A short excerpt from Monday's long decision of the Colorado Supreme Court in Moreno v. Circle K Stores, Inc., written by Justice Maria Berkenkotter:

Seventy-two-year-old Mary Ann Moreno … sued her employer, Circle K Stores, Inc. … for wrongful termination. She asserted that she was fired for lawfully exercising her right to self-defense after she was cornered by an armed robber during one of her shifts and that her termination violated Colorado public policy….

This court first recognized a public-policy exception to the at-will employment doctrine in Martin Marietta Corp. v. Lorenz (Colo. 1992). There, we identified a number of circumstances under which an at-will employee may bring a claim for wrongful discharge: if the employee was terminated for (1) refusing to engage in an illegal act, (2) performing a public duty, or (3) exercising an important job-related right or privilege. To serve as the basis for such a claim, the right must be clearly expressed, sufficiently public, and granted to workers….

This case requires us to decide if the right to self-defense, established either by section 18-1-704, C.R.S. (2025) ("section 704"), or by article II, section 3 of the Colorado Constitution ("article II, section 3"), meets the test we articulated in Martin Marietta. In answering the certified question, we first determine that both the statute and the constitutional provision clearly express the boundaries and extent of the right to self-defense based on their explicit language and the extensive and well-defined body of case law regarding self-defense.

Next, we decide that the right to self-defense is inherently a public right, rather than an individual proprietary right, because it is an essential, inalienable right guaranteed to all people. Finally, we conclude that the right to self-defense, as expressed by both the statute and the constitutional provision, is a right that is job-related insofar as the need to exercise the right to defend oneself from an unprovoked attack can occur anywhere, including at work.

While we conclude that this is a right granted to all people that is not left at the door simply because a person enters the workplace, we emphasize that the scope of the exception that we recognize today is narrow. It is limited, importantly, to self-defense as an essential, inalienable right. And, critically, the exception applies only when an employee lawfully exercises the right in response to an unprovoked attack at work.

It is also important to understand what this case is not about. The certified question asks us only to answer if an exception exists. We are not called on to decide whether Circle K's policy bars its employees from acting in self-defense—as Moreno claims—or whether the policy simply prohibits employees from confronting shoplifters—as Circle K claims. We also need not decide if Moreno acted in self-defense or if Circle K fired Moreno for defending herself. We offer no opinion on any of those matters….

Moreno was working at Circle K one evening when Tyler Wimmer approached the register holding several items, including two hunting knives. He placed the knives on the U-shaped counter that separated him from Moreno. After Wimmer told Moreno to get him a pack of cigarettes, Moreno asked what brand he wanted and retrieved them from the display case behind her. When Moreno began to ring up the cigarettes, Wimmer said something to the effect of, "[J]ust give them to me for free." Moreno refused.

Wimmer then picked up the knives and began to walk around the counter. Moreno twice told Wimmer, "[D]on't come back here." Undeterred, and with knives in hand, Wimmer continued to approach. When Moreno was within Wimmer's reach, Moreno extended her arms. In Moreno's telling, she instinctively did this to defend herself and to prevent Wimmer from coming closer to her. Wimmer grabbed a pack of cigarettes, left the store, and was subsequently arrested for armed robbery. {Later, Wimmer pleaded guilty to menacing with a deadly weapon.}

Circle K terminated Moreno for violating its "Don't Chase or Confront" policy. The policy instructs employees not to "confront[,] follow, pursue, track, chase, fight[,] or follow" any customer suspected of shoplifting. Moreno sued Circle K in state court, claiming, in pertinent part, that she was wrongfully discharged in violation of Colorado public policy because she was exercising her right to self-defense and trying to protect herself from being attacked.

{As previously noted, the only issue before us is the purely legal one set forth in the certified question. Moreno contends that Circle K's "Don't Chase or Confront" policy prohibits its employees from exercising their right to self-defense. Circle K contends it does not. It asserts that the company's policy aims to prevent employees from provoking encounters with shoplifters and placing themselves in situations where self-defense is necessary. For the reasons we have already explained, we express no opinion on this dispute.} …

First, we consider if section 704 and article II, section 3 clearly express a public policy in favor of the right to self-defense. Section 704 sets out by whom, when, and how the right to self-defense may be exercised. Any person, including any employee, may justifiably use force when they reasonably believe they face the "use or imminent use of unlawful physical force by [another] person." They may not use excessive force. And with limited exceptions, they are not justified in using force if they were the initial aggressor. …

Additionally, a statute setting out a criminal right or defense is as much an expression of the General Assembly's intent as a statute setting out criminal or civil liability and is no less a source of public policy. As we observed in Martin Marietta, an employee should not have to "choose between losing their job[ ] or engaging in criminal conduct." So too with the right to self-defense: An employee should never have to choose between their job and their safety. Thus, section 704 is strong evidence of Colorado's public policy in favor of self-defense.

Article II, section 3 similarly provides a clear mandate. It concisely and unambiguously recognizes that "[a]ll persons have … the right of enjoying and defending their lives." Despite its brevity, it provides a common understanding of when it's appropriate to exercise the right of self-defense….

Next, we consider whether the right to self-defense is a public right…. [T]he right to self-defense is an essential, inalienable right expressed in this state's constitution—one that has been statutorily recognized for longer than Colorado has been a state. Though this essential, inalienable right is possessed and exercised by individuals, its impact is necessarily public….

