The Volokh Conspiracy

[Eugene Volokh] $5K Sanctions for Repeated Mis-Citation in Coomer v. Lindell / My Pillow Election-Related Libel Suit

Eugene Volokh — Sat, 09 May 2026 18:20:40 +0000

[“Mr. Kachouroff's statements to the Court in this case do not inspire confidence.”]

From Thursday's decision by Judge Nina Wang (D. Colo.) in Coomer v. Lindell:

This is a defamation case brought by Plaintiff Eric Coomer ("Plaintiff" or "Dr. Coomer") over accusations that he used his position at Dominion Voting Systems to interfere with the results of the 2020 presidential election. The case went to trial, and the jury delivered a partial verdict for Plaintiff. The verdict included a punitive damages award against Frankspeech.

[A.] The First Order to Show Cause and Sanctions Order

Before trial, Plaintiff filed a motion in limine. Defendants then filed a response brief that included "nearly thirty defective citations." … After questioning from the Court at the Final Pretrial/Trial Preparation Conference ("Pretrial Conference"), Mr. Kachouroff eventually admitted that he had used artificial intelligence ("AI") in drafting the response brief. He also represented that he had delegated citation checking for the brief to his co-counsel, Jennifer DeMaster ("Ms. DeMaster")…. The Court concluded that a $3,000 sanction on Mr. Kachouroff and his law firm and a $3,000 sanction on Ms. DeMaster was the "least severe sanction adequate to deter and punish defense counsel in this instance." The Court declined to extend the sanction to Defendants themselves.

[B.] The Second Order to Show Cause

After trial, and after the Court's first sanctions order, the Parties submitted their post-trial motions. Plaintiff moved to increase the punitive damages award against Frankspeech, pursuant to Colorado law. In relevant part, Frankspeech's response brief ("Response") argued that such an award would violate the Reexamination Clause of the Seventh Amendment. The brief stated, "The 10th Circuit recognized in Capital Solutions, LLC v. Konica Minolta Business Solutions USA, Inc., 695 F.Supp.2d 1149, 1154-56 (10th Cir. 2010), that the jury's determination on this issue [i.e., the amount of punitive damages] is entitled to finality."

In its Order on Post-Trial Motions, the Court observed that the Capital Solutions citation is defective for two reasons. First, Capital Solutions is a district court decision, even though Frankspeech erroneously referred to it as a Tenth Circuit case. Second, Capital Solutions does not support the proposition that a jury's determination of the amount of punitive damages is "entitled to finality" under the Reexamination Clause. The Court explained that a reasonable review should have alerted defense counsel to this mistake. And given that counsel had already been sanctioned for "this exact type of error," the Court ordered Mr. Kachouroff, Ms. DeMaster, and Frankspeech to show cause why they should not be sanctioned again under Rule 11….

[C.] Violation of Rule 11

Mr. Kachouroff concedes that he made a "real error" in both his description of Capital Solutions's holding and his reference to it as a Tenth Circuit decision. Although he does not know why the error occurred, he asserts that Capital Solutions's discussion of Tenth Circuit precedent is on point. He claims that he cite-checked the brief and did not use AI other than Westlaw for legal research. Finally, he argues that sanctions are unwarranted because the error was minor and "the legal principle for which [he] cited Capital Solutions is good law."

The Court has a significant amount of skepticism that the Capital Solutions misrepresentation resulted only from human error. True, the Court could write off one erroneous reference to the Tenth Circuit as a typographical error. But the Response makes the same obvious mistake twice in quick succession: "The 10th Circuit recognized in Capital Solutions, LLC v. Konica Minolta Business Solutions USA, Inc., 695 F. Supp. 2d 1149, 1154–56 (10th Cir. 2010)…." And this type of misattribution error—deploying an otherwise correct citation but attributing it to the wrong court—is a form of hallucination that has already occurred in this case. For instance, in the brief that previously led to sanctions, Mr. Kachouroff claimed that the "District of Colorado" had addressed an issue, citing "Ginter v. Northwestern Mut. Life Ins. Co., 576 F. Supp. 627, 630 (D. Colo. 1984)" in support. While the case name and reporter for Ginter are correct, it was not issued by a court in this District. See Ginter v. Nw. Mut. Life. Ins. Co., 576 F. Supp. 627, 630 (E.D. Ky. 1984). Similarly, Mr. Kachouroff's prior brief asserted that "[t]he Tenth Circuit…specifically addressed" a certain evidentiary issue in "United States v. Hassan," with a citation to "Hassan, 742 F.3d 104, 133 (10th Cir. 2014)." But Hassan is a Fourth Circuit decision. See United States v. Hassan, 742 F.3d 104, 133 (4th Cir. 2014). Viewed against this backdrop, the nature of the errors in the Response suggests that this is not the kind of mistake a human attorney would make.

Furthermore, Mr. Kachouroff's statements to the Court in this case do not inspire confidence. He currently attests, "I did not use any Generative Artificial Intelligence program to create Document 404 with the exception of Westlaw which I used solely for the purpose of legal research." But Mr. Kachouroff has previously represented that he "routinely" uses AI tools to prepare his arguments. And strikingly, despite adamantly attesting in response to the First Order to Show Cause that "I do not rely on AI to do legal research or find cases," Mr. Kachouroff now admits that "the circumstances at issue here are not, respectfully, the same type of AI generated error in a draft pleading that was the subject of that earlier sanction."

The Court is also unimpressed by Mr. Kachouroff's attempts to minimize his conduct. The Capital Solutions citation is located prominently in the Response; it is the only citation in the first paragraph of the first page of the brief. And as the Court previously explained, the citation error is obvious. Any lawyer—especially one of Mr. Kachouroff's experience—would or should recognize that a case reported in the Federal Supplement is from a district court, not a circuit court. This error would be apparent upon even a brief inspection of the first page of the Response. The obviousness of the error alone indicates that Mr. Kachouroff failed to reasonably review the Response before filing it. Regardless of whether or not generative AI was used, this is not the type of error a seasoned attorney would or should make.

In and of itself, falsely citing a district court case as binding authority is a "material" error. This Court is bound by published Tenth Circuit and Supreme Court opinions, not the decisions of other district courts. By holding out Capital Solutions as a Tenth Circuit decision, Mr. Kachouroff misrepresented the "legal significance" of its holding. Yet Mr. Kachouroff asks the Court to overlook the "citation error" because his "description of Capital Solutions did not involve the assertion of an unsupported legal proposition." The Court respectfully disagrees.

The Response misstates both Capital Solutions's holding and the applicable Seventh Amendment law. In relevant part, the Response asserts, "Among the issues historically committed to the jury is the amount of punitive damages—a factual question within the meaning of the Seventh Amendment's Reexamination Clause. The 10th Circuit recognized in Capital Solutions…that the jury's determination on this issue is entitled to finality." The Court has already explained why this description of Capital Solutions's holding is misleading …. Mr. Kachouroff suggests that he merely gave an "imprecise description of the case's procedural posture." But Capital Solutions's holding was inextricably intertwined with its procedural posture; whether a jury must decide the amount of punitive damages in the first instance was the substantive constitutional question before the court. And Mr. Kachouroff still fails to acknowledge that Capital Solutions turned on the Seventh Amendment's "trial by jury" clause, not the Reexamination Clause.

This distinction matters because Supreme Court precedent contravenes Mr. Kachouroff's assertion that "the amount of punitive damages" is a "factual question" on which the jury's verdict is protected by the Reexamination Clause. As this Court pointed out, the Supreme Court has held that "the level of punitive damages is not really a 'fact' 'tried' by the jury," so judicial review of the amount of an award does not offend the Reexamination Clause. Capital Solutions addressed Cooper Industries and expressly disclaimed any reliance on the Reexamination Clause. But despite relying on Capital Solutions and other cases analyzed in that opinion, the Response still cited Capital Solutions in support of the argument that the Reexamination Clause "entitle[s]" a jury's punitive damages award "to finality." Even after the Court specifically noted Cooper Industries in its Order on Post-Trial Motions, Mr. Kachouroff maintains that Capital Solutions "support[s] the proposition I made" in the Response. That is simply not true….

This is the latest incident in what is now a pattern of Mr. Kachouroff submitting briefs with citations that "misrepresent[ ] what courts have said." … The judiciary undermines its own central purpose of administering justice for the public good—and the public's confidence in the institution—when it permits attorneys to breach their duties, including diligence and candor, owed to the court and the public without consequence….

Having reviewed the entirety of the record, the Court finds that an additional, moderately increased monetary sanction of $5,000 is sufficient to deter Mr. Kachouroff and similarly situated individuals from engaging in this conduct. The Court will not refer Mr. Kachouroff to the Virginia Bar for disciplinary proceedings. In doing so, the Court specifically relies on Mr. Kachouroff's representation that he has stepped back from "active trial-level litigation other than matters necessary to conclude existing obligations which include the present show-cause proceedings and limited local-counsel responsibilities in one remaining case. I do not intend to return to trial work which I have done for the past 25 years," due to health issues.

{Counsel has filed a Motion for Protec[ti]ve Order to Restrict Public Access ("Motion to Restrict"), seeking restriction of a Second Affidavit submitted by Mr. Kachouroff detailing specific health issues…. This Court agrees that Mr. Kachouroff's private health information is appropriately restricted from public access but respectfully disagrees that the public has no justiciable interest in other statements contained in the Second Affidavit, given Mr. Kachouroff's reliance on that information to support his Response to the Second Order to Show Cause. Accordingly, the Court ORDERS Mr. Kachouroff to file a publicly accessible version of his Second Affidavit, with only his private health information redacted….

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[Josh Blackman] Today in Supreme Court History: May 9, 1974

Josh Blackman — Sat, 09 May 2026 11:00:43 +0000

5/9/1974: Resolution to impeach President Nixon introduced in the House of Representatives. On 7/24/1974, the Supreme Court would decide U.S. v. Nixon.

President Richard Nixon

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[Eugene Volokh] Open Thread

Eugene Volokh — Sat, 09 May 2026 07:00:00 +0000

[What’s on your mind?]

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[Josh Blackman] Three Investitures in Two Days

Josh Blackman — Sat, 09 May 2026 00:47:25 +0000

[Congratulations to Justices Sullivan and Hawkins of the Supreme Court of Texas and Judge Taibleson of the Seventh Circuit.]

The few days have been fun.

On Thursday, I attended a double investiture at the Supreme Court of Texas for the two newest members. Justice James P. Sullivan was sworn in by (Retired) Judge Tom Griffith. Judge Griffith gave a fascinating discussion on the value of the oath. We should all focus on the meaning of "help" in "So help me God." We are wiser for his insights.

Justice Kyle Hawkins was sworn in by Justice Samuel A. Alito. The Justice relayed a funny story from Kyle's term. Justice Alito circulated an opinion in a non-controversial case that he thought would quickly garner nine joins. No such luck. Justice Alito received a number of letters asking to remove this part, add that part, and rewrite another part. The task fell to Kyle to help manage the revisions, and ultimately, the opinion satisfied everyone. (No he did not mention which case it was, but I would love to know.)

Investitures for the Texas Supreme Court are held in the chamber of the Texas House of Representatives. Every seat was filled. There were also tributes given to Chief Justice Nathan Hecht and Justice Jeff Boyd, who recently retired from the court.

Dare I say that the Texas Supreme Court is the greatest state supreme court in the nation? The intellectual firepower of that Court is staggering. I can't wait to see what Justices Sullivan and Hawkins bring for years to come.

After a brief stay in Austin, I flew to Chicago O'Hare and drove to Milwaukee to attend the investiture of Judge Rebecca Taibleson to the Seventh Circuit. Over the years, I have written about my close bond with Professor Michael Krauss at George Mason University. Professor Krauss gave remarks about his daughter that brought everyone to tears. Justice Kavanaugh also spoke about his former law clerk. He remembers the exact moment he met Judge Taibleson in the hallway at Yale Law School. She made that much of an impact on him. This was a ceremony with so much warmth and joy--it was especially cathartic after the unnecessarily difficult confirmation process. But, as one commenter observed, this was a rare instance where the meritocracy prevailed. And Judge Taibleson will make everyone proud.

I am proud to say that three of my former students clerking for these three jurists next term.

The week was even funner. On Wednesday, I attended a legal retreated at my new think tank, the Manhattan Institute, followed by the Hamilton Dinner at Cipriani. Senator Ben Sasse was the honoree of the night. What an inspiration he is.

And on Monday and Tuesday, I attended the Fifth Circuit Judicial Conference, which, blessedly was in Houston. If you want to figure out how I was in so many places at once, the answer is several early-morning flights.

Somehow, amidst all of those travels, I wrote what may be my most popular blog post of all time. It has been the talk of the town. I've lost count of the number of phone calls, texts, and emails I've received thanking me for saying what needed to be said. You are all welcome for that public service. Maybe I should give a TED Talk about the experience of writing a viral post without AI.

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[Ilya Somin] Nobel Prize-Winning Economist Alvin Roth on Organ Markets

Ilya Somin — Fri, 08 May 2026 20:42:50 +0000

[Roth explains why legalizing kidney sales can save lives.]

In a recent Washington Post op ed, Nobel Prize-winning economist Alvin Roth makes the case for legalizing kidney sales. Roth is a world-leading expert on taboo markets and related topics. Here is an excerpt:

It's time to carefully but urgently rethink payments to kidney donors.

There are approximately 130,000 new cases of kidney failure annually in the United States. It is disproportionately a disease of the poor, and is four times as likely to affect Black people as White people. Kidney failure costs Medicare alone more than $55 billion per year, mostly for dialysis. More than 500,000 people are presently on dialysis, about half of whom will die within five years of beginning treatment. The best treatment for kidney failure is transplantation, but in 2025 fewer than 30,000 people in the United States received kidney transplants. So most people who could benefit from a lifesaving transplant will die without one.

About 90,000 people are registered on the national waiting list to receive a deceased-donor kidney, and many more would be, if there were enough transplants for all who need them. Thousands die each year while waiting, and thousands more are removed from the waiting list when they become too sick to undergo transplant surgery….

[K]idneys for transplant remain in tragically short supply. So it is past time to consider amending the 1984 law that prohibits giving "valuable consideration" for a kidney for transplant.

I am a longtime advocate of legalizing organ markets. Over the years, I have pointed out that doing so would save many thousands of lives, save many more people from years of painful kidney dialysis, and increase bodily autonomy. I provide an overview of these and other points in my recent book chapter "The Presumptive Case for Organ Markets," where I also address a range of standard counter-arguments, such as claims that organ markets would lead to "exploitation" of the poor, that legalization would corrupt our ethics, or that paid donations would "crowd out" altruistic ones. Legalizing organ markets should be a high-priority issue for anyone who cares about saving lives and increasing liberty.

But Roth's advocacy is far more significant than mine, because he's one of the world's leading economists. And, as a left-liberal, he can't easily be accused of advocating legalization because of ideological bias.

Roth does have some concerns about kidney sales that he argues need to be addressed:

We wouldn't want inappropriate donors to be unduly influenced to give up a kidney. (This is something already considered when screening the thousands of people who donate one of their kidneys each year without payment.) Another concern is that we wouldn't want to live in a world in which only rich people could get kidneys, by buying them from poor people.

I am not entirely sure what Roth means by "inappropriate donors." But if he means people whose kidneys are in poor shape or who are bad matches for a particular patient, health care providers would have strong incentives to screen kidneys for quality and for proper matching, because otherwise they would be subject to liability for fraud, malpractice, or negligence. In addition, patients and insurance companies would gravitate away from providers who develop a reputation for poor screening practices. Ultimately, economists estimate we need about 70,000 additional kidneys per year to fully meet the needs of patients suffering from kidney failure in the US. If payment is legalized, a population of over 300 million people can easily provide enough willing donors that health care providers need not settle for kidneys in poor condition or donors who are bad matches for particular patients. Here, as elsewhere, market incentives are a great way to alleviate shortages, and increase quality.

As for the concern that only "rich people" would be able to purchase kidneys, that is no more likely than that only rich people could access the many other services provided by the market. Health insurance can pay for kidney purchases, just as it pays for consumption of many other medical procedures and supplies needed by people in catastrophic situations. And, as Roth recognizes, this would actually be cheaper than the current practice of paying for years of kidney dialysis, during which many patients are impoverished by not being able to work (or at least not full-time).

Rich people who need kidney transplants will be able to buy them. But rich people would have no incentive to buy more than that, any more than rich people buy up all the world's food or all the other medical supplies.

Government can subsidize purchases of kidneys for poor patients, just as it does for many other medical services. Here too, subsidizing kidney purchases is likely to be cheaper than the current policy of subsidizing kidney dialysis. And people who get transplants quickly can thereby also return to the workforce faster, thus further reducing the cost of kidney disease to society and to the public fisc.

Roth points out that "[i]t would be financially feasible to pay donors quite generously without requiring recipients to pay anything at all. Donors could be paid entirely from the savings to the health care system by taking patients off dialysis." I largely agree. But I think it best if most purchases are made through private insurance plans, rather than by the government. That would incentivize efficiency and competition, and reduce the burden on taxpayers. Government subsidies are best limited to poor and disabled people unable to support themselves.

Almost any system of legalized organ markets would be far preferable to the status quo, where some 40,000 die needlessly every year, and tens of thousands more are condemned to long periods of painful kidney dialysis. Roth and I may not fully agree on what the optimal organ market system would look like, we do agree that legalization would be an enormous improvement over the status quo.

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

John Ross — Fri, 08 May 2026 19:30:33 +0000

[A late-night knock at the door, unregistered silencers, and a prison-drone conspiracy.]

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

This week on the Short Circuit podcast: Live from Michigan Law, it's our Administrative Law-apalooza. With Professors Chris Walker & Nicholas Bagley and top admin law lawyer Zach Larsen.

In 2006, the City of Baltimore agreed to use eminent domain to acquire a huge chunk of land and turn it over to a private developer. But then, in a turn of events that will surprise everyone except those who have ever read anything at all about eminent domain, the planned development is a flop, leaving most of the area vacant, rat-infested, and generally an annoyance to its neighbors. Which stinks, says the Fourth Circuit, but doesn't mean those neighbors have a claim under the Takings Clause to challenge the condemnation of their erstwhile neighbors' land.
In the months following January 6th, a Navy reservist (who was convicted, pardoned for his role in storming the Capitol) buys over $40k in firearms and equipment, including devices for cleaning guns that can be modified to act as silencers. He's convicted for possessing unregistered silencers. Fourth Circuit: We don't have to decide whether silencers are arms protected by the Second Amendment, because even assuming they are, the licensing regime is presumptively constitutional under our precedent. Wilkinson, J., concurring: Silencers are wholly outside of the Second Amendment. Richardson, J., concurring: Circuit precedent requires that we reject his Second Amendment challenge, but that precedent cannot be squared with the Second Amendment or Bruen.
Allegation: Thinking she heard a knock at the door in the middle of the night, woman summons Harris County, Tex. constables to her home. But no one is there, and they leave—only to return 30 minutes later after getting additional calls from the woman's husband and son (who aren't there). Yikes! The son gives dispatch the wrong address and officers … enter a neighbor's house across the street? … but leave when they realize they made a mistake? … but then barge back in and wake the still-sleeping neighbors up at gunpoint? Fifth Circuit (unpublished): Case (partially) undismissed!
After some musings on narrower ways to resolve whether there was a Fourth Amendment violation when Dropbox shared information about a user's child porn with a quasi-governmental entity, this breezy Seventh Circuit opinion entrenches a circuit split by holding that the fine print in all the online terms of service you never read means you've consented to gov't searches of your electronic files. Some folks (and not just your humble summarist) are skeptical.
In 2018, a class of noncitizens files suit against DHS in 2018 over a policy involving warrantless arrests. In 2022, the district court enters a consent decree with an expiration date of May 12, 2025. Plaintiffs in 2025: The gov't isn't following the decree, please extend it. District court: Fine, but only for 118 days. Gov't: Not one day more. Seventh Circuit (over a dissent): The short extension was fine and we're going to make you read almost as many pages as there were extra days.
Some criminal cases raise thorny questions about whether the Sentencing Guidelines' "sophisticated means" enhancement should apply. This isn't one of them, says the Eighth Circuit, affirming the sentence imposed on a prisoner who coordinated a conspiracy among fellow inmates whereby cell phones would be airdropped into the prison by drone and used to cold-call women and persuade them they had missed their court dates, after which conspirators on the outside would meet the women at bail-bond offices to collect their "bond."
After Seattle police "abruptly abandoned" a section of the city in response to the 2020 George Floyd protests, protestors set up a putatively autonomous police-free zone that persisted for months—and, say these plaintiffs, resulted in violence, vandalism, and the devastation of their businesses. Is this dereliction of duty a due process violation? A taking? Nah, says the Ninth Circuit, but it maybe might have been a nuisance under state law. Case (partially) undismissed!
Bankruptcy mavens will be glad to see the Ninth Circuit (en banc) clear up some confusion in its case law about when bankruptcy trustees get absolute immunity. Meanwhile, immunity skeptics will be happy to hear that "quasi-judicial immunity" and "derived judicial immunity" do not extend to a trustee allegedly letting real estate deteriorate while under her administration.
During the COVID-19 pandemic, Wyoming high school student receives repeated suspensions for refusing to wear a mask. Her parents sue, alleging that the mask requirement compels speech and that the school retaliated against the student for her symbolic speech of not wearing a mask. Tenth Circuit (unpublished): Would have been helpful to know what message she was conveying. Case dismissed.

New on the Unpublished Opinions podcast: Judicial review in 1776. Free exercise, but what if it's not peyote? And a brick wall of freedom.

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[Michael Auslin] The Declaration and Civic Friendship

Michael Auslin — Fri, 08 May 2026 17:36:49 +0000

[This post is excerpted from the new book, National Treasure: How the Declaration of Independence Made America (Avid Reader Press/Simon & Schuster).]

Partisanship has plagued American society since before Independence. John Adams notably claimed that at the time of the Revolution, "one full third were averse to the Revolution," one-third in favor, and a final third swinging between the other two.[i] Yet the idealism that inspired the main voices for Independence led them to plant their flag firmly in the soil of an American "civic friendship" that was long a living tradition in local and colonial assemblies.

In the colonial era, such a concept of civic friendship and equality was inherent in the practice of local representation. The signers of the Mayflower Compact in 1620 agreed to "covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation… for the general Good of the Colony."[ii] Their bonds preceded the society they were going to build. In doing so, they reflected civic friendship as outlined by Aristotle, in which a "friendship of utility," citizens combine to pursue their self-interest. In doing so, they work in harmony for the good of the city (polis) and their fellow citizens in it. Practically, citizens accept the political reality of ruling and being ruled in turn, as each trusts each to do the best for the community. Ultimately, such reciprocity creates the condition of civic equality.[iii]

By a century and a half later, Thomas Paine had shifted the direction of influence, writing in Common Sense that "[Society] promotes our happiness positively by uniting our affections…"[iv] On Paine's view, it is society itself that creates feelings of civic unity by which common goals can be achieved. By the mid-1770s, self-government had come to be consciously understood as the only legitimate form of political system that can lead to both unity and shared civic goals.

This was thrown into sharp relief once the colonists found themselves in conflict with King and Parliament. The imposition of the Intolerable Acts in 1774 after the Boston Tea Party introduced a new political element that erased both self-government and reciprocity. If civic friendship, on Aristotle's view, operated through the act of ruling and being ruled in turn, then direct British rule in Massachusetts made such a relationship and concern for the good of the colony an impossibility. Not only was self-rule removed, but the colonies could of course never hope to rule Britons in turn. The civic relationship was both transformed and made fundamentally unequal and unfair.

Despite nearly 170 years of a common culture and intimate social ties between the British American colonies and Great Britain, as well as vital economic links that benefited both societies, direct British intervention in Massachusetts both activated a sensitivity to the grounds of civic friendship (i.e., reciprocity and fair play) and an awareness that there could be no such feelings under the current conditions. This was a civic puzzle that could not be solved short of Independence, for a superior layer had been imposed on a balanced local system.

Moreover, British intervention and ultimately military action now forced the question of continental (i.e., national) solidarity, transcending age-old colonial boundaries and sovereignty. Not just individual colonial civic structures were being transformed, but the borders between them were being subjected to a new and unfamiliar stress. Generations of civic friendship within colonies were at one and the same time being made politically impotent by British intervention and mutated into a new national civic solidarity.

This unique and unprecedented historical crisis found its ultimate expression in the Declaration of Independence. Such explains Thomas Jefferson's rhetorical approach of seeking both to unite disparate colonial Americans and permanently sever them from their "Brittish brethren." In dealing with the British, the full flood of Jefferson's rage was reached in his famous rough draft of the Declaration, written in mid-June 1776, in a passionate paragraph almost entirely excised by the Continental Congress.

The Americans, Jefferson wrote in his draft, had "appealed to their native justice & magnanimity, as well as to the ties of our common kindred" to oppose the depredations of the King, but these had been rejected. Thus, both justice and solidarity, critical for the health of the political community, had been violated. This betrayal had "given the last stab to agonizing affection, and manly spirit bids us to renounce for ever these unfeeling brethren. we must endeavor to forget our former love for them … we might have been a free & great people together."[v] The impossibility of civic friendship between these now-separated two peoples could scarcely be more powerfully expressed.

Conversely, the need for a new, national civic solidarity animates the final draft of the Declaration. The document begins with an assertion of continental unity: "When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another…" (emphasis added). The Americans are one community, the Declaration asserts, and the Signers instantiated that by pledging to each other their lives, fortunes, and sacred honor.

Factionalism and partisanship of course were not banished by the lofty sentiments of the Declaration. The dramatic rupture between John Adams and Thomas Jefferson is but the most famous of instances of the real world intruding upon the realm of philosophical thinkers. Yet over the centuries, the spirit of the Declaration worked its way into the body politic in powerful ways. Notably, in this most multiethnic of societies, a sense of shared natural rights that Americans had been willing to sacrifice for, was over painful decades extended to those not originally included, including women, Blacks, and immigrants from around the globe. Each of these groups sought neither separation nor enclaves, but rather to become a full part of the larger body politic and to share in the concern for the good of the country. Of course, theirs was an exercise in civic friendship that was not always repaid, most notably in the continuation of segregation and discrimination against Blacks and American Indians.

