not be cited. Justice Scalia would often dissent from any part of an opinion that cited legislative history. To this day, Justices who cite legislative history will say something to the effect of "For those who find legislative history useful," as if they are ashamed to rely on it. 

Yet, on the present Court, Justice Jackson seems most intent on reinvigorating the reliance on legislative history. The latest skirmish in the textualism battle came in FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. The case concerned whether the Court should imply a cause of action under the Investment Company Act. I haven't studied this statute in any depth, so I'll pass on the merits. Instead, I want to highlight the duel between Justice Barrett's majority opinion and Justice Jackson's dissent. 

Jackson may see herself as keeping Justice Breyer's mantle alive. But I think her approach goes deeper. She views the rejection of legislative history as a yet another form of "contempt" that the conservative evince towards Congress. KBJ cites Professor Victoria Nourse:

The majority's failure—or refusal—to accept this might stem from what commentators have called a prevailing "academic contempt for Congress." V. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 Yale L. J. 70, 142 (2012). Academics may think what they wish of Congress; this Court's jurisprudence ought not be grounded in such contempt.

This model is consistent with Jackson's broader framing of judicial restraint. Jackson purports to not strike down an act of Congress, or a regulation, unless there is a clear reason to do so. She writes:

[Legislative history] is a worthy and necessary effort because it prevents the preferences of judges from supplanting the will of the people. . . written"). Using legislative history helps prevent judges who are duty bound to interpret Congress's laws from making them instead. . . . But when a statute's text needs clarification, discarding legislative history turns the Court's assessment of Congress's intent into a transparently empty gesture. Even worse, it inappropriately elevates the Justices' own power by promoting our views about the "best" policy call.

Jackson is a Thayerian--unless the the First Circuit blocked something Trump did. I'm still disappointed she didn't write separately in Trump v. Anderson. She was ready to, but just couldn't pull the trigger.

It makes sense that Chief Justice Roberts assigned this opinion about statutory interpretation to Justice Barrett. The Scalia clerk and former law professor is in her element with these sorts of academic debates. Yet, Justice Jackson made a few points that Justice Barrett did not respond to. I get the sense that Justice Barrett thinks that The Boss won this debate decades ago, so there is little sense in arguing further. But there are some new developments that affect the analysis. Textualists cannot just rest on Justice Scalia's laurels forever. To borrow a phrase, textualism is not frozen in amber. Or to borrow another phrase, we cannot simply declare victory and move on.  The Court's conservatives need to address modern criticisms of textualism, lest the other side regains ground.

First, Jackson cites Professors Abbe Gluck and Lisa Bressman, who have done some serious empirical work about how members of Congress view textualism. 

The reports therefore serve as the final sales pitch for a bill, and "there is evidence that lawmakers themselves pay more attention to these reports than a statute's text to understand the statute's purpose and meaning." Learning Resources, Inc., 607 U. S., at ___ (JACKSON, J., concurring in part and concurring in judgment) (slip op., at 2) (citing A. Gluck & L. Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 965–966, 968–969 (2013)); see

I don't recall that Justice Scalia ever had occasion to address textualism in practice.  Justice Barrett cites Gluck and Bressman for an ancillary point, but ignores the important bottom line of how important legislative history is for members of Congress and staffer. That citation is problematic. This point can't simply go unaddressed.

Second, the major question doctrine has forced the Court to embark on atextual inquires about legislative intent.

Consistent with the "classic criticism" of courts' use of legislative history, the majority's aversion to the employment of this interpretive tool appears to stem from an intuition that "Congress's subjective intent [is] [un]knowable." Ante, at 12. But it is hard to take that criticism seriously when the modern Court nonetheless routinely interprets statutes by speculating about what Congress must have wanted.See, e.g., Learning Resources, 607 U. S., at ___ (plurality opinion) (slip op., at 8) (drawing from a "practical understanding of legislative intent" that "Congress would not have delegated highly consequential power through ambiguous language" (internal quotation marks omitted)).[FN9]

[FN9] 9 See also, e.g., Biden v. Nebraska, 600 U. S. 477, 506 (2023) (applying the major questions doctrine to conclude that " 'Congress would likely have intended for itself ' " the task of making " '[t]he basic and consequential tradeoffs' inherent in a mass debt cancellation program" (quoting West Virginia v. EPA, 597 U. S. 697, 730 (2022))); id., at 521 (BARRETT, J., concurring) (relying on the absence of "context clues" to determine whether "Congress would have delegated the power to the agency"); FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000) ("Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion").

Justice Scalia saw early shades of "elephants in mouseholes" but he never saw anything like Biden v. Nebraska. Jackson's point has some merit. I find the debate between Justice Gorsuch and Justice Barrett about the nature of the major question doctrine a bit tiring, but from either angle, the Court is trying to determine whether Congress intended to delegate such a broad power. The answer to that question can't be found in the text of the statute, because if was in the plain text, there would be no need for the MQD. Justice Jackson argues, not unreasonably, that legislative history might be a useful way to determine whether Congress intended to delegate a power when the text squarely does not answer that question.

I still think all of the cautions about legislative history apply with full force to the Major Questions Doctrine. But this is a point that should be addressed head-on.

Third, the Roberts Courts has rejected implying any new causes of action, even with statutes that likely would have been read to imply a cause of action when adopted decades ago. Justice Barrett addresses this shift:

Private litigants sometimes sue to enforce statutes that lack comparable language. At one point in time, the Court stood ready to let them; it reasoned that courts should "bealert to provide such remedies as are necessary to make effective the congressional purpose" underlying a statute. J. I. Case Co. v. Borak, 377 U. S. 426, 433 (1964). But we have since rejected the practice of fashioning rights of action as we see fit. Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 170 (1994); Sandoval, 532 U. S., at 287. Home-grown causes of action are difficult to reconcile with "the Constitution's separation of legislative and judicial power." Egbert v. Boule, 596 U. S. 482, 491 (2022) (internal quotation marks omitted). Rather than augmenting statutes, we interpret them. If a statute does not spell out a right of action, we examine the statute's text and structure to determine whether it implicitly provides one.

How should the present Court deal with legislative history that was written for the Burger Court to read? In the late 1970s, Congress reasonably could have expected the judiciary to rely on their legislative history, but five decades later the judiciary rejects those sources. 

Fourth, Justice Jackson observes that the Court routinely cites "legislative history" for purposes of originalism:

It is, in fact, the majority's castigation of legislative history as something verging on extralegal (see, e.g., ante, at 14) that is the historical outlier. And that consternation is especially odd coming from a Court that eagerly delves into the transcripts of the ratification debates, the Framers' private correspondence, and the Federalist Papers to ascertainwhat the Framers would have "understood," "recognized," and "expected."

This is not a new argument, but is worth addressing. One of the primary reasons that Justice Scalia rejected legislative history was the concern that these documents were created with the intent to influence future litigation. That certainly cannot be said for the records of the Constitutional Convention. These proceedings were conducted in absolute secrecy, and the records were not released till decades after ratifications. Members of the convention did not speak with an intent to influence debates. (Of course, I acknowledge the fact that Madison altered his records many years later; these notes should be taken with all due caution.)

The ratification debates were public, though it is highly unlikely that any members of those conventions said what they said to influence judicial decisions. That sort of usage would have been unthinkable in 1788 or 1789. The judiciary simply wasn't that important.

The Federalist Papers, by contrast, are works of advocacy. Publius was arguing for and against certain positions, and responding directly to charges by the Anti-Federalists. The Federalist Papers are not a form of legislative history, but instead sketch out arguments on both sides of useful debates. We should not presume the Federalists got the argument right. Indeed, the Anti-Federalists often had the better argument. Ultimately, all of these sources are useful indicia of original meaning, though I  know many originalists who refuse to consider these sources at all. They limit their work to the text of the Constitution, unilluminated by subsequent developments.

Finally, I will opine Justice Barrett's rhetoric. [Trigger warning for anyone who has any connection to Notre Dame, it is probably for your own good to stop reading now.] I sometimes feel that Justice Barrett is more concerned with sharp one-liners than persuasive legal arguments.

Barrett writes, "Put differently: The judicial task is to read words, not minds." Sounds great, but the entire premise of the major questions doctrine is to look beyond the words to what the legislature intended. Doesn't the babysitter have to read the mother's mind?

Here, she is using some sort of religion-ish imagery to pun on Church of the Holy Trinity:

At bottom, the dissent hopes to revive that old-time devotion to legislative history. See, e.g., Church of Holy Trinity v. United States, 143 U. S. 457, 464–465 (1892). Instead of winning converts, however, the dissent illustrates why statutory interpretation must focus on the text—or, to borrow from Justice Robert Jackson, why interpretation must be driven by "analysis of the statute" rather than "psychoanalysis of Congress." United States v. Public Util. Comm'n of Cal., 345 U. S. 295, 319 (1953) (concurring opinion).

Why use phrases like "old-time devotion" (a play on "Give Me That Old Time Religion") and "winning converts"? This is a zinger for the sake of zinging--or perhaps singing. Jackson continues the chorus, blaring that Justice Scalia changed the old-time tradition:

Using legislative history as a tool of statutory interpretation is a time-honored tradition. Indeed, the Judiciary's collective "old-time devotion" to the legislative-history hymnal, ante, at 14, held steady for more than a century—until the late 1980s, when the Court suddenly began to sing a different tune.

Justice Barrett should have cut the purple prose. It wasn't very clever, and it didn't make the winning point.

The quotation to Justice Robert H. Jackson is even problematic. This "psychoanalysis" quotation is in every single legislation textbook, and Barrett has no doubt used it many times. But when I read this sentence, I wondered if Justice Kentanji Brown Jackson was going to dunk on Justice Barrett, because RHJ routinely cited legislative history. KBJ did exactly that:

Even Justice Robert Jackson— yes, the very one whose teaching serves as the coda to the majority's denunciation of legislative history, see ante, at 14—recognized that reliance on legislative history is "justified where the face of the Act is inescapably ambiguous, and then . . . we should not go beyond Committee reports, which presumably are well considered and carefully prepared." Schwegmann Brothers v. Calvert Distillers Corp., 341 U. S. 384, 395 (1951) (concurring opinion).

Robert Jackson would have been stunned to see Scalia's approach to textualism and originalism. Jackson's functionalist Youngstown concurrence is a repudiation of the sort of formalism Scalia would champinon.

What was the point of citing RHJ if KBJ was going to slam it back in Barrett's face? Indeed, this was a self-goal. Once Barrett saw the draft dissent, she should have removed this reference. But she left it in. Why? Barrett didn't care because Justice Scalia won.

I know conservatives like to attack Justice Jackson. I do sometimes. I find her never-ending questions during oral argument to be a nuisance. But at least she is trying. She is doing things. She is trying to make an impact on the jurisprudence. That is far more than I can say for Justice Sotomayor, or even Justice Kagan. When their records are written, what dissents did they write that would influence future generations? Seriously, try to think of a single opinion either has written over the past two decades that is worth studying outside the context of the particular case? They certainly had some trenchant dissents in particular cases, but few had salience beyond that particular moment.

This might be heretical, but I think Justice Jackson sees herself playing the role that Justice Scalia played in the late 1980s. Remember, Scalia arrived at a Court at odds with his philosophy, and through sheer intelligence and force of personality, he was able to move the law. He would dominate oral argument and write lots of solo dissents. I'm sure he would have been more of a nuisance if he was not so darn charming. I don't think that Justice Jackson has the talents Scalia had (no one else does), but she is working her angles to make an imprint on the law. For that, I give her credit. 

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The incident occurred outside a conference hall where Jay Bhattacharya, director of the National Institutes of Health, was scheduled to deliver a keynote address. The Washington Post reports that a small group of researchers quietly handed out printouts of a recent editorial in Diabetes Care criticizing Trump administration policies affecting biomedical research. One of the researchers is the journal's editor and co-authored the piece. Security staff and police escorted them out of the conference at the request of event organizers. Video captured the confrontation.

{The ADA is a private organization, so this isn't a First Amendment issue. But it does raise questions about why an organization that claims to "welcome scientific inquiry, respectful dialogue, and diverse perspectives" responded so harshly to conference attendees peacefully distributing an article from one of its own publications.}

Some of the ousted researchers said they believed they were removed partly because the ADA feared repercussions from the Trump administration. Let's hope that's not true. But all the organization has offered are weak and shifting justifications that seem to be inconsistent with its stated commitments to open dialogue and viewpoint diversity.

For example, in a statement to the Post, the ADA said the researchers were ejected for "violating the conference code of conduct," under which participants are expected to "conduct themselves in a professional and respectful manner." Those terms are highly subjective, but it's worth noting that, on the reported facts, there is no claim or evidence the ejected researchers chanted, blocked access, disrupted an event, or otherwise interfered with the conference. They simply handed out pieces of paper.

Then, in another statement defending its actions, the ADA cited the "safeguards" it has in place to ensure compliance with its obligations as a tax-exempt organization, including "maintaining a strictly nonpartisan environment at all organizational events and functions." But the ADA was in no real danger of losing its tax-exempt status by allowing conference participants to distribute the editorial.

IRS rules do restrict Section 501(c)(3) nonprofits from participating or intervening in political campaigns on behalf of, or in opposition to, candidates for public office. But the editorial merely criticizes administration policies and calls on "concerned citizens" to contact their congressional representatives. That is issue advocacy — and under certain circumstances may be grassroots lobbying — but it is not urging people to vote for or against a candidate. As the IRS has made clear, "Section 501(c)(3) organizations may take positions on public policy issues, including issues that divide candidates in an election for public office." …

Terr's analysis seems generally quite correct (assuming the facts are as reported).

The post "American Diabetes Association Ejects Researchers from Conference for Sharing Editorial from Its Own Journal" appeared first on Reason.com.

I have previously written about Donald Trump's massive planned Section 301 tariffs, arguing that they have some of the same flaws as those invalidated by the Supreme Court in the IEEPA case (which I helped litigate). Today, I am pleased to present a guest post on the Section 301 tariffs by Peter Harrell. Peter is Visiting Scholar at Georgetown's Institute for International Economic Law, an attorney in private practice, and one of the nation's leading experts on trade law. He played an important role in helping to develop the arguments that ultimately led to the invalidation of the IEEPA tariffs. In today's post, he lays out what I think is the most thorough and insightful analysis of the Section 301 tariffs, to date.

I agree with the vast majority of his points. If I have a reservation, it is that a constitutional nondelegation argument against the Section 301 tariffs might be more promising than he suggests. In my view, FCC v. Consumers' Research - decided by the Supreme Court last year - outlines important constraints on tax power delegations that the Section 301 tariffs run afoul of. For example, under the administration's apparent approach to 301, there are no meaningful limits to the magnitude of the tariffs they could impose, which violate the Consumers' Research requirement that there must be floors and ceilings.

What follows is written by Peter Harrell, not me (Ilya Somin):

On June 2, the U.S. Trade Representative (USTR) issued a sweeping proposal to impose new tariffs on 60 trade partners. The Trump Administration has been transparent that these tariffs are simply part of its "fallback" strategy to continue taxing U.S. imports following the Supreme Court's February 20 ruling against many of the tariffs that Trump imposed last year. As Treasury Secretary Scott Bessent put it in a press interview shortly after the Supreme Court loss, he expected that while the Administration would have to use more complicated authorities to impose tariffs going forward, "the tariff rates will be back to their old rate within five months."

The Trump Administration's new tariffs rely on Section 301 of the Trade Act of 1974 (19 U.S.C. § 2411), which authorizes USTR to investigate unjustified or unfair foreign trade practices and to impose tariffs or other trade remedies in response. Section 301 almost definitionally provides a stronger legal basis for tariffs than the statute Trump first relied on to impose tariffs last year, a 1977 emergency powers statute known as "IEEPA." Unlike IEEPA, which does not include words such as "tariff" or "duty," Section 301 clearly authorizes the Executive Branch to impose tariffs in specific circumstances and Presidents have repeatedly used it as a trade policy tool since the 1970s. But Trump's use of the statute to impose tariffs on countries—86 of them, counting the member states of the European Union individually—that make up more than 99% of U.S. imports is novel and far exceeds any prior use. Section 301's text and history, as well as broader legal and constitutional considerations, all make clear that USTR's planned tariffs exceed what Section 301 authorizes and should be circumscribed by the courts.

How We Got Here

 Tariffs were a central promise of President Trump's 2024 Presidential campaign, in which he committed to establish global tariffs of between 10% and 20% with a higher rate on imports from China. Shortly after his inauguration, Trump used IEEPA to impose tariffs on Canada, Mexico, and China in February, and to impose a set of sweeping global tariffs last April. IEEPA nowhere directly contains the power to tariff, but the Trump Administration argued that IEEPA's power to "regulate…[the] importation or exportation of… any property in which any foreign country or a national thereof has any interest" included a power to impose a tax or fee on imports.

The Supreme Court rejected this argument in its February 2026 ruling in Learning Resources v. Trump, with a total of six Justices reading the power to "regulate…importation" as not including a power to tax. Justices Roberts, Gorsuch, and Barrett relied on the "major questions doctrine" to read tariffs out of the statute, finding that "to sustain a claim that Congress has granted them an extraordinary power," such as the power to impose tariffs on trillions of dollars of imports amounting to hundreds of billions of dollars in revenue annually, "executive officials must identify clear authority for that power," and that IEEPA, a statute lacking any of the words, procedures, or guardrails that Congress uses when it enacts a tariff statute, failed to clearly authorize tariffs. Jackson, Sotomayor, and Kagan reached the same conclusion about the scope of IEEPA's authorities but relied on the statute's text and history without invoking the major questions doctrine, a canon of construction they remain skeptical of as an interpretive matter.

Even before its SCOTUS loss, however, the Trump Administration had begun planning to recreate most of its tariffs using a two-part legal strategy. The first phase, which Trump invoked hours after the SCOTUS decision, was to rely on a provision of law known as Section 122 of the Trade Act of 1974 to impose 10% tariffs on many U.S. imports, based on a Presidential finding that the U.S. faces "large and serious…balance of payments deficits." The Court of International Trade, a specialty court that reviews trade matters, rejected that theory last month, though the government is now appealing that decision and is continuing to collect the tariffs while the appeal is going. Regardless of how the appeal turns out, however, Section 122 only authorizes tariffs for 150 days unless Congress chooses to extend them. Hence USTR's recent proposal to impose tariffs under Section 301.

The Statute and its Challenges

Legal problems with USTR's proposed tariffs start with the statute itself.

Section 301 authorizes USTR to investigate foreign trade practices and to impose tariffs if a foreign government violates the terms of a U.S. trade deal or engages in an "unjustifiable" or "unreasonable or discriminatory" trade practice that adversely impacts the U.S. economy. Specifically, Section 301(b), the provision USTR is relying on for the new tariffs, provides that if USTR conducts an investigation and finds that "an act, policy, or practice of a foreign country is unreasonable or discriminatory and burdens or restricts United States commerce," USTR "shall take all appropriate and feasible action authorized under subsection (c)…and all other appropriate and feasible action within the power of the…to obtain the elimination of that act, policy, or practice." (19 U.S.C. § 2411(b)). Subsection (c) then authorizes USTR to impose "duties or other import restrictions on the goods of…such foreign country for such time as the Trade Representative determines appropriate."

Although the Supreme Court has never weighed in on Section 301, lower courts have, and held that USTR actions pursuant to Section 301 are subject to judicial review pursuant to the Administrative Procedure Act (APA). Simply put, USTR's new proposed tariffs  do not comport with the requirements of 301.

USTR's stated rationale for the new tariffs is that it conducted an investigation into foreign country imports of products made with forced labor, and found (a) that U.S. trade partners either failed to prohibit imports of goods made with forced labor or, if countries had an import prohibition on the books, that they failed to effectively enforce it, (b) that failing to prohibit or failing to enforce a prohibition on imports of products made with forced labor is unreasonable and (c) that the practice burdens U.S. commerce. USTR then proposes to impose either 10% or 12.5% tariffs, depending on the country, in response. (In addition to the tariffs over forced labor imports, USTR is also investigating 16 trading partners for allegedly maintaining industrial overcapacity, and appears likely to impose even higher tariffs in the weeks or months ahead, effectively recreating the rates that Trump originally imposed under IEEPA).

The first statutory weakness with the new tariffs is that USTR did not show on a country-by-country basis how a foreign country failing to effectively enforce a ban on products made with forced labor burdens U.S. commerce. Past 301 investigations, such as Trump's 2018 Section 301 into China's technology transfer requirements, IP theft, and innovation policies, resulted in a 200-page report detailing numerous specific practices and included an estimate that these policies caused at least $50 billion annually in harm to the U.S. economy. Such specific showings of economic harm are required by the statute, which only authorizes tariffs if the "unreasonable or discriminatory" foreign trade practice in fact "burdens or restricts" U.S. commerce. As the Senate Finance Committee's Report for the Trade Act of 1974 described 301's intent, it was to "retaliate against foreign countries which impose unjustifiable or unreasonable restrictions against U.S. commerce" (emphasis added). Where past investigations covered multiple countries, as in a set of investigations into taxes on U.S. tech companies released in early 2021, the investigations themselves resulted in detailed findings regarding each individual foreign country.

Congress has amended the statute several times to clarify the kinds of unfair practices that the statute can be used to address, including specifying that the statute can be used to target "a persistent pattern of conduct that…permits any form of forced or compulsory labor." USTR's investigation correctly finds that there is a strong set of international rules and norms against forced labor and that the U.S. itself has for decades prohibited the import of products made with forced labor. But rather than trying to quantify the harm that, for example, Italy or Japan's alleged failure to adequately enforce a prohibition on imports made with forced labor does to the U.S. economy, USTR's investigation simply provides a few illustrative examples that attempt to show that a handful of individual products potentially made with forced labor, such as rice exported by Myanmar, might have displaced some quantum of U.S. exports in some markets.