Cases from other jurisdictions have similarly concluded that self-defense is a public right. As the Utah Supreme Court noted in a case similar to this one, "A policy favoring the right of self-defense preserves and protects human life …. [Such a policy] protects individuals from serious injuries and deters the completion of crime." Ray v. Wal-Mart Stores, Inc. (Utah 2015). Similarly, the West Virgina Supreme Court has recognized that the right to self-defense affects the safety of the public. Feliciano v. 7-Eleven, Inc. (W. Va. 2001). These cases support our conclusion that section 704 and article II, section 3 both set forth a sufficiently public right affecting the safety of the broader public….

Finally, we consider whether an employer's firing of an at-will employee for exercising their right to self-defense constitutes termination based on the employee's exercise of a job-related right…. To be sure, at-will employment gives employers broad discretion over the terms of employment. It does not, however, allow employers to require employees to commit illegal acts. Nor does it allow employers to prevent employees from reporting legal violations or from performing legal duties, or from exercising important job-related rights. One broad, unifying principle in cases analyzing the public-policy exception—here and across the country—is that an employer may not use termination to penalize an employee for exercising a constitutional or statutory right that reflects an important, clearly expressed public policy that affects the public. Applying these principles here, we conclude that an employer may not lawfully terminate an employee for properly exercising their essential, inalienable right to self-defense if the employee suffers an unprovoked attack at work.

The employment relationship should not be used to strip workers of the ordinary legal privileges every person possesses. The right to self-defense has never been cabined by role or location. It is a unique, essential, and inalienable right that exists for workers, students, retirees, and the unemployed alike. It allows people to protect themselves in their homes, schools, houses of worship, and workplaces under very specifically defined circumstances. Here, it is the very breadth of the right—of the policy—that informs the analysis. It makes no sense to suggest that everyone has an inalienable right to defend themselves if faced with imminent danger, unless they are at work. Rather, the right follows the employee from home to work and back and everywhere in between.

Put another way, the right to self-defense is job-related insofar as the need to lawfully defend oneself from an unprovoked attack can occur at work. Thus, even though the right to self-defense—constitutional and statutory—does not explicitly mention workers, it is nonetheless a right guaranteed to workers within the meaning of Martin Marietta. Under the law, it is an essential, inalienable right guaranteed to everyone, including people at work. It is not a right that is left at the door when a person enters the workplace….

Chief Justice Monica Márquez, joined by Justice William Hood, dissented:

I not only disagree with the majority's reasoning that a constitutional provision can be the source of a claim for termination in violation of public policy against a private employer, but I also fear that the practical implications of today's ruling will tie employers' hands and ultimately undermine workplace safety….

For more details from the long dissent, or from the long majority, see the full opinions. For more on the state constitutional right to self-defense, see State Constitutional Rights of Self-Defense and Defense of Property (especially, as to employment law, pp. 411-12).

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The Coroner of Boone County, Illinois, engaged in abhorrent and macabre behavior. Wesley Hyland kept several skulls as trophies from the deceased he examined. One was that of Louise Betts. Over four decades later, after the coroner's death, the County returned her skull to the Betts family. The family sued the County under 42 U.S.C. § 1983 for violating the Due Process Clause of the Fourteenth Amendment.

The question in this appeal is whether Hyland's actions established an "official policy" of unconstitutionally retaining human remains [which would make the County liable -EV]. We hold the answer is no. The County is not liable under Monell v. Department of Social Services (1978), because state law requires that coroners return bodily remains to families. Hyland frustrated an official policy rather than established one….

The Bettses' § 1983 suit alleges that the County violated the Fourteenth Amendment by depriving them of property without due process. The first question is whether they have a property interest in their sister's remains….

Illinois recognizes that family members have a property right to a next of kin's remains, as the district court concluded, and on appeal the County does not appear to disagree. As the Supreme Court of Illinois has held, "while in the ordinary sense, there is no property right in a dead body, a right of possession of a decedent's remains devolves upon the next of kin in order to make appropriate disposition thereof, whether by burial or otherwise." …

[But] a municipality is not liable under § 1983 unless the deprivation of a constitutional right is caused by a municipal policy or custom. The problem, however, is defining "policy," as § 1983 does not use that term. To fill the gap, caselaw has established that a plaintiff may demonstrate a policy or custom that causes a constitutional deprivation in one of three ways: (1) an express policy of the municipality; (2) a widespread practice constituting custom or usage; or (3) an act by a person with final policymaking authority. This appeal concerns the third way….

Here, a state statute unequivocally prohibited Hyland's actions: "That as soon as may be consistent with the performance of his duties under this [statute] the coroner shall release the body of the decedent to the decedent's next of kin." Hyland, after his investigation, kept Louise's skull; he did not "release the body of the decedent." Hyland acted contrary to this unequivocal statutory command, just like the police superintendent in Auriemma and the mayor in Killinger. Hyland "frustrated," rather than "implemented," the government's policy. Responsibility thus falls on him, not Boone County….

The dissenting opinion submits that as long as the relevant official is elected and has general authority over a particular domain, his actions make the municipality liable—even if a law constrains his authority or discretion. This is respondeat superior by another name. It is not supported in our caselaw or that of other circuits, and it extends Monell liability too far. We decline to break with the great weight of the caselaw until instructed differently.