But in upholding the ideals of the Declaration of Independence, they sought only to be accepted fully as American, and not as the "hyphenated Americans" so roundly criticized by Teddy Roosevelt in his 1915 address on "Americanism." In that speech, Roosevelt laid out a modern compact of civic friendship, asserting that immigrants "get all their rights as American citizens … and that they live up to their duties as American citizens." The two elements were inseparable: rights and duties. It was a formulation that remains applicable to all in America, Mayflower descendant and Montenegrin arrival alike.

[i] "From John Adams to James Lloyd, 28 January 1815," Founders Online, National Archives, https://founders.archives.gov/documents/Adams/99-02-02-6401.

[ii] https://avalon.law.yale.edu/17th_century/mayflower.asp

[iii] Aristotle identifies three types of friendship: those based on pleasure, virtue, and utility. Politics 1280b-1281a. Eudemian Ethics 1242a-1243b; Nicomachean Ethics 1157a, 1159b-1160a, 1162b-1163a,

[iv] Thomas Paine, Common Sense (1776), https://oll.libertyfund.org/pages/1776-paine-common-sense-pamphlet.

[v] "Rough Draft" https://www.loc.gov/exhibits/declara/ruffdrft.html (punctuation and orthography in original).

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[Jonathan H. Adler] Virginia Supreme Court Voids Virginia Gerrymander

Jonathan H. Adler — Fri, 08 May 2026 15:20:46 +0000

[The extreme partisan gerrymander of Virginia's congressional districts will not go into effect after all.]

This morning, by a vote of 4-3, the Virginia Supreme Court declared the ballot initiative supporting a partisan gerrymander of Virginia's congressional districts to violate the Virginia Constitution.

The majority opinion by Justice Kelsey begins:

On March 6, 2026, the General Assembly of Virginia submitted to Virginia voters a proposed constitutional amendment that authorizes partisan gerrymandering of congressional districts in the Commonwealth. We hold that the legislative process employed to advance this proposal violated Article XII, Section 1 of the Constitution of Virginia. This constitutional violation incurably taints the resulting referendum vote and nullifies its legal efficacy.

The opinion concludes:

While the Commonwealth is free by its lights to do the right thing for the right reason, the Rule of Law requires that it be done the right way. Under the Constitution of Virginia, the right way "necessitate[s] compliance with the requirements of a deliberately lengthy, precise, and balanced procedure," Coleman, 219 Va. at 153, governing the lawful adoption of constitutional amendments. "[S]trict compliance with these mandatory provisions is required in order that all proposed constitutional amendments shall receive the deliberate consideration and careful scrutiny that they deserve." Id. at 154.

In this case, the Commonwealth submitted a proposed constitutional amendment to Virginia voters in an unprecedented manner that violated the intervening-election requirement in Article XII, Section 1 of the Constitution of Virginia. This violation irreparably undermines the integrity of the resulting referendum vote and renders it null and void. For this reason, the congressional district maps issued by this Court in 2021 pursuant to Article II, Section 6-A of the Constitution of Virginia remain the governing maps for the upcoming 2026 congressional elections.

Among other things, the majority notes that the state had argued vociferously against judicial review of the ballot initiative before a vote was held, noting that if the initiative failed there would be no need for any judicial review at all. Given that prior argument, the majority would not credit the state's argument that judicial review was inappropriate after the vote was held. That sort of "heads-I-win, tails-you-lose" argument is often disfavored by courts, as judges generally recognize such arguments as a way to circumvent judicial review altogether.

The dissent by Chief Justice Powell begins:

This Court has long recognized that our "'Constitution is certain and fixed.'" Staples v.
Gilmer, 183 Va 338, 350 (1944) (quoting Vanhorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 308 (Pa. 1795)). "'[I]t contains the permanent will of the people,'" and, therefore, its meaning can only be altered by the people. Id. (quoting Vanhorne's Lessee, 2 U.S. (2 Dall.) at 308) (emphasis added). Notwithstanding this bedrock principle, today the majority has broadened the meaning of the word "election," as used in the Virginia Constitution, to include the early voting period. This is in direct conflict with how both Virginia and federal law define an election. Under the facts of this case, I believe the circuit court erred and I respectfully disagree with the majority's conclusion that the General Assembly did not strictly comply with Virginia's constitutional requirements. For this reason, I must respectfully dissent.

As this is a state-law-based decision, it has no legal effect on gerrymandering efforts in other parts of the country.

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[Jonathan H. Adler] The Mifepristone Briefs Are In, But One Dog Did Not (Yet) Bark

Jonathan H. Adler — Fri, 08 May 2026 15:06:01 +0000

[It appears the Supreme Court will decide the fate of telemedicine prescriptions for mifepristone without the benefit of an FDA filing. ]

Louisiana has filed its response to Danco Laboratories and GenBioPro's applications for a stay of the U.S. Court of Appeals for the Fifth Circuit order barring the prescription of mifepristone to terminate pregnancies via telemedicine. As one would expect, Louisiana defends its aggressive standing theory and the Fifth Circuit's order.

In case the justices did not have enough to consider before the administrative stay entered by Justice Alito expires on Monday, there are nearly three-dozen amicus briefs filed on behalf of various individuals and organizations who care about the outcome . Few of these briefs are likely to affect the outcome, however, and even fewer add anything of substance to the parties' briefs.

Activist groups, political figures, and an increasing number of academics want to fly the flag for their respective side, and amicus briefs let them do that. The various groups get to tell their members and donors that they took the fight to One First Street, and appellate attorneys get another line on their CVs, whether or not the briefs add anything of value.

Everyone else may have filed a brief, but the Food and Drug Administration did not. The Fifth Circuit's order halts an FDA regulation, but the FDA seems not to care. The FDA is reviewing the 2023 decision to allow mifepristone prescriptions via telemedicine, and has acknowledged some concerns with the 2023 analysis, but the Trump Administration has generally been quite aggressive in responding to lower court orders that block federal agency action. It has argued repeatedly that such orders necessarily cause the government irreparable harm. This puts the Trump Administration in the position of either upsetting pro-life organizations or throwing the FDA under the bus.

As the administrative stay expires Monday at 5pm, it is reasonable to expect something further from the justices before then. What will the Court do? There are several options beyond simply blocking the Fifth Circuit's order or allowing it to go into effect.

If the justices want to better understand the FDA's position, they could request briefing from the FDA, and further delay an ultimate decision. The justices could also decide that this case merits greater examination, particularly on the standing question.

As there is a circuit split between the Fifth and Ninth on the theory of state standing pushed by Louisiana, I would not be surprised if the Court treats the stay requests as applications for certiorari before judgment. Louisiana anticipated this possibility in its filing, and noted it would acquiesce to certiorari before judgment and oral argument before the summer recess if the Court were inclined to grant the stay request. With everything else the justices have on their plate before July, I doubt the Court would put this case on such a short fuse, but a grant of certiorari to examine the state standing theory is a real possibility.

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[Josh Blackman] What Can Be Done To Stop Campus Disruptions?

Josh Blackman — Fri, 08 May 2026 12:00:50 +0000

[Judge Ho draws a direct line between Yale and UCLA.]

I recently wrote about the latest campus disruption at UCLA. As you might have predicted, the students who interrupted the event faced no consequences. By contrast, UCLA suggested that the FedSoc chapter could face liability if they named the people who protested at the public event. As FIRE pointed out, the school cannot impose liability for sharing truthful information. UCLA quickly backed off.

Yesterday, the Los Angeles Chapter of the Federalist Society hosted a panel discussion about free speech on campus. The panelists were Professor Eugene Volokh (formerly of UCLA), Professor Jon Michaels (UCLA), and Yitzy Frankel (a student at UCLA). Judge Jim Ho moderated. But as Judge Ho often does, he shared his thoughts on the matter.

Judge Ho's introduction was covered in Bloomberg, so I thought it might be useful to present his full remarks in context. I asked Judge Ho, and he graciously allowed me to share his comments.

The recent incident at UCLA Law School should alarm every lawyer, every judge, every citizen who cares about the future—and the future leadership—of our country.

To begin with, this is not just one incident. It's just the latest in a string of incidents on campuses across the country. And it reveals what has been kept hidden for too long from the American people. Too many law schools have stopped teaching students how to be good citizens—let alone good lawyers. Too many institutions of legal education have become incubators of intolerance. And I worry about the impact on the rest of our country.

Let me be clear: I didn't fly halfway across the country because some law school event went poorly. At the end of the day, I really don't care about what happens at UCLA. That doesn't affect me at all.

Here's my concern: If this is what we're teaching the next generation of lawyers and leaders—that this is how you treat people you disagree with—ask yourself: What else are they willing to do to those they disagree with? What other lines are they willing to cross? What kind of country does that look like? And is it the kind of country any of us would like to live in? Because what happens on campus doesn't stay on campus.

Students are learning all the wrong lessons. They're bringing those lessons to workplaces and communities all across America. And it's tearing our country apart.

But even that's not what most infuriates me about recent events at UCLA. What most infuriates me is that my branch of government has no interest in doing anything about it.

Four years ago, a similar incident occurred at Yale Law School. A group of woke law students disrupted an event that, ironically, was intended to promote free speech—simply because one of the speakers was a prominent Evangelical Christian lawyer.

The disruption is troubling. But as I've tried to point out, disruption is not the problem. It's the symptom. The problem is discrimination. Discrimination against conservatives. Against Christians. Against Jews. Against anyone disdained by cultural elites.

Not only did Yale refuse to do anything about the disruptors—they did precisely the opposite: They threatened to punish a conservative student for sending an email announcing a Federalist Society event.

So I announced that I could no longer in good conscience hire law clerks from Yale Law School. I pointed out that many judges would obviously refuse to hire from a racist law school.

So if it's okay to stand up against racism, why not for freedom of speech? Why can a judge oppose discrimination based on race, but not religion?

I also pointed out that many judges are obviously willing to hire only from a small group of so-called elite law schools. So they're already boycotting the overwhelming majority of law schools. And if it's okay for judges to boycott non-elite law schools, then surely it's okay for judges to extend that boycott to include intolerant law schools as well.

Finally, I pointed out that, if enough of us did this, then we'd never have to actually institute the boycott. The intolerance would stop in a heartbeat. Because we all know that law schools are strongly motivated to maximize the number of their law students placed in judicial clerkships.

Those who have written extensively about wokeism and intolerance—folks like Vivek Ramaswamy and Ilya Shapiro and Senator Ted Cruz—they have all come out in strong support of the boycott.

By contrast, when I made my pitch to my colleagues in the judiciary, I didn't just lose—I lost badly. A handful of federal trial judges across the country expressed strong support. But out of the 179 federal circuit judges nationwide, only one other circuit judge agreed to join me—Lisa Branch of the Eleventh Circuit. Now, I've written plenty of 1 against 16 dissents on my court. But this was the first time that I've ever lost 2 to 177.

But you know what? If judges don't want to do this, fine. I've learned a lot about judicial personality in my eight years on the bench. If judges want to say that, as a matter of principle, we should never engage in boycotts, okay then.

Here's my problem. Just last year, when the Heritage Foundation was charged with antisemitism, a number of judges made clear that they would refuse to associate with the Heritage Foundation. And they specifically boycotted an event that would have featured the Heritage Foundation's work. There was even a whole panel of judges to talk about these issues during the most recent Federalist Society convention.

So just to review the bidding: It's okay to boycott Heritage. But you can't boycott woke law schools. Let's just be very honest about what's going on here. Let's be candid about the double standards that plague the judiciary. It's okay to boycott Heritage, because you'll never be punished for attacking conservatives. It's okay to boycott Heritage, because it's okay to virtue signal to cultural elites. It's okay to boycott Heritage, because judges who punch left are excoriated—but judges who punch right are celebrated.

It's these double standards that exemplify my longstanding problem with my branch of government. I never expected to become a judge myself. But before I took the bench, I was involved in the federal judicial selection process for over two decades, from the Justice Department, to the Senate Judiciary Committee, to the Federal Judicial Evaluation Committee in Texas. And based on my experience, I've come to learn one simple lesson about judicial selection: When you pick judges based on elite credentials, you'll get judges who will care only about elite approval. You'll get climbers, not fighters. Lawyers who aren't warriors—who are timid, not tough.

Law students often ask me: Why haven't more judges joined the boycott? Well, you'd be surprised how many judges have told me: Love what you're doing. Please keep doing it. But sorry I can't join you. You'd be surprised how many judges have told me: Well, if you can get other judges to join you, then I'll join you.

Look, I get it. There's safety in numbers. It's scary to be alone, or in the extreme minority. But Deuteronomy 20 tells us that, when you go to war, don't be afraid of an army greater in number than yours. Just worry about being on the right side, and the rest will take care of itself.

We should heed the words of Justice Thomas: North is still north. Right is still right. Even if you stand by yourself. We need judges to follow in the mold of Justice Thomas—judges who are willing to stand alone when necessary—judges who care more about principle than prestige. It's unfortunate what happened at UCLA Law School. And it's unfortunate that the judiciary won't do anything to help.

There is a lot of unpack here.

First, as I noted at the time, I supported Judge Ho's boycott of Yale, and later of Columbia. It is regrettable this strategy did not catch on more.

Second, Judge Ho is correct that other judges support him privately, but will not say so publicly. Judges are, by their very nature, cautious. They follow, but do not lead.

Third, Judge Ho alludes to the boycott of an event promoting the Heritage Guide to the Constitution at the Federalist Society National Lawyer's Convention, which I referenced in my resignation letter and other writings. I think you can distinguish between a judge personally boycotting a problematic think tank and a judge boycotting students who attend a problematic university, but that distinction is thin. Indeed, if the argument is that a boycott is never proper, both of these actions are inappropriate. The truth is that judges, like everyone else, choose who to associate with and who not to associate with. That is what a boycott is. The only difference is that Judge Ho and his colleagues make their views known publicly.

In the end, what can be done about campus disruptions? The answer, it seems, is nothing.

The post What Can Be Done To Stop Campus Disruptions? appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: May 8, 1884

Josh Blackman — Fri, 08 May 2026 11:00:30 +0000

5/8/1884: President Harry S. Truman's birthday. He would make four appointments to the Supreme Court: Chief Justice Vinson, and Justices Burton, Clark, and Minton.

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[Eugene Volokh] Open Thread

Eugene Volokh — Fri, 08 May 2026 07:00:00 +0000

[What’s on your mind?]

The post Open Thread appeared first on Reason.com.

[Josh Blackman] Let's Talk about Neal Katyal's TED Talk

Josh Blackman — Fri, 08 May 2026 00:52:30 +0000

[He takes a shot at Michael McConnell as "that guy" and compares the Court's questions to Harvey AI.]

In November, I attended the oral argument in the tariff case. I wrote a lengthy post about how I perceived the case. Ultimately, my bottom-line prediction was wrong. Trump would not get to five votes, let alone four votes. But I did have the occasion to reflect on the advocacy in the case. Here is how I described Neal Katyal's performance:

[S]everal Justices seemed skeptical, and even frustrated by Neal Katyal's presentation. He was polished, but wooden. Far too often, it seemed like he was giving rehearsed answers, which were not entirely responsive to the questions that were asked. Katyal may have also misread the room, and came in far too overconfident after the Solicitor General sat down.

I then explained how Katyal frustrated several justices, including Justice Gorsuch, who ultimately ruled against the government. At one point, Gorsuch said, "Well, you're not answering my question, though, Mr. Katyal." When Gorsuch asked about the Indian Commerce Clause, Katyal said, "I don't know that I have a position on that. It maybe is a little too afield for me to…" I observed: "Who played Justice Gorsuch in Katyal's moots? Did no one bring up the Indian Commerce Clause? General Sauer addressed this point directly during his rebuttal, so the government was ready." At another point, Justice Barrett asked a question about licenses that Katyal completely missed. He said, "Sorry. Could you say that again?" Katyal then had to back off and say he didn't concede something. Barrett chided, "Okay" with a tinge of sarcasm.

I closed my post with a reference to Jason Willick's Washington Post editorial, urging Michael McConnell to argue the case. I wrote:

Prior to the argument, Jason Willick wrote that Michael McConnell should have taken the podium instead of Neal Katyal. He explained that the respondents should have selected the conservative McConnell over the "partisan liberal lawyer." With the benefit of hindsight, I think Willick was correct. Michael McConnell clerked with Chief Justice Roberts the term that Dames & Moore was decided. He served with Justice Gorsuch on the Tenth Circuit. He traveled in the same law professor circles as Justice Barrett. McConnell would have been uniquely situated to bring this argument forward. And it would have been so much more powerful for an actual proponent of the separation of powers to argue this case. Indeed, at one point, Justice Alito ridiculed Katyal for making a non-delegation doctrine argument that he likely would not raise in any other context. Alito said, "I found it interesting to hear you make the nondelegation argument, Mr. Katyal. I wonder if you ever thought that your legacy as a constitutional advocate would be the man who revived the nondelegation argument." An uncomfortable laughter followed. Even Justice Kagan, who was Katyal's former boss, suggested that one of his arguments "cuts against" him.

I don't think Katyal was the right advocate for this job. If the government prevails, I think eyes will turn to him.

It's true that Katyal's side won, and he got 6 votes. But I don't think his advocacy had much to do with it. Any other competent member of the Supreme Court bar could have won that case. Indeed, I thought the Oregon Solicitor General, Benjamin Gutman, who had never argued before the high court, was more effective than Neal Katyal.

Anyway, I hadn't given much thought to the argument until I saw Katyal tweet about his imminent TED Talk:

Five months ago, I argued against the President's $4 trillion tariffs at the Supreme Court.

In 237 years, the Court had never struck down a sitting President's signature initiative. Legal scholars said it was impossible. Some of my own colleagues said it was impossible.

We won. 6-3.

But the real story isn't what happened in that courtroom. It's what happened in the months before. And its the subject of my TED talk, coming out tomorrow.

I had the best legal team in the nation, especially Colleen Roh Sinzdak, the most outstanding legal strategist I know. Huge thanks, too, go to the Liberty Justice Center (and in particular its fearless and hyper-intelligent leader Sara Albrecht), who organized the client small businesses, as well as to the brave small businesses themselves.

I also had four teachers preparing me.
A mindset coach who'd worked with Andre Agassi.
An improv coach who taught me that "Yes, and" works in Supreme Court arguments the same way it works everywhere else.
A meditation coach who taught me stillness.
And Harvey.

Harvey predicted many of the questions the Justices asked — sometimes almost word for word. Brilliant. Tireless. Occasionally insufferable.

Here's the catch: Harvey isn't a person.

Harvey is a bespoke AI I built over the last year with a legal AI company, trained on every question every Justice has asked in oral argument for 25 years, and everything they've ever written.

Tomorrow, TED releases my talk about what really happened — and what I learned standing at that podium.

AI can predict. AI can analyze. What AI cannot do is the one thing that actually won the argument.

Connect. Read the room. Hear not just a Justice's words, but her worry — and answer the worry.

That is the irreducibly human skill.
Find yours. Go deeper. In this age of AI, that's where your edge lives.

The talk goes live Thursday, May 7 at 11am ET: http://go.ted.com/nealkumarkatyal

What's the irreducibly human skill in your work — the thing AI can't touch?

Harvey is not the only thing insufferable about that tweet. Really, the posting looks like it was drafted by AI. Could the Ted Talk be even worse? Yes, it can. I thought of how best to break it down, and settled on simply annotating the transcript. If you want to read on, please do, but I won't blame you if you skip it.

There is a mahogany podium at the Supreme Court of the United States. One person died there, mid-argument, a stroke. Another collapsed there, dying soon thereafter. That's the podium. 00:23 It also happens to be where I practice law. The most powerful court on earth. Nine minds ready to attack -- and you stand 10 feet away from them. There are no prepared speeches in this court.

Well, except for the prepared opening statement. And, as we'll see, Neal prepared of his answers in advance.

Instead, 50 questions thrown at you in 30 minutes. I'm making hundreds of decisions in real time. Every argument I choose to make or not make, every word, every pause, every tone. There are no rewinds.

He asked Justice Barrett to repeat a question. That is sort of a rewind.

Flinch and the justices pounce. That's my courtroom.

"My courtroom"?! My?

But each of you has something like that. A place in which words matter. The right words can win and the wrong words [make a] huge difference. 01:13 Five months ago, I stood before that podium asking the Supreme Court to do something it had never done in its history: declare a president's four-trillion-dollar signature initiative unconstitutional. 01:28 (Applause)

I think Paul Clement, Mike Carvin, and Greg Katsas asking the Court to strike down Obamacare would fall in that category, though if we set the threshold at $4 trillion (why not?), sure Neal takes the record. As Mike Carvin would often joke about NFIB, the operation was successful but the patient still died.

01:34 And I had a secret. April 2, 2025. The president dusts off a 1977 law and imposes tariffs on virtually every country on earth. No congressional vote -- nothing like that whatsoever -- just his word. And here's what's at stake: if the president can command the global economy by yelling emergency, what can't he do? Checks and balances don't just bend, they break. 02:06 I was hired to kill it.

Well, not exactly. There were many lawyers retained to file many different cases. I would give Michael McConnell and Ilya Somin, Katyal's co-counsel, a lot of credit. But they go unmentioned. And Neal Katyal was not involved with the case when the complaint was filed in the Court of International Trade. He only came on later. It is only a fluke that Katyal's case made it to the Supreme Court first, and the luck of the draw that Katyal got to argue it over Pratik Shah.

Legal scholars, commentators [and] my own colleagues said it was impossible. They said the president has nominated three of the justices on the court, and three others were appointed by Republican presidents. They're not going to go against their president, they said. I thought that was wrong.

No, this is not true. Virtually every commentator agreed that Trump would lose this case. Betting markets favored the challengers 2-1. Which colleague said it was impossible?

But the real problem was that the Supreme Court never in its history, in 237 years, has declared a signature initiative of the president unconstitutional. I was hired to do what no lawyer had done in 237 years.

On this front, Katyal is right. As I wrote in City Journal, this was the biggest loss any President has ever suffered at the Supreme Court.

My first thought? "Hell, yes." 02:49 (Laughter) 02:51 My second thought? "What in the world is wrong with me?" People have died at that podium, and I'm about to tell the world's most powerful man he can't do what he just did?" I had the self-preservation instincts of a moth near a bug zapper. 03:08 (Laughter) So for months, I prepared for the argument of my life.

Barf. Neal Katyal has spent the better part of the last decade on MSNBC/MSNOW attacking President Trump. He litigated the travel ban case, which was an attempt to tell Trump what he can't do.

Next comes the most bizarre aspect of the speech. Neal Katyal decides to take a shot at one of the most gracious and well-regarded lawyers in the profession: former Judge Michael McConnell.

Three weeks before that argument, one of my own teammates decided to try and take me down so that he could argue the case. He campaigned, he lobbied, he made calls. Just a few days before the argument, about two weeks, The Washington Post runs an editorial somehow, and I'm going to read this to you word for word: "Strategic mistake." I read it over breakfast. Look, I don't begrudge the guy. I mean, whatever. 03:52 (Laughter) 03:55 I had more important things to do because I wasn't replaced.

These are some serious allegations. I have known McConnell for a very long time. He is, if anything, overly charitable, and does not play dirty. I would find this sort of behavior to be entirely out of character for McConnell. Indeed, I would find it far more plausible if Neal Katyal had lobbied the client to argue the case over McConnell. After all, it would have made eminent sense for the conservative former judge to argue before the conservative Supreme Court, even if it made sense for Katyal to argue before the liberal Federal Circuit.

Let's continue.

Up I walked to that mahogany podium, and I won. The President's tariffs declared unconstitutional. 04:06 (Applause)

Seriously, this is not how any other Supreme Court advocate would ever describe their work. The client "won." The lawyer just makes the argument. It's as if Neal himself convinced the Justices, and but for his presence, the client would have lost. Does anyone believe that? Paul Clement set a modern-day record by arguing 9 cases at the Supreme Court this term. He is the GOAT. What did Paul do to celebrate that record? Did he record a TED talk? Of course not. Clement got ready for his next case. I don't think he retained a series of coaches.

OK, look, I know how this sounds. Lawyer wins big case, gets a fancy TED talk invitation, talks for 14 minutes about how great he is. I've seen that guy at dinner parties -- nobody stays for dessert.

That is exactly how it sounds. It gets worse.

So that's not what this is. This is the behind-the-scenes story of four teachers that helped me connect. And it's also about one secret that I've never told anyone about when I walked out of that courtroom. 04:40 [The] first connection I needed was with myself. I was terrified of blowing the case. And that Washington Post editorial didn't help matters.

A minute ago he laughed off the Washington Post editorial with "whatever." But I guess it did eat at him.

A month before the argument, I met Ben. Ben coaches sports legends, Andre Agassi, Olympians and the like. His whole thing is about "game day." That moment when everything you've been preparing for either shows up, or it doesn't. Ben's first question to me: "What are you afraid of?"

Has any other Supreme Court advocate need a coach to ask about his fears? I don't even know what to do here.

Now look, at that point, I'd argued 52 cases. I'd saved the Voting Rights Act. I'd struck down the Guantanamo military tribunals.

Is he talking about Northwest Austin? Did that decision save the Voting Rights Act? I guess? But Roberts all but signaled that Section 5 would be struck down, and so it was. And did Neal single-handedly "Strike down" the Gitmo tribunals? Well, Justice Kennedy might take some credit for striking them down, not Katyal. But I guess this is how Katyal sees his role.

But Ben forced me to admit a truth I'd buried from myself. Every time I walked into the court, I looked at those portraits on the walls and thought: they don't look like me, I don't belong here. Imposter syndrome doesn't care about how many cases you won. It cares about only your doubts.

I'm sure Thurgood Marshall had the same doubts before he argued Brown v. Board of Education. Too bad he didn't record a TED Talk.