Admittedly, the traditional remedy when a court finds that USTR failed to create an adequate record for 301 tariffs is to remand the record to USTR for further development. USTR may recognize that its showings of harm are weak, but assess that it can clean up the record as litigation proceeds. However, as Greg Shaffer and Jeremiah May recently argued (as part of a broader essay laying out a variety of legal challenges to the tariffs), courts do have the power to vacate tariffs imposed pursuant to a defective remedy, and that an investigation that is clearly largely a pretext to recreate tariffs that were earlier ruled unlawful would present a strong case for vacatur.

Moreover, USTR's proposed tariffs also fail to comport with the statute's requirement that tariffs be "appropriate." Section 301(b) admittedly gives USTR substantial discretion in determining the quantity of tariffs or other remedy to impose. It directs USTR to "take all appropriate and feasible action authorized under [the statute], subject to the specific direction, if any, of the President…." While the Supreme Court has never addressed the scope of Section 301, lower courts have generally interpreted Section 301(b) broadly. But courts have not held that the remedy can be unbounded—the statute is clear that USTR's action must be "appropriate." In a case decided last year, for example, the Court of Appeals for the Federal Circuit held that while "appropriate" is "non-specific" and gives USTR substantial discretion, the statute's requirement that actions be "appropriate" "is anchored by the statute to a specific purpose: an appropriate discretionary action is one that can end or reverse the investigated conduct."

Here, USTR is not using the tariffs in a way that is "appropriate." The government has been transparent that its goal is to recreate the IEEPA tariffs, not to actually encourage foreign trade partners to amend their practices with respect to their own imports of products made with forced labor. Indeed, even if a country remedied the alleged deficiency with respect to forced labor, the Trump Administration has made clear that USTR would simply find some other pretextual basis to maintain the tariffs.

The Major Questions Doctrine and Constitutional Limits

Arguments that the proposed tariffs violate Section 301 are bolstered by the Supreme Court's "major questions doctrine," which Justices Roberts, Gorsuch, and Barrett invoked in ruling against Trump's prior IEEPA tariffs, and which argues for a narrow reading of the statute. In Learning Resources earlier this year, the three Justices argued that Trump was attempting to use IEEPA to collect trillions of dollars in new tax revenue in a way that Congress did not clearly intend.

Today, the Trump Administration seeks to create substantially identical sweeping tariffs under Section 301. While Section 301 does clearly authorize tariffs and does require additional procedural steps that IEEPA did not, including the requirement to conduct an investigation and to publish proposed tariffs for public comment, the same fundamental logic that led the Court to rule against the IEEPA tariffs applies to the new proposal: Trump attempting to transform a statute's purpose from the one that Congress intended--in this case to authorize limited tariffs to address discrete foreign trade abuses--into the purpose he wants, which is to establish a new global tariff regime many times higher than the tariffs that Congress has over the years adopted. This, the major questions doctrine says, the courts should not allow. Congress intended its delegation of trade powers under Section 301 to be reasonably narrow and discrete, and the courts should enforce those limits.

Beyond the major questions doctrine, litigation against Section 301 tariffs may force the courts to address a question they ducked when they ruled against Trump's IEEPA tariffs: the extent to which Congress can lawfully delegate its tariff power to the President. Because the Supreme Court ruled against Trump's IEEPA tariffs based on its interpretation of that statute's text, the Court did not need to address whether Congress could, constitutionally, delegate most of its Article I, Section 8 constitutional power to "lay and collect Taxes, Duties, Imposts and Excises" to the Executive Branch. But USTR's plan to use Section 301 in an effectively unbounded way squarely raises the question of how much tariff authority Congress can lawfully delegate. Admittedly, just last year the Supreme Court reaffirmed its traditional approach to the non-delegation doctrine, which upholds statutes so long as Congress provides an "intelligible principle" to guide their use, and here the government will argue that 301's procedural requirements and substantive limits provide such a principle. Existing precedent suggests the courts will likely agree with the government here, and instead rely on other arguments to rein in the government's expansive use of the statute.

What a Loss Would Mean to Trump

A ruling against Trump's new Section 301 tariffs will not end Trump's efforts to tax imports, and not simply because the self-proclaimed "tariff man" is unlikely to abandon his favorite policy tool. A ruling that narrowed the scope of Section 301 would still enable Trump or a future president to use the statute in appropriate narrower circumstances consistent with its past use. Should Trump, for example build a strong Section 301 case against individual countries that engage in currency manipulation, and document the cost to the U.S., USTR could impose appropriate tariffs in response. Trump could also rely more heavily on other, narrower tariff authorities, such as anti-dumping and countervailing duty tariffs, if his agencies can show facts that meet statutory requirements.

Then there is the option that America's founders envisioned for a President who wanted to raise taxes: Trump could ask Congress to overhaul America's tariff regime. While Congress by all accounts seems unlikely to enact new tariff laws in the current polarized political environment, there are bipartisan proposals in Congress to, for example, establish a broad new baseline U.S. tariff. Irrespective of the policy arguments regarding such a proposal, Congress undoubtedly has the constitutional authority to enact it.

Trump campaigned on tariffs and his win in 2024 gives him the moral and political authority to raise tariffs within the bounds of the law. A single electoral win, however, does not empower a President to upend the Constitution's separation of powers or usurp Congress's authority over trade. Potential challengers to Trump's new Section 301 tariffs have strong arguments on their side, and the courts should continue to insist that Trump follow the law when he imposes tariffs, rather than rewrite them without Congress's approval.

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Few Americans have taken much notice, given the vast amount of other political news. But two Canadian provinces - Alberta and Quebec - may be holding referendums on secession in the near future. If the votes are held, the secessionists are likely to lose in both cases. But these events are still of interest to students of federalism and secession, and to anyone who cares about the future of America's northern neighbor and one of our most important allies. And history shows that secession movements often persist even after defeat in a referendum.

In Quebec, the separatist Parti Quebecois (PQ) is leading in the polls and favored to take power in the upcoming October provincial election. They promise to hold a secession referendum if they prevail. Their victory is far from completely certain, given Quebec's complex five party system, and the closeness of the polls. The PQ, the Quebec Liberal Party and the current ruling party - the Coalition Avenir Quebec (CAQ) - are all within a few points of each other in recent polls.

If the PQ wins, they may only get a minority government (one that has a plurality of seats in the legislature, but not a majority), which will make it difficult for them to pass a law to hold the referendum. Nonetheless, a PQ majority government could well happen - about a 35% chance according to data compiled by prominent Canadian polling analyst Philippe Fournier at his Canada 338 site.

If the PQ does manage to win the election and hold a secession referendum, the "no" side is highly likely to win, as happened with two previous PQ-led secession votes in 1980 and 1995. Recent polls indicate "no" leads by about a 2-1 margin. Nonetheless, holding a referendum would bring the issue of Quebec secession back to the center of Canadian politics, and increase tension between the provincial and federal governments.

In Alberta, the United Conservative Party (UCP) government of Premier Danielle Smith has approved a voter petition to place a secession-related referendum question on the ballot this fall, scheduled for a vote on October 19. However, the question at issue is not a straightforward up-or-down vote on secession. It actually asks voters to opine on the following: "Should Alberta remain a province of Canada, or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada." This is essentially a referendum on whether to hold a referendum!

A recent Angus Reid Institute poll finds that Albertans would reject the above question by a 60-35 majority, while they would reject an unequivocal secession vote by a larger 67-30 vote. Some other polls find even larger majorities opposed to straightforward secession. Evidently, some voters either find the official question confusing or (less likely) want to have a vote on secession even though they plan to vote "no."

The motives behind the two secession movements are very different. Quebec secessionism is a classic ethno-nationalist movement motivated by a desire to create a majority-Francophone nation (Quebec is Canada's only majority-Francophone province). The CAQ government in power for the last eight years (which favors promoting Francophone nationalism without secession) has enacted repressive laws restricting the use of the English language in public and commercial spaces, and constraining religious freedom for many types of public employees and professionals. These laws likely violate the Canadian Constitution's Charter of Rights and Freedoms; but the Quebec government has invoked the Notwithstanding Clause of the Constitution to block judicial review. American critics of judicial review would do well to take a good look at the history of the Notwithstanding Clause, and think about what kinds of repressive policies might be established in this country if we had something similar. Quebec secessionists believe these measures are insufficient and that only independence will enable their government to do everything needed to promote Francophone dominance.

By contrast, the Alberta secession movement is almost entirely based on ideological and economic concerns. There is little or no ethnic or cultural difference between Albertans (who are overwhelmingly English-speakers) and the people of other Anglophone-majority provinces. But Alberta is Canada's most conservative province, and secessionists argue an independent nation would be able to institute more conservative policies, especially on economic issues. In addition, secessionists are angry that the Canadian government imposes substantial net fiscal transfers on Alberta, taking out more in tax revenue than it gives back (Alberta is Canada's wealthiest province), and that the federal government is often unwilling to authorize construction of pipelines and other infrastructure needed to facilitate export of Alberta's oil and mineral wealth (the province is a major oil producer).

Not surprisingly, Alberta secessionists are overwhelmingly UCP supporters (and supporters of the Conservative Party of Canada in federal elections). This is an ideological movement, not one based on language and ethnicity.

Regular VC readers will not be surprised to learn that I have more sympathy for Alberta secessionism than the Quebec version. Elsewhere, I have explained why ethno-nationalism is a terrible ideology and a menace to liberty and prosperity. Quebec nationalism is no exception. Quebec's laws on language and religion are repressive, illiberal, and deeply unjust. Secession would likely make the situation worse. Bad as it is, the Notwithstanding Clause does not allow the provincial government to get around all constitutional constraints (it only applies to some constitutional rights, but not others). An independent Quebec would be free of such inhibitions.

Ethnic secession movements can potentially be justified in situations where the group in question is a victim of systematic oppression by the central government of the country it seeks to leave. But, at least in recent decades, Francophone Canadians have not been systematically oppressed by the Canadian federal government. The government does not prevent them from speaking their language, practicing their culture and religious beliefs, and so on. Nor does it subject them to anything remotely resembling systematic discrimination (e.g. - in hiring for government jobs or provision of public services). The main goal of Quebec secessionists is not to escape oppression at the hands of Canada, but to be more free to oppress ethnic, linguistic, and religious minorities within Quebec.

I used to think that, free of fear of domination Canada's Anglophone majority, an independent Quebec might be more tolerant of minority groups than the provincial government is currently. But the more I learn about nationalist movements, the more implausible that conjecture seems. Giving them greater power is unlikely to foster restraint. Much the contrary.

In addition, while Quebec separatists differ among themselves on many issues, they tend to be economic statists (this is a general tendency of nationalist movements). Thus, an independent Quebec is likely to restrict economic liberty as well as freedom of speech and religion more than is currently the case.

By contrast, I believe there is at least some merit to Alberta secessionists grievances about fiscal transfers and pipelines. In addition, an independent Alberta might pursue more free-market economic policies than it has currently, as part of Canada. Western Canadian conservatism is more libertarian than the US version, and has much less of the social conservatism and ethnic nationalism that has - especially in recent years - deformed the political right in the US. Nor does it seem likely that an independent Alberta would oppress ethnic and religious minorities in the way an independent Quebec probably would. Thus, it is possible that an independent Alberta would be freer and more prosperous than it is currently. Obviously, "freer" here means "freer" in libertarian terms. Left-liberals and socialists might see this potential shift as a negative rather than a positive.

In previous writings (e.g. here and here), I outlined some criteria for assessing the morality of secession movements. As a general rule,  secession is defensible if a regional majority (or perhaps a supermajority) supports it, the new government will respect basic human rights (or at least violates them less than the previous rulers), and the new regime is overall no worse than the old central government. Quebec secessionism clearly flunks this test. Alberta secessionism - if it were to get majority support - might be able to pass.

Nonetheless, I have various reservations about Alberta secessionism, as well. I am skeptical that independence would alleviate the fiscal and pipeline issues; it might even make them worse. If the Canadian federal government is often unwilling to authorize pipelines and other infrastructure for Alberta now, they are likely to be even less accommodating if Alberta becomes an independent state. And landlocked Alberta cannot export its goods except through Canada or the US. While independent Alberta would save on fiscal transfers to other provinces, establishing a fully independent state would likely result in various new expenditures to the extent that the province's current Conservative government (which opposes secession) estimates there would be $400 billion Canadian in transition costs and $25 to $50 billion Canadian in ongoing annual expenses (at current exchange rates a Canadian dollar is about $0.70-0.75 US dollars). Even if the true costs are only a third or a half this much, that's still a lot. The Alberta government's current total annual budget is about $79.3 billion.

In addition, both Albertans and other Canadians would suffer if there is no longer free trade and free migration between Alberta and the "rump" Canadian state. And, given the bitterness likely to be engendered by a successful secession, there is no guarantee that free trade and freedom of movement will continue.

From a US perspective, I worry that a successful secession movement would make Canada a weaker and less effective ally. Unlike our current president, I think a strong Western alliance is essential.

Unless polls are wildly wrong, neither Alberta nor Quebec secession is likely to prevail anytime soon. But, even if both movements lose their respective upcoming referenda (or the Quebec one doesn't get held), the movements themselves might well persist. Quebec secessionists have continued as a significant movement, despite two previous referendum defeats. Scottish secessionism persists despite defeat in the 2014 independence referendum. And there are many similar examples in other countries. Once the secessionist genie is out of the bottle, often only crushing military defeat (as with the US Confederate secession movement) seems able to definitively guarantee its elimination. For that reason, these two Canadian movements could continue to have a significant political impact, even if they don't actually succeed anytime soon.

In sum, Canada's two secession movements raise a variety of important issues, with implications beyond these specific cases. And Americans and other non-Canadians interested in federalism, secession, and the future of the Western alliance would do well to pay them some attention.

NOTE: Some might find it inappropriate for an American to comment on Canadian politics. I disagree. Canadians and other non-Americans often express views on US politics. And they have every right to do so. Political analysis should be judged on its substance, not on the background of the author. In addition, for reasons noted above, Canadian secessionism potentially impacts the US in various ways, and raises broader issues about the morality of secession movements that Americans and others have reason to take an interest in. FWIW, I am a longtime academic expert on federalism and secession-related issues, and I know French, as well as English. Thus, I think have the necessary qualifications to write about these issues. Whether the commentary is any good or not, is for others to judge.

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The Pentagon recently caused a controversy by revising its list of religious affiliation codes for service members and failing to designate the Church of Jesus Christ of Latter-day Saints as Christian. The Pentagon found a clever way out, but the controversy reveals a deep question for liberalism: are neutral religious classifications ever possible in a deeply pluralist society?

The controversy began when the Pentagon reduced its list of religious affiliation codes from more than 200 entries to 31. The purpose, it explained, was administrative. Service members identify their religious affiliation or preference, and the military uses that information, among other things, to help chaplains understand the religious composition of units and provide appropriate support. Streamlining made things more efficient.

Some sort of religious classification seems unavoidable here. A military that takes religious accommodation seriously must have some idea of the religious needs of its personnel. The problem is that, in a religiously diverse society that expects the state to be neutral among religions, classifications are never simple.

The first version of the revised list identified many groups as "Christian": Catholics, Baptists, Lutherans, Methodists, Presbyterians, and others. But the Church of Jesus Christ of Latter-day Saints was listed separately, without the label.

Latter-day Saints objected. The LDS Church understands itself as Christian. And speaking sociologically and culturally, it is surely correct to describe Latter-day Saints as Christian.

At the same time, there is a real theological issue. Latter-day Saints do not accept the doctrine of the Trinity as Catholics, Orthodox Christians, and most Protestants understand it. For that reason, among others, many traditional Christian communions would hesitate to describe Latter-day Saints as Christian in the doctrinal sense. The Catholic Church, for example, does not recognize LDS baptism as valid Christian baptism.

The point can be turned around. Latter-day Saints do not understand themselves simply as another denomination. They understand their church as the restoration of the original Church of Jesus Christ. That claim implies that other Christian bodies, however sincere, do not possess the fullness of restored truth and authority.

So the government had stumbled into a real religious dispute. The Pentagon responded to the controversy by removing the word "Christian" from the list altogether. That clever response manages the problem but doesn't eliminate it. In fact, the problem never can be eliminated completely. Government must classify religion all the time: for tax purposes, for religious accommodation claims, for chaplaincy, for prisons, hospitals, and the military. Yet every classification creates potential problems. Classify too broadly, and you flatten important differences. Classify too narrowly, and administration becomes impossible. Use theological labels, and the state risks taking sides. Avoid them, and some groups may feel their self-understanding has been denied.

Let's take a couple of other examples. The revised list contains  single designation, "OX," for Orthodox Christians. Presumably, this category conflates Eastern Orthodox Christians (Greeks, Russians, etc.) with Oriental Orthodox Christians (Armenians, Copts, etc.). But these two families have been out of communion for 1700 years, and strict adherents to each tradition would deny that the other is really "Orthodox."

The list also has one designation, "EP," for "Episcopal/Anglican." But in the US, many Anglicans specifically differentiate themselves from Episcopalians, whom they see as hopelessly unorthodox. And vice versa. Many in each tradition would be uncomfortable being grouped together with the other.

One could go on. The list has one designation, "JU" for Judaism, even though Judaism has many expressions, and one, "IS," for Islam, even though Islam contains many traditions. To outsiders, these internal divisions--like the divisions between Eastern and Oriental Orthodox and between Episcopalians and Anglicans--seem unimportant. But to insiders, they may matter greatly.

In a more religiously homogeneous society, questions like these would be less visible. But they are very salient in a pluralist society like ours. In a religiously diverse society, even neutral religious designations can be very problematic. I discuss the Pentagon controversy, and what it reveals about liberalism, in a new Legal Spirits Short Take, which interested readers can find here.

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In a recent Lawfare article I outlined the case against "packing" the Supreme Court, and explained why the Court's recent decision in Louisiana v. Callais doesn't justify such a measure. Court-packing is generally understood as an attempt to alter the Supreme Court's ideological balance by increasing the number of justices. Thus, most current Democratic proposals would transform the current 6-3 conservative majority on the Court into a 7-6 progressive majority, by adding four justices.

But there are various non-packing rationales for increasing the number of Supreme Court justices. I sometimes see them brought up in response to my criticisms of court-packing. In this post, I assess the most common of these arguments. In general, I think they are relatively weak. But, to the extent they have merit, they could potentially be addressed without packing the court, by means that ensure the new - larger court - would have roughly the same ideological balance as the old one. That would prevent the slippery slope escalation caused by court-packing would be likely to lead to destruction of judicial review. If you want to expand the Court, but oppose such compromise measures, that's a strong sign that court-packing - not these other issues - is your main objective.

If your main reason for wanting to expand the court is to change its ideological balance, the points made in this post are unlikely to sway you (check out my various critiques of court-packing instead!). But if you do care about these other issues, read on.

The most often heard non-packing justification for increasing the size of the Court is the idea that we need to have thirteen justices because we now have thirteen appellate circuit courts. Thus, we should have one Supreme Court justice per circuit, as was the norm throughout much of the nineteenth century. For example, potential 2028 Democratic presidential candidate Pete Buttigieg recently stated that "Nowhere in the Constitution does it say that there have to be nine Supreme Court justices… It just takes a readiness to set up a court that fits this country. We could have 13 seats matching the district structure of the federal judiciary."

The problem with this argument is that, as Josh Braver documents in an important article, the nineteenth century expansions of the size of the Supreme Court to match the number of circuits was primarily a result of the policy of "circuit riding," under which Supreme Court justices routinely heard cases as circuit judges on "their" lower court. Circuit riding was a difficult and time-consuming responsibility, and one justice could not readily do it for two circuit at once (especially given relatively slow nineteenth century transportation). But mandatory circuit riding was abolished by Congress in 1891. Today, the supervisory responsibilities of Supreme Court justices with respect to their assigned circuit courts are fairly minimal. Thus, it is not a great imposition for some of the justices to have to oversee two or more circuits rather than just one one.

Currently, two justices - Alito and Kavanaugh - each oversee two circuits, while Chief Justice Roberts handles three. I am skeptical either that this is an excessive burden on these justices or that it gives them way too much power relative to the other six. But if you disagree, there's a simple solution that does not create opportunities for court-packing: increase the number of justices to 13 (one per circuit), but let the party that does not control the White House select two of them. In that way, both the conservative and liberal blocs on the Court would add the same number of justices.Thus, no packing, and no slippery slope escalation.

There may be some moderately complicated political maneuvering required to do this; the president and his party would have to credibly commit to nominating and confirming two justices chosen by the "out" party. But such political deal-making is common place. One way to do it would be for the president and the opposition party to agree on the four names in advance, and include a provision in the expansion law that ensures it will only go into force if all four of these individuals are nominated and duly confirmed within a certain period of time (say, within one year of the law's enactment).

A second possible non-packing rationale for court expansion is the idea that we need  more justices so the Supreme Court can hear more cases. Justice Brett Kavanaugh and a number of outside critics of the Court believe it hears way too few cases, and should take many more. Perhaps they are right. I don't have a strong view about what the optimal total number of Supreme Court cases,  though there are certainly some specific areas where I would like to see the justices do more (e.g. - constitutional property rights cases).

But even if Court should take more cases, it is not clear that it needs more justices to do so. The Court currently hears only about fifty to sixty cases  on the regular docket per year, including just 56 last year (not counting "shadow docket" cases that don't get full briefing and oral argument). But, as recently as the early 1980s, it was hearing 160 cases per year. And there were only nine justices then, too! Hearing more cases would actually be easier today than it was then, since modern technology (most notably specialized electronic databases and now AI) makes it easier to quickly research  and analyze relevant legal issues.

The reason why the Court hears so few cases is not because we have too few justices, but because the justices have near-total control over their docket, and (with, perhaps, a few exceptions) they don't want to take more. There is no guarantee this would change merely by increasing the size of the Court. The new justices may be happy hearing relatively few cases, just like the current ones. Fewer cases means more free time and longer summer vacations! Who wouldn't want that?

If Congress wants the justices to hear more cases, it could more effectively achieve that goal by increasing the scope of the Court's mandatory jurisdiction. Before the enactment of the Judges Act of 1925, the Supreme Court had a sizable mandatory jurisdiction, and thereby heard more cases. Congress could repeal or modify that legislation, thereby increasing the justices' workload.

