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Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
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My first-ever visit to Mexico gave me some perspective on America's crucial neighbor.

During the first week of December, I spent several days doing speaking engagements in Mexico. Although I have previously visited several Latin American nations, and even twice served as a visiting professor in Argentina, this was my first-ever visit to our southern neighbor. I spoke on a panel on "Migration in the 21st Century" at the FIL Guadalajara International Book Fair (one of the largest book fairs in the Spanish-speaking world), and gave two talks on democracy and political ignorance at the Monterrey Institute of Technology and Higher Education (Tec de Monterrey), one of the country's leading universities. The experience gave me some interesting new perspective on our vitally important neighbor to the south.
Before continuing, I should emphasize I am not an expert on Mexico, and I speak little Spanish (though my wife, who came with me on the trip, is fluent in the language). In addition, I obviously did not encounter anything like a statistically representative sample of Mexicans. This post, therefore, can provide only very modest insight. But that modest insight might still have some value.
At least when it comes to Guadalajara and Monterrey, Mexico seems a much more affluent nation than many Americans might assume. My family and I saw little, if any of the grinding poverty that is commonplace in many poor countries I have been to, such as China, Russia, El Salvador, and Uruguay. For example, we saw almost no homeless people or beggars.
Guadalajara and Monterrey are two of Mexico's wealthiest cities; thus not representative. But, in many poor countries, poverty is evident in relatively affluent areas. Mexico's economic progress is also evident from per capita GDP statistics, which show rapid gains in recent years. The country is no longer the cesspool of poverty some in the US imagine it to be.
This progress was, also, in some ways, in evidence at the FIL Guadaljara book fair, when I spoke there. Not surprisingly, the other panelists and most audience members were sympathetic to my pro-immigration and anti-restrictionist perspective. But one of the panelists - prominent Mexican political consultant and former diplomat Gabriel Guerra - noted that Mexico itself has been facing an influx of migrants in recent years, and the government's treatment of them has sometimes been unjust and indefensible. Mexico has gone from being the biggest source of migrants to the US, to itself being a magnet for migrants from Central America and Venezuela. The Mexican government's flawed policies do not justify those of the US (and vice versa). But these issues do throw a wrench in the traditional view of the US-Mexican relationship, when it comes to migration. The changing migration patterns, obviously, reflect Mexico's increasing relative affluence.
Not all is rosy in Mexico, by any means. Mexican academics and policy experts I spoke to are deeply concerned about the state of the US-Mexican relationship, given Donald Trump's unleashing of massive new tariffs, and harsh immigration policies. After the Guadalajara panel, I spoke at length with Guerra and others, including Arturo Sarukhan, former Mexican ambassador to the US. They noted that Trump's policies have not yet generated a "nationalist backlash" in Mexico (their term, not mine), but that such a backlash was likely to develop. They noted that many Mexicans have friends and relatives among Mexican immigrants in the US, who are feeling the effects of the new administration's policies of racial profiling and expanded detention and deportation. That, along with the trade war, is bound to cause anger and poison relations between the two countries.
I pointed out that Trump will not be in power forever (or perhaps even for very long), and a future administration might well revoke his policies. My Mexican interlocutors were not mollified. They emphasized that much damage has already been done to the US-Mexican relationship, and that it will be difficult to reverse.
I do not know to what extent they are right about this. But, regardless, alienating our most populous neighbor and biggest trading partner isn't Making American Great Again. Exactly the opposite, in fact. The more we damage relationships with neighbors and allies, the harder it will be to counter adversaries like Russia and China.
The general sense of progress and rising affluence was also partly offset by the - in Guadalajara - ubiquitous posters depicting "desaparecidos" - "disappeared" people believed to have been abducted by drug cartels (or, in some cases, to have joined them voluntarily).
Sadly, the cartels are indeed a significant presence in Mexican society, even in relatively affluent cities. One prominent Mexican academic recounted a story of how he had been "mugged" by cartel operatives who searched him "like professional security guards." He was, he said, relieved they "only" took his smartphone, and nothing else. The government estimates there are over 130,000 "disappeared" people in Mexico, as of July 2025, many of them believed to be taken by the cartels and other organized crime groups.
These revelations do not shake my opposition to the War on Drugs. In both Mexico and elsewhere, criminal cartels have the power they do because prohibitionist policies have created a vast black market for them to exploit. Legalization would undermine the cartels, and eliminate most of the violence associated with their operations, just as the end of Prohibition largely eliminated the role of organized crime in the sale of alcoholic beverages. But, whatever policy lessons, the impact of the drug cartels on Mexican society is a significant one.