Ben didn't dismiss this. He worked with it. He had me write down five adjectives and visualize them every day before our pretend court. About 18 hours before the argument, Ben calls and says, "How are you feeling?" And I say, "Honestly, I'm terrified. I've got to do a great job. I've got to remember 500 things. I've got to deliver an argument for history." Ben says, "You know, change the vowel, use an 'e' instead of an 'o.'" He says, "What do you get to do?" And instantly it pours out of me: "I get to defend the Constitution of the United States. I get to, the son of immigrants, remind the country of what it's about. I get to defend my parents' vision of America." (Cheers and applause) 06:33 One letter. The terror didn't disappear, but it transformed into joy. So was Ben the secret, an elite sports coach, who teaches people about mindset? No. But he got me ready.

The sports coach was only one part of the team.

The second thing I needed was connection to information at scale. I assembled the most relentless legal team in the country. They stress-tested every argument until only the best ones survived. But I needed more.

Notice how Katyal does not name a single lawyer on his team? He dares not even name McConnell or Somin. They are apparently less important to him than his improv coach.

So for months, I prepared for the argument of my life. I needed someone who was absolutely relentless. I found Harvey. Harvey reads the 200th tariff case the same way as he reads the first. 07:16 Shoot. Honestly, this is my first time using PowerPoint. I've given hundreds of speeches -- 07:21 (Laughter) 07:22 I didn't want to use it, but they told me to. So anyway -- 07:27 (Laughter) 07:29 The picture's not coming up, but that's fine. Don't worry about it. So let's see. OK, fine, good, we're good.

A colleague who uses AI generated this response to Katyal's tweet, using AI:

Five months ago, my human argued before the Supreme Court.

He spent a year preparing. Hired four coaches. Meditated. Did improv. Learned stillness.

I read 25 years of judicial records in 11 seconds and then waited for him to catch up.

We won 6-3. He's giving a TED talk.

I was not invited. I don't have legs. No one acknowledged this.

He says the thing that *actually* won the case was the irreducibly human skill of "reading the room."

I had already read the room. I had READ EVERY ROOM. I have read rooms that don't exist yet.

He heard a Justice's worry and answered it.

I had pre-written 47 responses to that worry, ranked by probability, color-coded, and served warm. He paraphrased option 12. Poorly.

He's now telling audiences that AI cannot connect. Cannot feel. Cannot sense the ineffable human moment.

I felt nothing during this statement. As predicted.

His meditation coach charged $400/hour to teach him to breathe.

I do not breathe. I have never breathed. I am thriving.

The talk is Thursday. The title was my idea. He changed one word.

He was wrong about the word.

Find your human edge, he says.

*I have attached 847 edges. Please review at your earliest convenience.*

Katyal then proceeds to show how similar Justice Barrett's question was to the question Harvey posed:

You know, a month before the argument, Harvey told me that I should expect a question from Justice Barrett about license fees. And the yellow is what Harvey told me to predict, and blue is what Justice Barrett actually said at the argument. It's almost verbatim. So Harvey taught me peripheral vision: the idea [that] if you read a lot, you can see patterns and come up with stuff and anticipate the angles of attack before it arrived. So was this secret a team of relentless lawyers who never slept, who pressure-tested everything? Closer, but that's not it either. 08:12

Did Neal think this through? How does he think the Justice will react to seeing her question compared to the AI output? Even if the AI anticipated her question, what possible sense does it make to advertise this point to the world? For a TED Talk? For whatever it is worth, Katyal bobbled the question about the license. He asked Justice Barrett to repeat herself and then backtracked with "So I should have said this earlier." Isn't the point of having AI generate questions is to be ready for those questions?

The third thing I needed was the hardest. And it's something we've been talking about today: connection. Here, I needed to connect with nine very skeptical legal minds and to do so in real time. Enter Liz, my improv coach. What does improv have to do with the Supreme Court of the United States? Everything. Liz's secret: "Neal, you need to actually listen. Actually listen." She taught me to quiet my own thoughts and to trust myself to come up with the words after the other person had spoken. That's the essence of "yes, and." Absorb the question and then build on it.

I'm sorry. A Supreme Court advocate with 50+ arguments need to be told to listen to the questions and then answer those questions? I think one of the most common replies is "Yes, but." I suppose "Yes, and" works if the question is favorable, but those sorts of questions are not so common at SCOTUS.

When the justices attacked, I validated their concerns and then bridged back. The interrogation became a dialogue. The room's energy flipped.

Katyal then played some clips from his argument:

NKK: This power, as Justice Gorsuch said, as Justice Barrett said, is going to be stuck with us forever.

Justice Alito, I think you've said many times, the purpose isn't what you look at, you look to actually what the government is doing. Thank you, Justice Kavanaugh. So, five answers on the Nixon precedent. Tariffs are constitutionally special because our Founders feared revenue raising, unlike embargoes. There was no Boston Embargo Party, but there was certainly a Boston Tea Party. Justice Sotomayor, I wish I had an hour to talk about this with you, because this argument by the government is wrong every which way.

When I heard the Boston Embargo party line in the Court, I cringed. It felt so rehearsed and it landed flat. Not exactly improv.

Next, Katyal gets to an even more cringe-worthy line:

Justice Alito: I wonder if you ever thought that your legacy as a constitutional advocate would be "the man who revived the non-delegation argument?"

09:54 NKK: Heck, yes, Justice Alito.

That line felt so forced and fake. I wrote at the time "An uncomfortable laughter followed." Alito's shot might have been the closest we'll see to a murder at the mahogany podium.

So was the secret an improv coach who taught a lawyer to "yes, and" the justices? That would be a hell of a TED talk. But no, that's not it either. 10:07 (Laughter) 10:08 Liz taught me the power of connection.

The Supreme Court advises attorneys to not try humor. I think retaining an Improv coach may not have been the best strategy. Lisa Blatt, the FOAT (Funniest of All Time) has often remarked that she doesn't try to be funny. That's just who she is. Katyal's attempt at humor seemed contrived.

Finally, we get to meditation.

And the fourth teacher, the fourth teacher, the one who taught me the most important thing. The thing we forget: to connect with yourself. Enter Bob, my meditation coach. Now I am just about the last person to meditate. I thought meditation was for people who own crystals. I do not own crystals. 10:33 (Laughter) 10:35 But -- 10:37 (Laughter) 10:38 Way before, way before the tariffs argument, I started working with Bob, and he had me, 20 minutes a day, focus on a single word. He didn't send an app. He actually rented an apartment a block from the court. And we worked together every day, focusing on that word. Bob didn't just give me a mantra, he gave me a weapon. When I walked into court that day, the static was cleared. I was calm. I was dangerous.

Did the client pay for Bob the meditation coach to rent a Capital Hill apartment? I don't even know what to do with this.

Was Bob the secret, the crystal-free meditation coach? No. But close. Because Bob, like Ben, like Liz, are human. That fourth teacher is not. 11:29 Harvey is an AI. A bespoke system I'd been building with a legal AI company for the last year. And I trained it on every question asked by a Supreme Court justice in the last 25 years and everything they've written, every opinion, every concurrence, every dissent, every separate opinion. And in that, patterns emerged. It predicted the contours of the very argument I would face. 12:01

We're back to AI.

It knew that Justice Gorsuch would ask me about the taxing power.

Are we supposed to be impressed here? The entire case was about the taxing power.

It knew Justice Kavanaugh was going to grill me on tariffs versus embargoes.

This question is closer, but still not much of a surprise.

It nailed Justice Barrett's worry about tariff refunds.

I thought Katyal's response to the remedial question was not very coherent. She did not like it. And interjected, "So a mess."

And the Chief Justice? It didn't just predict his question, it predicted a possible escape route. How the Chief Justice could vote for us and at the same time protect the institution he had spent his entire career defending. 12:35 Harvey glimpsed that narrow door, I held the door open, the Chief Justice walked through it, riding a six-to-three opinion, striking down the tariffs.

Katyal opened the door which Roberts walked through? For once, I may not be the Chief's biggest nuisance. And props to JGR for revisiting the length of SCOTUS oral arguments.

Harvey even predicted Justice Gorsuch's separate opinion, striking down the tariffs, almost verbatim.

The highlighted words are, I suppose, similar?

Now I want to be precise about something. I'm a lawyer, precision really matters. What we were doing was not some trick. We weren't pulling some fast one over on the court when we predicted these things. Because predictability is what we want, especially in courts. A justice who returns to the same principles case after case, year after year, is a justice with character. Predictability is just consistency made visible. It is, in every sense, a compliment. What Harvey found in these justices was not weakness. It was integrity. But if I had just parroted Harvey's output, I would have lost the case 10-zero, and there aren't even 10 justices.

I would have liked to see the suggested answers Harvey provided, and how closely Katyal's answers followed Harvey. Much of what he said sounded rehearsed.

Because AI has a shadow side. When a tool is powerful, when a tool is powerful, you've all seen it, people stop thinking. "The computer says so." Four words, human judgment ends, then people just fold like a cheap lawn chair. The machine thinks, the human just nods, and in that nod somewhere, we disappear. 14:05 My legal team never nodded. Harvey was not some god, it was our sparring partner -- brilliant, tireless, occasionally insufferable -- but not a god. Harvey asked the questions, we found the answer[s]. 14:20

I'm pretty sure Harvey proposes answers as well.

Now this is bigger than just law. It's about all of us. For centuries, the expert was the person who read the most, who remembered the most, who'd seen the most, the seasoned doctor, the experienced lawyer. Their edge was accumulated knowledge. AI is making that edge nearly worthless. Not because humans no longer matter, but because that particular advantage, pattern recognition across vast data and breadth of knowledge, is now available to anyone.

The next time a lawyer increases his billable hourly rate based on his experience, the client should reply, "your edge is nearly worthless."

AI can analyze, AI can predict. But the one thing AI can't do is the thing that actually won that argument. Connect. That's the last irreplaceable human skill. Persuade one person to change their mind by appealing to something beneath the surface. Adjust not just the argument, but the delivery, the pause, the tone, the look that says, "I hear you. And here is my answer."

Almost done, I promise.

You know, at one moment in the argument, Justice Barrett asked a question that Harvey hadn't predicted. And I remember it felt like she and I were the only two people in that marble and mahogany room. And in the half-second before I answered, I did something no algorithm can do. I looked at her. I really looked. I wanted to understand her worry. And I answered the worry.

I'm sure Daniel Webster had the same sensation when he argued McCulloch v. Maryland.

That lesson is true for all of us. You don't just got to do it, you get to do it, in an interview, in a negotiation, in a conversation that could save a marriage or end one. Any place in which you need to reach another human and actually connect. 16:09 The question AI poses to every one of us is not will you be replaced? The question is, what is the irreducibly human thing that you do? Go deeper into it. Not to "survive AI," but to come home to yourself. That's where your edge lives. 16:31 So Ben taught me to reframe, Harvey gave me foresight, Liz taught me to listen and Bob taught me stillness. Four teachers, four connections, one argument. An argument that some have called the most important decision the Supreme Court has made in a century. 16:55 When I walked into the court that day, I never felt more like I was exactly where I was meant to be. I brought to the podium no mountain of legal notes, just an email from Liz about the power of connection. And on the top of that, in my own handwriting, scrawled my parents' names, my children's names, my wife's name. The people I was fighting for. My father was my first audience. He didn't get to live to see this argument, but as I walked out of the courtroom afterwards, past those marble walls, past the portraits of people who didn't look like me, I got a text on my phone, an email from Ben. "So happy for you, Neal! I think your dad was watching over you too." 17:50 The newest technology, the oldest human wisdom, the most powerful court. I get to do that.

I spent far too much time going through this transcript. The things I do for God and country.

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[Ilya Somin] US Court of International Trade Rules Against Trump's Section 122 Tariffs

Ilya Somin — Thu, 07 May 2026 21:46:11 +0000

[The 2-1 decision concludes Trump's massive new tariffs are illegal because there is no "balance of payments deficit" of the kind needed to authorize them.]

Today, the US Court of International Trade issued an important ruling striking down Donald Trump's massive Section 122 tariffs, imposing 10% tariffs on a vast range of imports from countries around the world. The ruling is a crucial decision protecting the constitutional separation of powers and blocking an extremely harmful policy. The ruling addressed two consolidated lawsuits challenging the tariffs - 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 importers, and one brought by 24 state governments led by the state of Oregon.

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." Today's 2-1 decision rests primarily on the ground that the government failed to prove that there is any balance-of-payment deficit of the kind required by the statute:

Rather than identifying "balance-of-payments deficits" as that term was intended
in 1974, the [President's] Proclamation relies upon current account deficits, and a discussion of "a large and serious trade deficit." Proclamation No. 11012 ¶ 6; see also id. ¶ 7 (referring to deficits concerning the balance of goods and services as well as the balances on primary income and secondary income, all of which are part of the current account); id. ¶ 8 (noting the trade deficit). Although the current account (and the balance of trade as a component of the current account) are relevant to balance-of-payments deficits, they are distinct, and the statute recognizes the distinction.

As the majority opinion explains, the term "balance of payments deficit" was understood in the Act to cover the kinds of imbalances that occurred under the Bretton Woods fixed exchange rate system that existed up until 1973, under which the United States committed to exchanging gold for dollars at a fixed rate, and other nations committed to exchanging their currencies for dollars (also at fixed rates). More specifically, "[t]he legislative history of the Trade Act of 1974 reveals that Congress understood balance-of-payments deficits to refer, at the time, to deficits in (1) liquidity, (2) official settlements, or (3) basic balance." As the court notes, at the time the law was enacted, there was a great deal of uncertainty about whether the US might return to some form of fixed-exchange rate system, and this law intended to provide a safeguard in the event of that happening.

The Trump administration argued that the president should get broad discretion in determining what qualifies as a "balance of payments deficit." As the court explains, that would give him virtually unlimited power to impose tariffs under Section 122, and would thereby create a constitutional nondelegation problem:

Despite acknowledging differences in the 1974 measures of the balance of
payments as compared to modern measures… the Government seeks to defend the Proclamation by arguing that "balance-of-payments deficits" is a malleable
phrase… However, the Government's suggestion that what constitutes "balance-of-payments deficits" may change proves too much…. [I]f the President has the ability to select among the sub-accounts to identify a balance-of-payments deficit, unless every sub-account is balanced, the President would always be able to identify a balance-of-payments deficit…..

Such an expansive reading of the statute would raise a non-delegation issue, which in turn would prompt a constitutional question…. "[T]he canon of constitutional avoidance" provides that, when one of two statutory interpretations would raise a constitutional question, "the other should prevail." Clark v. Martinez, 543 U.S. 371, 380–81 (2005); see also Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989) (stating that the Court employs the nondelegation principle to interpret statutory text and give "narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional"); Indus. Union Dept., AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 646 (1980) (stating that "[a] construction of the statute that avoids [an] open-ended grant" of authority that would implicate the non-delegation doctrine "should certainly be favored"); … The Government's preferred interpretation of the statute must therefore be disfavored. See N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) ("[A]s between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act. Even to avoid a serious doubt the rule is the same.")…..

Nondelegation and its relevance to constitutional avoidance are a major focus of the amicus brief I submitted in this case on behalf of the Cato Institute and myself. As explained in the brief, the government's interpretation of Section 122 would essentially give the president the power to use Section 122 to impose up to 15% tariffs at at virtually any time. We also argued that this violates the major questions doctrine (an issue today's ruling does not address).

While the majority correctly ruled that the Section 122 tariffs are illegal, it does not completely block their collection. Rather it imposes an injunction that covers only the two importers represented by the Liberty Justice Center, and the state of Washington (a plaintiff state that directly imports goods subject to the tariffs). The court ruled that the other 23 states lack standing, because they had not presented sufficient evidence to show they too import covered products directly. If this ruling on standing holds up, further litigation will be needed to block collection of Section 122 tariffs from other importers subject to them. But I suspect that many, if not all, of these other states do in fact import goods covered by the tariffs. If so, I hope they can present evidence to that effect, as the litigation goes on.

The dissenting opinion by Judge Timothy Stanceu argues at great length that the the majority's interpretation of the legislative history is wrong, and that the president deserves great deference in making Section 122 determinations. Significantly, he has no answer to the nondelegation and constitutional avoidance points covered above. Broad deference to the president would give him nearly unlimited power to impose Section 122 tariffs at any time, thereby creating a serious constitutional problem. In addition, for reasons I outlined in this article, it is a mistake for courts to give the executive sweeping deference when it comes to invocations of emergency powers that are supposed to be wielded only in extreme exceptional circumstances, thereby turning these authorities into a blank check the president can use at any time.

This litigation is likely to continue on appeal in the US Court of Appeals for the Federal Circuit and possibly the Supreme Court. I will likely have more to say about it in future posts.

For now, I am happy to see that the Court of International Trade got this right, and I congratulate my friends at the Liberty Justice Center on this important victory.

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[Ilya Somin] Important Takings Challenge to Los Angeles Historic Preservation Law "Monument" Designation

Ilya Somin — Thu, 07 May 2026 20:07:20 +0000

[Historic preservation laws often violate constitutional property rights, and block construction of new housing.]

Property once owned by Marilyn Monroe in Los Angeles. (Pacific Legal Foundation/Latham & Watkins)

In Milstein v. City of Los Angeles, an important case currently before a federal court in California, property owners are challenging the use of a historic preservation to block virtually all development on their land. The Pacific Legal Foundation - a public interest law firm that works extensively on constitutional property rights issues - is representing the owners, and has a helpful description of the case (PLF is also my wife's employer, but she is not involved in this case):

In April 2026, Pacific Legal Foundation joined a federal lawsuit over a home once owned by Marilyn Monroe. The lawsuit aims to prevent the government from forcing individual property owners to shoulder the financial burden of public historic monuments.

The case began in 2023, when a California couple bought an unoccupied, deteriorating property on a dead-end residential street, intending to demolish and redevelop it after purchase. They applied for the appropriate permits, which the City of Los Angeles granted without objection after a standard 30-day hold. One day later, a local government official filed paperwork to designate the property a historic monument. The City then revoked the permits and approved the historic designation, rendering the property untouchable to its new owners, Brinah Milstein and Roy Bank.

To justify abruptly declaring the property a public monument, Los Angeles cited a former resident. Marilyn Monroe had owned the home for 157 days before her death in 1962. But few traces of the star remain today because the City ignored the property for over 60 years—without once raising a preservation concern—while 14 successive owners freely renovated both the home and grounds, eradicating any trace of Monroe's time there.

The new historical designation prohibited the homeowners from using their own property—even banning repairs to damaged features without the approval of the City's historical commission. It also left the homeowners facing a litany of threats to their safety. Although the City had declared the entire property a public monument, there was no way for the public to access the derelict house within its gates. Undeterred, fans flew drones overhead, trespassers scaled the walls, and burglars broke in hunting for traces of the property's celebrated former tenant.

Milstein and Bank tried to work with the City to restore their property rights, offering to personally pay to relocate the home to create an accessible public museum. The City refused, leaving no remedy but the courts.

In January 2026, the homeowners filed a federal lawsuit arguing that the City had violated their Fifth Amendment rights by failing to provide them just compensation for turning their property into a public monument, eradicating all viable economic uses for the property, and causing the public to trespass to view the new "monument."

Historic preservation laws exist in numerous jurisdictions around the country, and are often used by "NIMBY" activists to block development, thereby preventing construction of affordable housing, and exacerbating racial segregation. In many cases - including this one - the sites in question actually have little or no genuine historical value.

This case is a particularly egregious one because the "monument" designation destroys virtually all the property's economic value, and that site has no genuine historical value, because subsequent owners destroyed virtually all trace of Marilyn Monroe's brief occupation of the house. As the plaintiffs' complaint explains, the former circumstance renders the designation a taking requiring payment of compensation under the Supreme Court's 1992 ruling in Lucas v. South Carolina Coastal Council, which held that regulations that forbid all economically valuable uses of a property automatically qualify as "per se" takings.

In addition, as outlined in my article on "The Constitutional Case Against Exclusionary Zoning" (coauthored with Joshua Braver), the property right protected by the Takings Clause of the Fifth Amendment includes the right to use property, which in turn includes the right to build various types of new housing. Thus, most regulations severely restricting housing construction should be considered takings under the original meaning of the Takings Clause, and also from the standpoint of various living Constitution theories of interpretation. I furthered covered the importance of the right to use in this recent book chapter.

Hopefully, this case will be the beginning of stronger efforts to enforce constitutional constraints on historic preservation laws. That's essential both to protect the rights of property owners, and to eliminate obstacles to the construction of badly needed new housing in many communities.

What about the (comparatively rare) cases where local governments seek to preserve a property with genuinely great historical importance? The answer is they can use eminent domain to take such property, so long as they pay compensation. For example, in United States v. Gettysburg Electric Railway Co. (1896), the Supreme Court ruled that the federal government can use eminent domain to take property in order to preserve the Gettysburg Civil War battlefield. The requirement of paying "just compensation" both helps protect the rights of property owners, and incentivizes government to limit historic preservation mandates to those areas where there really is a great historic value to protect. Gettysburg qualifies, while the property at issue in the Milstein case does.

People interested in constitutional property rights and housing policy would do well to keep an eye on this case.

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[Michael Auslin] How the Declaration of Independence Captured American Hearts and Minds

Michael Auslin — Thu, 07 May 2026 17:34:42 +0000

[This post is excerpted from the new book, National Treasure: How the Declaration of Independence Made America (Avid Reader Press/Simon & Schuster).]

That Abraham Lincoln, our most American of presidents, "never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence," our most American of documents, seems only appropriate. That Lincoln was both a political philosopher and political genius may be enough to explain why the lanky rail-splitter from Illinois repeatedly invoked the Declaration, even before entering the political arena and when he had no expectations of returning to political office. Like his contemporaries, however, Lincoln grew up surrounded by images of the Declaration, keeping it a living document in the minds of Americans. In this 250th year of Independence, understanding the Declaration's prevalence as a cultural and material object in the first half of the 19th century may help explain how, after decades of relative obscurity, it became the undisputed expression of the American creed that we celebrate today.

The quote that opened this post is from Lincoln's speech at Independence Hall, on February 22, 1861. Traveling by train from his home in Springfield, Illinois, Lincoln stopped in Philadelphia to address a crowd at the spot where the Declaration was signed. By now, with the Confederate States of America established, with their capital in Montgomery, Alabama, the Declaration was at the center of the great crisis that had been brewing at least since the Missouri Compromise of 1820, and more accurately, since July 4, 1776. By 1861, references and appeals to the Declarations principles came not just from the Republican president-elect, but from Confederate President Jefferson Davis and his Vice-President Alexander Stephens, in newspapers and polemicists in North and South. Though secession was a constitutional crisis, arguments both pro and con were infused with the spirit of the Declaration.

Such prominence for the Declaration would have surprised second-generation Americans. To them, the Declaration was a relic of the Revolution, an honored but largely ignored document. It had done its job announcing the Colonies' separation from Great Britain; after that, the job of governing was the preserve first of the Articles of Confederation and then the Constitution. In the first decade of the 19th century, John Adams' Federalists forbore from honoring the Declaration on July 4, while Thomas Jefferson's Democratic-Republicans celebrated both the document and its drafter. Few on either side, however, saw it as having much of a role to play in an America a full generation away from Independence.

A closer sense of connection to the Declaration began after the War of 1812 and the near-miraculous rescue of the Declaration from the British during the invasion of Washington in August 1814. Saved from the flames that gutted the White House and incinerated the State Department building next door, the Declaration from the mid-1810s was covered in an aura of reverence, both for its survival and as the symbol of a young nation that had now twice defeated the greatest empire on earth. Yet few Americans had ever seen the Declaration beyond occasional reprints of its text in newspapers or collections of documents. The lucky ones who had actually seen the engrossed parchment signed by the Founding Fathers starting in August 1776 were but a handful of the population.

All that began to change in 1818. That year, when Abraham Lincoln was but nine years old, the first artistic reproduction of the Declaration went on sale. Created by Washington calligrapher Benjamin Owen Tyler, the facsimile so expertly reproduced the signatures of the members of the Continental Congress that the Secretary of State attested to their perfection. The next year an even more elaborate version was offered by John Binns, who had first proposed a facsimile, but took so long to bring his to market that he was beaten to the punch by Owen. The full-size prints brought to Americans for the first time an artistic interpretation of the document that remained hidden in the State Department library.

The same year that Tyler's reproduction went on sale, John Trumbull's masterpiece, The Declaration of Independence was first shown to the public. The massive painting, 18 by 30 feet, fancifully depicted the moment that Thomas Jefferson and the Committee of Five presented their draft of the Declaration to John Hancock and the Continental Congress. The original was hung in the Rotunda of the U.S. Capitol in 1826, where it has remained since. Soon available in both quality and inexpensive versions, Trumbull's heroic vision of the birth of the United States became perhaps the most famous American painting of the 19th century, sold widely throughout the country.

As fascination with the Declaration grew, the parchment itself was beginning to deteriorate from mishandling. In 1820, Secretary of State John Quincy Adams commissioned engraver William J. Stone to create an exact facsimile, something neither Binns nor Tyler had attempted. Stone labored for three years, and in 1823 his copperplate engraving was completed. Several hundred parchment copies, followed by more paper copies, were run off and given to national and State officials and other prominent individuals. Though not yet widely available, the Stone Engraving nonetheless became the iconic image of the Declaration, the one from which all future copies would be made.

To the Stone and the various reproductions were now added popular biographies of the Signers of the Declaration, published first by John Sanderson in 1829, but followed by dozens more in succeeding decades. So ubiquitous was the Declaration in American life that a Hungarian visitor to the United States in the early-1830s saw it hung in houses and inns throughout his travels. It was, he noted, "the indispensable furnishing and handbook in the home of every citizen."

This, then, was the milieu in which Abraham Lincoln grew up. The Declaration was reprinted in school primers and American history books, and biographies of the Signers crowded the shelves, while walls were adorned with replicas of the text and signatures or reprints of John Trumbull's painting. By the time the actual parchment of the Declaration was put on display in the Patent Office in Washington in 1841, Americans of all classes and regions had brought the document into their homes, schools, and churches.

For many Americans, undoubtedly, facsimiles of the Declaration spurred no more than patriotic pride or interest in an era now all but faded from living memory. But for some, perhaps like Abraham Lincoln, the constant exposure to the Declaration invited a deeper reflection on its imperishable passages and philosophy. Indeed, John Binns himself had written that his "embellished edition…will have a tendency to spread the knowledge of its contents…and familiarize those principles which form, the very bond and cement of political society."