Scores of plaintiffs are not left without redress for constitutional wrongs done to them by government, as the dissenting opinion suggests. The Bettses, or any hypothetical plaintiffs, are not without recourse. They can sue the sheriff in tort or under § 1983. The state could—and should—criminally prosecute government actors who commit crimes. But municipal liability does not arise simply because a rogue elected official acted unconstitutionally. Concluding otherwise stretches both Supreme Court and this court's rulings too far….

And an excerpt from Judge David Hamilton's dissent:

To pose the issue starkly, by the majority's reasoning, Monell liability would not apply to a county whose elected sheriff raped a prisoner while on the job. Nor would Monell liability apply when a mayor orders police to shut down a political march by his opponents or discriminates on the basis of religion or race. After all, rape is a crime in every state. Political speech, freedom of religion, and racial equality are protected by every state constitution. On the majority's reasoning, rape, political suppression, and religious and racial discrimination must therefore be contrary to every county's or city's policy, no matter what elected officials do under color of state law. Other circuits have had little difficulty in [such cases]. We should follow that course here….

In this case, Coroner Hyland was an independently elected county official. In his work, he was accountable to the voters rather than to another county governing body or official. Under Illinois law, the elected coroner is the only person who may authorize the release of a body after an autopsy. In his work as coroner in general and for the purpose of releasing bodies in particular, he was the county's final policymaker….

State law is significant insofar as it allocates final policymaking authority between various officials, not in whatever limits it imposes on how officials wield the authority given to them….

The post The Coroner "Kept Several Skulls as Trophies from the Deceased He Examined" appeared first on Reason.com.

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Plaintiff's motion for a protective order [51] is denied, as Plaintiff already has a motion for a protective order pending before the Magistrate Judge and duplicative motions are inappropriate. Plaintiff should have either requested an extension of time to file her confidential materials or requested a ruling from the Magistrate Judge rather than choosing to file materials under seal and then refusing to provide them to the defense.

That said, the Court's briefing scheduling was obviously not intended to force the disclosure of confidential materials without a protective order. Therefore, the exhibits will be marked as "attorneys' eyes only" and immediately produced to defense counsel, who will treat them as confidential until such time as the Magistrate Judge has ruled on the motion for protective order. Once the Magistrate Judge has ruled, that ruling will apply to the materials.

Defendant's "emergency" motion to strike and for sanctions [56] is denied. A dispute about document confidentiality and a four−day delay in getting exhibits is not an emergency. Defendant also could have just asked for an extension of time to reply to account for the time lost waiting for the documents rather than engaging in motion practice. This is not a crisis and no "serious harm," Doc. 56 at 4, has been caused to anyone. The only needless cost increases have been due to both counsels' choices to follow the path of most resistance.

Defendant's reply deadline is advanced to 6/24/2026 to account for the days  defendant did not have the exhibits. No depositions will be allowed on this motion. Counsel can make appropriate arguments about the unreliability of the expert without discovery practice.

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From Trump Media & Tech. Group Corp. v. WP Co. LLC, decided today by Judge Tom Barber (M.D. Fla.); seems correct to me (and note that the court leaves room for some "targeted redaction of very limited and specifically identified information"):

Plaintiff Trump Media Technology Group, Inc. ("TMTG") brought this lawsuit for defamation against WP Company LLC (the "Post") arising from an article titled "Trust linked to porn-friendly bank could gain a stake in Trump's Truth Social," published by the Post on May 13, 2023. The article described events related to a contemplated merger between TMTG and Digital World Acquisition Corp. ("DWAC") as part of taking TMTG's "Truth Social" business public.

According to the article, in late 2021, Patrick Orlando, CEO of DWAC, arranged for $8 million in loans to TMTG from an entity known as "ES Family Trust" as part of a deal in which ES Family Trust would acquire an equity interest in the public entity to be formed from the merger. The article reported that some of the funds were wired by another entity, Paxum Bank, which had ties to ES Family Trust and to the adult film industry.

The article also reported that TMTG paid a finder's fee of $240,000 in connection with the loans to Entoro Securities, a Texas entity of which Orlando was a managing director. The article stated that neither the loan-for-stock deal nor the payment of the finder's fee had been disclosed to shareholders of DWAC or the SEC, and presented the opinion of New York University law professor Michael Ohlrogge that these matters could affect the value of the shares and should have been disclosed.

TMTG filed suit against the Post for defamation and conspiracy …. [T]he case has been narrowed to address only two of the statements in the article: (1) "The companies also have not disclosed to shareholders or the SEC that Trump Media paid a $240,000 finder's fee for helping to arrange the $8 million loan deal with ES Family Trust;" and (2) "The recipient of that fee was an outside brokerage associated with Patrick Orlando, then Digital World's CEO." …

Because there is a presumption in favor of public access to court proceedings, Local Rule 1.11(a) expressly limits a party's ability to file information under seal to "compelling" circumstances:

Sealing a docketed item … used in the adjudication or other resolution of a claim or defense requires a reason sufficiently compelling to overcome the presumption of public access. Sealing is not authorized by a confidentiality agreement, a protective order, a designation of confidentiality, or a stipulation.

As stated in the Local Rule, the fact that documents have been designated as confidential under a confidentiality order or protective order is insufficient to support filing documents under seal when they are submitted in connection with substantive motions (including summary judgment and Daubert motions).

Instead, the presumption of public access may only be overcome by a showing of good cause. In determining whether good cause exists, courts balance, among other factors, the potential for impairing court functions or harming legitimate privacy interests, the degree of and likelihood of injury if the information is made public, the reliability of the information, whether there will be an opportunity to respond to the information, whether the information concerns public officials or public concerns, and the availability of a less onerous alternative to sealing the documents.