After Guadalajara, we went to Monterrey, where I gave two talks at the Tec de Monterrey, and also met with law and social science students and faculty. These events were organized by my graduate school classmate Gabriel Aguilera, who is now the Dean of the School of Social Sciences and Government there.
I offered a range of different lecture topics within my areas of expertise, such as issues related to migration rights, federalism, property rights, constitutional theory, and more. But Gabriel and his colleagues chose to have me do both talks on issues related to political ignorance. In recent years, I see growing interest in this topic around the world. One might say it has been "made great again." But, in truth, it goes beyond any one one nation or political movement, and has long been a major challenge for democracy.
When I first started writing about political ignorance over 25 years ago, many scholars and others argued that voter knowledge levels are not a significant problem, because voters who know very little about government and public policy can still do a good job thanks to information shortcuts, the "miracle of aggregation," and other workarounds.
Such optimism is far less prevalent today. In Mexico, as in recent talks I have given about political ignorance elsewhere, virtually all the questioners presumed that voter ignorance is indeed a serious problem, though some took issue with my proposals for mitigating it. That happens despite the fact that I always make a point of including shortcuts and related issues in my presentations about ignorance.
Voter ignorance is, in fact, a serious problem in democracies around the world. But at least there is growing cross-national recognition of its significance. In Mexico, concerns about this topic have recently been heightened by the government's erosion of judicial independence, which has weakened a significant check on demagogic populist leaders and political majorities.
My time at Tec de Monterrey also gave me some new perspective on Mexican academia. A number of the law and social science faculty I met are not from Mexico or elsewhere in Latin America, but from countries around the world, including some from east Asian nations, such as China and South Korea. I asked Gabriel if these non-Hispanic academics already spoke Spanish before being hired, or were required to learn after taking up their positions. He noted that many of them actually teach and write in English, which is the language in which many social science courses at Tec are taught. If this is any indication, Mexican academia is becoming more cosmopolitan, and is a competitor for hiring talent from around the world. Gabriel himself came to the US as a poor immigrant, held a number of academic positions at American universities, and returned to Mexico to take his current high-level post.
On a less academic/intellectual note, I don't think I've ever seen a university anywhere in the world that has as many peacocks and deer on campus as Tec does:




UPDATE: There are, perhaps, interesting parallels between some of the points made here and those covered in my 2024 post on "Reflections on Lecturing on Immigration Policy in Switzerland."
12/13/1873: Justice Samuel Nelson died.

What’s on your mind?
From the Capital Gazette (Katharine Wilson):
Annapolis Mayor Jared Littmann fired City Attorney D. Michael Lyles, effective immediately, as part of his effort to clear the way for a new administration, Littmann said Wednesday.
The firing comes a day after plaintiffs in a lawsuit against the Housing Authority of the City of Annapolis and the City of Annapolis accused the city's counsel of including fabricated citations and quotes in a motion, which they called "hallmarks" of artificial intelligence use.
Lyles is the first major departure since the mayor took office Dec. 1…. However, the mayor said in an interview that his decision to end Lyles' employment was "unrelated to any particular legal case," and that he is looking for a city attorney with a "fresh perspective." …
Thanks to Michael Smith for the pointer.
From Graham v. T.T., decided Nov. 26, by D.C. high court Judge Catharine Friend Easterly, joined by Judges Joshua Deahl and Vijay Shanker:
T.T. was the sole witness who testified at the hearing on her motion for an anti-stalking order. She and Mr. Graham were neighbors; they lived in the same apartment building on 13th Street NW, on the ground floor. Of particular relevance, T.T.'s bedroom window was at the front of the building and was directly accessible from the street.
Prior to the four alleged incidents that gave rise to her motion, T.T. had had very little interaction with Mr. Graham and had seen him only a few times around the building. Then, on September 13, 2023, and November 30, 2023, Mr. Graham took food that had been delivered to the front door of her apartment. T.T. did not witness these incidents first-hand; rather, when she inquired with the building management about the stolen food, they told her Mr. Graham was the culprit and provided her with video footage from the hallway camera, which she played in court.