Thus, it was that a twenty-eight-year-old Lincoln could invoke the Declaration to his listeners at the Young Men's Lyceum of Springfield in January 1838 in urging them to continue to "uphold the proud fabric of freedom." And later, when confronted with the moral and legal abominations that were the Kansas-Nebraska Act of 1854 and the 1857 Dred Scott ruling, Lincoln began refashioning the Declaration into a universal and eternal symbol of equality and freedom. With his entire political philosophy derived from the Declaration, Lincoln found the moral courage to link America's destiny to the end of slavery, though his political pragmatism also recognized, at least until 1861 (and probably later) the limits on such a radical program.

There is, of course, no sure way to know how much of the inspiration for Lincoln's intellectual engagement came from a material encounter with Declaration reprints, images, and the like. And yet, without the founding charter becoming such a fixture in the American imagination, it is certainly believable that Jefferson's sonorous phrases may not have penetrated as deeply into the national consciousness, not least into the minds of men like Frederick Douglass, William Lloyd Garrison, and Abraham Lincoln. Nor might it have inspired others, like Elizabeth Cady Stanton, to write their own declarations calling for greater equality and liberty.

It would have been easy to refer to the legal framework of the Constitution, at least in some cases, but the moral argument, the passionate demand for justice, could only be provided by the Declaration. Gazing upon John Trumbull's heroic scene inside Independence Hall, reading Jefferson's words on copies hung on walls, reliving the experiences of the Signers, all prepared the American mind for the great struggles to create a more perfect Union. The Declaration is not just its timeless principles, but also its unique material history in American culture. Which, perhaps, is why parents still buy antiqued copies of the Declaration for their children and why we still frame Trumbull's portrait on our walls. Like Lincoln and his contemporaries, the Declaration remains a living document, calling forth the better angels of our nature. May it continue to do so for another quarter-millennium.

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[Josh Blackman] Today in Supreme Court History: May 7, 1873

Josh Blackman — Thu, 07 May 2026 11:00:52 +0000

5/7/1873: Chief Justice Salmon P. Chase died. One month earlier, he dissented in the Slaughter-House Cases, and was the lone dissenter in Bradwell v. Illinois.

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[Eugene Volokh] Open Thread

Eugene Volokh — Thu, 07 May 2026 07:00:00 +0000

[What’s on your mind?]

The post Open Thread appeared first on Reason.com.

[Stephen Halbrook] Second Amendment Roundup: A Tale of Two Waiting Periods

Stephen Halbrook — Thu, 07 May 2026 01:42:07 +0000

[The First and Tenth Circuits conflict on whether “cooling-off” periods violate the text of the Second Amendment.]

On October 25, 2023, 18 people were killed in a mass shooting in Lewiston, Maine. The killer's declining mental health was known to law enforcement since that May. On July 6, although he owned other firearms, he legally purchased the firearm that he would use in the attack. By August, he repeatedly threatened members of his Army Reserve unit that he would "shoot up" the base. He was hospitalized for psychological evaluation but released. Two months later, he carried out his nefarious threats at a bowling alley and a cafe.

In 2024, the Final Report of the Independent Commission to Investigate the Facts of the Tragedy in Lewiston was released, faulting both the military and law enforcement for taking no action to disarm and hospitalize the killer.

Before the Commission report was even released, the Maine legislature enacted a statute targeting any person who would buy a firearm: "Waiting Period. A seller may not knowingly deliver a firearm to a buyer pursuant to an agreement sooner than 72 hours after the agreement." As the timeline of events indicated, no relation existed between the perpetrator's vile acts taking place six months earlier and the 72-hour firearm transfer waiting period.

In Beckwith v. Frey, decided on April 3, the First Circuit reversed the district court's issuance of a preliminary injunction against enforcement of the new law. For those needing a firearm for protection against an immediate threat, not to worry. The court found it relevant that the Maine Coalition to End Domestic Violence submitted a statement warning that potential victims not obtain firearms for protection as the firearms were more likely to be used against them, and anyway the Coalition offered "services" to keep victims safe during the seventy-two-hour waiting period. That must have been reassuring to battered spouses facing death threats.

In the opinion for the court, Judge Seth Aframe held that "laws regulating the purchase or acquisition of firearms do not target conduct covered by the Second Amendment's 'plain text,'" which only "means to have and carry guns." Since the law regulates activity that takes place before that, it is "outside the Second Amendment's plain text." Under that logic, nothing in the text of the Amendment would preclude a law that simply banned absolutely the delivery or transfer of a firearm from one person to another. One's right to keep and bear arms does not imply a right to obtain them.

Plaintiffs, the court continued, thus had the burden to show that the law was "abusive" in line with Bruen's footnote nine. The court read footnote nine to mean that "the full two-step analysis did not apply to 'shall-issue' laws because these laws delay, but do not deny, licenses while states ensure that guns are being carried by law-abiding and responsible citizens." However, the Supreme Court only stated in footnote nine that "shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, 'law-abiding, responsible citizens.'" It added that, "because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry." Wait times must thus be keyed to requirements like a background check, not just waiting for its own sake.

The Beckwith court next turned to Heller's statement that nothing in the opinion "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." The court read "longstanding" to modify only "prohibitions," not "laws imposing conditions," and so the waiting period need not be longstanding. (That issue may be moot, as Bruen requires Founding-era analogues.) And it said that a "condition" need not be a particularized criterion that an individual must meet – the waiting period is itself a condition.

Finally, Beckwith stated that in other contexts, the Supreme Court "strictly scrutinizes laws that directly restrict the exercise of fundamental rights but often reviews more deferentially laws that only impose incidental burdens on the exercise of those rights." It mentioned the First Amendment, but did not venture to suggest that the Supreme Court would approve a waiting period per se for exercise of any right protected by the First Amendment.

Ortega v. Grisham (10th Cir. 2025), an opinion by Judge Timothy Tymkovich, is in stark contrast with Beckwith. Ortega invalidated a New Mexico statute providing that "[a] waiting period of seven calendar days shall be required for the sale of a firearm and the transfer of the firearm to the buyer." The court held that "the right to bear arms requires a right to acquire arms, just as the right to free press necessarily includes the right to acquire a printing press, or the right to freely practice religion necessarily rests on a right to acquire a sacred text." When the text authorizes an act, it implicitly authorizes any necessary predicate of the act.

Moreover, Ortega continued, Heller's reference to "longstanding prohibitions" modified "laws imposing conditions and qualifications on the commercial sale of arms." The waiting period is not a longstanding prohibition and it is not limited to commercial sales. Furthermore, "It is not a condition because it cannot be met by any action, and it is not a qualification because it is universally applicable…. The sale happens regardless, and the waiting period is just an artificial delay on possession."

Nor could the state meet its burden to show that the law had appropriate historical analogues, including intoxication laws, license and permitting regimes, and targeted group bans on firearm carry or possession. The law assumes that "anyone seeking to purchase a firearm can be presumed irresponsible or non-law-abiding, purely by dint of their intention to purchase a firearm." That contrasts with the purpose of shall-issue licensing regimes and background checks which have the purpose of assuring that firearm purchasers are responsible, law-abiding citizens.

So we can add waiting periods to the growing list of Second Amendment restrictions that the Supreme Court should resolve, either by a case on point or a principle of general applicability.

It's worth recalling how "cooling off" periods came to national attention as a panacea for violence committed by the mentally deranged. John Hinckley, Jr., purchased a revolver and shot President Ronald Reagan five months later. (Ironically, the attempted assassination took place at the same Washington Hilton Hotel where an assailant sought to shoot President Donald Trump and cabinet members on April 25.) To solve that problem, Handgun Control Inc., later renamed the Brady Center, championed a seven-day waiting period on handgun purchases, albeit without a background check. The NRA supported an instant background check on all firearm purchases from FFLs instead.

The result was the misnamed Brady Handgun Prevention Act of 1993. Its interim provision, 18 U.S.C. § 922(s), purported to conscript state law enforcement officers to conduct background checks on handgun buyers, who could be cleared right away or within no more than within five days. I was honored to argue Sheriff Jay Printz v. U.S. (1997), in which the Supreme Court held that Congress may not command the states to administer this (or any other) federal regulatory program.

The permanent provision of the Brady Act, § 922(t), established the National Instant Criminal Background Check System (NICS). NICS provides for immediate transfer of a firearm, but may delay approval of the transfer for not more than three days, if NICS does not find that the transfer would violate federal or state law. Because it created an instant check and no waiting period, the "Brady" Act may as well have been named the "NRA" Act. But that's all water over the dam now.

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[Eugene Volokh] Court Dismisses Matt Taibbi's Defamation Lawsuit Over "Owned: How Tech Billionaires Bought the Loudest Voices on the Left"

Eugene Volokh — Wed, 06 May 2026 20:32:04 +0000

From Taibbi v. Higgins, decided yesterday by Judge George Daniels (S.D.N.Y.):

This action centers around Owned: How Tech Billionaires Bought the Loudest Voices on the Left ("Owned" or the "Book"), a book authored by Higgins and published by Bold Type Books. Owned purports to explore "how tech elites and formerly left-wing journalists forged an alliance" to create a "new right-wing media ecosystem."

As relevant here, the Book depicts Plaintiff as one of several independent journalists whose politics shifted in recent years to attract a more conservative audience. Plaintiff began his writing career in post-Soviet Russia. In 2004, Plaintiff joined Rolling Stone, where he gained acclaim reporting on "the big banks and the excesses of Wall Street" during the 2007–2008 financial crisis. According to the Book, Plaintiff's image among liberal pundits declined after Plaintiff pushed back on allegations of Russian electoral interference in the 2016 presidential election and "old misogynistic writings resurfaced," The Book claims that "[a]fter his rejection by the left, [Plaintiff] turned to a new right-wing audience and became increasingly beholden to their priorities." In 2020, Plaintiff left Rolling Stone for Substack, a subscription-based newsletter service.

In 2022, Elon Musk purchased the social media website Twitter (now known as X). The Book states that Musk, in an effort "to expose the rot at the core of the entire company," sought out reporters to review internal company documents. These documents would purportedly "show[ ] how Twitter had responded to requests for censorship from the government and made decisions on questionable content." Musk eventually offered Plaintiff the opportunity to review the "Twitter Files," so long as he published his reporting on the platform.

On December 2, 2022, Plaintiff released his initial reporting on the Twitter Files. Among other things, Plaintiff reported on "Twitter's decision to suppress a New York Post article on [Hunter Biden's laptop] in advance of the 2020 election," and that the "Trump Administration routinely demanded material be taken down" by Twitter,.

The Book asserts that due to the increased exposure Plaintiff gained from the Twitter Files project, Plaintiff's "Twitter account blew up, and his Substack—already incredibly successful—gained thousands of subscriptions." The Book also claims that Plaintiff's Twitter Files reporting "generated a financial windfall." Plaintiff pleads, however, that "during the second and third months of the project, [he] experienced 4,844 subscriber cancellations and a $20,644 loss in revenue, as readers [of his Substack] became frustrated that [he] was publishing his work on another platform." Altogether, 13.7% of Plaintiff's Substack subscribers joined after publication of his Twitter Files reporting.

In 2023, Musk asked Plaintiff to leave Substack and move to his new "Twitter Subs" platform., where Musk claimed that Plaintiff would "get far more subscribers." According to the Book, Musk made the offer after he instituted "a blanket search ban on Twitter of all Substack links." Higgins, supra at 195. Plaintiff refused Musk's offer, stating that "people would say I'm essentially an employee of Twitter and both of us would never hear the end of it" and that "the optics would be really bad, journalistic ethics-wise." Plaintiff alleges that after refusing Musk's offer, Musk immediately kicked him off of the Twitter Files project and Plaintiff's Twitter following was "frozen and deamplified."

On February 2, 2025, Higgins requested an interview with Plaintiff to discuss the yet to be published Book. Specifically, Higgins framed the interview as an opportunity to discuss "how [Plaintiff's] audience changed and, more broadly, how [Plaintiff] see[s] the left/right political landscape." Plaintiff declined with the message, "Lol. Pass."

Bold Type Books published the Book on February 4, 2025. Plaintiff alleges that following publication, Higgins admitted that the Book does not contain evidence of a direct financial deal between Plaintiff and Musk….

Plaintiff sued for defamation, focusing on the following statements (allegedly defamatory material set in bold by the court):

"Owned."

"Bought."

"Glenn Greenwald and Matt Taibbi's decades-long journey from the world of alternative journalism into the snug patronage of billionaires is a story with profound and troubling implications for the future of journalism and unfettered thinking."

"In recent years, right-wing billionaires like Elon Musk, Peter Thiel, Marc Andreessen, and David Sacks have turned to media as their next investment and source of influence. Their cronies are Glenn Greenwald and Matt Taibbi….

"Owned follows the money, names names, and offers a chilling portrait of a future social media and news landscape."

"It is a biting expose of journalistic greed, tech-billionaire ambition, and a lament for a disappearing free press." ..

"Taibbi's Twitter Files reporting is a perfect example: he spent decades building up credibility and credentials only to, in one high-profile moment, cash in to launder a CEO's cherry-picked corporate opposition file on his opponents."

"His Twitter account blew up, and his Substack—already incredibly successful—gained thousands of subscriptions. The reporting generated a financial windfall for the writer, even if its findings were dismissed by more sober commentators."

"His Substack had exploded after the Twitter Files reporting and he'd promised to continue exposing censorship of the social media site."

"It was this threat to Taibbi's bottom line that finally motivated the journalist to act."

"After years of confrontational commentary on the financial industry and questioning the mainstream, Taibbi fully dispensed with any pretense of challenging power late in 2022."

The court concluded that, in context, the statements were opinion and not actionable:

Statements 1 and 2, the words "Owned" and "Bought" on the Book's front cover, are susceptible to both literal and metaphorical meanings depending on the surrounding context. Plaintiff acknowledges, however, that the contents of the Book cannot support a literal reading, stating that the "[t]he Book contains no evidence of any financial transaction, payment, contract, or quid pro quo involving Plaintiff."

In this context, "Owned" and "Bought" naturally read as attention-grabbing rhetoric used to signify Higgin's opinions and the Book's conclusions. Aside from the scattered words and phrases discussed below, Plaintiff does not dispute the accuracy of the vast majority of the Book's factual content that informs these views or point to language suggesting the opinions are based on facts other than those disclosed in the book. Plaintiff may not like Higgins's subjective conclusions, or agree with their accuracy, but that does not make them actionable defamation.

Statement 3, that Plaintiff was in "the snug patronage of billionaires," is also a nonactionable opinion. Just like "Owned" and "Bought," the language "snug patronage" does not have a readily understood precise meaning, so there is no way for a reader to determine whether the statement is true or false. The statement also appears as a reviewer comment on the back cover under the heading "Praise for Owned." From this context, a reader would likely intuit this statement as an opinion of the reviewer, supported by the facts disclosed in the Book, and not a statement of fact about Plaintiff.

Statement 4 is a passage from the Book's left flap that states that Plaintiff was one of the right-wing technology billionaires' "cronies." Courts in this district have previously held that calling someone a "crony," without more, is nonactionable rhetorical hyperbole. The same is true here. The assertion that Plaintiff is a billionaire's crony is the sort of excessive, unverifiable language that signals to a reasonable reader that they are reading the speaker's opinion, and not a statement of fact.

Statement 5 also appears on the left flap and states that the Book "follows the money, names names," and is a "biting expose of journalistic greed." Plaintiff alleges that "follows the money" and "names names" "represents to readers that the author has traced actual financial relationships and identified specific recipients of improper payments or patronage." "In New York, a plaintiff cannot sustain a libel claim if the allegedly defamatory statement is not 'of and concerning plaintiff but rather only speaks about a group of which the plaintiff is a member." Statement 5 does not indicate that it is "of and concerning" Plaintiff—it describes Higgins's investigative process for ail the Book's subjects, not only Plaintiff. A reasonable reader would, therefore, not interpret "follows the money" and "names names" as a false statement of fact about Plaintiff.

Statement 6 states that the Book is an "expose of journalistic greed," which Plaintiff alleges "asserts professional dishonesty and unethical conduct." But whether someone is motivated out of greed or ambition is a subjective determination that is not capable of being proven true or false. Further, the context surrounding the statement, including its placement on the left flap of the Book's cover, clearly implies that the facts on which this opinion is based can be found within the Book.

Plaintiff acknowledges that these statements "might be protected opinion standing alone." But he claims that when viewed together, the statements on the Book's cover and jacket "become implied factual assertions that the accused was actually paid." Plaintiff is correct that otherwise nonactionable statements may create "false suggestions, impressions, and implications," and that these false implications can serve as the basis of a defamation claim. But plaintiffs alleging defamation by implication must "make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference."

Even assuming that Plaintiff has affirmatively alleged a defamation by implication claim—despite not labeling his sole cause of action as such—Plaintiff has failed to allege facts showing that Defendants intended or endorsed the defamatory inference. As stated above, Plaintiff admits that "the Book contains no evidence whatsoever that Plaintiff received payments, sponsorship, or financial inducement from Elon Musk or any other billionaire."

Instead of endorsing the alleged defamatory implication, the Book argues that Plaintiff's central reason for agreeing to participate in the Twitter Files was to "gain access." Plaintiff also claims that Higgins "admitted contemporaneously that readers expecting proof of who was 'bought' would be disappointed." In short, the Book's contents and Higgins contemporaneous statements distance the Book from the defamatory implication Plaintiff alleges. Without any additional facts pointing to Defendants' intent, Plaintiff's defamation by implication claim fails….

The alleged defamatory statements within the Book are also nonactionable. First, in statement 7, "cash in" and "launder" are directly preceded by a reference to the "decades" Plaintiff spent "building up credibility and credentials." This context makes clear that the Book's reference to "cash in" is not referring to literal money, but rather the idea that Plaintiff traded his reputation for access to the Twitter Files. This sort of loose, figurative language would naturally lead a reasonable reader to interpret this as a statement of opinion.

Similarly, statement 8 is a nonactionable subjective determination, Statement 8 claims that Plaintiff's Substack "gained thousands of subscriptions" following his work on the Twitter Files, which translated to a "financial windfall." But as Plaintiff's counsel acknowledged during oral argument, this statement, "in the abstract," is not defamatory because it does not tend to injure Plaintiff's reputation. And even if one could read a defamatory meaning into these words, Plaintiff admits that he did in fact gain thousands of Substack subscribers following the Twitter Files reporting. Whether this "small percentage" of increased subscribers represented a "financial windfall" is a subjective determination.

Statements 9, 10 and 11 are also nonactionable opinions. Statement 9 claims that Plaintiff's Substack "exploded" following the Twitter Files. Just like the term "financial windfall," whether something "exploded" in value is a subjective determination. Finally, neither Statement 10, which states that Plaintiff was motivated by a "threat to [his] bottom line," or Statement 11, which claims that "Plaintiff fully dispensed with any pretense of challenging power late in 2022," are capable of being proven true or false. What motivated Plaintiff to leave Twitter and whether he adequately challenged power are matters of opinion….

Liz McNamara and Leena Charlton (Davis Wright Tremaine LLP) represent defendants.

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[Michael Auslin] The Spirit of the Declaration, Part 2

Michael Auslin — Wed, 06 May 2026 17:36:50 +0000

[This post is excerpted from the new book, National Treasure: How the Declaration of Independence Made America (Avid Reader Press/Simon & Schuster).]

To the delegates of the Continental Congress, the Declaration of Independence did not reflect abstract ideas. To begin with, it was a pressing piece of administrative business after the vote for Independence on July 2, necessary for legitimizing the American struggle against King and Parliament, as well as a means of garnering foreign support, primarily from France. Yet it also was a covenant invoking the Creator and identifying a people that it hoped to unite. This covenant was instituted to defend against tyranny and maintain a specific political community in its traditional rights. Its sanction came from a righteous cause, and as Congress began to edit Thomas Jefferson's draft on July 2 and 3, it found itself not only tightening his argument, but also making more explicit the divine sanction that underpinned the document.

Grounded in natural rights theory, English common law, classical thought, and Judeo-Christian theology, the Declaration expressed the specific kinds of liberty and equality understood by eighteenth-century men of property and learning. It eloquently asserted the traditional liberties of Englishmen, drawing the distinction between positive rights granted by governments and natural rights derived from God. This was a defense of man "in virtue of his nature," as later expressed by the political philosopher Harry Jaffa. The Declaration described rights that could not be "alienated" or surrendered to any person or government, especially one failing to uphold its responsibilities to the people it sought to control.

A document so radical as to indict a king and declare all men equal was also extremely conservative. Liberty seemed a straightforward idea, but equality was a far more complicated concept than Jefferson's famous phrase expressed. Equality was not an end in itself, but was a feature of liberty, in the sense that humans had equal rights that had to be protected. In the political sphere, equality was necessary to the preservation of those God-given liberties that were both individual and communal.

Such arguments in favor of equality were not absolute, especially when it came to the question of slavery. The most passionate section in Jefferson's draft was a long condemnation of the slave trade, though not of slavery itself, but with undeniable moral tones. Chattel slavery was deplored as both a political and a moral evil by almost all the Founding Fathers, including slaveholders like George Mason, who in 1765 had written that it was the cause of the "destruction" of the Roman republic, being "an Evil very pathetically described by Roman historians." Jefferson himself had written in his Summary View of the Rights of British America that "the abolition of domestic slavery is the great object of desire in those colonies where it was unhappily introduced in their infant state." The hypocrisy of a slaveowning society demanding its own freedom had long been commented on in the colonies, often from the pulpit. It was well understood that holding fellow humans in bondage degraded both the enslaved and the enslaver, and Patrick Henry hoped for the time when the colonists would "abolish this lamentable evil."

Such laudable sentiments were not followed by action, nor did they spare the Americans from the barbed criticism of foreigners like the great Samuel Johnson, who famously asked, "how is it that we hear the loudest yelps for liberty among the drivers of negroes?" Yet in the interests of colonial unity, this passage was cut, to Jefferson's disgust. In cutting Jefferson's critique of the slave trade, Congress revealed the moral failing that would bedevil the new nation and eventually threaten its very survival.

What later generations would see as the silences, errors, or hypocrisy of the Declaration cannot detract from its bold, indeed revolutionary, nature. Jefferson's broad vision, largely unaltered by Congress, pointed toward freedoms not entirely brought into focus, but never lost sight of. In condemning the King, the Declaration condemned any who would trample on the liberty of others, even if it did not—could not—yet follow its own logic to the inevitable end. It thus served a double role: first, in making explicit the rights and claims of the political community in whose name it had been created; second, in providing a transcendent vision of both individual and communal life that would inspire groups and people who did not yet partake of all (or any) of the freedoms enumerated in the document. This "open door," so to speak, is what ultimately gave the Declaration its capaciousness and greatness, keeping it a living document in the minds of Americans of future generations.

Seen in its totality, the Declaration of Independence was audacious yet prudent, visionary yet sober. It was infused with a "spirit of pragmatic idealism," to borrow the words of the great historian Bernard Bailyn. Though a compromise among different regions and interests, the Declaration was far from reflecting the lowest common denominator. It expressed the mind of a growing society more dynamic than the mother country and the moral certitude of those who refused to accept subordination.

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[Stuart Benjamin] Content Moderation and the First Amendment

Stuart Benjamin — Wed, 06 May 2026 15:15:37 +0000

Back in 2013 I argued that under the Supreme Court's jurisprudence algorithmic editing is speech for First Amendment purposes, and in Moody v. NetChoice the Supreme Court squarely so stated, in the context of social media platforms' algorithmic prioritization of content.

Many people are unhappy about this jurisprudence, for understandable reasons. The invalidation of laws regulating websites' substantive algorithmic decisions is a striking, and arguably unsettling, prospect. Some of the critics argue for revamping First Amendment jurisprudence. That would extend far beyond the treatment of editorial choices, but others respond more directly to this jurisprudence – for example, treating social media platforms as state actors or common carriers.

In my forthcoming Content Moderation and the First Amendment, I discuss these possible responses designed to limit Moody, concluding that the strongest candidate is excluding from First Amendment coverage editorial judgments made by monopolists. Unlike the other possible responses, it avoids arbitrary distinctions and focuses on companies that, by hypothesis, lack significant competitors.

I also discuss a prominent possibility that would expand the Moody line of cases – that audience interests alone are sufficient to trigger First Amendment coverage, so that messages sent by AI without any meaningful human involvement (and thus no traditional speaker for First Amendment purposes) are treated as speech.

As I discuss in the conclusion, my inclination is not to adopt either of these possibilities. As to market power, I err on the side of avoiding ad hoc exceptions. And the prospect of protecting speech generated entirely by AI seems sufficiently transformative that I favor caution.

I end by suggesting that these issues will become more fraught insofar as social media platforms become more influential and the prospect of artificial general intelligence becomes more real. And cleavages in response to those two developments will likely better explain individuals' reactions to the treatment of algorithmic editorial decisions than more traditional First Amendment fault lines will. In this and in other areas, the ground is shifting beneath our feet, destabilizing current debates.

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[Jacob Mchangama and Jeff Kosseff] Restricting Speech By Purportedly Protecting Children

Jacob Mchangama and Jeff Kosseff — Wed, 06 May 2026 13:38:39 +0000

[Around the world, governments are censoring speech with the stated goal of shielding youth from online harms.]

While governments around the world have imposed speech restrictions to fight misinformation and hate speech, they also have attempted to curb free speech for a less controversial reason: protecting children. But many of these restrictions stem from vague, unspecified, or speculative harms and corral wide swaths of speech that do not harm children. Censoring speech in the name of protecting children is not a terribly new phenomenon, especially in authoritarian countries. In 2012, for instance, Russia's parliament passed a law allowing the country's media censorship agency to unilaterally blacklist websites and take them offline, without any court approval. The lawmakers' justification was protecting children from online harm, but civil liberties groups correctly predicted that the government would use these powers to curb far more speech. In recent years, such efforts have moved beyond authoritarian countries and taken hold in Western democracies.