"The burden to demonstrate that sealing is warranted rests with the proponent, requiring that it 'describe the alleged harm it will suffer from any disclosure with a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.'" …

TMTG seeks to file under seal the entirety of its motion for partial summary judgment, its reply memorandum in support of summary judgment, its response to the Post's motion for summary judgment, and various exhibits to these filings. In support, TMTG offers only a conclusory assertion that the material it seeks to seal has been designated as confidential under a confidentiality order:

Sealing is necessary because public disclosure of the unredacted material would reveal allegedly confidential and privileged information, including deposition testimony, internal business information, and non-party communications, the parties have designated as such under the Stipulated Protective Order. Public filing would undermine the confidentiality interests preserved by the Stipulated Protective Order and could disclose information the parties and affected non-parties have treated as confidential during discovery.

The Post, for its part, seeks to file its response to TMTG's motion for partial summary judgment under seal. The Post, however, states that it does so only because the response includes or references information that TMTG or non-party Patrick Orlando designated as confidential under the confidentiality order….

In short, the only reason offered by either side for sealing any of these materials is that an interested party designated the materials as confidential under an agreed confidentiality order—a reason that the Local Rules and case law expressly say is insufficient to support sealing. The motions offer no argument as to why any particular piece of information or even any category of information presents a risk of harm to the interested parties that outweighs the public's right of access or is otherwise appropriate for sealing under the good cause standard.

Additionally, the Court has reviewed much of the material for purposes of determining the pending summary judgment motions. From that review, it appears that little of the material, if any, is the type of information for which a good faith argument for sealing could even be offered. This may explain why the parties do not try to offer one. Highlighting the absurdity of the sealing requests, one of the exhibits TMTG seeks to seal is the Post's 2023 article, which was widely disseminated to the public when it was published and has been on file in the public docket in this case since July 2023.

Accordingly, the motions to seal are denied.   Local Rule 1.11(d) provides that an order denying a motion to seal is automatically stayed for fourteen days to permit "a motion to reconsider, for review, to withdraw the item, or for other relief." Local Rule 1.01(b), however, allows the Court to suspend the application of this rule. The Court finds that in the interests of justice, efficient case management, and the public's right of access, the rule regarding the automatic 14-day stay should be partially suspended here. Accordingly, the Court will delay unsealing of the materials filed with the motions only until June 23, 2026, when the Court intends to direct the Clerk to unseal these materials.

The parties are directed to file any motions for reconsideration or other relief by 5 p.m. on June 22, 2026. However, the parties should bear in mind the case law in this District and Circuit on the limited scope for motions to reconsider. This is not an opportunity for a general "do-over" of the motions to seal. The type of request with the best chance of being granted would be a request for targeted redaction of very limited and specifically identified information, such as information of the type protected by Fed. R. Civ. P. 5.2 or other discrete items of information for which the moving party can present a good faith argument for redaction under the standards set forth above….

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Appellant previously held a Colorado law license. As alleged in her complaint, Colorado attorney regulators first found her disabled from the practice of law and then disbarred her. The Colorado Supreme Court later precluded her from representing herself in Colorado courts. She then filed this pro se federal civil action against the Colorado Judicial Department and officials involved in the disability and disciplinary proceedings, alleging those proceedings were discriminatory and unlawful in numerous ways.

Appellant filed her complaint using the pseudonym Jane Roe instead of her real name…. Nonparties the Colorado Freedom of Information Coalition (CFIC) and Eugene Volokh filed an objection to her motion to restrict….

"… Federal Rule of Civil Procedure 10(a) requires the names of all parties to appear in the caption of a complaint, and the title of all other pleadings must name the first party on each side." … "'[L]awsuits are public events' and 'there is no legal right in parties to be allowed anonymity.'" "'Ordinarily, those using the courts must be prepared to accept the public scrutiny that is an inherent part of public trials.'" …

"A plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity." "The risk that a plaintiff may suffer some embarrassment is not enough." …

Appellant fails to show the district court abused its discretion in denying her request to use a pseudonym….

First, we are not persuaded this case involves "matters of a highly sensitive and personal nature" to any degree that outweighs the presumption of openness…. Past cases in which plaintiffs have been allowed to use a pseudonym have commonly required them to "divulge[] personal information of the utmost intimacy," or "admit that they either had violated state laws … or wished to engage in prohibited conduct." But neither is true here.

Appellant acknowledges her identity was made public in the underlying disbarment proceeding but argues disclosing it in this case "would expand stigma." However, her own "embarrassment" regarding the disability and disbarment proceedings "is not enough" to support her use of a pseudonym….

Second, Appellant has not shown she faces "real dangers of physical harm." She claims there are "concrete risks of retaliation and stigma." Op. But this assertion is conclusory.

She does not explain how public disclosure of her identity would place her in danger of suffering harm.

{Our cases have referred to "dangers of physical harm." Courts [citing a Second Circuit case] have also inquired more broadly "whether identification poses a risk of retaliatory physical or mental harm to the party seeking to proceed anonymously or even more critically, to innocent non-parties." Here, Appellant has not shown disclosure of her identity would present any risk of either physical or mental harm sufficient to warrant use of a pseudonym.}

Third, we are unpersuaded by Appellant's argument that "[t]he very harm at issue—retaliation by judicial actors—would be aggravated by disclosure" of her identity. The use of a pseudonym may be appropriate "where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity." However, it is not required when a plaintiff is "not suing … to prevent the disclosure," but instead "for compensation for disclosure that has already happened."