There is some irony here. If, like many left-liberals, you think the Court does a terrible job on most important cases, you may not actually want them to hear more! Perhaps it would be better if they decided even fewer issues, thereby leaving more under the control of lower federal courts (which are, on average, somewhat more liberal than the present Supreme Court majority).

Even if you do want the Court to hear more cases, and you are persuaded that increasing the number of justices is the best way to achieve that result, it can be accomplished without changing the Court's ideological balance. Simply adopt the ideologically balanced expansion outlined above. If you think 13 justices are not enough, the same approach can be used to increase to 15 or even more (with 15, the president's party and the opposition party would each get to choose three new justices).

Finally, it is sometimes argued that a larger court would lead to a higher quality of deliberation and perhaps a greater diversity of experience among the justices. I am by no means sure this is true. For example, it does not seem like bigger state supreme courts make better decisions, on average, than smaller ones. The same is true for en banc circuit court rulings in circuits with more judges, as opposed to those on circuits with fewer judges.  At present, the total number of judges in a circuit varies from six in the First Circuit, all the way up to 29 on the Ninth. I see little, if any, correlation between numbers and quality here.

On the other hand, I am also not certain that nine is the optimal number of justices, as opposed to 11, 13, or 15. Once again, however, the number can be increased without changing the ideological balance, by the procedure already described.

As noted in my Lawfare article and other writings, I am far from an uncritical admirer of the current majority on the Court, and I think they get some important issues wrong. I oppose court-packing because it would make things much worse than they are now, not because the status quo is anywhere near ideal. I also favor a number of reforms that do not require changing the number of justices, most notably term limits.

I am not endorsing the status quo here. This post merely shows that we probably don't need to expand the size of the court to achieve various other improvements in the Court's work product. And to the extent that expansion is desirable, it can and should be done without creating opportunities for court-packing.

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After a 12-day disciplinary hearing, a hearing officer (HO) concluded that Shakespear N. Feyissa committed six counts of misconduct. The presumptive sanction for most of those counts was disbarment…. The Disciplinary Board (Board) of the Washington State Bar Association (Bar) unanimously adopted the HO's disbarment recommendation. Feyissa appeals….

Attorney Shakespear N. Feyissa was born in Ethiopia. He immigrated to the United States at around age 17….

There's a lot going on in the case, and you can read it for yourself here. But here's one brief passage that particularly struck me:

Feyissa claims that the HO refused to consider cultural differences. But the record contradicts that assertion ….

As stated above, Feyissa's friend testified about cultural differences between Ethiopian and Western cultures relating to norms in negotiations. The witness opined that "in Ethiopia, 'If you tell a lie but everybody's happy, then you didn't do anything wrong.'"

The HO clearly did not refuse to consider this testimony or to evaluate its impact on the case, as evidenced by her conclusion of law on the issue; the HO made the sustainable legal conclusion that this cultural difference "does not exempt Respondent from his professional obligations under the RPCs, and thus cannot be accepted as a reason to mitigate Respondent's conduct as a lawyer."

Here are the passages from Feyissa's counsel's briefs that raise the argument to which the supreme court was apparently referring:

The complaint also alleged that Mr. Feyissa made false statements in negotiating on his clients' behalf. As explained below, due to the very different set of norms in Ethiopian culture surrounding negotiations, he did not understand the limits of bluffing and puffery in negotiations, and made the false statements solely to get his clients more money.  Mr. Feyissa admitted the false statements for which he was responsible, stopped engaging in that practice after receiving the grievance; and expressed regret for his conduct during the hearing…..

[T]he Hearing Officer refused to consider evidence that in Mr. Feyissa's culture, telling lies is accepted as long as it makes other happy and that in negotiations, both sides understand that the other will exaggerate and twist the truth….

The Hearing Officer also erred by refusing to consider Mr. Feyissa's cultural background in finding that the false statements "seriously adversely reflected on his fitness to practice," wrongly concluding that because his cultural background did not "exempt Respondent" from the RPCs, it should not be considered at all. Mr. Feyissa never asserted that he was exempt from the RPCs. Instead, the context for the misstatements is critical in evaluating whether the misrepresentations to third parties seriously adversely reflected on his fitness to practice. As discussed above, there was uncontested evidence that false statements are acceptable in negotiations in Ethiopian culture. Mr. Feyissa now understands that the rules governing his conduct in negotiations and agrees that he did not comply with the RPCs, but the reason he thought he was allowed to make such statements needs to be considered when determining the degree to which his conduct reflected on his fitness to practice….

ODC criticizes Mr. Feyissa's counsel for asking race-related questions and claims that "[t]he Hearing Officer's explicit rejection of Respondent's attempt to inject race into the proceeding makes clear that the Hearing Officer had foreclosed any consideration of race as a factor in this case and undercuts the claim that the decision was tainted by racial bias." That assertion is based on Respondent counsel attempting to impeach Dr. Britton after ODC opened the door by eliciting demonstrably false testimony that he and Mr. Feyissa had a similar skin tone. The Hearing Officer's refusal to permit impeachment based on race-related testimony on direct is itself a potential instance of implicit racism. As discussed in the Opening Brief …, color-blindness is a contemporary form of racism. That is further reflected in the Hearing Officer's refusal to consider evidence that falsehoods in negotiations are acceptable in Mr. Feyissa's culture, which she wrongly viewed as using "cultural background [to] exempt Respondent from his professional obligations under the RPCs."

Just to be clear, I have no reason to think that Ethiopians are indeed culturally more open to lying than Westerners in negotiations; of course, many Westerners lie about all sorts of things, including during negotiations; and the rules related to honesty in negotiation can be complex—to quote the comments to the Model Rules of Professional Conduct, for instance,

Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact [as to which a duty of honesty applies]. Estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.

But even if Feyissa's counsel was correct that Ethiopian norms related to honesty in negotiation are different here, I agree with the hearing officer that this shouldn't be seen as a mitigating factor here.

The post Cultural Difference "Cannot Be Accepted as a Reason to Mitigate" Ethiopian-Born Lawyer's Dishonesty-Related Misconduct appeared first on Reason.com.

"… In the dead of night, masked and hooded defendants allegedly threw noxious chemicals through the windows of families' homes and taped demand letters to their front doors….," said Jennifer Runyan, Special Agent in Charge of the FBI Detroit Field Office.

After the October 7, 2023, Hamas terrorist attacks in Israel, the defendants and unindicted conspirators enacted a series of coordinated "actions" threatening University of Michigan leaders, law enforcement, and businesses. Seemingly prompted by their perception of the University of Michigan's and other victims' purported financial support of Israel, the conspirators insisted publicly that they "must escalate, mobilize, and organize to demand divestment by any means necessary."

According to the indictment, on October 20, 2023, the defendants publicly posted a list of demands on social media directed at University of Michigan leadership. Among the demands, they required the University to make a "full and complete divestment" from Israel and any businesses supporting Israel. Unsatisfied by the University's response, the defendants "prepared to take action" against the leadership by what they called "autonomous actions," which included forcibly entering and occupying University of Michigan buildings, defacing buildings, and blocking and disrupting events on campus. They also posted threats on the internet that included photos of their "autonomous actions."  …

The defendants also allegedly held meetings to identify targets of their "autonomous actions." They used the internet to research personal addresses, photographs, political and social connections, business ownership, and other personal details of the targets.

They also discussed methods by which to harm the targets and their families, including poison, bombs, and psychological torture. For example, on May 21, 2024, [defendant Paige Elizabeth] Feyock and then-medical student [defendant Ahmet Kerem] Korkaya agreed to "kill," "torment," and "terrorize" their targets and families. Referring to one victim, Korkaya stated his "entire family" was on his "hit list" Feyock added that they should "get" the "kids" of two victims.  Korkaya, referring to another victim, stated, "I'm gonna be the dirtiest f------- doctor ever / I'm gonna be [victim's] doctor / poison her a-- slowly." Feyock agreed, "We need people following [victim] / get into that house then burn it down."

As part of the conspiracy, the defendants are alleged to have traveled at night to the targeted homes and businesses. They damaged and defaced homes and businesses with spray-painted messages, threats, and symbols, including inverted triangles, which Hamas has used in its military videos to mark targets for death; red handprints, which Hamas has used to symbolize the Ramallah Lynching of 2000 and the murder of two Israeli military reservists during the Second Intifada; and phrases such as "INTIFADA" and "DIVEST NOW." The defendants also left demand notes containing additional threats, caulked doors shut, bike-locked entryways, broke windows, and threw glass jars filled with butyric acid and dye into the homes. The defendants took photographs of the destruction and posted the photos online with "official statements" and additional warnings and threats, such as "you cannot hide" and "we only come back stronger."

Below are photos of the alleged threats spray-painted on the Jewish Federation Building on the one-year anniversary of the October 7, 2023, Hamas terrorist attacks in Israel, as well as two other businesses.

The indictment also charges Zainab Aliasgar Hakim and … Feyock with witness intimidation. In July and August 2024, Hakim and Feyock devised a plan to confront the victim, a University of Michigan student whom they believed may have been cooperating with federal authorities. They planned to convince the victim not to provide information about the defendants' criminal activities.

Hakim warned that the victim was "going to send us to federal prison." Feyock explained, "we have to do something about [victim] / [victim] is actually a liability / the fact that [victim] is naming you to [unindicted conspirator] is a major issue."  Feyock told other conspirators that the victim "has to be neutralized" and that she and Hakim were going to "strip search" the victim "to see if he is wearing a wire / not taking no chances with him." Hakim and Feyock confronted the victim on August 6, 2024, and afterward, Feyock told another conspirator that the victim "knows not to talk about [the autonomous actions]."

Alexander Matthew Sepulveda is also charged in the indictment with destruction of property to prevent seizure. According to the indictment, Sepulveda and Jonathan Hongru Zou were involved in an "autonomous action" at the home of the University of Michigan's Provost. Sepulveda and Zou threw two glass jars filled with a blue substance and food compost through a window of the Provost's home.  They also spray painted the home with inverted red triangles and phrases including "Divest" and "Free Palestine." …

The post "Eight Conspirators … Threatened University of Michigan Officials, Businesses, and the Jewish Federation" appeared first on Reason.com.

This story keeps getting weirder. @Jimmy_Esq flags the fact that Judge Ross writes like a toddler. The problem is worse.

Here is her signature on the May 29 letter:

That is fourth grade penmanship.

And here is her signature on the June 11 letter:

That is an adult's signature.

And here is Ross's digital signature from the Raffensperger case (an order she certainly didn't read):

The signatures on May 29 and June 11 are totally different. The May 29 signature includes "Judge" as a her first name. Who does that?? In the second letter has initial "E."

The letters from June 11 are far more angular, and match the type of letter in her standard digital signature. I realize I have some expertise in authenticating the provenance of Alexander Hamilton's signatures, but this one wasn't too hard.

I suspect Judge Ross didn't even sign her first, completely unremorseful letter. She couldn't even bring herself to put her name on it. It is clear she asked some subordinate to sign it for her, and that person actually signed it "Judge Ross."

Judge Ross should be ashamed of herself. She materially breached the terms of her private reprimand many times over. Impeach her.

The post Judge Ross Did Not Even Sign Her First Apology Letter appeared first on Reason.com.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case! Art Yatsko wants to build a modest home in North Port, Fla. for his retirement. And though his lot is in a neighborhood comprised entirely of single-family homes, the city recently rezoned the area to promote commercial uses. Art could build a shooting range or a nightclub, or he could seek permission to build a duplex, but he is absolutely downright forbidden from building a single-family home. Which is arbitrary, irrational, and dishonorable, so Art has teamed up with IJ to sue. Click here to learn more.

New on the Short Circuit podcast: Suing a probation officer and moth-eaten precedent.

1. This Third Circuit case has a lot of familiar parts: a pro se litigant squaring off against gov't lawyers, complaints of constitutionally insufficient notice, and ultimately a finding of civil contempt. Except here it's the gov't arguing that the pro se party didn't provide enough notice, and let's just say the contempt order doesn't run against the guy you all thought it would.
2. Federal inmate is beaten to death by other inmates; despite emergency alarm's being triggered and live video footage of dodgy activity, guards inexplicably fail to spring into action until hours after he died. Third Circuit (unpublished): The Bureau of Prisons has an administrative-remedy program to deal with prisoners' grievances, which means that we courts shouldn't imply a right to bring a constitutional claim under Bivens. What? Dead inmates can't actually use the administrative-remedy program? Because they're dead? No matter. Case dismissed.
3. Fifth Circuit (2022): The Horseracing Integrity and Safety Act of 2020 violates the nondelegation doctrine! Fifth Circuit (2024): And intervening amendments to the statute have fixed exactly half of the problem! SCOTUS (2025): Maybe give that another look? Fifth Circuit (this week): Nope. Just half!
4. Dallas police respond to couple sleeping in their van with lights, sirens, and shouting commands. The driver reverses slowly and hits a cop car. Police respond by opening fire, killing the driver and injuring the passenger. An officer who shot a dozen times was fired, indicted (the first Dallas cop in more than 40 years); a jury acquitted him. Fifth Circuit (2024, unpublished): Can't sue the officers, but maybe the city? Fifth Circuit (2026, unpublished): Can't sue the city, either.
5. We don't know much about the unsuccessful doggie-daycare plaintiff in this unpublished Fifth Circuit opinion, but if he didn't want gov't officials telling him what to do, he probably shouldn't have opened his business in the City of Bossier City. (We know, the locals don't pronounce it like that. Let us have our fun.)
6. When a district court denies a defendant's request for qualified immunity, the defendant gets a special right of interlocutory appeal (which can delay litigation for months). But what if the district court just doesn't mention the request for qualified immunity at all? That triggers the same appeal right as a denial would, says the Fifth Circuit.
7. A "heckler's veto" is when the gov't silences speech because of the hostile reaction of listeners. And, per the Sixth Circuit, it remains as unconstitutional in limited public forums as it is in traditional public forums. Thus, a Xenia, Ohio school board member should not have yoinked the microphone from a speaker who was expressing her views regarding the school district's alleged teaching of critical race theory.
8. The Kenosha County, Wisc. jail has long contracted with federal agencies to house immigrants who are civilly detained pending hearings or removal. While in custody, the detainees are required to perform unpaid custodial work, on pain of discipline like loss of phone privileges or solitary confinement. A violation of 18 U.S.C. § 1589, which provides a civil damages remedy for people who are forced to provide labor or services by means of physical restraint or threatened abuse of legal process? Jail: Come on, guys. That statute's meant to deal with human traffickers, not righteous gaolers like us. Seventh Circuit: It's actually not so limited. Case undismissed.
9. Under Indiana law, members of the public may only attend executions if they are invited by the condemned inmate or are immediate family members of the victim. Reporters sue, arguing that the First Amendment protects their right of access to gov't proceedings. Seventh Circuit (over a dissent): That applies to trials, not executions, and the law treats members of the press just like everyone else. No First Amendment violation.
10. Allegation: Prison guards at Moberly, Mo. facility are supposed to check on certain inmates every 20 minutes. These guards didn't, and an inmate committed suicide by hanging. District court: The guards are not shielded from suit by state-law official immunity because the checks are a mandatory, rote task. Eighth Circuit: Reversed. The checks are discretionary because, if they had done them, then they would have had discretion in assessing the inmate's condition and any steps to take.
11. After 32 years in prison, man is exonerated of murder; the prosecution's star witness was an accomplice to the actual shooter and, in exchange for full immunity, adopted the story San Francisco investigators fed him. Ninth Circuit: The man's fabrication-of-evidence and malicious-prosecution claims can proceed. Dissent: Even if his rights were violated, that wasn't clearly established in 1990.
12. Pro se Kansas prisoner: I was subject to excessive force during a medical emergency. Defendants: Qualified and sovereign immunity, please. District court: Happy to consider it, but please comply with the page limits for your motion. Defendants: No, we'd rather appeal. Tenth Circuit: Guys, official immunities may give gov't defendants lots of chances for interlocutory appeals, but not just because you don't want to follow the rules. Appeal dismissed for lack of jurisdiction.
13. This case demonstrates the complexity of trying a criminal case and the many legal fights that happen in the lead up to and during trial. Unfortunately for the crooked federal agent convicted of participating in an oxycodone-trafficking conspiracy, the Eleventh Circuit doesn't find any of those issues sufficient to disturb his conviction or sentence.
14. Florida man sues, arguing that "any use of city or state tax dollars supporting a public place with a Confederate name—streets, schools, and the like—violates his statutory and constitutional rights." Eleventh Circuit: "His disgust, no matter how deep and how sincere, is not the kind of injury that can give rise to a lawsuit."
15. And in en banc news, the Ninth Circuit will reconsider its decision that celebrity tattoo artist Kat Von D is off the hook for copyright infringement for her skillful recreations of Jeff Sedlick's famous photo of Miles Davis on a friend's arm. The earlier panel had affirmed a California jury's ruling that the tattoo was not "substantially similar" to the photo under the Ninth Circuit's "intrinsic test" for substantial similarity, which looks to the jury's subjective interpretation of the overall concept and feel.

New case! North Dakota is one of only two states that require every private school teacher to get a license. And then on top of that, N.D. officials dictate which courses and grade levels teachers are allowed to teach. Obtaining a license is onerous, time consuming, and expensive. And it means that private schools like IJ client Capstone Classical Academy can't hire teachers they know to be perfectly well qualified. "Private schools across the state are turning away Ph.D.s, working professionals, and accomplished educators from other states because none of them happen to hold North Dakota's particular paper credential," says IJ Senior Attorney Michael Bindas. "That isn't a recipe for quality—it's a barrier to it, especially in a state that is already finding it hard to attract and keep great teachers." Click here to learn more.

The post Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal appeared first on Reason.com.

[Blake] Lively filed a complaint with the California Civil Rights Department ("CRD") against [Justin] Baldoni and his co-defendants, the Wayfarer Parties, alleging, among other things, that Baldoni and others sexually harassed her on the set of the Film {It Ends With Us} and that the Wayfarer Parties retaliated against her for raising complaints about that harassment by launching a smear campaign to tarnish her reputation….

Lively then sued over that alleged behavior, and the Wayfarer Parties "counter-sued, asserting claims, including defamation, against Lively and others for making statements that the Wayfarer Parties" engaged in or tolerated "sexually inappropriate conduct" or retaliation. The Court rejected that counterclaim, on the grounds that

1. "the fair report privilege … precluded the Wayfarer Parties from bringing a defamation claim against Lively for providing a copy of her CRD complaint to the New York Times,"
2. "the Wayfarer Parties had insufficiently alleged that text messages Lively may have provided to the Times were defamatory," and that
3. they hadn't adequately alleged "that Lively was responsible for any statements made by her husband Ryan Reynolds" "or publicist Leslie Sloane."

In May, the parties settled all their claims, but expressly left open whether Lively can recover attorney fees and damages under Cal. Civil Code § 47.1. (They also waived their right to appeal from any such determination.)

Section 47.1 … [seeks] to shield "survivors of sexual assault, harassment, and discrimination from defamation lawsuits"—and, in particular, the burdensome and invasive discovery process those lawsuits often entail—"by clarifying that claims made in good faith are a form of protected speech." [It also seeks] to compensate survivors for successfully defending themselves against meritless and retaliatory defamation suits by permitting them to recover attorneys' fees and damages incurred as a result of the suits.

To accomplish these goals, the law establishes that "[a] communication made by an individual, without malice, regarding an incident of sexual assault, harassment, or discrimination is privileged under Section 47." (Section 47 provides for a number of other defamation privileges, including the fair report privilege.)

Section 47.1 provides that prevailing defendants in such defamation cases (and recall that Lively was in effect a defendant as to the counterclaims) are entitled to reasonable attorney's fees as well as treble and punitive damages.

The court held that, given Lively's choosing to bring the motion under Federal Rule of Civil Procedure 54(d), the "treble and punitive damages" aspect of § 47.1 is unavailable in this case:

Rule 54(d) is titled "Costs; Attorney's Fees," and it discusses certain procedures for the award of those two categories of expenses. It does not mention "damages"—compensatory, treble, punitive, or otherwise….

That treble and punitive damages cannot be sought through the procedural vehicle of a Rule 54(d) motion finds further support from a reading of the Federal Rules of Civil Procedure "as a whole." The Federal Rules of Civil Procedure establish that "[t]here is one form of action—the civil action." … "A civil action is commenced by filing a complaint with the court." That formal filing "trigger[s] the full array of legal, procedural, and evidentiary rules governing the process by which a court adjudicates the merits of a dispute."…

By seeking damages through Rule 54(d), Lively circumvents this web of procedures and processes designed for the orderly, just, and fair determination of civil claims in federal court. In essence, she seeks to pursue a kind of malicious prosecution or abuse of process claim … and to hold the Wayfarer Parties liable not only for actual damages, but to triple those damages and to impose additional punitive damages, all without the benefit of formal pleading, discovery, and dispositive motion practice in line with Rules 12(b) and 56.

Also lurking in the background is a potential conflict with the Seventh Amendment, which guarantees in federal court the right to a jury trial "in Suits at common law." To the extent a claim for damages under Section 47.1 resembles a kind of abuse of process or malicious prosecution claim, courts have held that "[a]n action for malicious prosecution falls well within the recognized forms of action at common law" for Seventh Amendment purposes….

It is understandable that Lively might attempt to shoehorn her damages claim into a Rule 54(d) motion. Litigation is costly, time consuming, and risky, and to the extent Section 47.1 is intended to remedy harms to defamation defendants as quickly, efficiently, and easily as possible, Rule 54(d)'s procedures—which permit fee liability and award determinations based upon mere motion and evidentiary hearing, present an alluring alternative to the normal arc of litigation. But those benefits cannot come at the expense of the rights of the defamation plaintiff….