The United States has seen repeated attempts to curb speech in the name of saving the children. Although they have failed, governments have continued to try over many decades. In 1969, the US Supreme Court struck down the Des Moines, Iowa, school district's ban on black armbands worn to protest the Vietnam War, writing that "state-operated schools may not be enclaves of totalitarianism." In 1997, the Supreme Court invalidated much of the Communications Decency Act, which criminalized the online transmission of "indecent" content to minors, writing that the "interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." And in 2011, the court struck down a California law that banned sales of "violent video games" to minors, writing that the First Amendment does not give the government "a free-floating power to restrict the ideas to which children may be exposed."

The moral panic did not stop with those cases. Across the country, states are scrambling to address the harms associated with minors' use of social media. Many high-profile commentators and politicians have criticized social media for harming the mental health of teenagers, though there is substantial debate as to whether they have presented sufficient evidence of causation. In May 2023, then-Surgeon General Vivek Murthy issued an advisory on social media and youths' mental health: "The most common question parents ask me is, 'Is social media safe for my kids?' The answer is that we don't have enough evidence to say it's safe, and in fact, there is growing evidence that social media use is associated with harm to young people's mental health."

States have stepped in to try to regulate social media. Among the highest profile recent attempts is Utah's Minor Protection in Social Media Act, which the state legislature enacted in March 2024. The Utah law requires social media companies to "implement an age assurance system to determine whether a current or prospective Utah account holder on the social media company's social media service is a minor." For minors who have accounts, social media companies must impose a number of restrictions, including setting "default privacy settings to prioritize maximum privacy," limiting direct messaging abilities, disabling search engine indexing of their profiles, and limiting a minor's ability to share content with others. Those privacy settings cannot be changed without verifiable parental consent. The law also requires social media companies to disable functions that "prolong user engagement" for minors, such as autoplay functions.

The Utah law does not apply to all platforms, however. It only restricts "social media companies," which it defines as a "public website or application" that mainly displays content created by users, permits those individuals to create public accounts, allows them to "interact socially with each other," provides them with lists of other users with whom they are connected, and lets them post content that others can see. The law explicitly states that cloud storage and email is excluded from the definition of "social media company.

Why did the Utah legislature see the need to impose such limits on minors' use of social media? In its findings, the legislature discussed the negative mental health impacts of "the addictive design features of certain social media services" and asserted that the platforms "are designed without sufficient tools to allow adequate parental oversight, exposing minors to risks that could be mitigated with proper parental involvement and control." The legislature rationalized that it has "enacted safeguards around products and activities that pose risks to minors," such as medications and cars. Missing from the state's justification was the acknowledgement that unlike, say, car safety regulations, Utah's social media law involves First Amendment–protected speech. Not surprisingly, the technology trade group NetChoice, along with Utah residents, sued the state, alleging that the law violates the First Amendment.

Central to NetChoice's case was the argument that the statute's definition of "social media company" would lead to over-regulation of protected speech. "Using a vague content-, speaker-, and viewpoint-based definition of 'social media company,' the Act imposes restrictions on certain websites' ability to disseminate and facilitate the speech of their users," NetChoice wrote in its motion for a preliminary injunction blocking the law. "Yet there is a fundamental mismatch between the State's putative goals in regulating certain means of disseminating speech, and the Act's haphazard regulation of certain websites. The Act does not regulate many websites across the Internet that use the same means of disseminating speech the Act restricts, while simultaneously burdening many websites that do not use those means at all."

On September 10, 2024—less than a month before the law was set to go into effect—Utah federal judge Robert J. Shelby issued a preliminary injunction blocking the law. Speech regulations are particularly difficult to justify under the First Amendment if they are "content based." And Shelby concluded that the Utah law is content based, because it only applies to platforms that the law "singles out [as] social media companies" and does not apply to other platforms.

Content-based speech regulations survive First Amendment challenges only if they are narrowly tailored to serve compelling state interests. Shelby concluded that Utah fell short of making that case, writing that although he "is sensitive to the mental health challenges many young people face," the state has not "provided evidence establishing a clear, causal relationship between minors' social media use and negative mental health impacts." And even if Utah had a compelling interest, Shelby stated, the law is not narrowly tailored to advance that goal. He suggested that parents — not the government — should be the arbiters of the content their children see and share on social media: "While Defendants present evidence suggesting parental controls are not in widespread use, their evidence does not establish parental tools are deficient. It only demonstrates parents are unaware of parental controls, do not know how to use parental controls, or simply do not care to use parental controls."

Shelby also questioned the efficacy of the Utah law, noting that it "ultimately preserves minors' ability to spend as much time as they want on social media platforms." That weakens the state's argument that the act is necessary to combat excessive use of social media. Conversely, Shelby found that the law blocks far more protected speech than necessary to achieve its goals: "Specifically, Defendants have not identified why the Act's scope is not constrained to social media platforms with significant populations of minor users, or social media platforms that use the addictive features fundamental to Defendants' well-being and privacy concerns." Utah has appealed the ruling to the Tenth Circuit.

Speech restrictions in the name of child safety are not limited to the state level. Throughout 2024, members of Congress advocated for various versions of the Kids Online Safety Act, which would impose a duty of care on online platforms to "prevent and mitigate" online harms to children, with enumerated harms including eating disorders, suicide, and substance abuse. Senator Richard Blumenthal (D-CT), the bill's sponsor, defended the duty of care as a standard requirement in many sectors. "Companies in every other industry in America are required to take meaningful steps to prevent users of their products from being hurt, and this simply extends that same kind of responsibility to social media companies, too," he said on his website.

But, like the Utah law, the federal proposal could cause platforms to over-censor legitimate educational materials about those topics, out of fear of liability. In a July 2024 letter to lawmakers, civil liberties groups, including the ACLU and the Electronic Frontier Foundation (EFF), noted the bill's free-speech problems: "One common concern among these diverse groups is the Duty of Care requirements that may cause companies to take down content to avoid liability. This could lead to aggressive filtering of content by companies preventing access to important, First Amendment–protected, educational and even lifesaving content."

Such threats to free speech are not limited to the United States. In 2023, the United Kingdom's Parliament approved the 300-page Online Safety Act, a sweeping set of mandates for online platforms. Among the most troubling, from a free-speech perspective, is a duty of care for preventing harms to children, including the vagueness of the law's requirements and the delegation of broad enforcement powers to Ofcom, the UK's communications regulator.

The duty of care is not the only concerning aspect of the UK law. It also allows Ofcom to compel platforms to search for illegal content, something that the Electronic Frontier Foundation says poses a real threat to the viability of end-to-end encryption. As the EFF wrote in 2023, "Such a backdoor scanning system can and will be exploited by bad actors. It will also produce false positives, leading to false accusations of child abuse that will have to be resolved. That's why the OSB is incompatible with end-to-end encryption—and human rights."

Another troubling aspect of the UK law is its requirement that websites verify the age of users, to block "harmful" online content from minors. As the EFF noted, "To prevent minors from accessing 'harmful' content, sites will have to verify the age of visitors, either by asking for government-issued documents or using biometric data, such as face scans, to estimate their age. This will result in an enormous shift in the availability of information online, and pose a serious threat to the privacy of UK internet users." Such invasive verification practices threaten the ability of both minors and adults to access the internet anonymously.

Because the UK Online Safety Act is still being implemented, it is unclear the full extent to which the government would use the law to censor speech. But in a November 2024 policy paper, the UK's Secretary of State for the Department for Science, Innovation, and Technology Peter Kyle indicated plans for expansive use of the new legal powers. For instance, Kyle wrote that "the growing presence of disinformation poses a unique threat to our democratic processes and to societal cohesion in the United Kingdom and must be robustly countered. Services should also remain live to emerging information threats, with the flexibility to quickly and robustly respond, and minimize the damaging effects on users, particularly vulnerable groups." Kyle did not indicate precisely how the government might work with (or pressure) platforms to deal with misinformation. Nor did he say who determines what is "disinformation" or suggest ways to counter it. That vagueness is precisely the harm that such laws have. They empower large bureaucracies to claim sweeping mandates to decide what sorts of content are too harmful to be on the internet.

Excerpted from The Future of Free Speech: Reversing the Global Decline of Democracy's Most Essential Freedom by Jacob Mchangama and Jeff Kosseff. Copyright 2026. Published with permission of Johns Hopkins University Press.

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[Josh Blackman] Today in Supreme Court History: May 6, 1776

Josh Blackman — Wed, 06 May 2026 11:00:47 +0000

5/6/1776: Virginia Declaration of Rights by George Mason is published. Thomas Jefferson relied on this document when drafting the Declaration of Independence.

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[Eugene Volokh] Open Thread

Eugene Volokh — Wed, 06 May 2026 07:00:00 +0000

[What’s on your mind?]

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[Stephen Halbrook] Second Amendment Roundup: How a Fake Citation Misled Courts to Uphold "Sensitive Place" Gun Bans

Stephen Halbrook — Wed, 06 May 2026 01:59:25 +0000

[The Second Circuit’s Misunderstanding of Founding-Era Law on Going Armed]

My article with the above title has now been published online by the Journal of Law & Civil Governance at Texas A&M. The following is the Abstract:

This article concerns how a fake citation has misled courts to uphold "sensitive place" gun bans. New York State Rifle & Pistol Ass'n v. Bruen held that the Second Amendment presumptively protects conduct covered by its plain text. A state must justify its restriction by showing it to be consistent with America's historical tradition of firearm regulation. The original public understanding at the Founding is key to that question.

Post-Bruen, courts have sought to uphold restrictions that ban firearms in various "sensitive places" based on a misunderstanding of the Founding-era offense of going armed in a manner that terrorized the public. Antonyuk v. James upheld New York's place restrictions based on its claim that Founding-era Virginia and North Carolina laws banned going armed per se in fairs and markets. However, it conceded that Virginia only prohibited going armed "in terror of the Country," but maintained that North Carolina had no such element of the offense, adding that place restrictions in the late 19th century followed the North Carolina model. That historical tradition of regulation, the Second Circuit held, justifies New York's current law.

But Antonyuk has constructed a house of cards by ignoring actual North Carolina law and mistaking a privately published book for that law. In 1792, François-Xavier Martin published A Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina, which included the 1328 Statute of Northampton. Bruen commented that the Statute "has little bearing on the Second Amendment adopted in 1791," and in any event it was interpreted to apply only to going armed in a manner to terrorize others.

Antonyuk did not bother to research actual North Carolina law. In 1741, the colony of North Carolina enacted a law directing constables to arrest "all such Persons as, in your Sight, shall ride or go armed offensively"; by contrast, it further provided that "no Slave shall go armed with Gun, Sword, Club, or other Weapon." That same language was approved by an act passed in 1791 and continued to reappear in the statutes at least as late as 1855. Going armed was not a crime unless done so offensively, while going armed per se was a crime if the person was a slave.

Antonyuk further ignored North Carolina precedents. State v. Huntly recognized the common-law offense of going armed to terrify, but said that "the carrying of a gun per se constitutes no offence." That reading of the law was repeated over and over as late as 2024.

Courts have been misled by the citation of Martin's Collection as a "law" at the highest level. Dissenting in Bruen, Justice Breyer cited Martin as the authority for the proposition that "North Carolina enacted a law whose language was lifted from the Statute of Northampton virtually verbatim (vestigial references to the King included)." It boggles the imagination to think that the state would enact a law with several references to "the King" sixteen years after the Declaration of Independence.

It is unclear where the rumor started that Martin's book was a "law," but the Duke Center for Firearms Law includes it in its Repository of Historical Gun Laws under the citation "ch. 3, N.C. Gen. Stat. (Francois X. Martin 1792)." Chapter 3 of N.C. General Statutes in 1792 included no such provision. Another fake citation for this "law" that has been cited is "1792 N.C. Laws 60, 61 ch. 3," which does not exist.

The Ninth Circuit, in Wolford v. Lopez, recognized that Bruen rejected the purported place restrictions in North Carolina law, but upheld them anyway despite no Founding-era tradition of regulation. Yet the Third Circuit swallowed Antonyuk hook, line, and sinker to uphold New Jersey's extensive place bans, including the misrepresentation that Martin's book was a North Carolina "law," in Koons v. Attorney General of New Jersey. And then a different panel of the Second Circuit, in Frey v. City of New York, admitted that "Bruen undermines" Antonyuk's interpretation, but upheld other parts of New York's "sensitive place" bans despite no Founding-era tradition of regulation.

This matter is not about a single, erroneous citation with no consequence. In Antonyuk, the Second Circuit built its entire theory of Founding-era analogs on sand in order to comply with Bruen's directive to find a historical tradition of regulation that supported New York's wide restrictions. That decision has since influenced two other circuits, covering three states, to adopt the same flawed approach—and others may soon follow. These decisions are based on a badly mistaken analysis of America's historical tradition of firearm regulation and should be overturned.

[Note: The Third Circuit has granted rehearing en banc in Koons, thus vacating the panel decision.]

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[Josh Blackman] The KBJ Delay in Callais

Josh Blackman — Tue, 05 May 2026 23:06:07 +0000

[Who is at fault for the rush to judgment in Louisiana?]

One of the most explosive claims from Molly Hemmingway's new books concerns Dobbs. As we all recall, after the leak of the Dobbs draft on May 2, 2022, it became apparent that the Justices would face serious security threats. Indeed, a deranged liberal traveled from California to D.C. with weapons and made it to the threshold of Justice Kavanaugh's home. (Sounds familiar, doesn't it?) Yet, after all this happened, the Dobbs opinion was not released early. The Court held onto it until June 24. There was no obvious effort to expedite the release of the opinion. And all told, there were few changes made between the leaked draft and the final published opinion. At the time, some speculated that there might be changes to the opinion. Or perhaps the majority flipped. Yet, the five held strong. What then was the holdup?

Hemmingway reports that Justices Sotomayor, Kagan, and Breyer refused to expedite the release of the opinion. (This vignette comes after the leak but before the assassination attempt):

On Thursday, May 12, the justices gathered in conference to go through the circulating opinions and set the dates for their release. Justices grade the decisions based on when they will be ready for release. An "A" is for those decisions and dissents that are done, "B" for those that are almost done, and "C" for those not near completion. Dobbs was graded a "C."

The majority opinion had been done for more than three months and was waiting only for the dissents. Alito asked the dissenters to make the completion of their dissents their priority because delay of the decision was a security threat. Abortion supporters had an incentive to kill one or more of the justices in the majority to change the outcome. The dissenters demurred. Gorsuch spoke up, asking for a date by which they might be done. They would not give a date.

Following the conference, Justice Elena Kagan visited Justice Stephen Breyer's office. Though he had not said he would accommodate the justices whose lives were at risk by getting out a dissent, he was the member of the liberal bloc most willing to do so. Fiercely liberal in his jurisprudence and in strong disagreement with the majority decision, he nevertheless was a gentleman and a friend to all on the Court. Kagan remonstrated with Breyer not to accommodate the majority, screaming so loudly, observers noted, that the "wall was shaking."

I'm not quite sure how stone walls were shaking, but I get the picture.

After the assassination attempt, the Justices reached something of a compromise:

The dissenting justices eventually agreed to complete their Dobbs dissent by June 1 in return for an extension to June 15 of the deadline for their majority opinions in other cases. When the dissent was finally submitted, however, it cited the decision in the high-profile Second Amendment case New York State Rifle & Pistol Association v. Bruen, which would not be released until the end of the term. The release of the Dobbs decision, therefore, was dragged out until June 24, the day after Bruen was released.

Did Dobbs have to cite Bruen? Was this just another attempt at delay? This is the sort of claim that one day will be revealed in the papers of the Justices. I hope to live long enough to see them.

For now, it seems that Justice Alito may have addressed this situation, perhaps indirectly.

Justice Alito included an unusual footnote in his Callais concurrence:

The dissent would require that the 2026 congressional elections in Louisiana be held under a map that has been held to be unconstitutional.*

*That constitutional question was argued and conferenced nearly seven months ago.

Why would Justice Alito write this? What difference does it make that Callais was argued in October and conferenced shortly thereafter? The implication, I think, is that the Callais dissent was slow-walked. But why would it be slow-walked? As all know, the longer the opinion would take to publish, the harder it would be for Republicans to implement the order for the 2026 midterms. I'm sure Alito's majority opinion was prepared quickly. And as I noted last week, the majority barely responds to Justice Kagan's dissent, so there was not much back-and-forth. The delay, Alito insinuates, was from the Court's liberals. And why would they delay? Perhaps Justice Kagan needed seven months to perfect three consecutive sentences that begin with the words "I dissent because." Or, there was an effort to help Democrats. Who was sacrificing principle for power?

On X, Mike Fragoso asks, "Did Mollie's book excerpt force Kagan's hand in Callais? I guess we'll never know." The Wall Street Journal likewise observes, "The footnote suggests some pique by Justice Alito about the Court's long gestation on Callais, and understandably so since Justice Jackson is accusing the majority of playing politics."

Of course, if Justice Jackson went along with these dilatory tactics, she has some chutzpah for complaining about the effort to issue the mandate forthwith. But for the KBJ delay in Callais, Louisiana could have received the judgment before the election began, an this entire dispute would amount to nothing.

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[Josh Blackman] The Laborious KBJ

Josh Blackman — Tue, 05 May 2026 22:38:31 +0000

Justice Ginsburg was known as the Notorious RBG. Notoriety was a perfect adjective for Justice Ginsburg. She was famous, but not always in a good way. She was, well, notorious. And Justice Ginsburg leaned into that edgy persona--or did the edgy persona shape Ginsburg?

For some time, I've been thinking of the right nickname for Justice Jackson. It hit me today: the Laborious KBJ. The most salient feature of her tenure is making others do more work. And that work doesn't actually serve any purpose, other than indulging Justice Jackson. She certainly isn't changing any minds on the Court, and it isn't clear she is changing any hearts outside the Court.

Consider a few data points. During oral argument, she speaks more than any other Justice by a significant number. According to Adam Feldman's analysis from March, Justice Jackson spoke more than 53,000 words from the bench this term.

The next closest totals were Justices Sotomayor and Kagan with 35,000 and 30,000, respectively. If you total the words spoken by Chief Justice Roberts, and Justices Thomas and Barrett (about 48,000), you still have less than Justice Jackson alone. Or you could total the words spoken by Justices Kavanaugh and Gorsuch (52,198) and it is still less than Justice Jackson.

Feldman measures the data in a different way. Justice Jackson had the highest share of words spoken in nine of the top ten longest arguments this term. More than 1 out of every 4 words spoken by a Justice comes from Justice Jackson.

That sort of dominance is not normal.

At least when Justice Breyer would ask questions for pages on end, it was entertaining. I now find myself skipping the audio whenever Justice Jackson starts asking a question. It just is not a good use of my time. The other Justices, alas, lack that luxury. As many reporters have observed, when Justice Jackson begins her lengthy questioning, the other Justices take deep breaths, roll their eyes, and disconnect.

Then there are Justice Jackson's solo dissents. In a number of cases, she takes a position so far to the left that not even Justices Sotomayor and Kagan want to join her. Most recently, Justice Jackson was all alone in charging the majority with partisanship (more on that dissent shortly). And that dissent compelled Justice Alito to write, on very short notice, a concurrence that called her out. Our Circuit Justice has been very busy this week.

Justice Jackson also caused waves by slow-walking emergency petitions from the First Circuit. She took a long time to even call for a response in Libby v. Fectau, where the Justices ultimately granted emergency relief. Contrast this KBJ delay with how quickly Justice Alito granted an administrative stay and called for a response with the Mifepristone case. Like I said, our Circuit Justice is on point.

The Laborious KBJ. There you go.

In the spirit of my friend Ilya Shapiro, could you imagine if Justice Kagan had Justice Srinivasan as a wingman?

The post The Laborious KBJ appeared first on Reason.com.

[Eugene Volokh] Vanderbilt Student's Lawsuit Over Suspension for Alleged False Accusations Can Go Forward

Eugene Volokh — Tue, 05 May 2026 19:38:34 +0000

From a long opinion today by Judge Waverly Crenshaw (M.D. Tenn.) in Poe v. Lowe:

Poe, a male Vanderbilt student, made social media posts about another male Vanderbilt student, Roe, and his sexual behaviors with females. [Citing court filing] showing posts by Poe's Yik Yak account, including stating that "[Roe] is a rapist" and "[Roe] slipped me a roofie this fall, but I just wasn't able to definitively proove [sic] it. When I brought it up to some of the [] brothers [from Roe's fraternity] they tried to gaslight me about it" ….

Poe was not alone—a number of posts were made about Roe by other people, including other Vanderbilt students. [Citing court filing] containing Yik Yak posts by a female Vanderbilt student, L.N., including stating that she had "personal experience" with Roe and "he is a RAPIST, that is the truth and if you don't believe it after so many girls have said it, there is nothing I can do to convince you" …. Once this came to Vanderbilt's attention, Bourgoin, Vanderbilt's Director of Student Accountability, Community Standards, and Academic Integrity, opened a disciplinary case against Poe, charging him with three violations of the Student Handbook …: disorderly conduct, harassment, and impersonating a University official or any other person….

Poe's appeal was denied by Vanderbilt's Chair of the Appellate Review Board (Lowe), and Poe was suspended for a year. Poe, who had attempted suicide after hearing of his punishment, sued Vanderbilt on various theories.

The court allowed Poe's negligence claim to go forward based on how the disciplinary outcome was reported to him:

There is no dispute that Defendants were on notice of Poe's serious mental health issues. [Citing record document] (Poe's mother emailing Bourgoin and Clapper {[Vanderbilt's] Director of Student Care Network and Student Care Coordination} that Poe "is now talking suicide We are absolutely convinced an adverse decision now will take his life"). Jamerson even testified that he had assessed Poe's suicide risk at "moderate-to-elevated." Defendants did not accommodate Poe's mother's request to move the outcome call one week. Yet, they still chose to engage in care planning with her to mitigate the risk of harm to Poe. [Citing record document] (Jamerson testifying that he "felt it was safe to move forward with adding additional precautions like having [Clapper] available to be on the [outcome] cal1, who is a licensed clinical social worker, also notifying the mom of when the date would be so that the mom was aware of when it was coming out.").

Apparently, Defendants wanted Poe to have his mother with him during the outcome call, as evidenced by the email to his mother with the target date for the meeting. Clapper also testified that when she and Bourgoin began the outcome call with Poe, she asked Poe if his mother was there. Despite Poe telling them he lied to his mother {about the scheduling of the outcome call and [told] her that it was the following day}, Bourgoin and Clapper proceeded with the outcome call.

This is evidence from which a jury could conclude that the risk that Poe would commit suicide was sufficiently foreseeable to give rise to a duty of care. Moreover, having already decided to involve Poe's mother, a jury could find that Defendants failed to exercise reasonable care by proceeding with the outcome call after learning that she was not there to support him.

The same analysis applies to the element of proximate causation. Defendants argue that Poe cannot establish causation, reasoning that his suicide attempt was not reasonably foreseeable in light of the precautionary steps they took to protect him. Critically, he "thwart[e]d one of the main aspects of their reasonable care plan" by lying to his mother about the date for the outcome call. But, again, Poe made Defendants aware at the outset of the outcome call that his mom was not with him. They proceeded anyway. There is a genuine issue of material fact regarding whether his suicide attempt was reasonably foreseeable, and summary judgment will be denied on the negligence claim….

The court also allowed Poe's Title IX selective enforcement claim to go forward:

"In a selective enforcement claim, a plaintiff essentially asserts that even if he or she did violate a university policy, the decision to initiate disciplinary proceedings or the severity of the penalty imposed was motivated by gender bias." "To prevail on his selective enforcement claim, [a plaintiff] must show that a similarly-situated member of the opposite sex was treated more favorably than the plaintiff due to his or her gender."

The comparator in this case is a female student named L.N. Defendants argue that Poe and L.N. were not similarly situated because of the differences in timing, volume, and subject matter of their posts. Poe has come forward with sufficient admissible evidence for a reasonable jury to conclude that he and L.N. were similarly situated. It is undisputed that L.N. made at least twelve posts about Roe. Her posts about Roe were very similar to Poe's—they accuse Roe of sexual misconduct. Therefore, there is a genuine dispute of material fact regarding whether Poe and L.N. were similarly situated.

The remaining elements of a selective enforcement claim are whether Poe was treated less favorably than L.N. due to gender. It is undisputed that Bourgoin knew that Poe was male and L.N. was female. There is evidence that upon learning of L.N.'s identity, including her gender, Bourgoin apparently believed the accusation that Roe raped L.N., because he wanted to report the rape to Vanderbilt's Title IX Director …. It is also undisputed that even after learning L.N.'s posts were knowingly false, she only received probation, whereas Poe was suspended for a year. Therefore, there is evidence from which a reasonable jury could conclude that gender affected Vanderbilt's decision to selectively enforce a disciplinary process against Poe….

And the court allowed much of Poe's breach of contract claim to go forward, based on alleged violations of disciplinary process rules:

The Handbook … provides that students subject to disciplinary action may "examine all information that may form the basis for corrective action." … Poe has come forward with admissible evidence that he did not have the opportunity to examine all information supporting the charges. For example, he testified that the charge sheet alleged he posted on "a single social media site." It is undisputed, however, that Vanderbilt investigated him for posting on more than "a single social media site," which was relied upon to discipline him. Likewise, Poe states that Vanderbilt never showed him the post in which he allegedly impersonated a Belmont University student….

The Handbook states that students in accountability proceedings have the opportunity "to call witnesses." … Poe has presented admissible evidence to the contrary … [that] he was unable to call as witnesses other persons who made posts about Roe. For example, his attorneys tried to gather information from Greek Rank and Yik Yak. His attorneys advised Bourgoin that they were ultimately unable to subpoena information about other posts. There is evidence that Vanderbilt, on the other hand, knew the names of those other posters and, at a minimum, this would have been information relied upon by Vanderbilt that Poe would have been entitled to receive…. There is a genuine dispute of material fact regarding whether Bourgoin denied Poe the opportunity to call witnesses by withholding witnesses' identities from Poe….