In December of the same year, Mr. Graham knocked on T.T.'s bedroom window and crudely propositioned her for sex on two separate occasions. On the first occasion on December 28, 2023, Mr. Graham came to her window at 6:00 a.m., knocked three times, and said, "come here; I got something for you[.] I want you … I want to eat your pussy." She "told him to get away" and that she was "going to call the cops" and Mr. Graham "ran away." She reported the incident to the police. Two days later, on December 30, Mr. Graham again came to her window at 4:00 a.m. and "banged" or "knocked" and "repeated the same thing that he said the first time he came," "come here, let me eat your privacy part." When she told him to leave, he repeated, "ma'am, I'm trying to eat your privacy part."
T.T. then said she was going to call the police, and he ran away. She filed a petition for a temporary anti-stalking order the next day. She explained to the court that she filed the petition "because, not only that I'm afraid [for] my life, I am a victim of getting molested. Also, I'm scared for my life because he is registered as a sex offender and has history as that." { T.T. testified that when the police came, they told her that Mr. Graham was a sex offender, and she also "look[ed] it up."} {It is unclear if T.T. was asserting that she had previously been molested or that she considered Mr. Graham's propositions for sex to be "molestation." Because of this lack of clarity and in an abundance of caution, we refer to T.T. by her initials.} …
Forbidden vehicle pursuits, forbidden hand-washing pics, and Epic injunctions.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Neat: IJ's own Dan Alban is a featured guest on the latest episode of the Collateral Damage podcast, talking the early history of civil forfeiture.
New on the Short Circuit podcast: More civil forfeiture fun. Feds seize over half a million big ones, hold on to it for three years, never give a reason, and give it back without explanation.
It's Hovind v. Stoney (S.D. Ala.), filed Wednesday; an excerpt:
Plaintiffs are self-represented, and I doubt the lawsuit is going anywhere; but the facts seemed so outré that I thought it was worth passing along.
From Louisiana Chief Justice John Weimer's concurrence in yesterday's In re Colbert:
Terms have been coined to describe undesirable traits a judge may develop as a result of wearing a judicial robe–such as "Black Robe Fever" or "Robe-itis." Newly elected judges in Louisiana have been warned of this affliction. The symptoms include becoming self-righteous, self-centered, self-serving, pompous, and acting as if the judge is above the law or the law does not apply to a judge, as contrasted to being a servant of the people and a disciple of the law. Manifestations include possessing traits of bias, prejudice, abuse of judicial power, and being overly authoritative, insensitive, and disrespectful. Other traits include a lack of civility, poor temperament, extreme impatience, and overstepping authority by acting outside of the bounds of legal responsibility and engaging in misconduct which undermines public trust.
Displays of disrespect, disdain, volatility, and a lack of courage to follow the law as written have no place in judging. Abuse of power involves using the judicial power for personal gain, partisanship, politics, or favoritism, or to intimidate or retaliate against others who do not bend to the judge's will. Such behavior fosters distrust of courts and alienation of those who turn to courts for resolution of issues.
Judges who engage in these behaviors lose sight of the fact they were elected to be a public servant assigned to resolve issues properly brought before a judge, to work to improve the system of justice, and to lead by example so as to ensure the rule of law is respected and followed. {Faced with a red light, the respondent ignored the obligation to stop as if the law did not apply to him and then berated a police officer attempting to ensure public safety.} This type of behavior reflects poorly on our system of justice and other judges, exhibits a lack of respect for the law and ultimately adversely impacts our system of government.
From Judge Ann Aiken (D. Ore.) Wednesday in Longworth v. Noem:
Plaintiffs Chloe Longworth and Anna Lardner regularly protest on city-owned sidewalks in front of the federal building in Eugene, Oregon, located between 6th and 7th Avenues and Pearl and High Streets. Plaintiffs protest there at least once per week, and sometimes more frequently.
In June 2025, DHS finalized new rules regarding the protection of federal property…. The new rules expanded the geographic scope of the previous rules to include areas outside federal property. Specifically, the regulation now found at 6 C.F.R. § 139.35(c) prohibits "Creating a loud or unusual noise, noxious odor, or other nuisance." … This applies to "Federal property or in areas outside Federal property that affects, threatens, or endangers Federal property or persons on Federal property.
The regulations contain applicable definitions at 6 C.F.R. § 139.15, but neither "loud" nor "unusual" is defined. Nuisance is defined as "a condition, activity, or situation, to include a loud noise or foul odor, that interferes with the use or enjoyment of Federal property." Put together, the Unusual Noice Provision seeks to criminalize creating a loud or unusual noise in areas outside Federal property that affects persons on Federal property and interferes with the use or enjoyment of Federal property.