But the court held Lively "is entitled to attorneys' fees and costs." It explained why that's consistent with federal procedures and with § 47.1, and also adds this about Wayfarer's First Amendment defense:

The First Amendment protects the rights of citizens to petition the Government for a redress of grievances. This includes petitioning courts for redress. The Noerr-Pennington doctrine stems from this principle. It stands for the proposition that "efforts to influence governmental action through litigation, lobbying, and the like" are "immunized from antitrust liability," "provided the activities are more than a mere 'sham.'" Courts have held that the doctrine is "relevant outside the context of antitrust actions." …

[But] "fee shifting is not civil liability within the meaning of the Noerr-Pennington doctrine." "[B]eing charged with the costs of a suit is not the same thing as being civilly liable for having filed the suit." "Fee shifting simply requires the party that creates the costs to bear them." At least with respect to fees, then, the Court finds the Wayfarer Parties' First Amendment concerns unfounded.

And the court had this to say on the merits of the § 47.1 claim:

[A] defamation defendant is entitled to recover fees and damages under Section 47.1 where: (1) they prevail in the action; (2) the communications at issue in the action conveyed factual information related to an incident of sexual assault, harassment, or discrimination that the individual personally experienced, including workplace harassment under FEHA; (3) the communications were made without malice; and (4) there is or was a reasonable basis to file a complaint regarding the assault, harassment, or discrimination….

[Section 47.1(c) requires that defendants] show that the information contained within the allegedly defamatory statement be the kind for which it would be reasonable to file a complaint. Put differently, Section 47.1(c) serves a gatekeeping function, ensuring that defendants do not unreasonably attempt to stretch the substance of the contested statements to fall within the purview of the statute.

It would be unreasonable, for example, to file a complaint of sexual harassment based on a single instance of vulgar language in the context of a comedy writer's room for an adult show with adult themes. Cf. Lyle v. Warner Bros. Television Prods. (Cal. 2006). A defamation defendant's statements about that experience therefore likely would not benefit from the Section 47.1 privilege. It would also be unreasonable to characterize a supervisor's comments about "bringing his 'guys' into the company" and his rejection of a single travel and expensive reimbursement request as "conduct based on sex or of a sexual nature." See Haberman v. Cengage Learning, Inc. (Cal. Ct. App. 2009). A defamation defendant's attempts to invoke Section 47.1 in that circumstance also likely would be rejected.

The Court need not explore the boundaries of the privilege and all the circumstances in which it might not apply, as it is clear here that the allegations contained with Lively's statements are the kinds for which it would be reasonable to file a complaint. To reiterate, the Wayfarer Parties do not dispute that the statements at issue are ones regarding sexual harassment or discrimination. Of course, they do so indirectly insofar as they dispute the truth of Lively's allegations. But they do not contest the categorical subject-matter match between the substance of her statements and Section 47.1….

The burden accordingly shifts to Wayfarer Parties to demonstrate that the statements were made with malice. {"The malice necessary to defeat a qualified privilege is 'actual malice[,]' which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights."} … And the Wayfarer Parties have provided little evidence in connection with the motion, and none establishing that Lively acted with malice….

The only evidence that the Wayfarer Parties have submitted in connection with the Section 47.1 motion which might arguably bear on Lively's malice comes from [Danny] Greenberg's deposition, in which he was questioned about a single message he sent in which he used the word "extortion" to "referenc[e] just cumulative behavior that both the studio and Wayfarer and Justin was having to manage." This evidence falls far short of satisfying the Wayfarer Parties' burden.

The testimony excerpts make only vague reference to "behavior" issues without specifying what exactly those issues were or the background surrounding them. There is no indication that Greenberg—who was Baldoni's talent agent at the time and who was proposing language for Baldoni to use in a letter to Sony Pictures Entertainment—was referring to Lively's complaints of sexual harassment, as opposed to something else. Indeed, the Wayfarer Parties' own briefing asserts that these comments were made in connection with Lively's "threats that she would not return to the set unless she was given control over the script and editing"—not that they were made in connection with false and malicious complaints of sexual harassment. Greenberg further added at his deposition that he did not "remember [his] state of mind when [he] wrote" the comment.

Without more, the Wayfarer Parties cannot carry their burden of defeating the Section 47.1 privilege. Lively is entitled to fees and costs.

The amount of fees will be determined later.

The post Blake Lively Entitled to Attorney Fees (But Not Punitive Damages) in Justin Baldoni et al.'s Libel Lawsuit Against Her appeared first on Reason.com.

From today's decision by Judge Steven McAuliffe (D.N.H.) in Doe v. Trustees of Dartmouth College (for an earlier similar decision related to Doe's lawsuit against Penn, see here):

"Litigation by pseudonym should occur only in exceptional cases." Indeed, a "strong presumption" exists against proceeding by pseudonym, which "dims the public's perception of the matter and frustrates its oversight of judicial performance." That presumption, however, is rebuttable….

Doe alleges that he was denied admission to Dartmouth's business school because of his "non-Jewish White ethnic heritage." He says that despite his "outstanding qualifications," his application was rejected. He further asserts that Dartmouth excludes nearly all "non-Jewish Whites" from admission, unless the applicant is female, "queer" or a "veteran[] of the U.S. armed forces," because those applicants "pose no threat to the Jewish Supremacists." According to Doe, Dartmouth's admissions decisions are part of a greater plan "drafted by the Jewish Supremacists with the express goal of exterminating non-Jewish Whites."

Doe claims that he will be subject to a "significant risk of professional retaliation and social stigma within his academic and professional community, causing irreparable harm to his career and personal well-being" should his identity be publicly disclosed (presumably due to his application's rejection, but perhaps due to his litigation theories). He goes on to argue that "[p]ublic identification in a high-profile discrimination suit against a major institution like [Dartmouth] carries a significant risk of 'blacklisting' from potential future employers and professional collaborators."

And, because his complaint alleges that defendant's admission practices "unfairly favor Jews," Doe argues that, if his identity is disclosed, he could be subjected to financial harm such as "debanking," physical harm, or murder by Mossad agents. {Doe alleges President John F. Kennedy was murdered by Israeli intelligence agents in an effort to thwart Kennedy's attempts to obstruct Israeli military efforts.} That is because, he says, "Jews commonly harm or murder their opposers and the families of the opposers." Finally, he argues that anonymity is warranted because his case relies on his academic records, which are confidential and protected under federal law….

To warrant anonymity here, Doe must establish that he "reasonably fears that coming out of the shadows will cause him unusually severe harm (either physical or psychological)." Doe alleges only that disclosure of his identity will result in injury to his reputation, employment prospects, and financial status. Courts have regularly held, however, that "[o]rdinary reputational injury, embarrassment, or economic loss do not meet that standard."

Doe does assert that his physical safety will be threatened if he is not allowed to proceed pseudonymously because "Jews commonly harm or murder their opposers." But, those allegations, unsupported by any particularized evidentiary showing, are, to put it charitably, not credible. That is, Doe fails to plausibly allege with any degree of specificity a legitimate threat to his physical safety. And, finally, … plaintiff's concerns regarding the confidentiality of his academic record can be easily addressed using tools "such as redacting or sealing documents to manage privacy concerns that arise during the litigation." … "FERPA permits limited disclosures in litigation and does not by itself mandate anonymity for a plaintiff who has chosen to bring a public lawsuit." …

I expect Doe will be appealing (as well as continuing to be unappealing), since he is now appealing the no-pseudonymity decision in the Penn case.

The post Our Friend with the "Attractive, Busty Jewess" Problem Denied Pseudonymity Again, in Case Against Dartmouth appeared first on Reason.com.

Landmark German ruling declares Google's AI Overviews are Google's own words and makes it liable for false answers ….

The Regional Court of Munich hit Google with a temporary injunction barring the company from spreading false claims about two Munich-based publishers through its AI-generated search overviews (case no. 26 O 869/26). The court classified Google as a direct infringer because the "AI overview" is its own content, not just a list of search results.

Google's AI overviews had falsely tied two publishing companies to scams, subscription traps, and shady business practices for certain search queries. According to the court, the AI mixed up information about other, genuinely sketchy companies with the plaintiffs and drew connections that didn't appear in any of the linked sources. The publishers sent Google a cease-and-desist letter, but Google didn't respond appropriately….

Google's AI overviews work nothing like traditional search results, the court argues. The AI rewrites and judges results "in its own words and according to its own structure," the ruling says. In the case at hand, for example, it opened with confident claims like "Yes, [company] is known for dubious business practices," then built its own structure with a summary, red flags for the alleged scam, and tips for users.

The court also found that the AI overview made claims "that are not even made in the search results." None of the linked sources drew any connection between the plaintiffs and the shady companies the AI mentioned. The court called these "the defendant's own statements." …

At the hearing, Google argued that users could check the linked sources themselves to verify whether the AI summary was correct. Users generally knew "that information generated with AI should not be blindly trusted," the company claimed….

The court rejected this. The possibility of disproving a statement through further research doesn't "regularly exempt from liability for this statement." …

I am told the judgment itself is this one, though I haven't reviewed a translated copy myself.

Under American law, I think Google AI would likewise be potentially subject to liability even though Google Search wouldn't be: 47 U.S.C. § 230. As I wrote in 2023,

Section 230 states that, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." "[I]nformation content provider" is defined to cover "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."A lawsuit against an AI company would aim to treat it as publisher or speaker of information provided by itself, as an entity "that is responsible, in whole or in part, for the creation or development of [such] information."

As the leading early § 230 precedent, Zeran v. AOL, pointed out, in § 230 "Congress made a policy choice … not to deter harmful online speech through the … route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages." But Congress didn't make the choice to immunize companies that themselves create messages that had never been expressed by third parties. Section 230 thus doesn't immunize defendants who "materially contribut[e] to [the] alleged unlawfulness" of online content.

An AI company, by making and distributing an AI program that creates false and reputation-damaging accusations out of text that entirely lacks such accusations, is surely "materially contribut[ing] to [the] alleged unlawfulness" of that created material….

Relatedly, traditional § 230 cases at least in theory allow someone—the actual creator of the speech—to be held liable for it (even if in practice the creator may be hard to identify, or outside the jurisdiction, or lack the money to pay damages). Allowing § 230 immunity for libels output by an AI program would completely cut off any recourse for the libeled person, against anyone.

In any event, as noted above, § 230 doesn't protect entities that "materially contribut[e] to [the] alleged unlawfulness" of online content. And when AI programs output defamatory text that they have themselves assembled, word by word, they are certainly materially contributing to its defamatory nature.

Likewise, as I argued in my Large Libel Models? Liability for AI Output, if an AI company is alerted that its software is regularly outputting specific false statements about a person or business, and doesn't take prompt and reasonable steps to stop that, it could be held liable even under a knowing/reckless falsehood standard. (I also argued that it could be liable for proven damages caused to private figures even under a negligent design standard.)

In any event, I can't speak to whether the German court's decision is consistent with broader principles of German law, but from the press account it sounds like the analysis under U.S. law would likely be in many ways similar (except for the temporary injunction, which I expect would be harder to get, though not necessarily impossible). For more posts on Large Libel Models, see here.

The post Large Libel Models Ruling in Germany, Allowing Liability Against Google AI appeared first on Reason.com.

Earlier, I offered some high-level thoughts on the latest episode of As the Couch Turns. Here, I want to drill down into the details.

First, the Eleventh Circuit's decision to make this reprimand private must be contrasted with the Ninth Circuit's decision to make Judge Nelson's investigation public. I agree with Arthur Hellman that the Ninth Circuit had the authority to make this proceeding public, but the Chief Judge was not obligated to. Judge Nelson has been charged with minor offenses. Given his lack of criminal history, the charges are likely to be dismissed. All of this may come to nothing. But now there is a permanent statement from the Ninth Circuit that Judge Nelson may have engaged in misconduct.

The Eleventh Circuit made the incomprehensible decision to make the reprimand private, but include so many facts that her identity could be readily determined. I am inclined to follow Hanlon's Razor here to explain the explanation. If it was intentional, then the members of the Judicial Council may have engaged in misconduct to bypass the confidentiality rules by subterfuge.

Second, Judge Ross sent her three-sentence apology letters on May 27, 2026. She did this after being given a sweetheart deal that not even Alex Acosta would have approved. And she spit in the face of her colleagues. She thought she could squeak by without offering any remorse, even though her identity was widely known.

Third, Judge Ross's brazenness forced her brave law clerks to once again reach out to the judicial process that had failed them before. They told the Judicial Council they "do not believe the letters of apology we received from Judge Ross comply with the remedial measures recommended by the Special Committee and adopted by the Council. Specifically, the apologies fail to 'make clear to the recipient the sexual misconduct for which the judge is apologizing.'"

On June 10, Chief Judge Pryor then gave Judge Ross a chance to "respond to the above allegations and state whether you failed to send adequate letters of apology to your former clerks." This offer to correct the record, yet again, is inexplicable. There is nothing to explain. She failed to do what she promised she would do. Of course the rules permit "appropriate corrective action," but Judge Ross is not a first-time offender. She has proven herself to be an inveterate liar who abuses process to save her skin. No law student or law clerk or law partner would ever be given this many chances.

Judge Ross (or ChatGPT) then wrote an apology letter to the three clerks.

"I am writing to you for a second time to convey my deepest apologies for my harmful, offensive, and unprofessional behavior that made your clerkship an unpleasant experience. My initial letter was entirely deficient, as I did not take full accountability for my actions, and I failed to give you the apology that you deserve."

Ross's chambers provided this letter to Bloomberg Law (and probably others).

The following day, Judge Pryor wrote back to say he would not identify a new complaint:

Based on my review of your new apology letters, my disclosure of the June 10 inquiry to The New York Times, and your consent to disclose the apology letters to the New York Times, I have determined not to identify a new complaint under Rule 5.

I am very confused by this chronology. First, the Eleventh Circuit Judicial Council and the JC&D Committee agreed to make the reprimand private. But the Chief Judge, acting by himself, decided to publicize the matter to the New York Times? How does Chief Judge Pryor have this authority? Did the other (unnamed) members of the Council agree to this plan? Moreover, it seems that Pryor decided not to investigate Ross further based on her making her private reprimand into a public reprimand. How does he have that authority? Judge Ross would have never consented to any reprimand if it was public. Judge Pryor nullified the cornerstone of the Judicial Council's agreement with Judge Ross. Finally, she already engaged in misconduct by not following the terms of the agreement. There was no need for further fact-finding.

This entire situation stinks, and continues to stink more by the day.

Judge Pryor's conduct here has not been exemplary. I say this with some pause, because I have long respected and worked with Judge Pryor on many matters. The problem speaks to a broader issue: Chief Judges have vast amounts of unstated powers. And absolute power can be wielded in improper fashions. Vindictive chief judges (like Kimberly Moore) can rule their circuits like petty tyrants. Magnanimous chief judges (like Bill Pryor) can provide too solicitous treatment of offending judges.

Congress needs to revisit this entire regime.

The post The Latest Chicanery in Judge Ross's Case appeared first on Reason.com.

Earlier this week, I thought the Judge Ross scandal had reached its terminus. Indeed, I had to give Judge Ross credit. She conned her colleagues so many times, yet they kept giving her more chances.

She brazenly and repeatedly had sex in her offices within in moaning distance of her law clerks. None of her colleagues knew. When confronted, she lied about it repeatedly. She tried to obstruct the investigation by blaming her law clerk, who had the courage to blow the whistle. But after Judge Ross was caught--and she certainly knew she would be caught--she was given a second chance to correct the record. With this chance to unstain her reputation, Judge Ross finally came clean (unlike her couch).

The Eleventh Circuit was persuaded by her genuineness, looking past the fact that she had brazenly lied to them before. (If any law student is found to have made a material lie once, they are expelled and have no chance of ever sitting for the bar.) Rather than giving Judge Ross a public reprimand she so justly deserved, she was given a third chance and offered a private reprimand. After all, she expressed remorse and wanted to be rehabilitated. We all know that liars and adulterers mend their ways and never do it again, right?

The punishment was not a punishment at all. She gave up administrative responsibilities that, frankly, most judges don't really want. And she offered to write "vague" apology letters. The Judicial Council did not condition the private reprimand on the contents of the letter. Once again, the Judicial Council trusted an inveterate liar who had sex on the public fisc. This was her fourth chance, which she would waste.

Even after her story blew up and made international headlines, Judge Ross still had no remorse. Did Judge Ross take this chance to offer a sincere and genuine apology to her clerks. No, not even close. She wrote an offensive letter with offered zero contrition. The courageous law clerks once again spoke up charging that Judge Ross did not fulfill her sweetheart deal.

Did the Chief Judge of the Eleventh Circuit finally decide that Judge Ross abused the terms of the private reprimand, and throw the book at her? No, Judge Ross got yet a fifth chance to offer a new apology letter. Finally, Judge Ross (or ChatGPT) put together a letter that acknowledged her conduct. She escape consequences once again.

The judicial misconduct process is not being enforced in a consistent manner. Some judges who did nothing wrong have been put through purgatory. Other judges who engaged in actual misconduct receive an endless supply of second chances.

Judge Ross lacked any remorse, and the Chief Judge of the Eleventh Circuit gave her one too many chances to correct the record

Let me put this in perspective that all judges can understand.

When a suspect make a false statement to the FBI and obstructs the investigation, they do not get a chance to correct the record, they get indicted.

When a defendant makes an insincere apology during sentencing, they do not get leniency, they are called unremorseful and suffer the consequences.

When a defendant violates the terms of supervised release, they do not get five do-overs, they get remanded to custody.

Judges have had their careers ruined because of vindictive Chief Judges with agendas. By contrast, Judge Ross had kid glove treatment.

Judge Ross should be treated like the miscreant she is, and should not be given an unlimited number of second chances. She cannot credibly exercise the judicial power.

Judge Ross needs to be impeached. And Congress needs to review the vast discretion that Chief Judges are abusing.

The post Judge Ross Lacked Any Remorse, and The Chief Judge of the Eleventh Circuit Gave Her One Too Many Chances To Correct The Record appeared first on Reason.com.

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Today, the US Court of Appeals for the Federal Circuit imposed a stay blocking enforcement of the Court of International Trade's ruling against Donald Trump's massive Section 122 tariffs (which impose a 10% tariff on most imports from countries around the world). The Court of International Trade had previously rejected a similar motion for a stay, but that is now overruled. The stay will continue until the appeals process concludes. The case involves two consolidated lawsuits: one  filed by the Liberty Justice Center (the same public interest group that I worked with on the earlier case that led to the invalidation of Trump's IEEPA tariffs by the Supreme Court) on behalf of two small-business importers, and one brought by 24 state governments led by the state of Oregon.

Today's decision isn't a ruling on the merits of the case, and the panel that issued it likely will not be the same one that hears the merits. But it's problematic, nonetheless.

One of the standards for determining whether a stay of an injunction is warranted is likelihood of success on the merits. Section 122 of the Trade Act of 1974 authorizes the president to impose up to 15% tariffs for up to 150 days in response to "fundamental international payments problems" that cause "large and serious United States balance-of-payments deficits" or "an imminent and significant depreciation of the dollar," or create a need to cooperate with other countries in addressing an "international balance-of-payments disequilibrium." The Court of International Trade concluded that there is no "balance-of-payments deficit" of the kind required to use the statute.

Today's Federal Circuit ruling states that "Although we do not offer our own interpretation of Section 122 at this stage, we are persuaded by the federal government's argument that the CIT majority's interpretation—that 'balance-of-payments deficit[ ]' is limited to deficits measured by liquidity, official settlements, or basic balance—may be incorrect." The panel offers little analysis to support this point, and simply ignores extensive evidence that "balance-of-payments deficit" refers to conditions that can only exist under a fixed exchange rate system of the kind in force prior to 1973 (I summarized that evidence in the amicus brief I wrote on behalf of myself and the Cato Institute). The ruling also overlooks the key point that accepting the government's interpretation of this statute would give the president virtually unlimited power to impose Section 122 tariffs anytime he wants.

That, in turn - as the CIT pointed out - leads to serious constitutional nondelegation problems (I outlined those in detail in Part III of the amicus brief). The Federal Circuit panel dismisses those concerns, saying that "There is merit to the federal government's argument that Section 122 already contains the guardrails required by the nondelegation doctrine such that it is not necessary to set out precise "balance-of-payments deficit[ ]"
measurement methods for the statute to survive challenge." The problem is there are no such "guardrails" if a balance-of-payments deficit must be assumed to exist at virtually all times. For reasons noted in our brief, the 15% cap on tariff rates isn't enough, and the 150 day time limit could - if the court accepts the government's interpretation of the law - easily be circumvented.

In addition to flubbing the nondelegation issue, the panel also completely ignored the issue of the major questions doctrine. As argued by the plaintiffs, and in greater detail in Part II of my amicus brief, this rule - which played a key role in the IEEPA litigation - weighs heavily against the government's position.

Another key factor in determining whether a stay is warranted is whether a stay would result in "irreparable harm." As I have pointed out previously, importers forced to pay illegal tariffs suffer a variety of harms that cannot be made good by after-the-fact refunds, such as lost sales, disrupted supplier relationships, lost investment, and more. Last year, when the Federal Circuit stayed the injunction against the IEEPA tariffs, the resulting nearly year-long collection of illegal taxes caused grave harm of that type on a large scale. The CIT seems to have learned from that mistake. This Federal Circuit panel did not.

The Federal Circuit ruling holds that these effects can be ignored because "those alleged harms do not necessarily stem from the stay but rather are a consequence of accounting for the undisputed risk that plaintiffs may ultimately owe the tariffs." This argument makes little sense. If tariffs are being collected on each transaction right now, that cannot help but increase prices (leading to lost sales), disrupt supplier relationships, and so on, to a greater extent than a mere possibility that tariffs may be owed later - especially given that the legal case against the tariffs is very strong.

In addition, the Federal Circuit should have learned from the painful experience of the IEEPA tariff refund system. Even now, almost four months after the Supreme Court ruling, only about $20.6 billion of the $166 billion in illegally collected IEEPA tariff have been sent out for disbursement. And the government is trying to avoid repaying much of the remainder. This sorry state of affairs shows that the Federal Circuit panel should not trust the Trump Administration's assurances that, if they lose the case, any harms will be made good by prompt refunds.