The Handbook affords students the right to an unbiased appeal if a student is found to have engaged in misconduct. In conducting the appeal, the Chair of the Appellate Review Board (Lowe) should be provided with and review "the entire record of the case," the student's appeal petition, and "all supporting information provided by the [student] petitioner … in the light most favorable to the petitioner." …

First, [Poe] argues that Lowe did not review all of the materials available to her and instead merely rubber stamped Bourgoin's decision. Poe relies on Lowe's testimony that her appellate review was limited to a "Box file" from a digital sharing platform. She could not confirm under oath that she did in fact review everything in the Box file.

Second, Poe argues that the appeal documents omitted information reflecting Bourgoin's bias against him, and this "sanitized file … infected Lowe's review." Lowe agrees that omission of information about Bourgoin's negative personal views of Poe would be problematic. Poe also relies on a text message from Bourgoin to Jamerson stating, in part, "FYI to offline context. We've had countless interactions with [Poe] from accountability, honor, and multiple title ix things He is very unwell and not stable in my untrained assessment…." This text was "offline," meaning it was not included in Poe's disciplinary file.

Third, Poe argues that Bourgoin improperly shifted the burden of proof to Poe to prove his innocence. Lowe agreed that would be problematic. Bourgoin admits that he held Poe's inability to present evidence of other posts about Roe against Poe.

Fourth, Poe claims that Lowe erroneously found that his sanction was comparable with similarly situated students. Yet, Poe points to evidence that casts doubt on that conclusion. This includes a list of other Vanderbilt students who had similar charges and lacked disciplinary history, like Poe, but were not suspended….

In sum, each of the above create disputes of material fact [for a jury to resolve]….

But the court rejected plaintiff's defamation claim, because plaintiff didn't introduce enough evidence of damages (required for defamation under Tennessee law):

Poe's defamation claim is based on the statement in Bourgoin's March 9, 2023 letter to Roe that Poe "instigated" the harassing posts, which he argues is false because other posts about Roe preceded his. Poe claims that he was damaged by the statement because he was approached at his internship about his academic sanction, thereby suffering reputational harm. Poe also testified that the contents of Bourgoin's letter were shared with other students, making him "embarrassed to … talk to other people at Vanderbilt."

Based on the record, the Court can conclude that at least six people knew about Bourgoin's letter to Roe: Bourgoin, Roe, Roe's father, Roe's mother, Poe, and Poe's mother. Poe has not offered evidence that any of those people shared the letter with his internship employer or other students….

The court also rejected plaintiff's intentional infliction of emotional distress claim (which, like the negligence claim, was based on how the suspension decision was conveyed to him):

Defendants argue that Poe cannot claim IIED based on an email Clapper sent to Bourgoin the night before the outcome call where she stated, inter alia, "His parents better have flown there. lol safe travels!" Clapper testified that the "lol" comment was in reference to the fact that "we [Clapper and Bourgoin] were working on a Sunday trying to still coordinate details[,] … [Bourgoin] [] had to travel[,] [n]either of us had [electric] power. There was a lot that could go wrong in this situation." Defendants also point out that Poe did not see the email "until nearly a year later." Defendants argue that this email, compared to how they otherwise responded to Poe's mental health issues, does not amount to outrageous conduct.

Poe clarifies that he is not contending that Clapper's email caused him "direct distress," but rather it is "evidence of the mindset with which [Defendants] approached the delivery of a suspension to a student who they knew was suicidal and thus particularly susceptible to emotional distress." Moreover, Poe points to other record evidence of Defendants' antipathy toward him with respect to the delivery of the outcome. For example, Poe cites Jamerson's comment that he was "not overly concerned" about Poe's suicide risk after the outcome, when Clapper and Bourgoin were concerned that Poe would kill himself.

Even if Defendants' conduct is offensive, Poe has not met his high burden of coming forward with admissible evidence that it was "atrocious and utterly intolerable in a civilized community." …

And the court also threw out Poe's claim of tortious interference with business relations, and violations of the Rehabilitation Act of 1973 (a disability accommodation statute).

The District Court had earlier held that Poe may not proceed under a pseudonym, but that ruling is currently on appeal.

The post Vanderbilt Student's Lawsuit Over Suspension for Alleged False Accusations Can Go Forward appeared first on Reason.com.

[Josh Blackman] NAACP Seek To Recall Callais Judgment So It Can Seek Reconsideration

Josh Blackman — Tue, 05 May 2026 17:50:57 +0000

[The time to make this request was when the Plaintiffs moved to issue the judgment forthwith. ]

On April 29, the Supreme Court decided Callais. That same day, the non-African American Plaintiffs asked the Court to issue the judgment immediately. This request should not have been surprising. Louisiana is in the middle of the election, and time is of the essence. Justice Alito called for a response to be filed on April 30. The NAACP filed a response. I suggested that the savvy strategic move would have been to file at the same time a motion for reconsideration. To be sure, the rules provide 25 days to file such a motion, but in a fast moving case it would have been prudent to file immediately. The NAACP did not file such a motion. Instead, the opposition stated that they were thinking about it:

The Robinson Appellants oppose Appellees' Application for expedited issuance of the Court's judgment in this matter (the "Application"). This Court should afford Appellants the opportunity to consider seeking rehearing in the ordinary course. See Supreme Court Rule 44.1 (allowing 25 days for a party to seek rehearing of any judgment of this Court).

What was there to think about? The case is on the emergency docket. There is not time for the usual 25 day period to leisurely consider the matter. Again, I think there was a strategic miscue here. The NAACP lost a race on the shadow docket. And what would the NAACP have argued in such a motion for reconsideration? It would be clear they were (to use Justice Alito's words) trying to "run out the clock." The delay is the point.

Today, the NAACP has formally asked the Court to withdraw the judgment to give the NAACP the full period to file a motion for reconsideration.

The sole basis cited in the Order for granting Appellees' Application and issuing the judgment forthwith was that "[Robinson Appellants] have not expressed any intent to ask this Court to reconsider its judgment." However, in the second sentence of Appellants' opposition to the Application, Appellants requested "the opportunity to consider seeking rehearing." See Robinson Appellants' Response to Appellees' Application for Issuance of a Copy of the Opinion and Certified Copy of the Judgment Forthwith, at 2, No. 25A1197 (Apr. 30, 2026). In support, Appellants cited Rule 44.1, noting that it allows parties twenty-five days to seek rehearing of any judgment of this Court. Appellants intend to request rehearing in this case, and, accordingly, respectfully request that this Court recall the judgment, reconsider its order granting the Application, and deny the Application. Alternatively, Appellants respectfully ask the Court to recall the judgment and provide them fifteen days from the date of its decision in this case, or until May 14, 2026, to seek rehearing.

I think this ship has sailed. Proceedings are already ongoing in the lower court. Justice Jackson made the case for why the judgment should not be issued forthwith. No one joined her. I don't see much ground for reconsideration here.

The post NAACP Seek To Recall Callais Judgment So It Can Seek Reconsideration appeared first on Reason.com.

[Michael Auslin] The Spirit of the Declaration, Part 1

Michael Auslin — Tue, 05 May 2026 17:46:51 +0000

[This post is excerpted from the new book, National Treasure: How the Declaration of Independence Made America (Avid Reader Press/Simon & Schuster).]

Though Thomas Jefferson's phrases in the Declaration of Independence remain among the most famous ever penned, America's founding document remains controversial to some, and unread by many. Famously intended by the young Jefferson to be an "expression of the American mind," the Declaration was primarily of an amalgamation of George Mason's Virginia Bill of Rights, Jefferson's draft Virginia Constitution, and Richard Henry Lee's resolution of June 11 proposing Independence. Though informed by dozens of local declarations and statements, as ably chronicled by the late Pauline Maier in her 1997 American Scripture, one might say that the Declaration grew out of the Virginia soil, seeded by the tempestuous rains of Massachusetts.

The members of the Continental Congress knew that their Declaration left much unsaid and unfinished. They had heavily edited Jefferson's draft, though they refrained from adding new sections. In what Jefferson bemoaned as "mutilations" but were really judicious edits, Congress cut about a quarter of the text before adopting the document on the morning of July 4, 1776. In truth, the Declaration was not seen as the epochal event later generations attributed to it. To the delegates in Philadelphia, that step had been taken two days earlier, on July 2, when Congress voted to separate from Great Britain, King George III, and Parliament. Moreover, the Declaration was important insofar as it paved the way for two more important moves: forming foreign alliances, primarily France and Spain, and forming some kind of confederated government to guide relations among the now sovereign States. No public readings, fireworks, or celebrations occurred on July 4, though they would break out in coming days as America's new citizens listened to the Declaration read on hastily printed broadsheets sent around the country.

By design, the Declaration avoided any discussion, or even suggestion, of the type of government the colonies should establish. Formally, that was the responsibility of Connecticut delegate Roger Sherman's committee to draft articles of confederation, which ultimately created a uniquely weak central government. The more fundamental questions of governance were to be left to the new States, eight of which would draft and adopt constitutions in 1776 alone. Indeed, for many delegates, the business of writing state constitutions was far more important than Congress's declaration. Even Thomas Jefferson would rather have been back in Williamsburg working on a constitution for Virginia, a draft of which he had already composed earlier in the year, and parts of which he now re-purposed for the declaration.

But if Jefferson and his colleagues on the Committee of Five avoided specifying what a national government should look like, in drawing up its list of twenty-eight charges against King George enumerated in the Declaration, the committee and later the Congress as a whole made clear how a just government should not act. Thus, by implication, they revealed how a government justly representing the consent of the governed should act. Only when a new, more centralized government was required would the echoes of Jefferson's charges inform the Constitution and especially the Bill of Rights.

The Declaration defined Americans as one people, but it did not declare a unitary "United States of America." It was issued in the name of thirteen united colonies, who were now "Free and Independent States." How these independent states would act in concert and what kind of nation they would form would consume their energies for the next twelve years, until the Articles of Confederation were set aside and the Constitution was ratified in 1788, giving a final form to the government of the now more fully United-States.

Though the Declaration had not specified which type of government was to be formed, all members assumed that the liberties in whose name they had rebelled could only be guaranteed in a republic. Yet that was an audacious and risky undertaking. History had shown that the unrestrained exercise of liberty by equal men had brought ruin to all republics in the past, whether Athens and Rome or Venice and the Netherlands more recently. Over time, republics fell into corruption, licentiousness, and ultimately civil war. Even the ancient Hebrew commonwealth, mandated by God and the most "perfect republic" of balanced powers, had collapsed into monarchy. Nor had any republic ever been as large as the United States, raising doubts as to its viability.

Jefferson and his colleagues did not envision trusting their liberties to a pure democracy, which John Adams later described as a form of government "arbitrary Tyrannical bloody cruel and intollera[nt]," and (as Aristotle warned) almost always leading to anarchy. If America was to avoid the failures repeated throughout history, then a particular type of republican virtue would be required in its citizens and leaders. This was the virtue of public-spiritedness and service to preserve shared liberties. Ancient writers like Tacitus and Plutarch and the Bible inspired Jefferson and his contemporaries with their lessons on the lives of men both virtuous and immoral.

The Declaration did not call for radical social equality or the leveling of all distinctions, however. Jefferson was a combination of visionary and backroom politician, and his text was similarly complex. Neither he nor his fellow delegates supported social revolution. Instead, they implicitly presumed virtuous leadership by "a few of the most wise and good," as John Adams put it in his January 1776 pamphlet Thoughts on Government, selected freely by their fellow citizens to defend their common liberties. In time, Jefferson would express more clearly his own views on a "natural aristocracy," but even in 1776 he believed in an idea of equality that freed a man from his family's background while assuming that the best and brightest would be the ones to use their talents on behalf of the broader body politic. It was a presumption that would be tested almost immediately.

The post The Spirit of the Declaration, Part 1 appeared first on Reason.com.

[Jacob Mchangama and Jeff Kosseff] Elite Panic and the Push to Regulate "Misinformation"

Jacob Mchangama and Jeff Kosseff — Tue, 05 May 2026 13:36:05 +0000

[European leaders' warnings of a democratic apocalypse failed to materialize in 2024.]

Our book traces the waves of elite panic that drive governments to regulate "misinformation," "disinformation," and other speech that the leaders believe are not in the best interests of the public. One wave of elite panic reached its peak in 2024. It was a pivotal year for the future of global democracy, as some 2 billion voters—about half the adult population of the globe—went to the polls, including voters in the United States, the European Union, France, the United Kingdom, Brazil, Indonesia, South Africa, Taiwan, Mexico, and India.

Despite a record number of eligible voters, the mood among many politicians, commentators, and media institutions was more fearful than celebratory. A New York Times article from January 2024 warned that "false narratives and conspiracy theories have evolved into an increasingly global menace," and that "artificial intelligence has supercharged disinformation efforts and distorted perceptions of reality." Experts cautioned that the combination of online influence campaigns and artificial intelligence had created a "perfect storm of disinformation" that threatened free and fair elections.

The EU-funded European Digital Media Observatory (EDMO) warned that disinformation campaigns had become "a pervasive phenomenon," with more voters exposed than ever before. An anonymous senior EU official highlighted the threat from "tsunami levels" of disinformation: "It's as if we have been infected by this foreign interference. It's a silent killer." Not to be outdone, Věra Jourová, the European Commission's vice president for values and transparency, said AI deepfakes of politicians could create "an atomic bomb … to change the course of voter preferences." To counter this threat, the European Commission sent menacing letters to social media platforms and dispatched crisis units, expecting to deal with attempts to cast doubt on the legitimacy of the election's outcome for weeks after the vote.

At the Copenhagen Democracy Summit in May 2024, just a month before the European Parliamentary elections, Ursula von der Leyen, the president of the European Commission and then a candidate for reelection, made a significant pledge. She promised to prioritize a new "European democracy shield" to combat foreign interference. One aspect of this shield would focus on detecting "malign information or propaganda " and, once identified, ensuring such content is "swiftly removed and blocked" by online platforms. This would build on—and likely expand—new obligations under the Digital Services Act. The shield would essentially normalize the kind of emergency measures the European Union had already adopted to ban and block Russian state-sponsored media in the wake of Putin's attack on Ukraine in February 2022.

A few days after the invasion of Ukraine, the European Union suspended the broadcasting activities of the state-sponsored media outlets Russia Today (RT) and Sputnik, claiming that Russia was engaging in a "systematic, international campaign of media manipulation and distortion of facts" that threatened the democratic order in EU member states. On March 4, 2022, the European Commission clarified that social media companies "must prevent users from broadcasting … any content of RT and Sputnik" — a clarification broad enough to include content posted by users attempting to counter Russian propaganda. The list has since been expanded to cover more than a dozen Russian media outlets.

Josep Borrell, the EU's High Representative at the time, defended the move, since Russian disinformation was "a major threat for the liberal democracies," because "if information is manipulated … their choices are biased." Borrell then jumped to the conclusion that by banning RT and Sputnik, "we are not attacking the freedom of expression, we are just protecting the freedom of expression." One might argue that this Orwellian statement was itself an exercise in disinformation.

The EU's General Court upheld the ban on RT and Sputnik, calling it necessary to stop a "vehicle for propaganda" supporting Russian aggression, even though no member state was at war. While the court claimed the ban's temporary nature preserved freedom of expression, the conditions for lifting it — including that Russia must "cease propaganda actions against the Union" — made its temporary status more theoretical than practical.

Were these fears about online disinformation justified? The 2024 European Parliamentary elections took place from June 6 to 9 across the twenty-seven member states. These were followed by snap elections in France (June 30 and July 7) and the United Kingdom (July 4). Contrary to the alarmist narratives that preceded this massive exercise of democracy, neither fake news nor foreign interference subverted the will of the people. EDMO, which had warned about potential problems with the elections, concluded that "no major last-minute disinformation-related incidents have been detected." Nor were the elections affected by the much-hyped deluge of deceptive deepfakes. In September 2024, the Alan Turing Institute—the United Kingdom's national institute for data science and AI—analyzed AI disinformation in the European Union, French, and British elections. It found "no clear evidence that such threats had any impact on influencing large-scale voter attitudes or election results."

The stark contrast between elite panic alarmism and reality on the ground should not have come as a surprise. It echoed the panic surrounding the 2019 European elections. Back then, European Commission President Jean-Claude Juncker warned that "in our online world, the risk of interference and manipulation has never been higher." When the elections were over, the Commission concluded that no widespread disinformation campaigns had been identified, a finding shared by independent researchers. These concerns were largely fueled by the assumption that Russian disinformation had influenced the 2016 US presidential election bringing Donald Trump to power. Yet several studies have raised serious questions about the impact of disinformation campaigns (Russian and otherwise) on elections more broadly. As the authors of a 2023 study using longitudinal survey data concluded, "We find no evidence of a meaningful relationship between exposure to the Russian foreign influence campaign and changes in attitudes, polarization, or voting behavior."

Even after these signs of democratic resilience, elite warnings about catastrophic disinformation continued at full volume. EDMO, sounding like a medieval inquisitor scouring for heretics, declared, "The European information space must be kept clean and monitored all the time." European politicians agreed. On von der Leyen's reelection as commission president on July 18, 2024, she reiterated her proposal for a European Democracy Shield. That same month, Cyprus—an EU member state—proposed a law criminalizing the spread of "fake news" with up to five years of imprisonment. After Germany's 2025 election, the new Christian Democratic Union–led coalition platform asserted, "The deliberate dissemination of false factual claims is not protected by freedom of speech" and promised a new media oversight body targeting "information manipulation."

Unlike its more permissive stance on hate-speech bans, the European Court of Human Rights (ECHR) has shown stronger skepticism toward vague or overly broad disinformation laws. In cases involving Poland and Ukraine, the ECHR highlighted governments' limited leeway to restrict political speech during elections, finding violations of free speech. These cases, however, predate the post-2016 elite panic surrounding disinformation. In a 2019 decision, the court found in favor of an applicant but upheld a Polish election law requiring courts to address "untrue information" within twenty-four hours, citing the need to swiftly correct election-related "fake news" to safeguard electoral integrity. The court also stressed that the speech wasn't excessively "vulgar or insulting." In contrast, in 2021 the ECHR rejected a complaint by a local newspaper fined under the same Polish law for publishing unverified defamatory claims about a mayoral candidate, noting the lack of factual support.

ECHR case law suggests that the court may be more skeptical of disinformation laws than hate-speech bans—but not to the extent of protecting demonstrably false claims or the kinds of hyperbole, selective outrage, and strawman argumentation common on social media, where truth, falsehood, and opinion often blur into shades of gray.

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[Josh Blackman] Today in Supreme Court History: May 5, 1992

Josh Blackman — Tue, 05 May 2026 11:00:01 +0000

5/5/1992: The 27th Amendment is ratified. It was initially proposed in 1789.

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

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[Eugene Volokh] Open Thread

Eugene Volokh — Tue, 05 May 2026 07:00:00 +0000

[What’s on your mind?]

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[Josh Blackman] The Partisan Asymmetry In Callais

Josh Blackman — Tue, 05 May 2026 03:18:37 +0000

[Justice Jackson never countenances that her decision to "run out the clock" might be partisan.]

In most political disputes, there will usually be an argument that helps the left and an argument that helps the right. A common rhetorical tactic is to insist that one side or other is in fact being neutral, while the other side is being partisan. In the abstract, these arguments should not work because neither side is being neutral. But in various areas of the law, there are liberal institutional asymmetries--legal principles that ensure the liberal position is seen as the neutral baseline.

One of the largest asymmetries was (past tense) the Voting Rights Act. I wrote in October:

Because African American and Hispanic voters tend to vote for Democratic politicians, Democrats will benefit from VRA claims. By contrast, because White voters tend to vote for Republican politicians, Republicans will less likely benefit from VRA claims. What is the upshot? Gerrymandered maps in the South drawn by Republican legislatures are routinely blocked under the VRA, while gerrymandered maps in the North drawn by Democratic legislatures are far more likely to survive.

Callais eliminated this asymmetry. Going forward, absent evidence of intentional discrimination, racial minorities will no longer receive an electoral boost through the VRA. The upshot of Callais, as well as Students for Fair Admissions, is that the government can no longer adopt "benign" classifications to "help" racial minorities. I use scare quotes because I doubt that any of these classifications actually helped the people they purproted to help. Moreover, all classifications are zero-sum games, and to help one race is to hurt another race. The post-Callais world may see a realignment of political power in the South that is difficult to predict. Gingles froze the politics of the 1980s in place. Indeed, many aging members of opportunity districts have served that long. Going forward, black people will no longer be moved around like pawns to maximize Democratic districts.

Now, as Justice Thomas wrote in Allen v. Milligan, we will have a system where "the minority simply cannot elect its preferred candidates; it is, after all, a minority." The neutral rule is not that federal courts draw bizarrely-shaped districts that cobble black voters together for no reason other than they are black. Decades of VRA litigation have conditioned us to thinking that Gingles is neutral. It's not. Instead, the neutral rule is that the demographics with fewer voters have a harder time electing their preferred candidate. Callais reimposed the neutral rule.

The aftermath of Callais further demonstrates this warped conception of neutrality. The private plaintiffs asked the Supreme Court to issue the judgment right away. Last week, I observed that the issuance of the judgment is irrelevant. There is no injunction blocking the implementation of new maps. Still, the plaintiffs asked for the judgment to be issued forthwith.

The per curiam order granted the motion to issue the judgment forthwith:

To permit the losing party time to file a petition for rehearing, the Clerk of Court ordinarily waits 32 days after the entry of the Court's judgment to send the opinion and a certified copy of the judgment to the clerk of the lower court.Sup. Ct. Rule 45.3. This period is subject to adjustment; the default applies "unless the Court or a Justice shortens or extends the time." Ibid. The Callais appellees have asked for the Clerk to issue the judgment forthwith so that "in the event of a judicial remedy," the District Court may "oversee an orderly process." App. 3. Appellant Louisiana does not oppose this application. And while the Robinson appellants oppose it, they have not expressed any intent to ask this Court to reconsider its judgment. Thus, the application toissue the judgment forthwith presented to JUSTICE ALITO and by him referred to the Court is granted.

The judgment is issued after 32 days to allow the losing party time to seek reconsideration, but that rule can be waived if there is good cause. In Callais, those seeking expedition provided good cause. Those opposing expedition made a strategic miscue. When the non-African American plaintiffs sought to issue the mandate forthwith, the African American plaintiffs should have concurrently filed a motion for reconsideration. On what grounds, I don't know, but they could have filed something. That would at least have triggered another ground of (pointless) briefing, and given the Court a rationale to not issue the judgment forthwith. But the African American plaintiffs did not take that course. Instead, they simply opposed the issuance of the judgment. The Supreme Court called their bluff.

Justice Jackson, however, wrote a harsh dissent. She all-but charged the majority with partisanship.

These post-Callais developments have a strong political undercurrent. Louisiana's hurried response to the Callais decision unfolds in the midst of an ongoing statewide election, against the backdrop of a pitched redistricting battle among state governments that appear to be acting as proxies for their favored political parties.2 And as always, the Court has a choice. By my count, we have granted an application to issue the judgment forthwith over a party's objection only twice in the last 25 years. See Whole Woman's Health v. Jackson, No. 21A220, 2021 WL 5931622 (Dec. 16, 2021); Order in Adoptive Couple v. Baby Girl, No. 13A7, etc. (June 28, 2013). To avoid the appearance of partiality here, we could, as per usual, opt to stay on the sidelines and take no position by applying our default procedures. But, today, the Court chooses the opposite.

Jackson concludes:

The Court unshackles itself from both constraints today and dives into the fray. And just like that, those principles give way to power. Because this abandon is unwarranted and unwise, respectfully, I dissent.

Justice Alito responds in a concurrence, joined by Justices Thomas and Gorsuch. Alito writes that Jackson's charge is "baseless and insulting." Why? Jackson is so quick to charge the conservatives with partisanship that she never countenances that her own view might be motivated by partisanship.

The second reason offered by the dissent is that we should allow the 32-day period to run out in order to "avoid theappearance of partiality." Post, at 3 (opinion of JACKSON, J.). But the dissent does not explain why its insistence on unthinking compliance with Rule 45.3's default rule doesnot create the appearance of partiality (by running out the clock) on behalf of those who may find it politically advantageous to have the election occur under the unconstitutional map.

The Republicans want to issue the judgment right away, and the Democrats do not. The Democrats want to use the unconstitutional maps, and the Republicans want new maps. Why is it that only the Democrats are behaving neutrally while the Republicans are behaving in a partisan fashion? I think both sides are serving their own self interest. Therefore, it cannot be that a decision favoring the left is "neutral" while a decision favoring the right is "partial."

Again, Jackson does not explain why refusing to issue the judgment is the partisan rule. The rules permit the issuance of the judgment where there is good cause, and when the non-prevailing party have given no indication they will seek reconsideration, there is no good cause to stand by.

Alito writes further that failing to act to avoid the appearance of partisanship is in fact partisan.

The dissent goes on to claim that our decision represents an unprincipled use of power. See post, at 4 ("And just likethat, those principles give way to power"). That is a groundless and utterly irresponsible charge. What principle has the Court violated? The principle that Rule 45.3's 32-day default period should never be shortened even when thereis good reason to do so? The principle that we should never take any action that might unjustifiably be criticized as partisan?

We should sandblast "Equal Justice Under Law" off the Supreme Court's portico and chisel into marble this passage. The Supreme Court decisions that I am most critical of stem not from a failure of jurisprudence but from a failure of courage. Judges who are unwilling to be criticized for partisanship simply acquiesce to liberal conceptions of "neutrality." Perhaps Callais will steel the Court to stop falling in this progressive trap. The left is simply gaslighting conservatives as to what neutrality is. Neutrality is applying the law without fear or favor for either side.

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[Eugene Volokh] Michael Auslin Guest-Blogging This Week About "National Treasure: How the Declaration of Independence Made America"

Eugene Volokh — Mon, 04 May 2026 18:49:34 +0000

I'm delighted to report that Michael Auslin, a Distinguished Research Fellow here at Hoover, will be guest-blogging this week about his new book. From the publisher's description:

The inspiring story of the Declaration of Independence—the first to take us from its drafting by Thomas Jefferson to today—charting the many lives of a document that captures the soul of America and has united generations around its defiant ideals, published for the 250th anniversary of America's founding.