On November 18, 2025, Ms. Longworth was detained, arrested, and issued a citation for "unusual noise" for using a megaphone on the city-owned sidewalks outside of the federal building. The next day, Ms. Longworth returned to site of the protest, and a federal officer, calling her by name, threatened to arrest her for "yelling." The citation issued on November 18, 2025, was dismissed by the US Attorney's office in early December 2025.
On November 25, 2025, Ms. Lardner was approached by a DHS employee and threatened with arrest for "unusual noise" for speaking through a megaphone on the public sidewalk.
Likely unconstitutional, the court held:
12/12/1910: Chief Justice Edward Douglass White confirmed.
What’s on your mind?
A new report out of Columbia University documents abuses of faculty prerogatives and general outrageous misbehavior on the part of full-time faculty, instructors, and graduate assistants. Academic freedom does not include being abusive to students, using your classes for political organizing, teaching material unrelated to your classes ideological reasons, and otherwise treating your classroom position as if its your personal platform to pursue an ideological agenda. All of these teachers should face sanctions ranging from suspensions to being fired, but I'm not holding my breath. While these incidents all involve misbehavior on behalf of "Palestine," it's reasonable to assume that it reflects a broader culture of politicization of the classroom and perceived impunity more generally, and not just at Columbia. Luke Tress of the Jewish Telegraphic Agency provides a summary of some of the misbehavior:
The task force also reported that university instructors singled out Jews and Israelis for "personal scapegoating" during classes, noting that the practice violated federal Department of Education guidelines.
An instructor told an Israeli student, "You must know a lot about settler colonialism. How do you feel about that?" Another Israeli was called an occupier. An Israeli IDF veteran attended a class about the conflict, saying that the IDF was presented as an "army of murderers." The instructor pointed at the student in front of the rest of the class and said she should be considered one of the murderers, the report said.
A Jewish, non-Israeli student was told, "It's such a shame that your people survived in order to commit mass genocide." Other students avoided identifying as Jewish or Israeli in class.
During a required introductory course for more than 400 students at the Mailman School of Public Health, a teacher told students that three Jewish donors to the school were "laundering blood money" and called Israel "so-called Israel." The teacher later dismissed complaints as coming from "privileged white students."
Some instructors encouraged students during class to attend anti-Israel protests, canceled classes for the protests, moved classes off campus to use the classes as "political organizing sessions," and held classes in the protest encampment, where "Zionists" were not welcome.
Many students told the task force that teachers issued moral condemnations of Israel in unrelated classes. An introductory astronomy class started with a discussion of the "genocide" in Gaza, and in an introductory Arabic class, a teacher taught students the sentence, "The Zionist lobby is the most supportive of Joe Biden." Another instructor told her students in a class on advocacy that reports of sexual violence by Hamas were exaggerated or fabricated.
One student objected to a teacher about a course's framing of the Israeli-Palestinian conflict in an email that the student had considered private. The instructor then read the email aloud to the class, without the student's permission, arguing against the email's positions.
Graduate students told each other to "teach for Palestine," regardless of subject, and anti-Zionist content was a "central element" in classes on feminism, photography, architecture, music and nonprofit management.
Congress tried to claw back the FTC's powers in 1980 through a legislative veto, but Chadha rendered that "bargain" unconstitutional.
During oral argument in Trump v. Slaughter, Justice Barrett asked Solicitor General Sauer a series of questions about the relationship between the legislative veto and independent agencies. Barrett recalled that Justice Gorsuch had raised Chadha during the oral argument in the tariff case. (I suspect Barrett is also considering a draft opinion that Gorsuch may have circulated.) Gorsuch said that Congress delegated power to the executive branch through IEEPA, subject to a legislative veto. But Chadha wiped out that check, leaving the executive with even broader authority. Would Congress have delegated such broad powers in the first place absent the veto? Probably not. Gorsuch suggested that Chadha changed the legislative "bargain."
Here, Barrett asked about whether a legislative veto may have also been part of the legislative bargain for the FTC and other independent agencies. In other words, she said, "part of the reason Congress was willing to infuse agencies with a lot of the broad powers" was because of the availability of the veto. She asked if the original 1935 FTC Act had a legislative veto, and if so whether that veto was "part of the bargain." If there was such a veto, Barrett suggested, Congress would have retained "some measure of congressional control," though short of removal. Barrett said, "And if you had a legislative veto, even if Congress wasn't exerting itself the authority to fire . . . a member [of] a multi-member board, it could override decisions that the agency made." (I think Bowsher would prohibit Congress from having any power over removal, other than impeachment, but that is another matter.)