Today's ruling does not necessarily prefigure a decision on the merits. The court's analysis of the substantive issues is cursory and tentative, and does not consider a number of key points at all. Moreover, the merits issue is likely to be heard by a different set of judges. Stay motions in the Federal Circuit are heard by a special motions panel, whose members' identities are not publicly revealed. So the merits issue may be considered by an entirely different panel. Alternatively, it might be heard en banc by all 11 active Federal Circuit judges (as happened with the IEEPA case).

As I have noted before, the injunction today's ruling stayed would not have completely blocked collection of the Section 122 tariffs, because  - for technical reasons - it only applied to tariffs paid by the state of Washington and the two private importers represented by the LJC. Even so, this decision makes it unlikely that Section 122 tariff collection will be stopped or significantly limited until the appellate process concludes - which could potentially take another several months (or longer, if the case reaches the Supreme Court).

Despite its limited nature, this is a troubling and problematic ruling. The court misanalyzed a number of key issues, especially in failing to properly consider the sweeping nature of the government's claim to tariff authority. Hopefully, the panel that considers the case on the merits won't repeat those mistakes.

The post Federal Circuit Stays Enforcement of Ruling Against Trump's Section 122 Tariffs appeared first on Reason.com.

I am happy to pass along this guest post from Professor Arthur Hellman about Judge Nelson's case:

On Tuesday, the New York Times and NPR published reports on what the Times called the "parking lot confrontation" involving Judge Ryan D. Nelson of the Ninth Circuit Court of Appeals. Bloomberg Law has published a more in-depth account. These stories followed in the wake of the initial report the preceding Friday in the Idaho State Journal. In a guest post on Sunday evening, I explained how Judge Nelson's actions might lead to an investigation of possible judicial misconduct under the Judicial Conduct and Disability Act of 1980 (JCDA or Act). The Act defines misconduct as "conduct prejudicial to the effective and expeditious administration of the business of the courts." I won't repeat that discussion here, but some of it has been overtaken by later developments, and it will be useful to report on those.

The basic facts can be quickly stated. The "confrontation" took place in a parking lot in Idaho Falls, Idaho, on April 2. It appears to have begun when another man (who has not thus far been publicly identified) said (twice) to Judge Nelson: "Learn how to park." A video published by the Idaho State Journal shows Judge Nelson apparently knocking off the man's glasses, running after him, and then stomping on the glasses. Judge Nelson has now been charged with misdemeanor battery and malicious injury to property, also a misdemeanor.

In the Sunday evening post, I said that "the first step is for Ninth Circuit Chief Judge Mary Murguia to identify a complaint" against Judge Nelson and thereby initiate the investigatory process under the Act. That has now happened. On Monday, Judge Murguia issued an order identifying a complaint based on media reports about Judge Nelson's conduct and her own "limited inquiry of currently available information."

Ordinarily, judicial misconduct proceedings are confidential until the proceedings have concluded. That is what happened in the proceeding involving Atlanta District Judge Eleanor Ross; the public knew nothing about the investigation until the reviewing committee of the Judicial Conference of the United States issued its final order affirming the private reprimand issued by the Eleventh Circuit Judicial Council. But a provision in the Rules for Judicial-Conduct and Disability Proceedings (JC&D Rules), initially adopted in 2008, allows the chief judge to "disclose the existence of a proceeding under these Rules when necessary or appropriate to maintain public confidence in the judiciary's ability to redress misconduct or disability."

Judge Murguia relied on this provision as authorizing immediate disclosure of her Monday order. But she made clear that there will be no further interim disclosures: "All subsequent misconduct proceedings will be confidential pursuant to [the statute and the Rules]." Unless something unexpected happens, we will have to wait until final disposition to know what steps she and the Judicial Council of the Circuit have taken to resolve the complaint.

I have suggested elsewhere (pp. 371-74) that this disclosure provision appears to conflict with the confidentiality requirement of the statute. But as long as the Judiciary is willing to make some interim orders public, there is no reason why it should not disclose certain others. Here, for example, Judge Murguia may request that the Chief Justice transfer the proceeding to another circuit. If that request is granted, it would be appropriate, in my view, to make public the order of transfer.

Judge Murguia took pains to note that all of the information that prompted her order "was only very recently received." Given that the criminal charges were filed on April 22 (according to the Idaho State Journal), it is fair to conclude that Judge Nelson did not convey the information to the Chief Judge before she learned of it from the media reports.

It would have been prudent as well as courteous for Judge Nelson to have "self-reported" the episode early on. That would have enabled Chief Judge Murguia to carry out an informal inquiry, without necessarily identifying a complaint, before public scrutiny began.

Late Sunday evening, David Lat discussed the episode on his "Original Jurisdiction" Substack blog. He reported that he had reached out to Judge Nelson for comment and had received a statement from Judge Nelson's counsel. That statement read: "Mr. Nelson is embarrassed by this incident. It is out of character and does not represent how he behaves. Immediately afterwards, Mr. Nelson reached out and offered an apology and full compensation for the sunglasses. He intends to work through the proper process."

So Judge Nelson has not only offered an apology; he has also offered full compensation. Judge Murguia could well find that these actions constituted "voluntary corrective action." If so, the Act and the Rules permit her to "conclude the proceeding" without the need to determine whether Judge Nelson engaged in misconduct. That is an established practice, and I believe it is fully consistent with the forward-looking perspective of the Act.

One caveat: Judge Murguia would probably not take that course unless she had some confidence that the parking lot altercation was an isolated episode and did not reflect a pattern of behavior that might constitute misconduct. In that regard, David Lat reported that two former clerks had contacted him to say that the conduct seen in the video does not reflect the person they had come to know.

To be sure, that is not conclusive. Former Second Circuit Chief Judge Dennis Jacobs, whose analysis of a similar episode I quoted in my prior post, also said that the ultimate question is whether the judge's extrajudicial behavior "create[s] in reasonable minds a perception that the Judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." (Emphasis added.) That is the question that Chief Judge Murguia will have to address in the first instance, taking into account the apology that Judge Nelson has already offered.

The post The Judicial Misconduct Complaint Against Judge Ryan Nelson: What Happens Next? appeared first on Reason.com.

An excerpt from yesterday's Sixth Circuit decision (which I think is generally quite correct) in Boddy v. Grech, written by Judge Richard Allen Griffin, joined by Judges John Bush and John Nalbandian:

During a public comment period of a Xenia School Board meeting, plaintiff Darbi Boddy attempted to express her views regarding the school district's alleged teaching of critical race theory. In prepared remarks, delivered in a calm and deliberate manner, Boddy took issue with the "cowardice" of the school district's superintendent and characterized the Board as "failing."

Displeased with the speech, Board president Mary Grech threatened to turn off Boddy's microphone. Forty seconds later, as some in the audience became disruptive in reaction to Boddy's remarks, defendant Grech abruptly seized Boddy's microphone and recessed the meeting. Boddy was denied her allotted five minutes of public comment, and she was not offered any additional time to address the Board when the meeting resumed….

[Boddy] addressed the Board calmly and deliberately:

My name is Darbi Boddy and I live in West Chester. I am a previous Board of Education member for the Lakota School District; I am on the board of Protect Ohio Children and represent the southern part of Ohio and the organization responsible for the heat map. I am also a leader for Moms for America in Butler County. I recently heard about the failing Xenia Board of Education and the cowardice [sic] superintendent who cannot perform adequately in his role ….

After speaking for only twenty-eight seconds, president Grech interrupted Boddy, shouting "Excuse me!" Boddy, however, continued. Quickly, Grech again yelled, "Ma'am, excuse me I will cut your mic." Undeterred, Boddy continued to methodically read from her prepared remarks:

This superintendent reprimanded the one good board member who was doing [his] due diligence and asking questions so he could better understand the teaching environment, make educated decisions to determine what is best for the students of Xenia and therefore help create an educational environment free of racism and division, as is his job per ORC and school policy. It appears quite obvious this board and superintendent do not advocate for transparency and want to continue pushing racist and divisive ideologies to the children of Xenia and indoctrinate them into an anti-American agenda ….

At this point, some in the crowd began to heckle Boddy with loud boos, which continued for approximately fifteen seconds.

About a minute and twenty seconds into Boddy's remarks and amid loud boos, Grech moved to recess the meeting, which another Board member quickly seconded. Yet Boddy continued to speak. A few seconds later, Grech walked up to the podium and took the microphone away as Boddy was speaking. Some in the crowd cheered; others jeered and booed. Boddy continued speaking, without a mic, as the Board shuffled out of the room. Although Boddy was prevented from using her allotted five minutes of public comment, the Board did not offer Boddy any additional time to finish her remarks after the recess.

The court concluded that Boddy's speech didn't fall within any First Amendment exception:

Boddy's use of "failing" and "cowardice" do not constitute fighting words. Nor was her speech obscene, as it did not appeal to a "shameful or morbid interest in sex." She did not utter any "threatening, profane or obscene revilings" either….

And even if Boddy's speech was offensive, the First Amendment protects this kind of speech. A contrary rule would permit "a majority to silence dissidents," and allow the government to ban "the expression of unpopular views." … "The government may not censor speech merely because it is offensive to some." Even seemingly neutral rules that ban "attacks on people or institutions" "could be considered viewpoint discrimination." And regardless of the forum, viewpoint discrimination is impermissible.

The court rejected the district court's "characterize[ing] some of Boddy's speech as an ad hominem attack not protected by the First Amendment":

First, we have never held that an ad hominem attack is per se unprotected speech…. Nor has the Court held that ad hominem attacks are without First Amendment protection….

Second, as a factual matter, Boddy's speech was not an ad hominem attack. Boddy was criticizing the Board and superintendent for their policy choices as public employees. An ad hominem attack is a "personal dig or affront … [or] the criticism of an adversary's character as opposed to the substance of the adversary's arguments." Boddy's speech was not personal or related to the character of any individual Board member. She did not address any member by name and merely characterized the Board as "failing."

And even the use of "cowardice" to describe the superintendent's actions was related to his performance in his public facing role. "Freedom to criticize public officials and expose their wrongdoing is at the core of First Amendment values."

The court concluded that the restriction was viewpoint-based, and not based on application of neutral "decorum" rules:

Grech's justification for cutting Boddy's speech reveals that she curtailed Boddy's speech because she shared viewpoints critical of the Board…. Grech testified that she made the threat to cut the microphone because Boddy "was starting down the path of calling [people] names." But we condemned this precise rationale in Ison as impermissible viewpoint discrimination. Although Grech claimed later that she admonished Boddy because of how she was speaking, not because of what she was saying, the district court erred to the extent that it credited this portion of her testimony because the record shows otherwise.

First, consider the idea that Grech cut off Boddy because of her hostile tone. As the district court found—and the video evidence confirms—Boddy's tone and demeanor were objectively professional and consistent with proper decorum. So this first rationale is no help to defendants. Second, that some of Boddy's speech was directed at Lofton alone does not make it unprotected.

Third, the video shows that Boddy did not incite the crowd. To the contrary, Grech acknowledged that her threat to cut the microphone may have riled up the crowd. The video corroborates this understanding. And the district court similarly found that Grech, not Boddy, may have incited the crowd….

Grech's other testimony regarding Amber Boddie's reprimand is also problematic because it suggests that speech critical of the Board would violate the decorum rule, but speech praising the Board would not. The Board "may not exclude speech merely because it criticizes school officials." …

And the court held that the government's actions unconstitutionally "perpetuate[d] a heckler's veto":

"Of course, the First Amendment generally does not allow speech to be restricted because of some enthusiastic audience members' reactions." … Rooted in the idea that the government cannot favor one citizen's speech over another, we have held that speech "does not lose its protection under the First Amendment due to the lawless reaction of those who hear it." And "[p]unishing, removing, or by other means silencing a speaker due to crowd hostility will seldom, if ever, constitute the least restrictive means available to serve a legitimate government purpose."

In Bible Believers, a group of anti-Muslim evangelists attended Dearborn's Arab International Festival with the goal of converting patrons with their offensive and anti-Muslim messages. At the event, the group was surrounded by "youthful hecklers" who began throwing "bottles and other garbage at the Bible Believers." The police officers' focus was on the evangelists, and they asked that the group stop using their megaphone to amplify their controversial speech. We held that the police officers "effectuated a heckler's veto by cutting off the Bible Believers' protected speech in response to a hostile crowd's reaction."

Although Bible Believers concerns a heckler's veto in the context of a public forum with police as the relevant government actors, several important throughlines surface regardless of the forum at issue. When a "peaceful speaker" engages in protected speech and "is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals." Nor can the government "sit idly" by as the crowd imposes a "tyrannical majoritarian rule." It should "take any appropriate action to maintain law and order that does not destroy the right to free speech by indefinitely silencing the speaker."

We have yet to apply the heckler's veto to a limited public forum, but its application flows logically from our First Amendment jurisprudence. After all, a heckler's veto theory is another way to show impermissible viewpoint discrimination—which is improper regardless of the forum at issue. As the Ninth Circuit has explained, a "claimed fear of hostile audience reaction could be used as a mere pretext for suppressing expression because public officials oppose the speaker's point of view." Situations could arise "where the asserted fears of a hostile audience reaction are speculative and lack substance, or where speech on only one side of a contentious debate is suppressed." Similarly, the Third Circuit has suggested that a heckler's veto theory hinges on whether the government's actions were based on the content of the speech.

Under this framework, the heckler's veto test turns into a fact-bound test for viewpoint discrimination—here, whether Grech used the disorderly crowd as a pretext to stifle Boddy's speech. The facts suggest that Grech sanctioned a heckler's veto and in fact gave rise to it. Boddy shared an unpopular view, and some in the crowd tried to shout her down. Grech made no effort to quiet the crowd before moving for a recess. She also testified that she may have helped rile up the audience when she threatened to cut the mic.

As in Bible Believers, the government actor did not protect the speaker from the crowd but silenced the speaker in an effort to maintain decorum. And because of the forum, Grech had more control over the proceedings than an officer on the street. The Board's policies empowered Grech to regulate the meetings for reasonable decorum, and she could have used her authority to quiet the crowd instead of Boddy. Instead, she threatened to cut Boddy's microphone and then did just that. Further, Boddy was not offered the opportunity to finish her speech after the recess. So Boddy can show a likelihood of success on the merits under her heckler's veto theory as well.

Curt Hartman represents plaintiff.

The post No Heckler's Veto Allowed at School Board Meetings appeared first on Reason.com.

Instead, it earned him a promotion.  To paraphrase Vince Lombardi, loyalty isn't everything, it's the only thing.

But the good news is that the nomination will allow the Senate Judiciary Committee to ask Blanche some questions at his confirmation hearings.  Here are some questions that I'd like Blanche to answer:

1. Were you involved in the negotiations leading up to the May 18 "Settlement Agreement" between the President and the I.R.S.?  And/or the drafting of the Settlement Agreement itself?
   1. If you were not involved, were you briefed beforehand on the deal that was being struck?
   2. If you were involved, in what capacity were you acting – as counsel to the I.R.S.?
      1. Were you concerned about potential conflicts of interest in such a scenario, given that (a) before you became Acting AG you were the President's personal lawyer, and (b) as Acting A.G. the President - your adversary in the action - is your direct superior and can fire you at will?
   3. Before the Plaintiffs voluntarily dismissed their claims in the Florida case, the Court had ordered special briefing on the question of whether there was a "case or controversy" in the action. Briefs were due in less than a week after Plaintiffs' motion to have the claim dismissed was filed.  Presumably, the DOJ was hard at work preparing its briefs on the question.  What position was the DOJ going to take on behalf of its client (the IRS) on the matter? Was there, or was there not, a justiciable "case or controversy"?
   4. You didn't sign the Settlement Agreement (although it was signed on behalf of the United States by your deputy, Assistant A.G. Woodward). Why not?
   5. When did you become aware that the parties had negotiated a provision pursuant to which the IRS would waive all of its claims against Mr. Trump that may have accrued up to that point in time?
   6. Do you know why the Settlement Agreement did not include any waiver of IRS claims? Was that just an oversight?  On whose part?  Is your order of May 19 an attempt to correct that oversight?
   7. The Settlement Agreement states that Mr. Trump and the other Plaintiffs will receive "a formal apology from the United States,"and that this was their "sole and complete relief" in the case. [Sec. III(A)]  But that would suggest that the IRS' waiver was not part of the settlement between the parties. Is that correct?
   8. But if the waiver was not part of the settlement between the IRS and Mr. Trump, then what authorizes you to include it in your May 19 Order?
      1. If I promise to stop asking you uncomfortable questions about your behavior as Acting Attorney General, will you give me a waiver of all claims the IRS might have against me? And putting aside whether you'd like to do that - do you seriously believe that you are authorized to grant me such a waiver on behalf of the United States?   Please explain.
   9. The Settlement Agreement states that "the corpus of the Anti-Weaponization Fund's funding does not represent the value of any current claim by Plaintiffs, but rather is based on the projected value of future claimaints' claims." On May 18, the DOJ announced that the fund would receive $1.776 billion. Although you have backtracked on this point and declared that the DOJ is not moving forward with the Anti-Weaponization Fund, I am just curious - was this actually "the projected value of future claimants' claims"?  You must have some worksheets and/or calculations to back that up, yes?  May we see them?

[1] See Eugene's takedown of the charges against Comey here.

[2]  See my earlier postings here, here, and here.

[3] Seriously. You can see for yourself that the IRS did not waive any claims against Trump in the Settlement Agreement. That waiver was granted in the special "Order" Blanche issued on the following day.

Why wasn't it included in the Settlement Agreement?  The only explanation I can come up with is that the lawyers simply forgot to include it.  Maybe they got confused; the Settlement Agreement does have a "waiver of claims" clause (see Sec III(B)) – but that one goes in the opposite direction! Plaintiffs are waiving their claims against the IRS!

You can imagine the scene:

Blanche: "Did you put that waiver into the Settlement Agreement?"

Lawyer in Charge of Drafting Settlement Agreement:  "We sure did!"

That kind of thing would get a first-year associate fired.  But Mr. Blanche has turned it into nomination to be our next Attorney General.

[4] We will learn, I hope, a great deal more on this score shortly.  Judge Williams, in the SD FL case, has asked for briefing, due this Friday, on possible collusive conduct by the two parties in this case, and I suspect she will hold at least one public hearing on the matter as well.  The long and the short of the allegation is that the two sides – Trump on one side, the IRS on the other – agreed that Trump would file a phony lawsuit against the IRS, that he would voluntarily dismiss his claims before the IRS had to answer the claims, and the parties would announce that they had "settled" the case.  This would enable them to get their hands on the DOJ's "settlement fund," without any of that nasty Congressional oversight or approval.

The post Some Question for Todd Blanche's Upcoming Confirmation Hearing appeared first on Reason.com.

For several weeks now, I have been surprised that the major newspapers have not covered the Judge Ross scandal. In particular, I was shocked to see nothing from the New York Times and the Washington Post. I even noted how Bloomberg Law was winning the coverage.

Well, it seems the Times was working on something big. Nicholas Bogel-Burroughs and Mattathias Schwartz published a story this morning about Judge Ross. And we learn a lot. They got three law clerks to speak, plus they got a copy of the "apology" letter.

The New York Times confirmed it was Judge Ross through interviews with three of her former clerks and two people familiar with the matter, and obtained a signed apology letter that she wrote as part of a judicial reprimand.

First, this "secret" was passed down from year-to-year among law clerks:

For years, Judge Eleanor Ross's secret was passed down from law clerk to law clerk.

They whispered about the sultry jazz music that emanated from her chambers when a uniformed police commander, a man they called her "visitor," disappeared into her private office. The clerks could sometimes hear the unmistakable sounds of sex from behind the door.

They chalked it up as one of the burdens of working for Judge Ross, who routinely rubber stamped their draft orders and added little else before issuing them as rulings. But the clerks in the Atlanta courthouse felt helpless: Do you report your married boss, a federal judge no less, for having a clandestine in-office affair with a law enforcement officer?

One day last year, a clerk did exactly that.

Second, Judge Fogel—unlike Judge Wood—stated the obvious. The punishment handed down was woefully inadequate.

Jeremy Fogel, a retired federal judge who consults with judges on ethics questions, said some in the judiciary disagreed with how Judge Ross's case had been resolved. "Many of the sitting judges with whom I've spoken believe the findings as a whole warranted a more significant sanction," he said.

Another judge who shall remained unnamed wrote to me, saying that my post about Judge Wood was out of line, and demanded and I should apologize. I added an update to my post, but my criticism stands even stronger in light of the correction.

Third, we get more details about her chambers:

She soon settled on the 17th floor of the federal courthouse, in an office with two couches, a meeting table and windows that overlooked the Atlanta Falcons' stadium.

Among the décor in her chambers was a picture of Justice Ruth Bader Ginsburg with a quote from a Beyoncé and Drake song overlaid: "All them fives need to listen when a ten is talking." Elsewhere, she hung an apology letter from a lawyer she had chastised for being underdressed and underprepared in court.

In their first year of the prestigious two-year clerkship, Judge Ross's clerks would sit at a desk just feet away from the door to her office. In addition to their legal work, they were tasked with greeting visitors, and they kept a small CCTV screen nearby to see who was outside.

And details about the sex:

So it was odd when they would see a uniformed police officer walk down the hallway toward the back door of Judge Ross's office.

The walls were thin, and the clerks could sometimes hear music and the judge and officer chatting. Then the music would continue, and the talking would stop. Other times, what they heard was more explicit.

The three clerks told The Times that their stomachs churned when they realized what was taking place. But, coupled with her other actions, it also represented something fundamentally painful to them: that a person with a role they revered, a person whose job it was to decide America's laws, seemed not to care the way they cared.

Fourth, the clerks were even more troubled about her utter disregard for the civil docket. They insist barely 5% of the civil orders were reviewed, and only then for typos and grammar.

One clerk said it felt like their belief in the legal system had been yanked out from underneath their feet, and that they wondered whether to continue working in law.

While the clerks said they might have been willing to overlook isolated personal foibles, they were more broadly disturbed by the lack of attention Judge Ross paid to the civil disputes that came before her.