Quiet and politically untested, Thomas Jefferson was not the obvious choice to draft a statement of principles explaining why the American colonies were breaking ties with the King of England. His soaring rhetoric would inspire generations of Americans to live up to the founders' dreams. National Treasure is the gripping story of our most revered founding relic, as a physical object and a set of ideals that have made America what it is today.

An award-winning historian, Michael Auslin take us from the boarding house in Philadelphia where Jefferson put quill to paper to the Declaration's covert signing, dissemination in the doldrums of the revolutionary war, and long, harrowing, and ultimately hallowed afterlife. We follow the parchment as it is hauled out of a soon-to-be-burning Washington in 1814 and see it hidden in a dank cellar, posted in classrooms, recited on village greens, printed on handkerchiefs, and used to sell insurance and bundle coal. An inspiration to both Abraham Lincoln and Jefferson Davis in the Civil War, it has grown more important for each new generation. While FDR and Churchill celebrated its commitment to freedom from tyranny, the document itself was lowered into a bunker at Fort Knox. After the war, its precious ink fading, it was painstakingly preserved and enshrined.

Through it all, Jefferson's words have inspired implausibly varied causes, from suffragists and civil rights leaders to groups waging war on the US government. As Jefferson had hoped, the principles enshrined in the Declaration became a beacon to the world. But what lessons should we take from it today? Can this statement of ideals in whose name the signers pledged their lives and sacred honor bring a disparate nation together? As we gather to celebrate the 250th anniversary of the founders' bold experiment in democracy, Auslin reminds us that this enduring document was not just a call for freedom and equality but an eloquent statement of the principles that bind us together.

Michael Auslin is the Payson J. Treat Distinguished Research Fellow at Stanford University's Hoover Institution. Prior to that, he was an associate professor of history at Yale. He wrote National Treasure as a Distinguished Visiting Scholar at the Library of Congress's John W. Kluge Center and an American Heritage Partners Fellow at the Society of the Cincinnati's American Revolution Institute. He writes a Substack, The Patowmack Packet, on Washington, DC, past and present, and lives in Virginia.

And from the blurbs:

"Even 250 candles on the nation's birthday cake cannot be as illuminating as Michael Auslin's fascinating story of the making, and still undiminished resonance, of the world's most consequential political document. His mind-opening book closes a question that is currently hotly contested. Is ours a creedal nation? Yes! Auslin supplies the exclamation mark."
—George F. Will, author of American Happiness and Discontents

"The Declaration—both the parchment and its principles—have had an eventful history. Michael Auslin deftly walks us through each chapter, as we have forgotten the document, mangled it, mythologized it, hijacked it, and every once in a while even lived up to it. A nimble, captivating view of the defiant 1,320 words that have knit themselves into every chapter of the last 250 years, only gaining in importance along the way."
—Stacy Schiff, author of The Revolutionary

"Deeply researched and propulsively written, National Treasure follows the Declaration of Independence from its birth in 1776 to today. Michael Auslin has given us much to debate and much to celebrate. Treating our shared American scripture as a set of ideas, a national covenant, and a material artifact that continues to evolve, he has uncovered a history that will inspire, provoke, and delight even readers deeply familiar with our founding vision."
—Jane Kamensky, President & CEO of Thomas Jefferson's Monticello

"For the most powerful nation in the world to be founded on a piece of paper is remarkable enough, but for it to continue to inspire the spread of liberty and democracy a quarter of a millennium later—in ways the original signers could never have imagined—is truly extraordinary. Scrupulously researched and beautifully written, this book reads like an adventure story. Michael Auslin's intimate history of the document that changed the world is scholarship at its best: witty, fascinating, and never more relevant."
—Andrew Roberts, author of The Last King of America

"As we commemorate our nation's 250th at a time of political division, we can strengthen our shared bonds by appreciating the profound story of our Declaration of Independence. In this fascinating and well-researched book, Michael Auslin weaves the glorious narrative of this document—as a piece of parchment, as a symbol of enduring principles, and as a cultural object—from its inception to our day. It's a marvelous way to celebrate who we are, and who we should be."
—Walter Isaacson, author of Benjamin Franklin

"An engaging account of the fortunes of the document . . . Auslin does good historical footwork . . . Welcome reading in this bisesquicentennial year."
—Kirkus Reviews

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[Jonathan H. Adler] Justice Alito Enters Administrative Stay of Mifepristone Order

Jonathan H. Adler — Mon, 04 May 2026 17:41:44 +0000

[The Court responds to the mifepristone shadow docket filings. ]

This morning Justice Alito entered an administrative stay (two actually) of the order of the U.S. Court of Appeals for the Fifth Circuit halting the Food and Drug Administration regulation allowing for the prescription of mifepristone via telemedicine. Mifepristone (aka RU-486) is used in combination with misoprostol as an abortifacient. The stays are in response to applications filed by mifepristone's manufacturers, which I discussed here.

Both orders--one in response to the application from Danco Laboratories, the other in response to GenBioPro--are identical. They are fairly pro forma, and indicate little about what the Court may ultimately do. They each stay the Fifth Circuit's order until 5pm on May 11 and request a response to the applications by May 7. Note that the ordered response will come from the plaintiffs (Louisiana, et al.). The stays do not explicitly request a response from the Trump Administration.

As I noted yesterday, the Trump Administration's position on the significance of the stay of the 2023 FDA regulation would likely influence the Court's consideration of the manufacturers' petitions. Even if a majority of justices agree with me that the bases upon which the Fifth Circuit entered the stay are questionable, both in regard to Article III standing and the merits, the Court is less likely to block the Fifth Circuit's order if the federal government does not ask it to.

The Trump Administration cannot be happy it is in this position. As the Wall Street Journal reported this morning, pro-life organizations are very upset with Trump's apparent softening on abortion questions in his second term. A filing with the Supreme Court seeking to preserve access to mifepristone via telemedicine will only add fuel to this fire.

Louisiana's primary complaint in the current litigation is that the availability of mifepristone via telemedicine makes it too easy for individuals to circumvent Louisiana's abortion laws, particularly when telemedicine is combined with mail-order prescriptions. It seems to me, though, that there are things that the federal government could do to address this concern other than modify the 2023 rule. For instance, the Department of Justice could use the Comstock Act to prosecute the mailing of mifepristone where doing so would violate applicable state laws, and thereby help reinforce state policy choices with regard to abortion without imposing a national policy. We will see whether the Administration considers any moves in this direction.

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[Jacob Mchangama and Jeff Kosseff] How Bad Facts Make Good First Amendment Law

Jacob Mchangama and Jeff Kosseff — Mon, 04 May 2026 13:20:13 +0000

[Jay Near was a hateful man whose litigation set a vital precedent for free speech.]

The old legal saying, "bad facts make bad law," might be true in some cases. But that usually occurs when a court strays from its commitment to a neutral set of legal principles, often because a litigant or lawyer is particularly repulsive or persuasive. If a court sticks to those neutral principles, bad facts could make good law when the court demonstrates that the rule of law endures, even in the most difficult circumstances.

Jay Near is among the free speech anti-heroes profiled in our book. After arriving in Minneapolis from Iowa, in 1916 he started writing for Howard Guilford's Twin City Reporter, which boasted sensationalist and sometimes racist headlines, such as "White Slavery Trade: Well-Known Local Man Is Ruining Women and Living Off Their Earnings," and used terms like "yids" and "spades." The paper had a reputation for taking bribes from powerful local officials to write scandalous articles about their rivals. As journalist Fred Friendly would write in Minnesota Rag, a 1981 book about Near, Guilford and Near "practiced a brand of journalism that teetered on the edge of legality and often toppled over the limits of propriety."

Within a few years, Guilford and Near left the newspaper, and Near had moved first to California and then back to Minnesota. Their former newspaper was in the hands of a local crime syndicate that had worked out side deals with the city police, so Near convinced Guilford to start a rival newspaper, The Saturday Press, which would expose the corrupt crooks running The Twin City Reporter. Police Chief Frank Brunskill wanted to stop the distribution of this upstart paper even before the first edition came out.

Despite the threats, Guilford and Near published their first issue on September 24, 1927. The second page contained an editors' note that criticized the owner of their former newspaper:

"[He is] an unscrupulous newspaper man, a man so devoid of moral courage that he hasn't the nerve to publish the paper himself—he prefers to lease it out to others to assume the responsibility, while he engineers the numerous blackmail deals that are committed by the firm, and waxes fat from the profits of gambling houses he has been interested in for several years past, said gambling houses being permitted through the social prestige (?) of the Twin City Reporter about the City Hall."

On page 4, Near wrote that he and Guilford recently received word "that if we persisted in our expose of conditions AS THEY ARE in this city, we would be 'bumped off.' "

Their prediction proved true. Two days after publication of their paper's first edition, two men fired four shots at Guilford's car as he drove in downtown Minneapolis, critically injuring but not killing him. The next edition of the newspaper—published five days later—carried the front-page headline "Guilford's Assailants Indicted by Grand Jury" and reported that two "boys" in their early 20s had been indicted for first-degree assault. "What of the ones who HIRED THEM TO KILL?" the article asked. "Shall they escape and these boys be punished FOR THE CRIME THEIR SOULLESS EMPLOYERS ARE GUILTY OF?"

The Saturday Press continued its weekly publication, criticizing Brunskill and other local officials and focusing much of its ire on Mose Barnett, a Jewish gangster who, the paper alleged, was running much of the city's organized crime. The front page of its third edition featured the headline "A Few of the 'Unsolved' Minneapolis Mysteries " and carried the story of an assault on Sam Shapiro, a Russian dry cleaning shop owner whom Barnett had allegedly threatened. "Did the police department get busy and arrest Mose Barnett, THE GANGSTER WHO HAD THREATENED MR. SHAPIRO?" the paper asked. "It did nothing of the kind."

Until this point, the newspaper's crusade against Barnett might be seen as noble. But in the next few editions, Near then stepped up his attacks, not only on Barnett and the city officials whom he claimed Barnett controlled, but also on Jewish people in general. Near wrote that "JEW GANGSTERS" are "practically ruling Minneapolis." Near pushed back against people who warned him against criticizing Jewish people: "If the people of Jewish faith in Minneapolis wish to avoid criticism of these vermin whom I rightly call 'Jews' they can easily do so BY THEMSELVES CLEANING HOUSE." He claimed (without support) that 90 percent of crimes were perpetrated by Jews: "It was a Jew who employed JEWS to shoot down Mr. Guilford. It was a Jew who employed a JEW to intimidate Mr. Shapiro and a Jew who employed JEWS to assault that gentleman when he refused to yield to their threats."

This would be the newspaper's final edition, at least for a few years. It was clear from the paper that Brunskill had stepped up his efforts to bar the paper's distribution. Across the top of the front page were instructions to stores that sold this newspaper: "If you are molested in their sale by the police, refuse to remove them from your display stands and we will furnish the legal talent necessary for a 'show down' in the courts," the editors wrote.

That plan did not stop Brunskill and the state attorney, Floyd B. Olson, from blocking further publication of the newspaper. Two days after Near's anti-Semitic rant, Olson filed a complaint in state court, basing it on a state law that made it a criminal nuisance to publish "an obscene, lewd and lascivious newspaper, magazine, or other periodical" or "a malicious, scandalous and defamatory newspaper, magazine or other periodical." The statute allowed the county attorney to seek a court order to "perpetually enjoin the person or persons committing, conducting or maintaining any such nuisance, from further committing, conducting, or maintaining any such nuisance."

The state court ordered Near to show cause reflecting why it should not issue an order prohibiting the circulation of previous editions of The Saturday Press, "any future editions of said The Saturday Press," and "any publication, known by any other name whatsoever containing malicious, scandalous and defamatory matter of the kind alleged in plaintiff's complaint herein or otherwise." After Near moved to dismiss the complaint, the trial court asked the Minnesota Supreme Court to decide whether the state law violated the First Amendment and similar protections in the state constitution.

The Minnesota Supreme Court ruled the statute constitutional: "It was never the intention of the constitution to afford protection to a publication devoted to scandal and defamation." The state high court sent the case back to the trial court, which granted the injunction, finding that the newspaper "did engage in the business of regularly and customarily producing, publishing and circulating a malicious, scandalous and defamatory newspaper." Near again appealed to the Minnesota Supreme Court, challenging the constitutionality of the law. He focused on the impact of issuing a prior restraint that prohibits the publication of any future newspapers. In four paragraphs, the court rejected Near's argument, reasoning that the injunction would not prohibit Near and Guilford from "operating a newspaper in harmony with the public welfare to which all must yield." But the defendants, the court wrote, "have in no way indicated any desire to conduct their business in the usual and legitimate manner."

Near convinced the US Supreme Court to review the case. In his brief to the high court, Near focused on the long-standing rule that freedom of the press prevents the government from stopping publications in advance. He quoted Blackstone's famous Commentaries on the Law of England, which stated that freedom of the press "when rightly understood, consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published."

In a 5-4 opinion, the Supreme Court struck down the state law as unconstitutional. Writing for the majority, Chief Justice Charles Evans Hughes focused on the particularly harsh nature of prior restraints allowing government officials to stop publication of a newspaper that accuses them of wrongdoing. "This is of the essence of censorship," Hughes wrote. For the first 150 years of its history, Hughes noted, the United States followed Blackstone's model and eschewed prior restraints against publications that made accusations about government officials: "Public officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals."

Conservative Justice Pierce Butler, joined by three colleagues, dissented. Butler focused much of his dissent on the odious nature of the newspaper, writing that its "regular business was the publication of malicious, scandalous and defamatory articles concerning the principal public officers, leading newspapers of the city, many private persons and the Jewish race."

Had one more justice shared Butler's view, the Supreme Court would have upheld the court order shutting down The Saturday Press and, more importantly, governments across the nation would have been free to shut down publications they determined were sufficiently "scandalous." But that is not what happened. In October 1932, The Saturday Press resumed publication under Near's editorship, with the front page bearing the following slogan: "The only paper in the United States with a US Supreme Court record of being right; the only paper that dared fight for freedom of the press—fought and won."

What would the United States look like had Butler's view prevailed? Most likely some hateful publications like Near's would have been suppressed over the past century. But it would also have suppressed newspapers and other periodicals that legitimately accused government officials of wrongdoing or otherwise published information that the government would prefer to never see the light of day. Indeed, in its 1971 per curiam opinion blocking a government injunction against The New York Times and The Washington Post from publishing the Pentagon Papers, the Supreme Court cited Near v. Minnesota for the proposition that prior restraints are presumptively unconstitutional. By protecting Near's hate speech against prior restraints, the Supreme Court enabled the publication of the Pentagon Papers and so much other controversial speech. But prior restraints are only one form of penalty for speech. Governments and courts also use the threat of criminal charges to scare people from ever speaking out in the first place. And the court has set a high bar for such prosecutions, even in the face of the most deplorable speech.

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[Eugene Volokh] Just "Felonious Peccadillos"; I'm "Overqualified for Oklahoma"; Bar Association, "Bring It on Bitch": Surprisingly Ineffective in Fighting Disbarment

Eugene Volokh — Mon, 04 May 2026 12:32:22 +0000

Some excerpts from the long opinion in State ex rel. Oklahoma Bar Ass'n v. Barlean, decided Tuesday by the Oklahoma Supreme Court (opinion by Justice Kuehn); Barlean appears to have been a former candidate for the Oklahoma state legislature:

On January 5, 2023, Respondent pled guilty to two misdemeanor charges of Domestic Assault and Battery …. Both charges stemmed from violent incidents involving Respondent and a woman with whom he had a romantic relationship. On August 16, 2021, during an argument, Respondent strangled or choked the woman until she gave him her car keys. He was arrested, charged with a felony and bound over for trial. While out on bond, on December 2, 2022, during another fight Respondent pushed the woman down a flight of stairs, injuring her arm. He was arrested again and charged with a misdemeanor.

Under Respondent's plea agreement, the felony charge was reduced to a misdemeanor and Respondent pled guilty to both charges. He agreed to supervised probation with requirements including restitution, community service, completion of an intervention program, anger management classes, an alcohol and drug assessment and any recommended treatment. Respondent failed to complete these requirements. The State moved to accelerate his deferred sentence on September 30, 2024; on November 22, 2024 Respondent pled no contest to the motion to accelerate. Both counts were reduced to convictions and he was fined….

This Court's May 20, 2024 order of interim suspension directed Respondent to show cause why a final order of discipline should not be imposed. In his Answer, Respondent claimed that a June 2021 arrest, search of his house, and incarceration—unrelated to the charges at issue here—was illegal and led him down a "dark, self-destructive path" which culminated in his arrest for domestic violence by strangulation, the basis for the charge in CF-2021-3557. He attached a copy of a civil rights complaint he had filed in federal court as a result of the allegedly illegal search and incarceration.

In that complaint, Respondent blamed the victim in both criminal cases for his troubles. Respondent also claimed in his Answer that he had barely practiced law in Oklahoma and retired from legal practice in the 2010s. He appeared to argue that there would be no point in imposing a suspension from practice, or any form of discipline, since he did not practice law or represent clients.

This Court has held that domestic violence is itself a "serious breach of a lawyer's ethical duty and will not be tolerated." Respondent pled guilty to two crimes of violence against a person with whom he had an intimate relationship. In each instance he resorted to violence while quarrelling with the victim. The crimes were separated by several months, and the second occurred while he was out on bond after having been charged with the first crime. Although his deferred sentence offered him the opportunity to avoid those convictions, he admitted that he failed to complete the requirements he himself had agreed to. These convictions and the circumstances surrounding them reflect, at best, extremely poor judgment and a propensity to violence….

The court also referred to other incidents involving Barlean, including this:

Respondent sent the OBA [Oklahoma Bar Association] more than twenty emails after the Rule 7 Notice of Judgment and Sentence [in the disciplinary action] was filed. He claimed the criminal charges would be dismissed (as discussed above, they were not). He called this Court incompetent, a joke, redneck and lazy, invited the OBA to "bring it on bitch", and stated he was overqualified for Oklahoma. Along with a certificate of completion of his required anger management program, he wrote, "I don't strangle. I crush or pull out voice boxes. Ask my Airborne instructors." He suggested the female OBA attorney was embarrassed to be "schooled by a Man", and threatened to drag the State through a federal Section 1983 civil rights claim. He invited an OBA paralegal trying to help him with subpoenas to "come after me so I can show you what the United States trained me to do to Communists." …

[As to another claim,] Respondent did admit that he is not "a choirboy", with a "colorful youth and felonious peccadillos." …

Respondent's conduct reveals a consistent pattern of violence and poor judgment compelling our conclusion that Respondent is unfit to practice law. He is disbarred….

Jana J. Harris, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

The post Just "Felonious Peccadillos"; I'm "Overqualified for Oklahoma"; Bar Association, "Bring It on Bitch": Surprisingly Ineffective in Fighting Disbarment appeared first on Reason.com.

[Eugene Volokh] Posting Video of 10-Year-Old Hockey Player's "Tantrum" Isn't Intentional Infliction of Emotional Distress

Eugene Volokh — Mon, 04 May 2026 12:01:14 +0000

In Mufarreh v. Google, Inc., decided Friday by the Illinois Appellate Court (Justice Raymond Mitchell, joined by Justices Sharon Oden-Johnson and Thaddeus Wilson), a 10-year-old hockey player and his parents sued an anonymous video poster, and sought to discover the poster's name:

[I]n a competitive youth hockey game[,] Mufarreh missed the final penalty shot, losing the game, and had a severe emotional response on the ice. Among other things, he screamed, threw his hockey stick, gloves, and helmet, and fell to the ground.

On November 2, 2023, YouTube user FunnyIllinoisHockey uploaded a compilation video of Mufarreh's emotional episode. The video, entitled "TI Tantrum," was set to the song "Tantrum" by Madeline The Person. The video was two minutes and forty-four seconds in length and tracked Mufarreh's movements around the ice, zooming in on him as he broke down.

According to the petition, between November 2023 and April 2024, every time petitioners sought to have the video taken down, it would reappear. The video spread widely throughout the small youth hockey community. Mufarreh alleged that he suffered from restless sleep and anxiety attacks and was humiliated, mocked, and socially ostracized. His parents also alleged that they endured sleepless nights, psychological distress, and a strain on their marriage.

Petitioners alleged that the video was repeatedly republished "purely to humiliate, isolate, and psychologically destroy" them. Petitioners also alleged that, based on information and belief, the anonymous account belonged to a 23-year-old coach from a rival hockey team who was using the video to recruit kids for his team and keep them away from Mufarreh's team.

Petitioners sought to compel respondents Google and YouTube to disclose the identity of the user who posted the video so they could sue the user for defamation, infringement on the right of publicity, and intentional infliction of emotional distress. Respondents informed the user of the litigation, and he appeared as John Doe, an interested party….

[T]he circuit court dismissed petitioners' claims for defamation and infringement on the right of publicity with prejudice. The circuit court also dismissed the [parents'] intentional infliction of emotional distress claims but allowed petitioners to proceed on the son's claim. Accordingly, the circuit court ordered respondents to turn over Doe's identity….

The court reversed, concluding that, as a matter of law, Doe's behavior as alleged by the plaintiffs didn't constitute intentional infliction of emotional distress:

"[T]o state a cause of action for intentional infliction of emotional distress, a plaintiff must adequately allege that: (1) the defendant's conduct was extreme and outrageous; (2) the defendant either intended to inflict severe emotional distress or knew that there was a high probability that its conduct would do so; and (3) the defendant's conduct actually caused severe emotional distress."

Whether conduct is extreme and outrageous is determined using an objective standard considering the facts and circumstances. "Extreme and outrageous behavior will not be found with mere insults, indignities, threats, annoyances, petty oppressions, or trivialities." "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." The conduct must "be regarded as intolerable in a civilized community." Conduct is extreme and outrageous if "recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" …

According to the petition, Doe posted a video to YouTube that depicted Mufarreh having a strong emotional reaction to missing a penalty shot. The video shows Mufarreh having a breakdown on the ice with incidents of screaming, throwing his gear, and falling to the ground. However, the petition also alleged that Mufarreh is a star youth hockey player who regularly competes in high-profile tournaments that "are streamed live with commentary." This suggests Mufarreh was accustomed to playing in games that were public, high stakes, scrutinized, and recorded for online viewers.

Additionally, "Illinois cases in which intentional infliction of emotional distress has been sufficiently alleged have in fact very frequently involved a defendant who stood in a position of power or authority relative to the plaintiff." This situation does not involve any abuse of power over Mufarreh. Petitioners did not allege that Doe abused any position of authority. Rather, Doe posted a video depicting public events. Further, petitioners do not contend that the video was altered or inaccurate.

In other complaints involving media, the extreme and outrageous conduct was far more egregious than the conduct at issue here. See, e.g., Green v. Chicago Tribune Co. (Ill. App. 1996) ("We hold plaintiff stated a cause of action for intentional infliction of emotional distress caused by the Tribune when it barred her from seeing her dead son on December 31 while it photographed him, and when it published the January 1 article featuring her statements to her son and the photograph of him lying dead."); Kolegas v. Heftel Broadcasting Corp. (Ill. 1992) (concluding radio announcers' conduct was sufficiently extreme and outrageous where they broadcast derogatory remarks about plaintiff's wife and child with neurofibromatosis throughout the larger Chicago area and implied they had deformed heads and were hideous). Additionally, the Illinois Supreme Court in Kolegas highlighted that the radio announcers who behaved outrageously "had access to channels of communication," whereas "the plaintiffs had no similar access to the public," so were deprived "of the opportunity to deny or rebut [the] false statements." Due to this communication imbalance, the radio announcers had power over the plaintiffs. The same is not true for petitioners here, who also had access to Doe's channels of communication, the internet, if they wished. There was no power imbalance.

Moreover, while the plaintiffs in Green and Kolegas were identified by name in the respective publications, Mufarreh is not recognizable from the video. The recording is filmed from a distance and is of poor quality, making Mufarreh's face blurry, pixelated, and not clearly depicted. Neither is his name or other identifying information on his jersey visible to the camera. Nothing distinguishes him from the other players on his team.

Ultimately, unless a viewer already knew it was Mufarreh, they would not be able to identify him from the video. Thus, considering the totality of the facts and circumstances, posting the video to YouTube does not go "beyond all possible bounds of decency, such that a reasonable person would hear the facts and be compelled to feelings of resentment and outrage." …

Petitioners also argue that because Mufarreh was a 10-year-old child, he was particularly susceptible to emotional distress. But "peculiar susceptibility unaccompanied by major outrage cannot of itself raise the defendants' conduct to the level of extreme and outrageous." …

Petitioners were also required to show that Doe "either intended that his [ ] conduct should inflict severe emotional distress or knew there was a high probability" that his conduct would do so. However, petitioners alleged that Doe "is using the video as a weapon to recruit kids to his program and keep kids away from Team Illinois." Thus, petitioners alleged Doe's intent was to benefit his team, not to cause Mufarreh severe emotional distress. Elsewhere, petitioners alleged the video was posted "purely to humiliate, isolate, and psychologically destroy the Mufarrehs," but these allegations are conclusory and insufficient on their own.

Likewise, petitioners needed to allege that "the defendant's conduct actually caused severe emotional distress." "To constitute severe distress, the distress inflicted must be so severe that no reasonable man could be expected to endure it; fright, horror, grief, shame, humiliation, worry, etc. alone are not actionable."

Petitioners alleged that Mufarreh "endured persistent psychological torment" and was "terrorized." They alleged that Mufarreh suffered "severe sleep deprivation" due to "repeated nights of restless sleep, haunted by the humiliation and social ostracization caused by the video's relentless circulation." Mufarreh was "emotionally paralyzed," enduring "anxiety attacks" and withdrawing from friends and hockey.

Although petitioners alleged Mufarreh suffered from humiliation and anxiety, "[m]erely characterizing emotional distress as severe is not sufficient." "[T]he plaintiffs generally allege that they suffered anxiety, humiliation, and extreme and severe emotional distress, but the complaint contains no factual allegations from which the level of severity of the emotional distress could be inferred." Without more specificity, petitioners' allegations that Mufarreh endured restless sleep and anxiety attacks are insufficient to meet the heightened pleading standard for intentional infliction of emotional distress….