Appellant claims defendants had discriminatory motives for the disability and disciplinary proceedings and conducted them unlawfully. The injury she is litigating against is not the disclosure of her identity, but alleged improprieties in the proceedings and particularly their result, namely the termination of her law license. To the extent her claims relate to identity disclosure, they seek relief for "a previous alleged defamation and disclosure," not to prevent an injury that would "be incurred because of the disclosure of her identity in this case."

Appellant has therefore not shown her case presents "exceptional circumstances" that warrant the use of a pseudonym….

[Appellant] argues defendants would not be prejudiced because they and the court know her identity, and that "keeping [her] name out of the public would keep the focus on the merits" of her legal claims. But these arguments—which might be raised in almost any lawsuit—fail to show her case is "exceptional," or that the "unusual procedure" of using a pseudonym is appropriate.

Appellant also argues CFIC and Volokh have improper motives for advocating public filing. We see no improper motive. And in any event, it was Appellant's burden to overcome the presumption of openness. Whatever CFIC and Volokh's motives may be, she has not carried that burden….

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From Doe v. Univ. of N.C. Sys., decided today by Chief Judge Martin Reidlinger (W.D.N.C.):

On November 10, 2025, the Court ordered the Plaintiff's counsel to show cause as to why they should not be sanctioned for the many errors in the documents they submitted to the Court, including: (1) citing two cases that do not appear to exist (i.e., hallucinated citations); (2) quoting material that does not exist in the cases purportedly quoted (i.e., hallucinated quotations); (3) mischaracterizing holdings of cited cases; (4) citing cases that have no bearing on the proposition for which they were cited; and (5) failing to provide pinpoint citations and information identifying the courts from which opinions issued.

On November 19, 2025, during a hearing on the show cause order, the Plaintiff's counsel admitted these errors and explained that, in large part, the errors resulted from misuse of artificial intelligence software (including a misunderstanding of how to properly use artificial intelligence) and a failure to verify the outputs of artificial intelligence software, even though the Plaintiff's counsel had signed certifications stating that they had verified every statement and every citation in the documents they submitted to the Court. The Plaintiff's counsel expressed remorse and offered to write an article for the state bar journal explaining their errors and the potential pitfalls of misusing artificial intelligence. The Court agreed that such an article—"an article that essentially says, we really screwed up and we almost got put under the jail, don't fall into the pit that we did"—could help other lawyers wake up to the seriousness of attorney misuse of artificial intelligence. The Court has refrained from discharging the show cause order pending counsel's preparation of the article.

The Plaintiff's counsel submitted their proposed article to the North Carolina State Bar Journal, and it has now been published. Fred W. DeVore III and Rob Wilder, Guarding Against AI Errors: Ethical Risks for NC Attorneys, N.C. State Bar J. 1, 8-12 (Summer 2026) (hereinafter "the Article"). Now before the Court is the issue of whether this Article is sufficient to purge the show cause order and the proposed contempt/sanctions that arose from counsel's errors.

The Court is compelled to express its disappointment in that the Article falls short of the Court's expectations based on what counsel proposed at the November 19, 2025 hearing. The Plaintiff's counsel were less than fully forthcoming in the Article about the scope of their errors in this matter. The Plaintiff's counsel had submitted five documents—two motion briefs and three briefs in opposition—with citation errors of all sorts. After the Defendant's counsel brought attention to some of the errors, the Plaintiff's counsel used their two reply briefs to address their errors rather than further their client's case. As a result, the Plaintiff's counsel's errors undermined their own advocacy, hindered the work of their opposing counsel, and wasted significant time and resources of the Court. Yet, the Article fails to fully acknowledge the impact of such errors, both on the litigation itself as well as their reputation as attorneys. If the purpose of the Article is to keep other attorneys from "falling into the pit," one must accurately describe "the pit." Counsel's efforts failed to fully achieve that objective.

In addition, counsel's Article reflects a failure to fully appreciate the severity of counsel's errors. The Plaintiff's counsel recount their experience in a mere three paragraphs, accounting for a small fraction of the article. In doing so, their errors were unduly minimized. For example, one attorney writes: "The cases I cited were correct, but the quotes were hallucinated. I checked the cases but not the quotes." A cited case is not "correct," nor has a case been "checked," unless the attorney has verified that the case contains the quote or supports the proposition for which the case is cited. When an attorney presents a document to the Court, an attorney certifies "to the best of the [attorney's] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances" that the document complies with the substantive provisions of Rule 11 of the Federal Rules of Civil Procedure. An inquiry that does not involve verifying quotes is never reasonable under the circumstances.

In another instance, one of the attorneys writes that he "signed a certification that [he] did not use AI to write the brief, which was true, but [he] failed to verify the authenticity" of sources that he received from other attorneys, i.e., attorneys who were not attorneys of record in the case. That is not, however, what he certified. This Court's Standing Order on the Use of Artificial Intelligence, requires every statement and every citation to an authority contained in a document to be "checked by any attorney and/or a paralegal working at his/her direction … as to the accuracy of the proposition for which it is offered, and the citation to authority provided." The Standing Order further provides that no artificial intelligence may be used in the research for the preparation of a document except for the "artificial intelligence embedded in the standard online legal research sources Westlaw, Lexis, FastCase, and Bloomberg." The attorney signed a certification that he complied with those requirements, which was not true. He submitted a brief that contained citations to artificial intelligence hallucinations—i.e., to cases that do not exist.