While Judge Ross was engaged on her criminal cases, the clerks — often fresh out of law school — told investigators that she largely let them decide how to rule on key motions in lawsuits. It was not unusual to go weeks without hearing much from her except for a brief email — "Please docket." — a few minutes after they sent her a draft order, three clerks told The Times.

They estimated that she provided edits on roughly 5 percent of the civil orders that they drafted in her name, and even then mostly just for grammar or typos.

Judge Ross later disputed the clerks' account to the judicial committee, saying that she made edits to 30 to 40 percent of drafts.

The Eleventh Circuit could have compared her draft orders and published orders, but decided not to investigate this ground.

Fifth, the Times obtained a copy of the "apology" note. I put "apology" in quotes because this is woefully inadequate. It's like saying, "I'm sorry you were offended."

Ultimately, the committee required the judge to send apology letters to the six law clerks who spoke to investigators.

The committee said the letters "should be sufficiently specific so as to make clear to the recipient the sexual misconduct for which the judge is apologizing."

The letters she sent, dated May 27, were three sentences long and identical.

"Thank you for your contributions to our court during your clerkship," Judge Ross wrote, according to a copy obtained by The Times. "I convey my deepest apology for not taking steps to ensure that it was a more positive experience. I wish you all the best in your future legal endeavors and in life."

I wonder if ChatGPT wrote this?

Sixth, the clerks found the letter "offensively vague."

The three former clerks who spoke to The Times said that they viewed the letter as offensively vague. One decided to share it with the chief judge of the 11th Circuit, believing it didn't comply with the committee's order.

I agree. The whistleblower clerk should appeal this matter to the Judicial Conference of the United States. The Chief Justice needs to confront this mess.

Seventh, the Times actually got members of the Atlanta bar to go on record.

Judge Timothy C. Batten, Judge Ross's former colleague in the U.S. District Court for the Northern District of Georgia, worried that her misconduct would affect how courts and judges were viewed by the public.

"I'm really sorry this happened and reflects poorly on the court," he said in an interview. Judge Batten retired last year as chief judge of the district court and said he had never gotten wind of Judge Ross's misconduct.

Now, some in the Atlanta legal world wonder if Judge Ross's career will survive.

"I don't know where you go from here," said Don Samuel, a criminal defense lawyer in Atlanta who has long known, and respected, Judge Ross.

"There's so much snickering going on by everybody that I can't imagine what it will be like to be on the bench and wonder what everybody's thinking," he said.

I hope this reporting jumpstarts impeachment talk.

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The National Constitution Center's annual Supreme Court Review event is being held on July 7 in Philadelphia. I wanted to highlight it here, because three different regular Volokh Conspiracy bloggers will be among the speakers: Jonathan Adler, Keith Whittington, and myself. There are lots of other speakers - many of them highly prominent - as well. Loyal VC readers will surely want to attend, or at least watch online!

Additional information and free registration available here. You can watch either online or in person.

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Gordon's two biggest contributions were (1) in expanding our understanding of the American Revolution by defining it as a moment of radical political and societal transformation where an older world rooted in hereditary privilege was rejected in favor of republicanism and the equality of all human beings, and (2) in explaining how Americans came to put their faith in our written and amended Constitution. Gordon knew each of the Framers vividly, and he wrote about all of their lives. He described their virtues and vices with perfect precision. He was as institutionally honest an historian as one will ever find. He did not write hagiographies, but instead painted an accurate portrait of the great men he wrote about. He was as great an historian as Herodotus and Thucydides, which is high praise indeed.

Gordon was also a brave man—a public intellectual who was not afraid to challenge popular errors. He led the effort to denounce the New York Times' 1619 Project, which argued that the Framers were all about slavery and the triumph of racism. Gordon earned some heated criticism for his courageous stance against the DEI effort to paint the founders as racist villains. To Gordon, the abolition of slavery, women's right to vote, and the civil rights movement of the 1960's followed from the founding principles in the Declaration of Independence.

He was equally outspoken in criticizing Vice President J.D. Vance for arguing that Americans were defined by their bloodlines and not, as Gordon believed, by their devotion to the principles of the Declaration of Independence and of the Constitution. In a speech within the last year, and an op-ed in the Wall Street Journal, Gordon wrote that the United States has always been a creedal nation. He saw us all as from the start of our history as being defined by believing in the idea that all human beings are created equal and have an inalienable right to Life, Liberty, and the Pursuit of Happiness. We are Americans because we believe in that idea whether our ancestors were English, French, German, Italian, Irish, Polish, Jewish, or of African or Asian dissent. Gordon was just as adamant in denouncing nativism as he was in denouncing the 1619 Project. Gordon also never overstated or understated his case on any point or person of historical interest.

The four cardinal virtues identified by the Greeks and Romans are practical wisdom, justice, courage, and temperance. Gordon embodied all four of the cardinal virtues. He was firm, sharp, and decisive, but also a deeply humble, modest, and kind man who loved his neighbor as himself. When the meek inherit the earth, Gordon will inherit all the land east of the Mississippi River. I tried to persuade him to let me write a biography of him, and he adamantly refused. He wanted to be known as a great historian, not as a celebrity.

Although Gordon was an agnostic Episcopalian, he embodied the three Christian virtues identified by St. Thomas Aquinas: faith, hope, and love. He lived an exemplary life in every way, down to celebrating the 70th anniversary of his marriage to his wife Louise shortly before he died.

He was also one of my five best friends in the world because he was so much fun to talk to. He had an immense knowledge, having read and remembered more books and articles than anyone else I had ever known. He was cheerful and a wonderful colleague. During two semesters during which he taught at the Northwestern Pritzker School of Law, he every day ate lunch—a brown bag lunch he had made himself—in the faculty commons, engaging in countless conversations. When I moved to Rhode Island in 2007, I had lunch with him right away, and we became good friends immediately.  I will miss those conversations and treasure their memory for the rest of my life.

Gordon Wood was both the best scholar ever of the American Founding, and a wonderful and virtuous human being.

The post Remembering Gordon Wood appeared first on Reason.com.

On June 8, 2021, the State filed a complaint against Google out of a concern that Google prioritized the information it provided that best boosted its bottom line instead of providing the most useful and relevant information to the public…. [It] sought a declaration that Google was a … common carrier under Ohio common law….

The court concluded:

Google Search is not a common carrier under Ohio common law. It fails under either prong of our traditional test. While the Attorney General points to facts such as monopoly power and suggests a more robust judicial intervention is required, we decline to depart from our precedent. Among other reasons, the apparent preemption and free speech issues, together with the expressive character of search outputs under the Munn framework, counsel against departing from our traditional two-prong test.

This conclusion is consistent with the historical limits of the common carrier doctrine, the practical mismatch between traditional rate regulation and modern platform economics, and the judiciary's proper role in deferring complex policy choices involving speech and technology to the legislative branch….

The court began with a broad historical outline; an excerpt:

The common carrier doctrine is one of the oldest bodies of Anglo-American law. Its roots lie in medieval English "public callings" i.e., occupations whose very nature required service to all members of the public without discrimination. The first reported case involved a ferryman in 1348. By the seventeenth century, the obligation extended to innkeepers, farriers, and carriers….

In Munn v. Illinois (1876), the Supreme Court upheld an Illinois statute fixing maximum rates for grain storage in Chicago warehouses, holding that when private property is devoted to a use in which the public has an interest, the owner may be forced to submit to regulation. The Court rejected the argument that such regulation violated the Fourteenth Amendment's Due Process Clause, affirming the state's broad police power to regulate businesses "affected with a public interest." … "Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large." … "Common carriers exercise a sort of public office, and have duties to perform in which the public is interested." …

The Court went on to conclude that since every bushel of grain "pays a toll" that is a common charge, then it ought to be subject to public regulation that only a reasonable toll is to be extracted.  Although the legislature intervened rather than the judiciary, the Court found that to be without consequence; the doctrine applied the same….

Thus, after Munn, the doctrine had both established its constitutional blessing and had arguably expanded its reach, allowing for more legislative intervention. As this doctrine was applied in a myriad of contexts and to emerging technologies, the principle of non-discrimination emerged as a frequent judicial explanation for intervention; these courts usually held that common carriers must "serve the public without partiality and without unreasonable discrimination." But it is fair to say that legislation intervention has become more common.

As new technologies and market conditions emerged, the doctrine adapted, primarily through legislative action. Railroads prompted the Interstate Commerce Act of 1887; telegraph and telephone companies were regulated under the Mann-Elkins Act of 1910 and the Communications Act of 1934 (Title II). Consumer protection concerns, particularly the need to curb monopoly power and combination that drove rates to excessive levels, supplied an important justification for rate regulation.

It then laid out and applied the Ohio law of common carriers:

Ohio's common law definition of a common carrier is well-established. A common carrier is one who, as a regular business, undertakes for hire to transport persons or property from place to place and holds itself out to the public as ready and willing to serve all members of the public indifferently.

Two distinct elements must be satisfied: (1) the carrier element - actual transportation of the property (or persons) of others; and (2) the common element - holding out to serve the public indiscriminately….

[A.] Google Does Not "Transport" the Property of Others (The Carrier Prong)

Typically, when we are considering the carrier prong, we are asked to review the transportation of property or people. That is not the case here. As discussed in several of the cases cited above, a carrier handles the property akin to a bailment. It is simply moving it from one place to another. At its most general, the core concern of this prong is receiving the property of another and returning it unaltered after transporting it or transporting a person from one point to another.

Based on the facts before us, we conclude that Google does not transport the unaltered property of others. It affirmatively creates a new expressive product, the SRP, through discretionary crawling, indexing, ranking, filtering, and formatting. This is curation and synthesis, not carriage. The trial court correctly rejected the State's attempt to treat underlying "information" as the transported property. See Richards v. Google LLC (W.D.Va. 2026); Zhang v. Baidu.Com Inc. (S.D.N.Y. 2014).

The State's analogy to telephone service breaks down when one examines the actual flow of data. A user sends a query to Google; that query is a simple request consisting of the user's own words or terms. Even assuming arguendo that Google has some common law duty to transmit the incoming query fairly and unaltered, the State's complaint centers on the return leg - the SRP Google delivers back to the user.

That return data is not the user's property, nor is it third-party content transmitted unaltered. Google receives the query, consults its own proprietary indices, applies its own ranking algorithms, makes relevance and quality judgments, filters results, and assembles a new, curated response that did not previously exist in that form. The SRP is Google's own expressive product, not the user's or any third party's property being carried back unaltered. Traditional common carriers do not create the cargo they transport; they accept the shipper's or speaker's existing goods or message and deliver them substantially as received. Google does neither on the return leg. {Google fails the carrier prong on the undisputed facts.}

We acknowledge the test announced in Munn [as to legislative regulation] is plainly broader than how Ohio courts have looked at the question of judicially regulating a common carrier…. But here there is … [no] statute for us to consider …. Moreover, we observe that the Ninth Circuit questioned the application of the common carrier doctrine to Google Gmail, which appears to function more like a common carrier than Google's search function….

[B.] Google Does Not Hold Itself Out to Serve the Public Indifferently (The Common Prong)

Perhaps the most defining characteristic of common carrier status, in all its forms, has been the obligation to serve the public without unjust discrimination, or stated in the affirmative: to provide the service on indifferent terms. Historically, the primary remedy associated with this obligation was judicial or regulatory oversight to ensure that rates were reasonable, properly differentiated according to cost and competitive conditions, and free from unjust or arbitrary discrimination. We turn now to that consideration.

Google's pervasive presence in modern life is undeniable. For many Ohioans, Google Search is the de facto gateway to information. Even assuming for the sake of argument that Google's Terms of Service would not, by themselves, justify refusing certain user inputs (queries), the Attorney General's concern lies primarily with outputs - the ranking, presentation, and curation of search results.

At this point the common carrier doctrine encounters a fundamental mismatch. Traditional common carrier regulation centers on the relationship between price and service. Courts and regulators assess whether rates are just and reasonable.

Google, however, provides its core search service to users at no direct charge. Its revenue comes overwhelmingly from advertising, not from the users whose results the State seeks to regulate. There is no traditional "rate" for the court to review or adjust. Scholarship in this area often concludes classic common carrier rate regulation is poorly suited to two-sided, zero-price-to-user, innovation-driven markets; any nondiscrimination obligation imposed here would necessarily target the content and ordering of outputs rather than prices, raising a distinct and more constitutionally sensitive set of issues.

Thus, even if one were to accept the State's position that Google qualifies as a common carrier, fashioning an appropriate remedy would take this Court far outside the traditional judicial role in common carrier cases. The common law of common carriers does not supply a ready template for regulating the editorial output of a free service whose business model does not depend on user payments. The trial court concluded correctly that Google does not hold itself out to serve the public indifferently in the sense required by the common carrier doctrine.

[C.] Ubiquity, Monopoly Power, and the "Affected with a Public Interest" Doctrine

The State argues that Google's search engine has become so ubiquitous and central to modern life that its business is "affected with a public interest" in the sense articulated by Lord Chief Justice Hale and the Supreme Court in Munn. There is no question that Google Search exerts enormous influence over the flow of information. Consumer protection and monopoly concerns have historically justified regulation of true common carriers.

However, the "affected with a public interest" principle supplies a constitutional justification for legislation and regulation; it does not dispense with the common carrier doctrine's two core requirements for judicial intervention….

The essence of the judiciary is to resolve disputes between the parties and not to engage in extensive, top-level policy making that the legislative branch is better equipped to handle…. [U]biquity and market share do not justify novel judicial intervention here. Munn supplied a constitutional justification for legislative intervention in a natural-monopoly setting; it did not authorize courts to judicially impose common carrier status on new technologies whose core function is editorial curation rather than neutral transport….

The court also suggested that any common carrier finding might be federally preempted, because "Congress and the FCC have long distinguished 'information services' (a category that includes search engines) from traditional telecommunications services subject to common carrier regulation." And it noted that any common carrier conclusion might violate the First Amendment:

[T]he core concern underlying this litigation is the regulation of Google's editorial judgments in curating, ranking, and presenting information. This is, at bottom, an attempt to regulate speech.

We do not discount the legitimate policy concerns that animate the State's position. Google's dominant market position gives it outsized influence over the modern public square. Congressional investigations and disclosures regarding government-platform communications have raised serious questions about content moderation practices, viewpoint discrimination, and the influence of dominant technology platforms. These issues may indeed support a compelling governmental interest in narrowly tailored legislation designed to promote transparency or address demonstrable harms.

But the ancient common carrier doctrine is not the proper vehicle for addressing these concerns. Imposing common carrier obligations on Google's search functions would necessarily compel the company to carry, rank, or display speech it would otherwise choose to de-emphasize or exclude — precisely the type of editorial discretion the First Amendment protects when exercised by private entities compiling and presenting third-party speech…

Extending common carrier status here would not avoid First Amendment scrutiny; it would trigger it. Because Google's search results are its own expressive product rather than neutral carriage, the common carrier doctrine does not fit this business model. Any broader regulatory response belongs to the legislative branch….

Michael R. Gladman, Justin E. Herdman, Molly M. Dengler, John E. Schmidtlein, Kenneth C. Smurzynski, and Gloria K. Maier represent Google.

Note that Don Falk and I argued in a 2012 paper commissioned by Google that Google indeed has a First Amendment right to pick and choose what goes in search results; that article was cited in Zhang v. Baidu.com, which the Ohio court cited in turn.

The post Google Isn't a Common Carrier, Ohio Court of Appeals Rules appeared first on Reason.com.

I'm delighted to pass along this item from Prof. Broyde, who teaches legal ethics at Emory and who has written about judicial ethics in particular:

A federal judge does not lose life tenure merely by becoming embarrassing. Nor should Congress threaten judges because it dislikes their opinions, their interpretive methods, or their politics. Judicial independence is one of the central achievements of the Constitution.

But independence is not impunity. The Constitution does not say that federal judges hold office for life no matter what they do. It says they "shall hold their Offices during good Behaviour." That phrase is not an ornament. It is the condition attached to the extraordinary protection of life tenure.

The recent Eleventh Circuit judicial misconduct matter shows why that condition still matters. According to the judicial misconduct materials, an unnamed district judge engaged in an extramarital relationship with a high-ranking law-enforcement officer, including sexual activity in chambers during business hours and within hearing distance of court staff.

The judge initially denied the relationship to judicial investigators, later admitted it, created a deeply uncomfortable workplace, and generated serious concerns about conflicts of interest and vulnerability to blackmail. The judge also attended a partisan political event.

The sanction was a private reprimand, apology letters to former law clerks, and commitments not to seek certain leadership roles. News organizations have identified the unnamed judge as U.S. District Court Judge Eleanor Ross of the Northern District of Georgia. Resolutions of impeachment were introduced by two Georgia Members of Congress.

That identification, and the resulting calls for impeachment, should not obscure the underlying constitutional issue. Some commentators have treated the case mainly as a question of criminal law: whether the judge's initial denials constituted a federal false-statement offense, or whether the misconduct fits neatly within the familiar impeachment phrase "high Crimes and Misdemeanors." Those questions are not trivial. But they are too narrow.

The deeper question is whether a judge who uses chambers this way has continued to satisfy the constitutional condition on which judicial tenure rests for good behavior. I do not think so.

Article II and Article III speak in different but related registers. Article II Section 4 identifies the grounds on which civil officers may be impeached and removed: "Treason, Bribery, or other high Crimes and Misdemeanors." Article III Section 1 explains why federal judges receive their special tenure protection: they serve during "good Behaviour." Article II supplies the constitutional grounds for impeachment and removal; Article I supplies the House-and-Senate mechanism. Article III supplies the tenure condition: good behavior. Federal judges are not simply employees who may be disciplined only when they commit crimes. They occupy constitutional offices premised on public trust, impartiality, restraint, and self-command.

To say this is not to create a shortcut around impeachment. Congress may not evade the Constitution's impeachment process by inventing an administrative process to remove judges outside the Constitution. Removal still requires impeachment by the House and conviction by the Senate. But it does not follow that Congress may act only when a judge has committed an indictable offense. The constitutional question for judges includes fitness for the judicial office, and "good Behaviour" has to mean more than "not yet convicted of a crime."

Nor is the point prudery. Judges have private lives, and not every personal failing is a constitutional matter. The problem here is the connection between private misconduct and public office. Judicial chambers are not private bedrooms. Law clerks and court staff are not unwilling witnesses to a judge's private life. Chambers are part of the federal workplace and part of the machinery of justice. The people who work there are entitled to professional boundaries, dignity, and a judge who does not make the workplace serve the judge's personal desires.

That is why candor alone would not cure the problem. Imagine a judge announcing that chambers would be unavailable during lunch because the judge was conducting an extramarital affair there with a police commander. The announcement would be honest and would avoid any problem of false statement. It would also be intolerable. The misconduct is not merely the lie to the Chief Judges. It is the use of judicial space, judicial time, and judicial authority in a way incompatible with the office.

The conflict concern is equally serious. A secret relationship between a federal judge and a senior law-enforcement officer in the same community is not a harmless private indiscretion. Federal courts hear criminal cases, civil-rights actions, suppression motions, warrant challenges, police-witness credibility questions, and cases involving government agencies. The judicial materials may not establish that the judge actually ruled in a case involving that officer or that officer's department. But the public should not have to rely on luck to preserve the appearance of impartial justice. A judge has an obligation to avoid not only actual conflicts, but also circumstances that reasonably call the court's neutrality into question.

The judiciary's response exposes the limits of self-policing and as Gabe Roth of Fix the Court observed is "underwhelming" and "looks more like judges protecting their own than serious remediation or punishment." A private reprimand may be appropriate for ordinary misconduct. It is inadequate for conduct that used chambers for sexual activity, compromised staff, misled a misconduct inquiry, created conflict-of-interest risks, and damaged public confidence in the courts—conduct that is clearly not "good behavior." The judiciary can admonish, discipline, and—as it sought to do in this case—conceal the violator's identity. But only Congress can decide whether misconduct this grave warrants removal from a life-tenured office.

That congressional role must be exercised with great caution. The failed impeachment of Justice Samuel Chase remains an essential warning. Judges must not face removal because legislators dislike their rulings. "Good Behaviour" cannot become a partisan trapdoor through which Congress threatens judicial independence whenever the political branches are angry at the courts.

But this case is not Chase. It is not about a controversial opinion, statutory interpretation, constitutional methodology, or ideological disagreement. It is about personal misconduct in chambers, treatment of court staff, dishonesty in a judicial misconduct inquiry, attendance at a partisan event, and the misuse of the judicial workplace. If Congress cannot even consider impeachment in a case like this, then the phrase "good Behaviour" has been drained of most of its practical meaning.

The House should therefore do what the judiciary has not done publicly. The House should open an expedited impeachment inquiry, first confirming whether the judge described in the misconduct orders is Judge Ross, and then deciding whether articles of impeachment are warranted. No facts need to determined other than confirming the identity of the judge. It need not reinvestigate the facts, since they were already determined in a Judicial Council order. Articles of impeachment should be framed carefully, not sensationally, and they should focus on the good behavior standard. The conduct recited in this case certainly seems to be grounds for impeachment in the House.

The Senate, which must hold a trial, should then decide whether the conduct justifies conviction and removal. That decision should be sober, institutional, and constitutional. It should not be a partisan spectacle. It should ask whether life tenure can survive as a public trust if the good-behavior condition is treated as a dead letter.

Life tenure is one of the Constitution's greatest protections for the rule of law. It enables judges to decide cases without fearing presidents, senators, mobs, donors, or editorial pages. But the price of that independence is conduct worthy of confidence. A judicial robe is not a nightgown and chambers are not bedrooms. And "good Behaviour" is not an empty phrase.

When a federal judge stops behaving well in the performance and setting of judicial office, Congress should be willing to say so.

The post Prof. Michael Broyde (Emory) on "When Judges Stop Behaving Well" appeared first on Reason.com.

From today's opinion by Magistrate Judge Enjoliqué A. Lett (S.D. Fla.) in Trump v. BBC:

On December 15, 2025, Plaintiff initiated this action, and the Clerk of Court assigned the matter to Judge Roy K. Altman stating, "U.S. Magistrate Judge Enjolique A. Lett is available to handle any or all proceedings in this case." Shortly thereafter, on January 12, 2026, the parties voluntarily elected to have the Undersigned preside over discovery matters in this action. On February 11, 2026, Judge Altman referred this case to the Undersigned for all pretrial non-dispositive and discovery matters….