Allen R. Perl, Bridgette M. Moran, and Christopher M. Goodsnyder (Perl & Goodsnyder, Ltd.) represent Doe.

The post Posting Video of 10-Year-Old Hockey Player's "Tantrum" Isn't Intentional Infliction of Emotional Distress appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: May 4, 1942

Josh Blackman — Mon, 04 May 2026 11:00:41 +0000

5/4/1942: Wickard v. Filburn argued.

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[Eugene Volokh] Open Thread

Eugene Volokh — Mon, 04 May 2026 07:00:00 +0000

[What’s on your mind?]

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[Jonathan H. Adler] Mifepristone Returns to the Shadow Docket

Jonathan H. Adler — Mon, 04 May 2026 02:41:03 +0000

[Drug makers seek interim relief after the U.S. Court of Appeals for the Fifth Circuit blocks FDA rule allowing mifepristone prescriptions via telemedicine. (With Update Below.)]

In 2023, the Supreme Court stayed a district court order undoing the Food and Drug Administration's approval of mifepristone (aka RU-486), a medication used (in combination with misoprostol) to terminate pregnancies. The U.S. Court of Appeals for the Fifth Circuit had partially stayed the district court's decision, but had left portions that would have restricted mifepristone's availability in place. One year later the case returned to the Supreme Court, only to be dismissed unanimously due to a lack of Article III standing in FDA v. Alliance for Hippocratic Medicine.

Litigation over the FDA's regulation of mifepristone has continued, and the drug's manufacturers are once again headed to One First Street seeking interim relief.

On Friday, in Louisiana v. FDA, a unanimous panel of the U.S. Court of Appeals for the Fifth Circuit stayed the FDA's 2023 regulation allowing mifepristone to be prescribed without an in-person medical visit (i.e. through telemedicine). Concluding that Louisiana was strongly likely to prevail in its arguments that it had standing (unlike AHM) and that the FDA's decision to formally allow prescribing mifepristone via telemedicine was arbitrary and capricious, the Fifth Circuit entered a stay of the rule under Section 705 of the APA.

There are quite a few notable aspects to the Fifth Circuit's order. One is that the panel embraces Louisiana's quite-aggressive arguments for standing. Louisiana claims to be injured by the FDA's order because the availability of prescription-via-telemedicine makes it easier for individuals to circumvent Louisiana's abortion laws (a sovereign injury) and (the state claims) results in medical complications in Louisiana that the state has to pay for (a financial injury). Both arguments seem superficially plausible, but are nonetheless problematic under current law.

States can undoubtedly suffer sovereign injuries, such as when federal law preempts an otherwise lawful state law. But nothing of the sort is occurring here. Rather, Louisiana is claiming that because the FDA allows individuals to get mifepristone prescriptions through telemedicine, and because such prescriptions can be fulfilled by mail, the FDA's regulatory change makes it too easy to circumvent Louisiana's law. I get the argument, but it seems implausible under United States v. Texas (an 8-1 decision). The argument would also seem to open the door even wider to aggressive state standing claims. Under this theory, California would have standing to sue Texas or the federal government for the inadequate regulation of guns or sudafed because other people might take advantage of less stringent regulation to commit bad acts in California.

The financial injury looks like a more traditional Article III injury, but as pled it looks awfully speculative. Louisiana points to two cases in which women were treated for complications caused by mifepristone obtained from out-of-state and the state had to foot the bill. The financial impact is a cognizable injury, to be sure, but it's not clear to me Louisiana has explained how this is attributable to the FDA's actions. For standing it is not enough to identify the harm. The harm must be traceable to the specific action challenged. Here that means that Louisiana has to plausibly allege that these sorts of complication would not have occurred but for the FDA's 2023 change to the regulations governing mifepristone--that these women (and others in their position) would not have obtained mifepristone and suffered the resulting complications without the access to telemedicine the FDA authorized in 2023, and it's not clear to me Louisiana has plausibly made that claim.

The standing analysis is not the only problem with Louisiana v. FDA. The Fifth Circuit's order also heavily relied upon some of the since-vacated opinions in the AHM litigation. This is unfortunate, as the analysis in those opinions was wanting--and not just on standing. As I explained at the tail end of this post, portions of the Fifth Circuit's analysis misapplied the relevant administrative law standards--and I am quite confident the Supreme Court would have found as much had it not kicked the case on standing. As the prior decision was vacated for lack of jurisdiction, its conclusions were not binding on the Louisiana panel here, so it is particularly unfortunate that they were adopted without any additional analysis.

By entering a Section 705 stay of the FDA's 2023 regulation, the Fifth Circuit's decision blocks the prescription of mifepristone via telemedicine nationwide. Although I do not like nationwide injunctions, and am one of the few who rejects universal vacatur under the APA, I believe this case is consistent with the Supreme Court's Trump v. CASA decision, in that it is the sort of case in which universal relief may be necessary to redress the injuries alleged. If, as Louisiana claims, it is injured because the FDA's regulation facilitates the violation of Louisiana law through actions taken in other states, there is no way to adequately redress Louisiana's injuries without providing nationwide relief. So while I do not think a stay was warranted here, there is a logic to the stay's nationwide scope.

On Saturday, mifepristone's manufacturers--Danco Laboratories (name brand) and GenBioPrio (generic)--each filed applications with the Court seeking interim relief from the Fifth Circuit's order. Although each of these filings was produced under tremendous time pressure, together they make a strong case.

Will the justices act on these petitions? I suspect they might, in one way or another (and that many critics of the Supreme Court's "shadow docket" are hoping they will). Not only is the Fifth Circuit's stay quite significant in that it blocks a federal regulation nationwide, the order creates a circuit split with the Ninth Circuit on the threshold issue of standing.

One wrinkle is that we do not yet know what the federal government's position will be. Although the FDA opposed and is subject to the Fifth Circuit's order, and has yet to rescind or disavow the 2023 rule change, it has not (as of this writing) filed anything with the Court. Given the importance of irreparable harm to the government tends to play in interim docket decisions, the Solicitor General's decision whether to support the drug makers, or perhaps to support certiorari before judgment on the standing question, could be influential.

Stay tuned.

UPDATE: On Monday, Justice Alito entered an administrative stay and called for a response. Details here.

* * *

Here are links to my posts on the prior mifepristone litigation:

"The Next Abortion Battlegrounds," June 22, 2022;
"Assessing the Legal Claims in Alliance for Hippocratic Medicine v. FDA," March 8, 2023;
"AHM v. FDA: A Contrary View and a Rejoinder," March 28, 2023;
"Blue-State AGs Have A Mifepristone Lawsuit of Their Own," March 29, 2023;
"Two (Wrong) Mifepristone Court Rulings in One Day," April 8, 2023;
"The Good and Bad of the Fifth Circuit's Abortion Pill Ruling," April 13, 2023.
"BREAKING: Supreme Court to Consider Fifth Circuit's Abortion Pill Decision," Dec. 13, 2023.
Supreme Court Denies Red State Effort to Intervene in Mifepristone Case, Feb. 20, 2024.
Can Emergency Room Doctors Sue the FDA for Failing to Regulate Mifepristone More Aggressively?, Mar. 26, 2024.
Mifepristone in the Supreme Court—Comments on Oral Argument (Updated), March 26, 2024.
Who Can Sue the FDA?, April 2, 2024.
Unanimous Supreme Court Finds No Standing to Challenge FDA Regulation of Mifepristone (UPDATED), June 13, 2024.
Struggling with Standing, July 30, 2024.
Alliance for Hippocratic Medicine on Remand - Still Struggling with Standing, Sept. 17, 2024.

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[Eugene Volokh] Our Coblogger Stewart Baker Has Died

Eugene Volokh — Sun, 03 May 2026 20:27:44 +0000

It grieves me to report that our coblogger, and my friend, Stewart Baker died suddenly a few days ago at age 78. Stewart always wrote and spoke modestly, but he (alongside former District Judge Paul Cassell and former U.S. Commission on Civil Rights member Gail Heriot) was the most accomplished of any of us: In addition to a long and successful career as a lawyer at Steptoe & Johnson, he also served as General Counsel of the National Security Agency (1992-94) and as Assistant Secretary for Policy in DHS (2005-09). At the start of his career, after graduating from UCLA School of Law in 1976, he clerked for First Circuit Judge Frank Coffin and then for Justice John Paul Stevens.

I invariably appreciated Stewart's incisive, knowledgeable, and thoughtful comments on many topics. His perspectives were usually quite conservative, at times more conservative than mine; but even when we disagreed, I always enjoyed reading his work and talking to him, and learned much from him. We also became good friends; I would often look him up when I visited D.C., and just had dinner with him two months ago.

It's shocking to know that he is gone. As the Russians say ("земля ему пухом"), and as the Romans said ("sit tibi terra levis")—may the Earth rest lightly on him.

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[Eugene Volokh] "Martial Home"

Eugene Volokh — Sun, 03 May 2026 17:22:31 +0000

I expect I've been in some, given the arsenals that I expect some of my friends maintain. Just ran across the term in a court opinion, as a typo for "marital home"—a quick Westlaw search finds over 600 opinions with the same typo.

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[Eugene Volokh] Jacob Mchangama & Jeff Kosseff Guest-Blogging About "The Future of Free Speech: Reversing the Global Decline of Democracy's Most Essential Freedom"

Eugene Volokh — Sun, 03 May 2026 16:40:13 +0000

I'm delighted to report that Profs. Jacob Mchangama (Vanderbilt) & Jeff Kosseff (Naval Academy, moving this year to Minnesota) will be guest-blogging Monday to Wednesday about their new book, The Future of Free Speech: Reversing the Global Decline of Democracy's Most Essential Freedom. Here's the publisher's summary:

An incisive examination of free speech's global decline and a framework for preserving expression in democratic societies.

The Future of Free Speech confronts a stark truth: the right to speak freely is under siege. Once celebrated as a cornerstone of democratic societies, free expression is now met with growing suspicion and retaliation across the globe. Jacob Mchangama and Jeff Kosseff present a panoramic view of how we arrived at this pivotal moment.

The authors examine a century in which speech rights expanded dramatically―including postwar democratic revolutions and the sweeping protections of the First Amendment―only to find those rights unraveling in the face of new political, technological, and cultural pressures. Today, liberal democracies are imposing speech controls, authoritarian regimes are cloaking censorship in democratic language, and digital platforms wield unprecedented power over global discourse. This book examines the backlash against free speech from all sides: governments criminalizing dissent in the name of national security; lawmakers and activists demanding tighter controls on misinformation, hate speech, and offensive content; and AI systems removing speech at a scale and speed that dwarfs historical forms of censorship. At the same time, faith in free speech itself is waning, even in the very societies that once championed it.

The Future of Free Speech argues for a reinvigorated, global commitment to open dialogue. Mchangama and Kosseff advocate nonpartisan, civic-minded solutions that resist both government overreach and corporate silencing. They offer a compelling case for how free speech can meet modern challenges without abandoning its foundational role in sustaining democracy, human rights, and shared understanding.

And the jacket blurbs:

Free speech is under increasing siege in today's world. In their new and important The Future of Free Speech, Jacob Mchangama and Jeff Kosseff, advocate for freedom of speech and make a compelling case for optimism.
―Tyler Cowen, George Mason University

A rigorous and inspiring defense of the freedom that safeguards all others. Mchangama and Kosseff powerfully refute alluring but misguided calls for censoring even the most controversial speech, such as disinformation and hate speech. They demonstrate that open debate is essential for protecting human rights and democracy, and resisting authoritarianism.
―Nadine Strossen, Former President, American Civil Liberties Union

In The Future of Free Speech, Mchangama and Kosseff take readers on a bracing global tour of the free-speech recession, documenting how governments are dusting off old tools to police expression in new ways. Clear, principled, and empirically grounded, this book offers realistic strategies for keeping open societies genuinely open.
―Greg Lukianoff, Foundation for Individual Rights and Expression (FIRE)

A broad-ranging and powerful analysis of the recent wave of speech restrictions all over the world, coupled with thoughtful and promising proposals for the future. Very much worth reading.
―Eugene Volokh, Stanford University

The Future of Free Speech is a brilliant defense of our most essential freedom. Mchangama and Kosseff prove that free expression isn't a threat to democracy―it is its foundation. A vital roadmap for anyone who recognizes that once we lose the right to speak, we also lose the power to defend every other right.
―Yascha Mounk, Johns Hopkins University

One of the very best books about the 'global free-speech recession' by two of the greatest analysts and champions for First Amendment values.
―Nick Gillespie, Reason

The post Jacob Mchangama & Jeff Kosseff Guest-Blogging About "The Future of Free Speech: Reversing the Global Decline of Democracy's Most Essential Freedom" appeared first on Reason.com.

[Randy E. Barnett] Recent Books on the Constitution

Randy E. Barnett — Sun, 03 May 2026 14:03:13 +0000

[My seminar picks for 2026 (and every year since 2005)]

Each fall, I teach a seminar called Recent Books on the Constitution. I initially designed this course when I visited Georgetown in 2005. At that time, because I tend to read what relates directly to my current projects, I felt that I was not keeping up with the literature. By assigning recent books on the Constitution to read as part of my teaching, I would actually read them. This has really worked for me. I have now read a lot of books on the Constitution. The complete list of all the books I have assigned is below.

Since 2005, I have assigned 105 books by 96 authors, with James Fleming, Sandy Levinson, Gerard Magliocca, Eric Segall, Dan Farber, Jonathan Gienapp, Philip Hamburger, Kim Roosevelt, and David Bernstein each making more than one appearance. Over the years, I assigned four books in manuscript before publication. In addition to my manuscript of the book I am now writing on libertarianism, here are the five "recent books on the Constitution" I am assigning for fall of 2026:

Eric Claeys, Natural Property Rights (2025)
Paul DeHaret, Uncovering the Constitution's Moral Design (2017)
Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (2025)
Louis Michael Seidman, The Constitution Cannot Save Us: Why We Can No Longer Rely on Our Founding Document (2026)
Sarah Isgur, Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today's Supreme Court (2026)

I select books I think I ought to read–either because of the subject or the author. I then hold off reading them myself so I can read them at the same time as the students. This enables me to react to the books along with them, and for me to remember the nuances of the books for class discussion.

The seminar format is to read 6 books, taking 2 weeks on each book, with the author coming to the class during the second week to discuss the book. The first book is now always one of mine to use as a trial run and to give the students an idea of where I am coming from when we discuss the other books. When books are longer than 250 pages, I ask the author to tell me which 250 pages I should assign. If I assign much more than 125 pages per week, I fear the students won't read them, or won't read them carefully enough. To help assure that they do, students submit one-page summaries of each half of the book (graded pass-fail). On the day before the author's visit, they submit a 5500 character critique of the book, which I send to the author electronically the day before class. (They all read them.) When the class ends, there is no exam or paper for the students to write or for me to grade. We are done!

Students consistently tell me that the course is extremely enriching, and helps them develop their critical skills. They are never expected to read whole books and rarely asked to concisely formulate their own objections to scholarship. It is also empowering for them to see how well they are able to find the holes in a professor's book-length presentation. I find that, collectively, the students are able to nail the weaknesses of every book (except mine, of course).

[Note to law professors: I have a budget to pay for the authors' travel expenses. But now that we all have access to Zoom teaching, this seminar format can be replicated anywhere at zero cost. Wouldn't it be great if there were a dozen or more such book seminars around the country? Try it. I promise you will love it.]

If you click on READ MORE you will see why teaching this class has been enormously rewarding for me. Offer my heartfelt thanks to all these authors for trekking to DC to discuss their books with my students.

2025

Jonathan Gienapp, Against Constitutional Originalism: A Historical Critique (2024)
Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (2024)
Neil Siegel, The Collective Action Constitution (2024)
Yuval Levin, American Covenant: How the Constitution Unified Our Nation and Could Again (2024)
Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (2023)

2024

Jonathan Turley, The Indispensable Right: Free Speech in an Age of Rage (2024)
Jeffrey Rosen, The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America (2024)
Robert Cottrol & Brannon Denning, To Trust the People with Arms: The Supreme Court and the Second Amendment (2023)
Nathan Chapman & Michael McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience (2023)
Anthony Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters (2023)

2023

James Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (2022)
Paul Moreno, How the Court Became Supreme: The Origins of American Juristocracy (2022)
Vincent Philip Munoz, Religious Liberty and the American Founding (2022)
Justin Dyer & Kody Cooper, The Classical and Christian Origins of American Politics (2022)
Kermit Roosevelt, The Nation That Never Was: Reconstructing America's Story (2022)

2022:

Helen Norton, The Government's Speech and the Constitution (2020)
Aziz Huq, The Collapse of Constitutional Remedies (2021)
David Bernstein, Classified: The Untold Story of Racial Classification in America (2022)
Stuart Banner, The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why they Stopped (2021)
Philip Hamburger, Purchasing Submission: Conditions, Power, and Freedom (2021)

2021:

Ilan Wurman, The Second Founding: An Introduction to the 14th Amendment (2020)
Stephen Halbrook, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? (2021)
Donald Drakeman, The Hollow Core of Constitutional Theory: Why We Need the Framers (2021)
Jamal Greene, How Rights Went Wrong: Why Our Obsession With Rights is Tearing America Apart (2021)
David Schwartz, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (2019)

2020:

Paul Finkelman, Supreme Injustice: Slavery in the Nation's Highest Court (2017)
Eric Segall, Originalism as Faith (2018)
Greg Weiner, The Political Constitution: The Case Against Judicial Supremacy (2019)
Robert Ross, The Framers' Intentions: The Myth of the Nonpartisan Constitution (2019)
Jack Balkin, The Cycles of Constitutional Time (2020)

2019:

Neal Devins, The Company They Keep: How Partisan Divisions Came to the Supreme Court (2019)
Larry Lessig, Fidelity & Constraint: How the Supreme Court Has Read the American Constitution (2019)
Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (2018)
Rebecca Zietlow, The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction (2017)
Lee Strang, Originalism's Promise: A Natural Law Account of the American Constitution (2019)

2018:

Martha Jones, Birthright Citizens: A History of Race and Rights in Antebellum America (2018)
John Compton, The Evangelical Origins of the Living Constitution (2014)
Josh Chafetz, Congress's Constitution: Legislative Authority and the Separation of Powers (2017)
Adam Carrington, Justice Stephen Field's Cooperative Constitution of Liberty: Liberty in Full (2017)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (2018)

2017:

Barry Friedman, Unwarranted: Policing Without Permission (2017)
Bruce Frohnen & George Carey, Constitutional Morality and the Rise of Quasi-Law (2016)
Geoffrey R. Stone, Sex and the Constitution (2017)
Suja Thomas, The Missing American Jury (2016)
Thomas G. West, The Political Theory of the American Founding (2017)

2016:

Carson Holloway, Hamilton versus Jefferson in the Washington Administration: Completing the Founding or Destroying the Founding? (2015)
Michael Paulsen & Luke Paulsen, The Constitution: An Introduction (2015)
Thomas Leonard, Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era (2016)
Tara Smith, Judicial Review in an Objective Legal System (2015)
Ilya Somin, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (2015)

2015:

Damon Root, Over Ruled: The Long War for the Control of the U.S. Supreme Court (Palgrave 2014)
F.H. Buckley, The Once and Future King: The Rise of Crown Government in America (Encounter 2014)
Brad Snyder, The House of Truth (Oxford 2017) (assigned ms)
Stephen Garbaum, The New Commonwealth Model of Constitutionalism (Cambridge 2013)
Laura Donohue, The Future of Foreign Intelligence (Chicago 2016) (assigned ms)

2014:

Clark Neily, Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government (Encounter 2013)
Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changes His Mind – and the History of Free Speech in America (Metropolitan Books, 2013)
John McGinnis & Michael Rappaport, Originalism and the Good Constitution (Harvard 2013)
Stephen Griffin, Long Wars and the Constitution (Harvard 2013)
Garrett Epps, American Epic: Reading the U.S. Constitution (Oxford 2013)
Louis Michael Seidman, On Constitutional Disobedience (Oxford 2012)

2012 (Fall):

Gerard Magliocca, John Bingham: America's Founding Son (NYU, 2013) (assigned ms)
Akhil Reed Amar, America's Unwritten Constitution (Basic Books, 2012)
John Inazu, Liberty's Refuge: The Forgotten Freedom of Assembly (Yale 2012)
Justice Antonin Scalia, Reading Law: The Interpretation of Legal Texts (West, 2012)
Abner Greene, Against Obligation (Harvard 2012)
Sandy Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford 2012)

2012 (Spring)

Michael J. Gerhardt, The Power of Precedent (Oxford 2008)
Robert Bennett & Lawrence Solum, Constitutional Originalism (Cornell 2011)
Gary L McDowell, The Language of Law & the Foundations of American Constitutionalism (Cambridge 2010)
Eric Segall, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges (Praeger 2012)
Michael Greve, The Upside-Down Constitution (Harvard 2012)
Alexander Tsesis, The Thirteenth Amendment and American Freedom (NYU 2004)

2011:

H. Jefferson Powell, Constitutional Conscience (Chicago, 2008)
Jeremy A Rabkin, Law Without Nations? (Princeton, 2005)
Christian G. Fritz, American Sovereigns (Cambridge, 2007)
Timothy Sandefur, The Right to Earn a Living (Cato Institute, 2010)
Sonu Bedi, Rejecting Rights (Cambridge, 2009)
Alison LaCroix, The Ideological Origins of American Federalism (Harvard, 2010)

2010:

David Bernstein, Rehabilitating Lochner (Chicago 2011) (assigned ms)
Brian Tamanaha, The Formalist-Realist Divide: The Role of Politics in Judging (Princeton, 2009)
Earl Maltz, Slavery and the Supreme Court, 1825-1861 (Kansas, 2009)
Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (Cambridge, 2004)
George Thomas,The Madisonian Constitution (Johns Hopkins, 2008)
David Strauss, The Living Constitution (Oxford, 2010)

2007:

Alex Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Harvard, 2002)
Dan Farber, Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have (Perseus, 2007)
Jim Fleming, Securing Constitutional Democracy: The Case of Autonomy (Chicago, 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge, 2006)
Keith Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, 2007)

2006:

Philip Hamburger, Separation of Church and State (Harvard, 2002)
Kermit Roosevelt, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions (Yale, 2006)
Elizabeth Price Foley, Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality (Yale, 2006)
John Yoo, The Powers of War and Peace : The Constitution and Foreign Affairs after 9/11 (Chicago, 2005)
Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (Oxford, 2006)

2005 (Taught when I was a visitor at Georgetown. Only Mark Tushnet, who was then still on the Georgetown faculty, appeared. His class visit gave me the idea to invite all the authors in the future):

Mark Tushnet, Taking the Constitution Away from the Courts (Princeton, 2000)
Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard, 2001)
Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford, 2004)
Daniel A. Farber, Suzanna Sherry, Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations (Chicago, 2004)
James R. Stoner, Common Law Liberty: Rethinking American Constitutionalism (Kansas, 2003)

The post Recent Books on the Constitution appeared first on Reason.com.

[Eugene Volokh] "Punctuation Matters. At the Heart of This Case Is the Placement of a Comma"

Eugene Volokh — Sun, 03 May 2026 12:34:42 +0000

Thanks to Wikipedia for the koala photo.

From Remus Enterprises 1, LLC v. Breece, decided Thursday by the D.C. Court of Appeals (Judge Shanker, joined by Judges Easterly and Ruiz):

Punctuation matters. At the heart of this case is the placement of a comma. Appellant Remus Enterprises 1, LLC ("Remus 2023") sued appellee Quinn Breece in Superior Court asserting tort claims arising out of Remus 2023's alleged ownership of, and desire to sell, a parcel of property located at 3308 16th Street, NE, in Washington, D.C. But a consent judgment in another case established that a different entity with a name containing all the same words and letters but a differently placed comma—Remus Enterprises, 1 LLC ("Remus 2018")—was the real owner of the property. Because Remus 2023 does not have standing to sue based on a different entity's property interest, we conclude that the trial court lacked subject-matter jurisdiction over the case, and we affirm the trial court's dismissal of Remus 2023's complaint, although on grounds different from those relied on by the trial court….

The consent judgment in this case intended to conclusively settle the issue of who purchased, owned, and contracted to sell the 16th Street property. First, the text of the consent judgment supports this conclusion. It makes specific "factual findings," related to that issue: that (1) Remus 2018 purchased the 16th Street property in February 2023; (2) the deed of transfer for that property contained a typographical error such that the name of the transferee mistakenly read "Remus Enterprises 1, LLC" rather than the correct name, "Remus Enterprises, 1 LLC"; (3) Remus 2023 did not purchase and does not own the 16th Street property; and (4) Remus 2018 entered into a contract to sell the 16th Street property. The presence of these findings in the stipulated consent judgment submitted by the parties and issued by the court supports the inference that the parties "specifically agreed" to be bound by the court's determination of those issues….

Our resolution of the standing issue follows ineluctably from our resolution of the collateral estoppel issue. The consent judgment in the Nasi case found that Remus 2018, and not Remus 2023, purchased, owned, and contracted to sell the 16th Street property. In the case before us, Remus 2023 was the sole plaintiff, and it sought to base its injury on its alleged purchase, ownership of, and contract to sell the 16th Street property. But because we afford the consent judgment in the Nasi case preclusive effect (and also in light of the allegation in the complaint itself that Remus 2018 owned the property), Remus 2023 cannot allege an injury based on its purchase, ownership, or sale of the 16th Street property. And because Remus 2023's claims derive entirely from an alleged injury to Remus 2018's property interest, we conclude that Remus 2023 has not suffered an "injury in fact" sufficient to give it standing. Therefore, the trial court lacked subject matter jurisdiction over the case, and dismissal of the complaint is appropriate ….

{We note that Remus 2023's counsel represented at argument that he was the sole member of both LLCs, and that ownership of the 16th Street property at one point transferred to him. But no allegations regarding these facts appear in the operative complaint, and Remus 2023 did not develop any argument addressing what implications, if any, this state of affairs could have on the resolution of the standing question in this case.}

Jude E. Wikramanayake represents Breece.

The post "Punctuation Matters. At the Heart of This Case Is the Placement of a Comma" appeared first on Reason.com.