For these reasons, the attorneys' minimization of their errors falls short of the Court's expectations. The Court recognizes that there are length limitations in the preparation of such an article, and that a portion of that length is taken by providing context for the central points. However, the purpose of the Article was for such exemplary attorneys to explain how artificial intelligence can be a danger to those practitioners who do not fully understand how to use it. By minimizing their misconduct, they missed the opportunity to demonstrate to the bar how easily one can commit serious transgressions if one is insufficiently familiar with the operations of the various artificial intelligence tools that are now available. {The Court also notes that the Article unironically concludes with a purported quotation that is neither cited nor attributed to any speaker: "Someone once said, 'Make AI a tool for humans, not a reason to lose what makes us human.'"}

Having fully vented the Court's disappointment, it is noted that offending counsel have a long history of exemplary conduct before this Court. Their errors primarily reflect the fact that they attempted to use the newest tools of the trade without actually understanding those tools or the dangers they present. For these reasons, notwithstanding the disappointing shortcomings of counsel's Article, the Court finds their efforts and their expressions of repentance are made in good faith and as such are sufficient to discharge the Order to Show Cause.

You can read the lawyers' article for yourself here. I will say, to their credit, that they did publicly and in some detail admit to pretty serious errors, in an article that will be read by hundreds of their colleagues; that may be part of the "expressions of repentance" that helped the court decide against imposing sanctions. That does show significant contrition, I think, even if the judge is correct that the admissions weren't fully accurate. Here are the key paragraphs:

When attorneys fail to verify AI-generated output, they risk submitting fiction to the court. The consequences can be severe. Here is what happened to us.

Fred's Story: I represented a client in federal court. I prepared a summary judgment brief and consulted with two well-respected attorneys who were experts regarding the legal issues involved. They volunteered to review my brief and make suggestions on its content. The attorneys then collectively sent me several paragraphs of compelling arguments, complete with persuasive quotations and citations. I gladly incorporated them into my brief.

There is no worse feeling than receiving a copy of the defendant's brief, where the defendant informed the court that the quotations and citations I had incorporated were hallucinations. I had signed a certification that I did not use AI to write the brief, which was true, but I failed to verify the authenticity of the supplemental authority I was given. This violated my certification. The fault does not lie with the consulting attorneys because my duty to verify the authorities is non-delegable. My penance was to resubmit a corrected brief and to warn the Bar of the consequences of non-approved AI sources. The moral is unavoidable: delegation does not eliminate responsibility.

Rob's Story: I am co-counsel with Fred on the same case in federal court. We agreed to take over the case with very little time left for discovery. We had to review a large volume of discovery documents and become deeply familiar with the case and regulatory law in what was, for me, a new area of law. I felt I was behind on technology and hired a consultant to help me get up to date with AI. While writing briefs on dispositive motions, I relied on a commercial legal research program's rendition of several quotes supporting the points I made in the brief. The cases I cited were correct, but the quotes were hallucinated. I checked the cases but not the quotes. Again, I was the person who certified that I had authenticated the cited information. Before this incident, I was very confident I was using legal AI as effectively as possible, only to be shown I was wrong. Fortunately, the consequences of my mistake have been rectified. Hopefully, my experience can help others avoid the same embarrassment, anxiety, and frustration.

The post Lawyers' Bar Journal Article Discussing Their AI-Hallucination Errors Doesn't Entirely Satisfy Judge, but … appeared first on Reason.com.

On May 29, DOJ asked Judge Ross to recuse in United States v. Raffensperger, a suit to obtain Georgia election records. The motion sat on the docket for more than two weeks. On June 15, DOJ filed a notice of intent to file a petition for a writ of mandamus. That motion apparently got Judge Ross's attention. This morning, she recused from the case.

Judge Ross doesn't quite admit that she is the subject judge. She only presents facts as stated by the United States.

Based on media accounts, the United States asserts that the undersigned attended an event likely hosted by Fani Willis, the now former Fulton County District Attorney. [Doc. 112 at 6]. According to the United States, considering Willis's affiliation with the Democratic Party and her role in prosecuting President Donald J. Trump for election fraud, the undersigned's attendance at an event hosted by the Willis campaign creates an appearance of bias in this proceeding. [Id. at 6–7].

At this point, who is Judge Ross kidding?

To Judge Ross's credit, she does the right thing and steps aside based on her relationship with Fani Willis:

Nevertheless, the Court finds that recusal is appropriate based on the unique facts of this case. Specifically, this case concerns the Trump administration's efforts to obtain Georgia's unredacted voter registration list in furtherance of the administration's objective to uphold election integrity in Georgia, and Willis is known for her role in the prosecution of President Trump over his alleged interference in Georgia's elections. Both the Trump administration's present and Willis's past efforts have become heavily polarized. Thus, the Court cannot discount the potential that the undersigned's attendance at an event sponsored by Willis's campaign, even if that attendance was "only for the purpose of reuniting with former colleagues[,]" Judicial Council Report at 17, would lead an objective observer to perceive that the undersigned supports Willis's position. And perceived support of Willis's position on election integrity could cause an objective observer to significantly doubt the undersigned's impartiality in this case. Therefore, out of an abundance of caution for the potential perception of bias, the undersigned will disqualify herself from further proceedings in this case.