Plaintiff now seeks—over 160 days after the Undersigned's involvement in this case—the Undersigned's recusal, on the eve of the Undersigned setting a discovery hearing. Specifically, Plaintiff asserts the Undersigned's prior representation of Orbis Business Intelligence, Ltd. in Trump v Clinton (S.D. Fla. filed March 24, 2022), warrants recusal and a stay of discovery….

Under the catch-all provision of the federal recusal statute on which Plaintiff relies, "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." "[W]hat matters under § 455(a) 'is not the reality of bias or prejudice but its appearance.'" "This inquiry is an objective one, made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances." …

As an initial matter, Plaintiff's failure to raise the issue of recusal at the first available opportunity constitutes a waiver. Plaintiff failed to move for recusal from the outset of this action and has only done so when a disputed discovery issue arose. Plaintiff's counsel suggests that this delay was because "[he] was not Plaintiff's counsel in the Adverse Matter, and was not immediately aware of Magistrate Judge Lett's participation in that litigation." However, Plaintiff's counsel did appear on behalf of President Trump, the plaintiff/appellant in the "Adverse Matter," during the appellate phase of the "Adverse Matter." The Undersigned represented Orbis Business Intelligence Ltd. in those proceedings…. Since, as appellate counsel, Plaintiff's counsel would have been familiar with the underlying proceeding and the appellate docket, counsel knew or should have known of the Undersigned's prior representation of Orbis Business Intelligence,

Even assuming there was not a waiver, the Motion nonetheless fails. The Undersigned's past representation of an unrelated, non-party in this action does not, without more, constitute a circumstance where, objectively, the Undersigned's impartiality might reasonably be questioned. See Rice v. Chief Exam'r of Ala. Dept. of Exam'rs of Pub. Accts. (11th Cir. 2025) (affirming district court's denial of recusal motion because a judge's "former representation of [the defendant] had nothing to do with th[e] [current] action"); see also U.S. v. Page (11th Cir. 2025) (affirming district court's denial of recusal motion because the judge's prior representation of a party related to the current action was unrelated to the current case); Chitimacha Tribe of Louisiana v. Harry L. Law Co., Inc. (5th Cir. 1982) (stating "the fact that [the judge] once represented [a defendant] in unrelated matters does not forever prevent him from sitting in a case in which [the former client] is a party")….

Plaintiff fails to cite a single case where recusal was required pursuant to 28 U.S.C. § 455(a) where the jurist, while in private practice, represented an adverse party….

Trump v. Clinton—an alleged RICO action—was dismissed at the pleadings stage, and the dismissal was upheld. And since Trump v. Clinton never progressed to discovery, any discovery issues raised by the parties in this case—a defamation action—would not have been issues argued by the Undersigned in the "Adverse Matter."

In short, simply representing a party who was once adverse to a party currently before the court does not "objectively speaking, [make] 'the probability of actual bias on the part of the judge or decisionmaker [] too high to be constitutionally tolerable.'"

The post Magistrate Judge Declines to Recuse Herself in <i>Trump v. BBC</i> Libel Lawsuit appeared first on Reason.com.

Plaintiff John Doe—an accountant facing disciplinary proceedings before the Public Company Accounting Oversight Board—brought suit in district court, raising wide-ranging challenges to the Board's structure and operations. As part of that action, Doe sought leave to proceed under a pseudonym. The district court denied the motion. We affirm….

Doe asserts a privacy interest in the fact that he is the subject of a Board disciplinary proceeding because disclosure of that fact would harm his professional reputation by "brand[ing] him an outlier—'damaged goods'—among accounting professionals." Doe's privacy concerns are different in kind from those that "traditionally warrant pseudonymity," which typically involve " 'intimate issues such as sexual activities, reproductive rights, bodily autonomy, medical concerns, or the identity of abused minors.'" …

[And, a]s the district court explained, Doe relied only on general statements about the potential harms of public charges, and he did not submit any declarations to support those claims. The district court's approach is consistent with our precedents, which underscore that movants must make a "colorable showing of injury to a privacy interest" by offering something "concrete to establish that revealing [their] identity would cause" some "cognizable harm." That showing could take the form, for instance, of a declaration explaining the "substantial risk" that a "privacy injury" "would occur." The district court reasonably concluded that Doe's motion was insufficient on this front, as Doe "merely asserted" he would suffer a privacy injury without "specifically explain[ing] why harm was likely to result." …

[Courts should also] "look[] to the identity of the opposing party"—whether the defendant is a private or governmental actor—"as a tool for measuring the public interest in transparent litigation." Both sides agree that the Board should be considered a governmental actor for purposes of the pseudonymity analysis, and the district court in turn found this factor to cut against Doe because the presence of a governmental defendant "favor[s] pseudonymity only when plaintiffs request individualized relief." Doe contends that he seeks only "modest, individualized, and self-protective relief" because he requests an injunction preventing the Board from proceeding against him.

The district court correctly explained, however, that Doe's arguments would clearly apply beyond this case: Doe raises sweeping challenges to the Board's operations and existence that are "not grounded in his specific circumstances." … [P]seudonymity is less likely to be appropriate where "the party asking to proceed anonymously seeks to alter the operation of public law both as applied to it and, by virtue of the legal arguments presented, to other parties going forward." …

{Doe argues that pseudonymity is proper because disclosure of his identity could "chill or discourage people from exercising their core First Amendment rights" to challenge government actions in court. The district court reasonably rejected that argument, as it would "make just about any plaintiff entitled to pseudonym status." We have similarly not been swayed by suggestions that the fourth factor should favor pseudonymity where disclosure could "chill litigants from suing the government for constitutional violations."} …

Next, Doe argues that the district court erred in declining to weigh his likelihood of success on the merits in the pseudonymity analysis…. [But o]ur published opinions on the subject have never suggested that merits questions are relevant to the pseudonymity issue. Privacy concerns—not the underlying merits—drive the pseudonymity analysis, and requiring courts to delve into the merits to resolve a pseudonymity motion would be exceedingly burdensome….

Finally, Doe points to provisions of the Board's organic statute that, in his view, guarantee the confidentiality of Board investigations and disciplinary proceedings. On Doe's theory, those provisions "weigh heavily in favor" of pseudonymity because they reflect a congressional judgment that the subjects of Board adjudications face "irreparable reputational and career damage" if their identities are publicly disclosed. See Doe v. MIT (1st Cir. 2022) (observing that pseudonymity is "ordinarily" appropriate in "suits that are bound up with a prior proceeding made confidential by law").

Several provisions of 15 U.S.C. § 7215—which governs Board investigations and adjudications—address confidentiality. Section 7215(c)(2) provides that "[h]earings under this section shall not be public, unless otherwise ordered by the Board for good cause shown, with the consent of the parties to such hearing." Section 7215(b)(5)(A) further directs that

all documents and information prepared or received by or specifically for the Board, and deliberations of the Board and its employees and agents, in connection with … an investigation under this section, shall be confidential and privileged as an evidentiary matter (and shall not be subject to civil discovery or other legal process) in any proceeding in any Federal or State court or administrative agency, and shall be exempt from disclosure, in the hands of an agency or establishment of the Federal Government, under [FOIA], or otherwise, unless and until presented in connection with a public proceeding or released in accordance with subsection (c).

Last, Section 7215(d)(1) explains that if the Board "imposes a disciplinary sanction," it "shall report the sanction to" "the public." {If the target of a Board proceeding seeks SEC review, the sanction is automatically stayed, so there is no public disclosure of the sanction unless and until the SEC affirms the Board's decision.}

We conclude, however, that these provisions do not cover the identities of subjects of Board proceedings but instead the documents and information generated in the Board's investigations and the contents of Board hearings. As noted, Section 7215(c)(2) makes Board "[h]earings" presumptively confidential, while Section 7215(b)(5)(A) extends confidentiality protections to certain "documents and information." It is hardly natural to regard a person's name and the fact of a Board proceeding against him as "documents and information prepared or received by or specifically for the Board." And although in the abstract a name might fall within the "dictionary definition" of "information," "the context"—Section 7215(b)(5)(A)'s focus on information "prepared or received by" the Board "in connection with … an investigation"—"tugs strongly in favor of a narrower reading."

The title of Section 7215(b)(5)—"Use of documents"—also fits that narrower reading. And our conclusion is reinforced by the contrast between Section 7215(b)(5)(A) and other statutory confidentiality protections—such as those in the SEC whistleblower scheme, which Doe suggests is analogous—that explicitly refer to protecting individual identities. See 15 U.S.C. § 78u-6(h)(2)(A) (providing that "the Commission shall not disclose any information … which could reasonably be expected to reveal the identity of a whistleblower"). The text and context of Section 7215 thus demonstrate that parties like Doe do not enjoy a statutory right to pseudonymity….

Jeffrey A. Lamken and Robert K. Kry (MoloLamken LLP) and Donald B. Verrilli, Jr., Elaine J. Goldenberg, Ginger D. Anders, and Rachel G. Miller-Ziegler (Munger, Tolles & Olson LLP) represent PCAOB.

The post No Pseudonymity for Accountant Challenging Public Company Accounting Oversight Board Disciplinary Proceedings appeared first on Reason.com.

Today, Lawfare published my article "Callais Doesn't Justify Court-Packing." Here is an excerpt summarizing key points:

The Supreme Court's recent decision in Louisiana v. Callais—barring nearly all use of the Voting Rights Act (VRA) to create majority-minority congressional districts—has been met with outrage by many on the political left and led to renewed calls for court-packing. For example Rep. Ro Khanna (D-Calif.) has said that "[w]e need to expand this morally bankrupt court from nine to 13." House Minority Leader Hakeem Jeffries (D-N.Y.) has said that "everything should be on the table," presumably including court-packing. Former vice president and 2024 Democratic presidential nominee Kamala Harris has expressed similar sentiments. A number of other Democrats advanced court-packing plans even before Callais.

The Callais decision has some flaws. And the conservative majority on the Supreme Court has made some serious errors in other cases, such as the Trump presidential immunity decision. But court-packing remains a dangerous idea that Americans across the political spectrum should reject. Callais is not without merit, and—at the very least—not as bad as its most strident critics claim. More generally, the Supreme Court is far from being a pure "MAGA" Court and has, in fact, constrained the Trump administration's abuses on several important fronts, and has allowed lower courts to constrain it elsewhere. Court-packing would create a slippery slope to the destruction of judicial review, thereby benefiting power-grabbing presidents like Trump, and imperiling constitutional rights, particularly those of minority groups. To the extent Callais is a problem, it can be better addressed by steps such as banning gerrymandering. There are also better remedies for various other shortcomings of the Court, such as enacting term limits and imposing an ethics code.

The rest of the article covers these issues in greater detail.

By coincidence, this is my second popular media article this week that is likely to annoy the left more than the right (along with yesterday's Washington Post article critiquing NYC Mayor Zohran Mamdani's badly flawed and unconstitutional housing policy). I'm sure I will get back to the business of annoying the right soon enough!

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Representative Kamlager-Dove … is … the Ranking Member of the South and Central Asia Subcommittee of the House Foreign Affairs Committee …. The Subcommittee held a hearing on April 1, 2025, titled "Censorship Industrial Complex: The Need for First Amendment Safeguards at the State Department" …. Taibbi was invited to testify at the Hearing. At the start of the Hearing, Representative Kamlager-Dove delivered her prepared remarks, which included the following statements:

Thank you, Mr. Chair, and thank you for being here for our first South and Central Asia Subcommittee hearing. I look forward to working with the Chair in a bipartisan way on the critical issues we are charged with overseeing.

Unfortunately, we're not having a hearing about any of those. Instead, this Subcommittee is wasting taxpayer time and resources on the fifth such hearing Republicans have held across multiple committees on the so-called "censorship-industrial complex."

The majority is relitigating a made-up conspiracy theory about a part of the State Department that no longer exists to distract from the dumpster fire foreign policy this Administration is pursuing—and elevating a serial sexual harasser as their star witness in the process.

The same day of the Hearing, Representative Kamlager-Dove reposted a video of the Statements on two social media platforms: X (formerly Twitter) and BlueSky. Both posts contained the same statement: "After this, Republicans gave Matt Taibbi time to defend himself. It's telling that he didn't." … Representative Kamlager-Dove also posted the Statements on her official House.gov website….

Taibbi alleges that the "serial sexual harasser" comment by Representative Kamlager-Dove was directed at him and that it is "demonstrably false" and "made with actual malice." Taibbi claims that the republications of the Statements—the X, BlueSky, and Website Posts—were defamatory ….

Members of Congress, like other employees, are covered by the Westfall Act, under which, if "the defendant qualifies as an 'employee of the government,' and the Attorney General certifies that the employee 'was acting within the scope of his office or employment,'" the U.S. government is substituted as defendant for the employee. And though the AG's certification is reviewable, here the court agreed that "Representative Kamlager-Dove's statements were within the scope of her employment." Some excerpts:

Here, Taibbi challenges Representative Kamlager-Dove's statements "made during a congressional hearing in Washington, D.C." which allegedly "became actionable defamatory statements" when they were "republished … on social media sites." Taibbi argues that "crowing to voters, and self-aggrandizement to voters on X and Bluesky is not official congressional work but partisan communication." Taibbi claims the Statements were republished to "bolster [Representative Kamlager-Dove's] political standing."

Representative Kamlager-Dove's Statements and republications, however, are precisely the kind of conduct that is "a central part of the job for members of Congress." Indeed, a "primary obligation of a [m]ember of Congress in a representative democracy is to serve and respond to his or her constituents." As the Ranking Member of the Subcommittee holding the Hearing, Representative Kamlager-Dove's remarks mentioned "taxpayer time and resources" and "foreign policy"—topics that are important to members of Congress and that are top-of-mind for their constituents.

Republishing the statements online does not change the analysis. Taibbi claims that the "republications on X, BlueSky, and [Representative Kamlager-Dove's] website were not legislative work, [and] occurred outside the legislative setting." But members of Congress routinely engage with the public on social media and on the internet as part of their jobs. As Taibbi concedes, Representative Kamlager-Dove was simply "talking to voters on Twitter." …

As a member of Congress, Representative Kamlager-Dove has a "proper duty" to "look diligently into every affair of government and to talk much about what [she] sees." And she did so at the Hearing. In addition to the allegedly defamatory statement, Representative Kamlager-Dove discussed taxes, foreign policy, and immigration policy. She explicitly stated political disagreement with the opposing party in her social media posts, writing: "Republicans gave Matt Taibbi time to defend himself. It's telling that he didn't." Political statements by members of Congress—such as Representative Kamlager-Dove's here—are made within their scope of employment.

Representative Kamlager-Dove's statements "were calculated to serve the interests of [her] constituents (i.e., employers) by informing them of [her] views regarding" certain issues, laws, and policies. Put simply, Representative Kamlager-Dove's statements were "out of an interest in serving the public [and her constituents]—even if [s]he was partially motivated" by other political reasons.

So the U.S. government was properly substituted for Rep. Kamlager-Dove—and that doomed Taibbi's defamation claim, because the Federal Tort Claims Act, under which the U.S. government waived its sovereign immunity as to many tort claims, "expressly excludes defamation claims from the federal government's immunity waiver." So because of the Westfall Act, Taibbi loses against Rep. Kamlager-Dove; and because of the FTCA exclusion of defamation claims, he loses against the federal government.

Note that the Speech or Debate Clause bars defamation lawsuits over statements made in Congressional hearings or related official proceedings. It by itself doesn't cover members' republication of those statements on social media.

Stephen Terrell of the DoJ Civil Division represents defendant.

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Defendants Gray Local Media, Inc. and Gray Media, Inc., (together, "WBTV") accurately reported on Dr. Sunar's arrest and then, at the request (and with the approval) of his lawyer, on the dismissal and expungement. WBTV declined, however, to delete its reporting, preserving the historical record.

Claiming that he has been defamed by WBTV's coverage, Dr. Sunar filed this action seeking tens of millions of dollars in damages and removal of the WBTV articles from its archives…. While Dr. Sunar's desire to undo the past is understandable, his legal claims against WBTV fail … because the articles are indisputably truthful and well within the long-established privilege of the media to accurately report on criminal proceedings…..

On September 11, 2024, Dr. Sunar, who has been practicing dentistry in Charlotte since 2002, was arrested and charged with misdemeanor child abuse and communicating threats. The next day, WBTV published an article to its website regarding the arrest titled "Charlotte dentist charged with child abuse, records show." In relevant part, the text of the article read:

A Charlotte dentist is facing child abuse charges after he was arrested last week, court records show. Jail records revealed 61-year-old Ramesh Kumar Sunar was arrested on Tuesday, Sept. 10, and was charged with misdemeanor child abuse and communicating threats. An arrest warrant said Sunar 'inflicted physical injury' on a child younger than 16 years old. The injury allegedly caused bruising on the child's torso and neck, and was not caused by 'accidental means.' The warrant further stated that Sunar told a man 'he would beat the [expletive] out of him.' According to the warrant, both incidents happened on Sept. 2…. Sunar is listed as the lead doctor on Charlotte Dental Implant Center's website.

WBTV also aired a broadcast about the arrest, which included similar information and Dr. Sunar's mugshot. Dr. Sunar's mugshot was also posted on WBTV's social media pages alongside a link to the First Report. Dr. Sunar acknowledges that the First Report was accurate at the time of publication.

Over a year later, in October 2025, Dr. Sunar's attorney notified WBTV that the charges had been dismissed and expunged from Sunar's record. Counsel requested that either a) the First Report be removed or b) that an addendum be posted disclosing the dismissal and expungement of the charges. WBTV responded that it could "offer [Dr. Sunar] a new article that states the outcome of the case," but that they would not remove or otherwise alter the original post due to its accuracy. Dr. Sunar's attorney's response to WBTV's offer was "Yes please."

On November 11, 2025, WBTV published the requested second article with the title "Charges dropped against Charlotte dentist accused of child abuse in 2024," and the subheading "Charges expunged in October 2025, officials confirm." The Second Report summarized Dr. Sunar's charges and confirmed that the charges had "been expunged on Oct. 10, 2025," explaining that the expungement of Dr. Sunar's charges meant he "was cleared of the charges, and they were dropped from his public record entirely." WBTV provided Dr. Sunar's attorney with a link to the Second Report. Dr. Sunar's attorney replied, "Thank you!"

Nonetheless, the following month Sunar sued for defamation and related claims. The court held that any claims arising from the First Report and related social media posts were barred by North Carolina's one-year statute of limitations in defamation claims. As to the Second Report, the court held,

Dr. Sunar does not contend, nor could he, that any statement in the Second Report is inaccurate. Moreover, the substance of the report is not even defamatory, stating that Dr. Sunar had been cleared of the charges against him and his public record expunged. And finally, the Second Report was prepared at the request of Dr. Sunar's attorney, who responded positively to its publication. In other words, Dr. Sunar seeks to recover on a defamation claim for a truthful publication put out at his request. The law cannot support such a result.

{Also, the media's fair report privilege would support dismissal of Dr. Sunar's defamation claim. The privilege flows from "the absolute privilege which attaches to statements made in the due course of a judicial proceeding." Thus, with respect to reporting on Court proceedings, "[p]laintiff must prove by the greater weight of the evidence that the statement was materially false. If a statement is substantially true, it is not materially false. It is not required that the statement was literally true in every respect. Slight inaccuracies of expression are immaterial provided that the statement was substantially true." Again, here there is no claim of falsity.}

The post "Desire to Undo the Past" Can't Justify Libel Claim Over "Indisputably Truthful" Articles About Criminal Charges + Expungement appeared first on Reason.com.

In 2009, the Supreme Court decided Ricci v. DeStefano. The Justices reversed Judge Sonia Sotomayor's indefensible ruling against the Frank Ricci and the other firefighters. But the Court stopped short of deciding whether New Haven's attempt to avoid liability for disparate impact violated the Equal Protection Clause. Justice Scalia concurred to explain the Court was merely postponing the inevitable question:

But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.

Nearly two decades later,  with a very different Supreme Court, this question is now primed for resolution.

Today the Office of Legal Counsel issued an opinion finding that the EEOC's Title VII guidelines are unconstitutional.

EEOC's existing interpretations, including the Uniform Guidelines on Employee Selection Procedures ("Guidelines"), embrace an unconstitutional reading of Title VII. Rather than treating disparate impact as an evidentiary mechanism to smoke out intentional discrimination—imposing liability only when disproportionate adverse effects give rise to a strong inference of intentional discrimination—EEOC's historic interpretations contemplate liability based on disproportionately adverse effects alone, without regard to an employer's likely intent. Because EEOC's historic approach divorces liability from circumstances giving rise to a strong inference that intentional discrimination occurred, it functions as a qualified racial-proportionality mandate and spurs employers to engage in race-based decisionmaking to avoid liability. That approach is unlawful and unconstitutional.

The opinion relies on Allen v. Milligan, which declared for the first time that our Constitution is "color-blind."

Three corrections to that approach are necessary "to resolve the ten-sion between [disparate-impact] claims under [Title VII] and our color-blind Constitution." Allen v. Milligan, No. 25A1314, 2026 WL 1552756, at *1 (U.S. June 2, 2026) (per curiam).

As I observed, this emergency docket opinion may become more significant than Callais, a theme that the Wall Street Journal picked up. Allen made clear that Callais applies to the Equal Protection context. Indeed, the Opinion links Callais back to the Justice Alito's TJ dissental.

Even facially race-neutral actions, when mo-tivated by the purpose of altering racial balance, constitute intentional discrimination against the members of the racial group who are balanced down. After all, "if race played a role in a decision made by a govern-ment actor," or at the behest of a government actor, then race discrimi-nation has occurred and "strict scrutiny applie[s]." Louisiana v. Callais, 146 S. Ct. 1131, 1146 (2026); see also Coal. for TJ v. Fairfax Cnty. Sch. Bd., 146 S. Ct. 541, 545 (2024) (Alito, J., dissenting from denial of certiorari).