I will assume for present purposes that Judge Ross actually read this order before signing it. This order further suggests Judge Ross has no intent to resign. Impeachment is the only path forward.

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Ben Keener and I have posted a new paper on the original meaning of the Citizenship Clause of the Fourteenth Amendment. This one provides an extended analysis of the English common law origins of the native birth rule and of the debates in the 39th Congress over the meaning of the Citizenship Clause that they adopted as part of the Fourteenth Amendment. Ben has written about this issue before here, and I have written about it here and here. Although the Court will be ruling on this issue shortly, whatever the Court chooses to say will be unlikely to end the scholarly and political discussion. To do that, one must write a very long law review article.

The historical materials are unambiguous and unsurprising. As Coach Dennis Green once said, "They are who we thought they were." The English rule simply meant that those born on territory governed by the English sovereign and subject to the sovereign's rule were native-born subjects, and the Americans inherited that rule and understood it as such after the Revolution. When the 39th Congress sought to repudiate the Dred Scott decision and entrench a native-birth rule in the Constitution so that future political actors could not shrink or override the common-law rule and decide as a matter of policy which of the native-born they would prefer not to recognize as citizens, they drafted language that communicated the same, longstanding, common-law rule and they understood themselves to be doing so and said so explicitly and repeatedly.

From the conclusion:

The Citizenship Clause of the Fourteenth Amendment is neither mysterious nor indeterminate. It codifies a rule whose substance has been stable across four centuries of Anglo-American law: those born within the territorial reach of the sovereign's actual governing authority are, by that fact alone, natural-born citizens. The twin conditions of native birth and subjection to the jurisdiction of the United States do the same work today that Coke's "ligeance" and "obedience" did in 1608, that Blackstone's "allegiance" and "dominions" did a century and a half later, and that Kent's "jurisdiction" and "allegiance" did on the eve of the Civil War. The drafters of the Fourteenth Amendment did not invent a rule, disguise one, or leave one half-finished. They entrenched a rule already established in American practice and debased only by the aberrant Taney Court decision the Amendment was written to repudiate.

Read the whole thing here.

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This morning, the Supreme Court denied certiorari in Newman v. Moore. For years, I've thought that Chief Judge Moore is simply waiting for Judge Pauline Newman to die. There is no reason why each suspension has to last a year. The Bush appointee is waiting for the Reagan appointee's life tenure to conclude. She even removed Newman from the ridiculous AI video.

Now, alas, the Supreme Court has declined to intervene. Not a single member noted a dissent. They will just wait for this brilliant and capable jurist to expire.

My immediate thought was the famous Daily News headline. Ford to City: Drop Dead.

SCOTUS to Newman: Drop Dead.

What's left? There is a flag for this situation.

The post SCOTUS To Newman: Drop Dead appeared first on Reason.com.

I've been giving a lot of thought to the Ten Commandments case that should be appealed to the Supreme Court this summer. Very few people alive today can remember a world before the Warren Court established the separation of church and state. Likewise, prior to Dobbs, very few women of reproductive age could remember a time before the Burger Court established a constitutional right to abortion. The Supreme Court often considers how longstanding a legal tradition is. But many of the traditions established by the Warren and Burger Court stretch back five, six, and even seven decades. In a new Civitas Outlook, essay, I explain that the relevant tradition is the tradition the people established, not the tradition the Court imposed.

Here is the introduction:

In recent years, the Supreme Court has followed a tripartite approach to originalism. First, the Court asks whether the plain text of the Constitution neatly resolves the case. Second, if textualism does not provide a clear answer, the Court considers the history that predated the adoption of the relevant text—what did people say and do before ratification. Third, if the dispute remains unresolved based on the text and history, the Court will consider how the people understood and implemented that text after ratification — the so-called tradition.

The third inquiry, however, faces a practical problem: the Warren and Burger Courts. Between the 1950s and 1980s, the Supreme Court actively and brazenly altered nearly every facet of our polity. Longstanding traditions were disregarded, and the justices instead imposed their modern sensibilities on the American people. The examples are legion. The Court completely rewrote how our society approaches speech, religion, sex, and more. Today, we are still living in the shadow of those Platonic guardians. Indeed, court-created "traditions" from those decisions now stretch nearly three-quarters of a century. As America celebrates its 250th birthday, the courts face a conflict. Which tradition prevails: the first 175 years when the people were allowed to govern themselves, or the last 75 years when we lived under judicial rule?

And here is an excerpt on the Ten Commandments case:

The next Establishment Clause case to reach the Supreme Court will afford the justices an opportunity to correct course. Texas, my home state, required all public schools to post copies of the Ten Commandments in classrooms. Teachers are not required to read the decalogue or say anything else about them. It is a passive display that students will simply ignore, as they do most things that are not on their phones. Yet, Texas parents contend that this mere posting violates the Establishment Clause. They argue that students may feel coerced into engaging in religion, or that this religious text may intrude on how parents teach their children their own faith. The Fifth Circuit, sitting en banc, upheld Texas's law. This case will surely be appealed to the Supreme Court in the coming months.

This Texas dispute can be resolved based on tradition. But which tradition? Before the Warren Court intervened, many public schools required students to recite a prayer at the start of every day. Alas, the Warren Court obliterated that practice based on a defunct reading of the Establishment Clause. What is the relevant tradition? Does the Court focus on the judge-imposed separationism of the Warren and Burger Courts in the six decades since Everson? Or is the relevant tradition what the people themselves chose to do before the Supreme Court intervened? I think the answer has to be the latter. The modern day sense and sensibilities of people clinging to the moral code of the Warren Court cannot redefine the Establishment Clause.

The people of New York in the 1960s thought that a prayer in the classroom would be a useful way to promote morality and solemnize the day. The vast majority of people did not object to the law. That a few students, coupled with sympathetic justices, rejected that principle should have no bearing on our constitutional traditions. Indeed, the Texas law is proof that the Warren Court was wrong. Seven decades later, the people are still pushing back against this black-robed rule. The Ten Commandments have governed civilization since time immemorial. It is little wonder that opposition to Everson has persisted in exile for six decades.

This approach does not require the Court to reverse Everson, at least for now. Rather, each case should be decided based on the actual traditions of the people, and not the traditions thrust upon America by elite judges. The people should learn how to govern themselves again. There will be some discomfort with removing the shackles imposed by the Warren and Burger Courts. Fights over abortion after Dobbs illustrate this conflict. I don't doubt that some students will be bothered by the Ten Commandments, but eventually they'll get used to them. Or, if the discontent is strong enough, the political process can correct course.

This piece will serve as a basis for my forthcoming amicus brief in the Ten Commandments case.

The post New in Civitas: "Our American Legal Tradition Is Not the Warren Court's Tradition" appeared first on Reason.com.

These closely related lawsuits are different, at least in degree, from previous lawsuits over allegedly defamatory AI output: Rather than alleging thoroughgoing hallucination, or (as in Battle v. Microsoft) the merging of two unrelated documents about similarly named people, they involve claims that AI output summarizing published documents overstates the allegations in those documents—a sort of claim that's pretty common in normal libel litigation against newspapers.

1. The SEC charged Sergii Grybniak with violating

[1] the antifraud provisions of Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities and Exchange Act of 1934 and Rule 10b-5 thereunder, and

[2] the registration provisions of Sections 5(a) and (c) of the Securities Act ….

A federal court granted summary judgment to the SEC as to the registration violation allegations, and denied summary judgment to Grybniak as to the fraud allegations, on the grounds that "genuine disputes of material facts exist as to each category of [alleged] misrepresentations."  After that, the parties entered into a consent judgment.  The SEC's press release characterized the settlement thus:

In its complaint, the SEC alleged that … Grybniak and Opporty conducted an unregistered and fraudulent securities offering of crypto assets called OPP Tokens via an initial coin offering ("ICO"), raising approximately $600,000 from nearly 200 investors. The complaint also alleged Grybniak and Opporty marketed the ICO by making material misrepresentations and omissions and engaging in other deceptive conduct, including exaggerating the number of users and growth of its online blockchain-based marketplace for small businesses, misrepresenting the nature of Opporty's purported partnership with a major software company, and claiming the ICO was "SEC regulated" and "100% SEC compliant" when it was not….

[T]he Court granted the Commission's motion for partial summary judgment, finding Grybniak and Opporty had conducted an unregistered securities offering without a valid registration exemption in violation of Section 5 of the Securities Act. In addition, the Court rejected Grybniak and Opporty's defenses asserting reliance on counsel and that they lacked fair notice of the application of the federal securities laws to the ICO.

Without admitting or denying the SEC's allegations, Grybniak and Opporty consented to entry of the final judgment, which provides for permanent injunctive relief under Sections 5, 17(a)(2), and 17(a)(3) of the Securities Act. The final judgment also ordered Gryrbniak to pay a civil money penalty of $100,000, imposed a conduct-based injunction against him, and ordered both Grybniak and Opporty to comply with various undertakings.

As best I can tell, then, the SEC thought Grybniak committed fraud, but there was no court finding or admission as to that—though there was a court finding as to failure to register.

2. Grybniak then sued Google and X over AI outputs that, according to federal court rulings, Grybniak was "legally held responsible for making material misrepresentations and engaging in deceptive conduct" and that "according to … a federal court ruling, … Grybniak committed securities fraud and related violations." Grybniak's claim is that

Plaintiff has never been found liable for fraud, never admitted fraud, and has no criminal record. The single civil regulatory matter on which the statements are loosely based was resolved, on a no-admission basis, exclusively under non-fraud/negligence provisions of the federal securities laws—a registration provision and two negligence-based provisions that, as a matter of law, do not require and do not establish fraudulent intent.

The statements came in output from Google Gemini and X.AI (and allegedly continued to come after Grybniak informed Google and X about the errors in the output). Here's a sample of the alleged output from Grok (the output from Google Gemini is different but similar):

Note that "Yes, according to the … SEC" seems quite true, but "… and a federal court ruling" seems to be incorrect.

The post Two New Large Libel Models Lawsuits, Though Alleging Mischaracterization Rather Than Outright Hallucination appeared first on Reason.com.

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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.

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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. 

The post Justice Barrett v. Justice Jackson On Textualism appeared first on Reason.com.

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.

The post The Courts Should Rein in Trump's Proposed Section 301 Tariffs as Well appeared first on Reason.com.

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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.

The post Two Potential Upcoming Canadian Secession Referenda and the Broader Issues they Raise appeared first on Reason.com.

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.

The post Assessing Non-Packing Rationales For Increasing the Size of the Supreme Court appeared first on Reason.com.

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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