This opinion is earth-shattering. The Department of Justice ruled that disparate-impact compels employers to engage in unconstitutional race discrimination.

Just as "the Federal Government is prohibited from discriminating on the basis of race," so too is it "prohibited from enacting laws mandating that third parties—e.g., employers, whether private, State, or munici-pal—discriminate on the basis of race," unless those laws survive strict scrutiny. Ricci, 557 U.S. at 594 (Scalia, J., concurring) (first citing Bol-ling, 347 U.S. at 500; and then citing Buchanan v. Warley, 245 U.S. 60, 78–82 (1917)). And just as it is unconstitutional for the federal govern-ment to "force[] States to engage in the very race-based discrimination that the Constitution forbids," Callais, 146 S. Ct. at 1142; see also Miller v. Johnson, 515 U.S. 900, 926–27 (1995), so too it is unconstitutional for the federal government to coerce employers to adopt employment policies or make employment decisions motivated by race. Disparate-impact liability does not just raise constitutional doubt in occasional cases; unless narrowly circumscribed, it structurally compels the very racial discrimination that the Constitution forbids.

In the same way that Callais "updated" Gingles, this opinion calls on the Court to "update" Griggs:

Reading Griggs in context and together with the Supreme Court's more recent precedent requires "updat[ing] the framework" for dispar-ate-impact liability "to ensure a constitutional reading and application of" Title VII. Callais, 146 S. Ct. at 1157, 1161 (updating the framework for claims under section 2 of the Voting Rights Act). As Justice Scalia suggested in Ricci, a properly tailored disparate-impact scheme might constitutionally operate as "an evidentiary tool" to "smoke out" practices that present a significant likelihood of intentional discrimination. 557 U.S. at 595 (Scalia, J., concurring); see also City of Rome v. United States, 446 U.S. 156, 177–78 (1980).

This is a similar approach to the one that the Supreme Court took in Callais, which held that section 2 of the Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437, "imposes liability only when the circum-stances give rise to a strong inference that intentional discrimination occurred." . . . Applying Griggs, Wards Cove, Inclusive Communities, and Callais, we identify three limiting principles on disparate-impact liability that prevent a constitutional collision under current Supreme Court prece-dent. We emphasize, as the Supreme Court has, that no single limiting principle is wholly sufficient; rather, each caveat is essential to avoid the conclusion

I suspect the EEOC will bring suit against firms that have made race-conscious decisions to avoid disparate impact suits (or more likely because they agree with separating people based on race). At that point, the constitutionality of disparate-impact is squarely teed up.

Kudos to Assistant Attorney General Elliot Gaiser and Deputy Assistant Attorney General Josh Craddock for putting forth this remarkable opinion. I also have to give credit to my Manhattan Institute colleague, Gail Heriot, who is cited throughout the opinion. Gail has been beating this sometimes-lonely drum for decades. And she has been right for decades.

The post Office of Legal Counsel Concludes That Disparate Impact Liability Under Title VII Is Unconstitutional appeared first on Reason.com.

The Washington Post just published my article "Build Homes, Don't Seize Them, Mayor Mamdani." Here is an excerpt:

"Block by Block," Zohran Mamdani's "sweeping blueprint" to reduce housing prices in New York City, comes with a dangerous promise. "When necessary," the mayor said on May 26, "we will take aggressive legal action to remove negligent owners and property managers" and transfer ownership to "responsible stewards." The problem: The proposal is an unconstitutional power grab that would exacerbate the city's housing crisis.

The Fifth Amendment's takings clause stipulates that the government may not take "private property" for public use without "just compensation." There is a long-standing debate over the extent to which regulations that constrain the use of property but don't seize it outright qualify as takings. Virtually all jurists and legal scholars, however, agree that outright confiscation does….

If the government could expropriate property at will, it could pursue widespread seizure from anyone using property in ways the party in power disapproves of, or for purposes of transferring it to cronies and favored constituencies. Such abuses are common in authoritarian states, which is one reason the founders inserted the clause into the Bill of Rights in 1791. James Madison and others supported it in part because of arbitrary confiscation by British authorities.

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From al Ghashiyah v. Oster, decided last Thursday by Wisconsin Court of Appeals Judges JoAnne Kloppenburg, Jennifer Nashold, and Chris Taylor:

Al Ghashiyah is the only brother of James C. Charles Casteel. Casteel died in October 2024. Thomas Oster, a longtime friend of Casteel, filed a petition for the formal administration of Casteel's estate and filed Casteel's will with the circuit court.

Casteel's will bequeaths the contents of his estate to certain friends and family members. The will does not bequeath any of Casteel's estate to al Ghashiyah. Al Ghashiyah filed a motion requesting that the court apply Islamic law to the administration of the estate. Al Ghashiyah asserted that, under Islamic law, Casteel's estate must be distributed among Casteel's surviving siblings, with any surviving male siblings receiving twice the share of any surviving female siblings.

At an evidentiary hearing on Oster's petition and al Ghashiyah's motion, al Ghashiyah confirmed that his motion was a request that the circuit court apply Islamic law instead of the laws of the State of Wisconsin, and instead of following Casteel's will. Al Ghashiyah testified that, with his brother's death, al Ghashiyah became the head of the Casteel family, and as head of the family, he has decided that Islamic law is the law that applies to the family.

Al Ghashiyah also testified that he and Casteel did not discuss whether or not Casteel's property should be distributed according to Islamic law, and that, to al Ghashiyah's knowledge, Casteel did not practice the Islamic faith. The court denied al Ghashiyah's motion requesting that the court apply Islamic law….

Al Ghashiyah … argues that the circuit court's denial of his motion to apply Islamic law is discriminatory and violates fundamental rights protected under the "Universal Declaration of Human Rights." … [A]l Ghashiyah does not develop this argument with citation to relevant legal authority that illustrates court error. Rather, al Ghashiyah asserts that "human rights principles are universally applicable" and cites to Presbyterian Church of Sudan v. Talisman Energy, Inc. (S.D.N.Y. 2003) in support of that assertion.

However, in that case, current and former residents of the Republic of Sudan brought suit alleging that an oil company in that country committed "gross human rights violations, including extrajudicial killing, forcible displacement, war crimes, confiscation and destruction of property, kidnapping, rape, and enslavement." Al Ghashiyah does not explain how the Presbyterian Church of Sudan case supports his argument that the court here violated al Ghashiyah's rights when it declined to apply Islamic law to the administration of the estate of Casteel, who the court found expressed no desire that Islamic law should apply.

In his reply brief, al Ghashiyah asserts that courts "routinely consider religious doctrine in … cases where relevant and voluntarily invoked by the parties." He also states that the U.S. Supreme Court has recognized the right of religious communities to arrange their affairs in accordance with their beliefs.

It may be true that in certain circumstances courts may apply and consider international or human rights law, and the rights of religious communities. However, al Ghashiyah does not develop an argument as to how his right to practice Islamic law is relevant to the administration of Casteel's estate, he does not assert any evidence that Casteel invoked Islamic law, and he does not explain his conclusion that the court should recognize the religious beliefs of al Ghashiyah in deciding Casteel's will.

Rather, al Ghashiyah's argument amounts to the conclusory assertion that, because he asked the court to follow Islamic law, it was discrimination and a human rights violation for the court to decline the request. We do not further address this argument as it is undeveloped….

The post "Al Ghashiyah Testified That … as Head of the Family, He Has Decided that Islamic Law Is the Law that Applies to the Family" appeared first on Reason.com.

In Withers v. City of Aberdeen, decided yesterday by Judge Sharion Aycock (N.D. Miss.), both sides had filed briefs containing citations to nonexistent cases; the briefs were drafted by out-of-state counsel, each of whom had local counsel (as the rules generally require). Withers was represented by Wilson with Ridgeway as local counsel; the City was represented by Williams with McClinton as local counsel. I focus here just on the sanctions imposed on local counsel:

Ridgeway is a Mississippi licensed attorney who works for Christian & Small, LLP. She sponsored Wilson's pro hac vice admission in this case and serves as local counsel for Withers. As noted, Ridgeway appears as a signatory to Withers' Opposition to Defendant City of Aberdeen's Motion for Summary Judgment [105], which contained two citations to nonexistent cases. Though she was not the drafter of that document, she admitted to failing to review and verify the accuracy of the legal authority cited therein. In other words, she did not check the cases after authorizing her signature on the filing.

At the hearing, Ridgeway explained that she was unaware of Wilson's AI use but did not attempt to excuse herself on that basis. She explained that she does not personally use AI and that her firm has a policy in place pertaining to AI use. In essence, Wilson would present Ridgeway with a copy of proposed filings drafted by Wilson, and the two would discuss the substance of the same. Despite this communication between the two, Ridgeway admitted to not reviewing the legal citations in those drafts before they were filed, including Withers' Response [105]. Ridgeway accepted responsibility for her role in the violation stemming from the fake cases cited in that filing as well as in others. {Following the show cause hearing, Ridgeway informed the Court that she had self-reported to the Mississippi Bar. The Court finds that this act demonstrates her acceptance of accountability.}

As briefly discussed above, Ridgeway conducted a thorough analysis of all filings submitted on behalf of Withers in this case after entry of the Court's show cause order. The Court appreciates her efforts in attempting to remediate the issue and her acceptance of responsibility but finds that those factors do not shield her from being sanctioned. In addition to admitting her violation of Rule 11, Ridgeway also conceded that her omissions violated this Court's Local Rules. Local Rule 83.1 provides in pertinent part:

Association and Duties of a Resident Attorney. No eligible non-resident attorney may appear pro hac vice unless and until a resident attorney has been associated. The resident attorney remains responsible to the client and responsible for the conduct of the proceeding before the court.

Certainly, resident attorneys are responsible for providing guidance and oversight of non-resident attorneys to ensure that they are complying with procedural and ethical rules. After all, resident attorneys are basically the gateway for out-of-state attorneys to have access to Mississippi's court system. The Court does not take a violation of that core duty lightly. At the same time, taking into account the specific circumstances of this case, it does not find that Ridgeway acted in bad faith. Her omissions were negligent and careless but not purposeful….

McClinton … was a signatory to the two filings submitted on behalf of the City, which contained hallucinatory citations. At the hearing, McClinton explained that he was not aware that the motions at issue were being filed but acknowledged that he had previously given Williams permission to affix his signature on prior filings without reading the documents. Though he was not provided the filings for his review prior to their filing, McClinton did not attempt to use that as an excuse and explained that it was not unreasonable for Williams to have done so based on their course of practice. In other words, he had impliedly given permission for her to do so.

McClinton also explained that only two attorneys practice at his law firm, that he does not use AI in his practice, and therefore does not have an AI policy in place. Much like Ridgeway, McClinton was unaware that his co-counsel, Williams, had used an AI research tool to conduct legal research in the case. McClinton also acknowledged that he should have reviewed the filings when he received the automatic notification of electronic filing and expressed his remorse for having failed to do so. Again, he does not contest his Rule 11 violation.

For the same reasons provided above concerning Ridgeway, the Court finds that he too violated his duties as a sponsoring resident attorney pursuant to this Court's Local Rules. Because he was not the drafter of the filings at issue and did not use AI in this case, the Court has no reason to believe that he acted in bad faith. Like Ridgeway, the Court finds that McClinton acted negligently and carelessly. However, he accepted responsibility for his role in the violation and, like Ridgeway, informed the Court that he had self-reported to the Mississippi Bar following the show cause hearing. The Court credits his candor and steps taken towards holding himself accountable.

In an era of rampant unverified AI usage within the legal field, this case presents a prime example of the risk associated with serving as a rubberstamp when acting as local counsel.

Local counsel were therefore disqualified from the case, ordered to pay $1000 each in fines, and referred to bar authorities. Wilson and Williams, the lawyers who drafted the filings, were fined $2500 and $3500 and otherwise disciplined as well.

The post Nonexistent Case Citations on Both Sides + "Rubberstamp[ing]" by "Local Counsel" appeared first on Reason.com.

Any party, counsel, or member of the public who may have obtained copies of ECF 3009-1 during the time that it was publicly available, including through ECF Court alerts that automatically generate PDF copies filed in the case, shall immediately delete and destroy them.

That, my friend and longtime Internet lawyer Megan Gray and I thought, was unconstitutional as to "member[s] of the public." So Megan and I asked the court for leave to file an amicus brief, on behalf of the Free Law Project (the CourtListener / RECAP people) and the First Amendment Coalition, urging the court to reject the proposed order. We argued that the proposal violates

1. Rule 65 of the Federal Rules of Civil Procedure, because "[a]n injunction … binds a non-party only if it … either abets the enjoined party in violating the injunction, or is legally identified with the enjoined party," CFPB v. Howard Law, P.C., 671 F. App'x 954, 955 (9th Cir. 2016) (cleaned up) (emphasis added), and Proposed Amici have no relationship with the original parties;
2. the Due Process Clause, under which restraints on Proposed Amici could not be imposed without "notice and opportunity for hearing appropriate to the nature of the case." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quotations omitted);
3. the First Amendment, because "[o]nce true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it," Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496 (1975), and this principle extends to public information sites such as Free Law Project as well as to advocacy groups such as the First Amendment Coalition;
4. 47 U.S.C. § 230, because CourtListener is an "interactive computer service" that cannot be ordered to remove material posted at the direction of a user (which is how court filings are hosted by Free Law Project).

We're glad to report that, shortly after we filed the proposed amicus brief, Meta said it would withdraw the sealing request, and with it the request for the public-must-delete-and-destroy-its-copies order. Here were the details of our argument:

[* * *]

[I.] The ECF 3048 Proposed Order Would Violate Rule 65

"Consistent with historical practice, a federal court exercising its equitable authority may enjoin named defendants from taking specified unlawful actions. But under traditional equitable principles, no court may 'lawfully enjoin the world at large' …." Whole Woman's Health v. Jackson, 595 U.S. 30, 44 (2021) (quoting Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832 (2d Cir. 1930) (L. Hand, J.)). Federal Rule of Civil Procedure Rule 65 applies this principle. Lynch v. Rank, 639 F. Supp. 69, 72 (N.D. Cal. 1985) (citing Rule 65 and Alemite). "The law is clear that a court may not enforce an injunction against a nonparty who acts independently of the enjoined party." Blockow­icz v. Williams, 630 F.3d 563, 568 (7th Cir. 2010) (cleaned up). "It is firmly established that 'a court may not enter an injunction against a person who has not been made a party to the case before it.'" LifeScan Scotland, Ltd. v. Shasta Technologies, LLC, No. 11-cv-04494-WHO, 2013 WL 4604746, at (N.D. Cal. Aug. 28, 2013) (citing Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 96 F.3d 1390, 1394 (Fed. Cir. 1996)).

Rule 65(d)(2) provides the only exceptions to this rule:

The order binds only the following who receive actual notice of it by personal service or otherwise:

(A) the parties;

(B) the parties' officers, agents, servants, employees, and attorneys; and

(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

An injunction thus binds a non-party only if it "either 'abets the enjoined party' in violating the injunction, or is 'legally identified' with the enjoined party." CFPB v. Howard Law, P.C., 671 F. App'x 954, 955 (9th Cir. 2016) (cleaned up) (citing NLRB v. Sequoia Dist. Council of Carpenters, AFL-CIO, 568 F.2d 628, 633 (9th Cir. 1997)). And "the fact that [a third party] is technologically capable of removing the postings does not render its failure to do so aiding and abetting." Blockowicz, 630 F.3d at 568.

Proposed amici have no relationship with any of the parties in this case (other than being users of defendants' products and services), nor any connection to the underlying litigation. Thus, under Rule 65, this Court may not order proposed amici as non-parties to delete or destroy any documents in their possession.

[II.] The ECF 3048 Proposed Order Would Violate the Due Process Clause

Nonparties to a lawsuit, who received "neither notice of, nor sufficient representation in" the proceedings, cannot be bound by the court's decision "as a matter of federal due process." Richards v. Jefferson County, Ala., 517 U.S. 793, 805 (1996). "Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010) (cleaned up). And the notice must be coupled with service of process: Actual notice "does not alone meet the formal requirements for obtaining personal jurisdiction" over someone whom a party seeks to bind to a court order. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 958 (4th Cir. 1999).

A federal court may not issue without "personal jurisdiction over the parties"; "it may not attempt to determine the rights of persons not before the court." Zepeda v. U.S. Immigr. & Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1983).

It is elementary that one is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process. The consistent constitutional rule has been that a court has no power to adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.

Zenith Radio Corp. v. Hazeltine Rsch., Inc., 395 U.S. 100, 110 (1969) (citations omitted). "Injunctive relief, by its very nature, can only be granted in an in personam action commenced by one party against another in accordance with established process. Consequently, a party cannot obtain injunctive relief against another without first obtaining in personam jurisdiction over that person or someone in legal privity with that person." R.M.S. Titanic, Inc., 171 F.3d at 957.

Due process principles are especially applicable to restrictions on speech. In Carroll v. President & Comm'rs of Princess Anne, the Supreme Court held that even a "10-day restraining order …, issued ex parte, without formal or informal notice to the petitioners or any effort to advise them of the proceeding, cannot be sustained." 393 U.S. 175, 181 (1968). Here, the ECF 3048 proposed order would require members of the public to permanently delete and destroy their copies of the relevant document, without their having been given notice and the opportunity to be heard, and thus would violate both the Due Process Clause and the First Amendment. And though proposed amici learned of this proposed injunction by happenstance and seek to proactively oppose it, the injunction would nonetheless violate the Due Process Clause as to all other third parties that it might cover.

[III.] The ECF 3048 Proposed Order Would Violate the First Amendment

The proposed order compelling members of the public to delete or destroy information they lawfully obtained from court records would result in an unconstitutional prior restraint on speech. "Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints." Alexander v. United States, 509 U.S. 544, 550 (1993). An order to delete or destroy court records that are lawfully obtained, which is inherently a "takedown order" for material that has been distributed or published, "is a classic prior restraint of speech." Garcia v. Google, Inc., 786 F.3d 733, 747 (9th Cir. 2015). A "prior re­straint on publication" is "one of the most extraordinary remedies known to our jurisprudence" and "the most serious and the least tolerable infringement on First Amendment rights." Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559, 562 (1976).

"Once the government has placed … information in the public domain, reliance must rest upon the judgment of those who decide what to publish …." Florida Star v. B.J.F., 491 U.S. 524, 538 (1989) (cleaned up). Where "true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it." Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496-97 (1975).

In Florida Star, a newspaper was sued by a sexual assault victim for publishing her name after lawfully obtaining it from a publicly released police report. 491 U.S. at 526. The police improperly released the report with the victim's name. Id. at 526-27. Yet the Supreme Court held that the newspaper still had a right to publish the released information, despite this error on the part of the police. Id. at 538. Therefore, even if the court record at issue was mistakenly filed on the public docket, the press and public cannot be restrained from retaining or publishing it. See Neb. Press Ass'n, 427 U.S. at 568 (holding that even if a preliminary hearing could have been closed, "once a public hearing had been held, what transpired there could not be subject to prior restraint").

Indeed, as the Supreme Court held in Bartnicki v. Vopper, even if a document on matters of public concern (and public court records would surely qualify) was originally illegally leaked, people who innocently obtained it are free to publish it. 532 U.S. 514, 535 (2001). "The First Amendment privileges the publication of facts contained in lawfully obtained judicial records, even if reasonable people would want them concealed." Nieman v. VersusLaw, Inc., 512 F. App'x 635, 637 (7th Cir. 2013) (holding that a legal research website that published "links to information and documents in the public record" was protected by the First Amendment).

And this extends to all publishers of information, not just traditional mainstream media. "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." Citizens United v. FEC, 558 U.S. 310, 352 (2010) (cleaned up). The Supreme Court "has repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers." Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284, 1290 (9th Cir. 2014) (applying this principle to defamation contexts as well, id. at 1291). And in Bartnicki, the Court expressly made clear that it drew "no distinction between the media respondents" and a nonmedia defendant. 532 U.S. at 525 n.8.

Like the restriction on the newspapers in Florida Star, the Proposed Order would require proposed amici to conceal information that was lawfully accessed from the public record. The First Amendment continues to protect their right to distribute the information they legally obtained directly or indirectly from PACER.

[IV.] The ECF 3048 Proposed Order Would Violate 47 U.S.C. § 230 as to Free Law Project

Documents are made available on the CourtListener website when CourtListener users download the documents from PACER and use the RECAP browser plugin to automatically upload them to CourtListener. (Lissner Decl. ¶ 4.) Some users presumably did that with regard to Doc. 3009-1, which the Proposed Order would require Free Law Project to delete.

CourtListener is therefore an "interactive computer service" under 47 U.S.C. § 230(f)(2), much as Yahoo! or Yelp are interactive computer services. See, e.g., Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009) (Yahoo!); Hassell v. Bird, 5 Cal. 5th 522, 540 (2018) (plurality opin.) (Yelp). And, just as Yelp could not be ordered to remove material posted at the direction of a user, Hassell, 5 Cal. 5th at 547; id. at 548 (Kruger, J., concurring in the judgment), so Free Law Project cannot be ordered to remove material posted at the direction of a user. See also Weitsman v. Levesque, No. 19-CV-461 JLS (AHG), 2020 WL 6825687, at (S.D. Cal. Nov. 20, 2020) (stating that "the Court has concerns about ordering third parties, including Twitter, Facebook, Instagram, and YouTube, to take action against Defendant should he fail to remove the material in accordance with the injunction" against Defendant, given § 230, and therefore declining to issue such an injunction against the third parties); Noah v. AOL Time Warner Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003) (likewise concluding that § 230 precludes orders requiring a hosting service to remove user-posted material); Smith v. Intercosmos Media Group, Inc., No. 02-1964, 2002 WL 31844907 (E.D. La. Dec. 17, 2002) (same); Medytox Solutions, Inc. v. Investorshub.com, Inc., 152 So.3d 727 (Fla. Ct. App. 2014) (same).

The post Attempt to Seal Court Filing, and to Order Members of the Public to Destroy Their Copies, Withdrawn appeared first on Reason.com.