After Chadha, however, the "bargain was changed." Barrett said, Congress "having lost that check, maybe these independent agencies have become something that Congress didn't intend or anticipate even at the point that it set it up." Barrett then connected this case back "the point that Justice Gorsuch made in the tariff argument with respect to IEEPA."
Solicitor General Sauer replied that the original 1914 FTC Act did not have a legislative veto. He added, with some hesitation, "I believe the FTC Act, I'm not aware of it having a legislative veto at any point in its history. I could be wrong about that."
I was curious, and checked the appendix from Chadha which lists the statutory provisions with legislative vetos. Item 34 is directly on point:
34. Federal Trade Commission Improvements Act of 1980, Pub.L. No. 96–252, § 21(a), 94 Stat. 374, 393 (to be codified in 15 U.S.C. 57a–1) (Federal Trade Commission rules may be disapproved by concurrent resolution).
I think Sauer was correct that the 1914 FTC Act did not have a legislative veto. But Congress added a legislative veto over the FTC in 1980.
Justice White's Chadha dissent specifically referenced the FTC:
In the trade regulation area, the veto preserved Congressional authority over the Federal Trade Commission's broad mandate to make rules to prevent businesses from engaging in "unfair or deceptive acts or practices in commerce."FN9
FN9: Congress found that under the agency's
"very broad authority to prohibit conduct which is 'unfair or deceptive' … the [Federal Trade Commission] FTC can regulate virtually every aspect of America's commercial life…. The FTC's rules are not merely narrow interpretations of a tightly drawn statute; instead, they are broad policy pronouncements which Congress has an obligation to study and review." 124 Cong.Rec. 5012 (1978) (statement by Rep. Broyhill).
A two-House legislative veto was added to constrain that broad delegation. Federal Trade Commission Improvements Act of 1980, § 21(a), 94 Stat. 374, 393, 15 U.S.C. § 57a–1 (Supp. IV 1980). The constitutionality of that provision is presently pending before us. United States Senate v. Federal Trade Commission, No. 82–935; United States House of Representatives v. Federal Trade Commission, No. 82–1044.
Justice White referenced two pending cases that challenged the legislative veto of the FTC. In both cases, the D.C. Circuit found the vetoes were unconstitutional. About two weeks after Chadha was decided, the Court decided a case called Process Gas Consumers Group v. Consumer Energy Council of America. This case summarily affirmed the FTC appeals. Justice White dissented once again:
In United States Senate v. Federal Trade Commission, the Court of Appeals struck down § 21(a) of the Federal Trade Commission Improvements Act of 1980, which provides that an FTC trade regulation rule shall become effective unless both Houses of Congress disapprove it. The Act authorizes the Commission to issue trade regulation rules which define unfair or deceptive acts or practices in or affecting commerce. 15 U.S.C. § 57a(1)(B) (Supp. IV 1980). For three years, Congress debated the breadth of the Commission's rulemaking authority, noting that the FTC could, pursuant to the Act, "regulate virtually every aspect of America's commercial life." 124 Cong.Rec. 5012 (1978) (Rep. Broyhill). The two-House veto provision was settled upon as a means of allowing Congress to study and review the broad and important policy pronouncements of the Commission.
I scanned through the legislative history of this bill (start at Page 5011), and found similar statements. Representative Risenhoover, for example, said:
Our most effective control would be to have review and veto over the rules and regulations which are imposed daily upon the people of this representative democracy by a bunch of faceless, nameless bureaucrats. And of all the agencies which are running amok, the Federal Trade Commission is the absolute worst example. . . . I believe the elected Representatives of the people should review these rules and that, as Representatives, we should be able to say "no." The people in my district and the business people of this country deserve that additional chance to talk back to the bureaucrats.
Indeed, Representative Eckhardt tied the expansion of the FTC's powers to the expanded rulemaking authority:
I think there is no agency in the entire Government which is more needing and more deserving of having a congressional veto than the Federal Trade Commission, because with the broad mandate it has and the broad rulemaking power, the broad legislative power it has exercised to this date, we as Congressmen, as elected officials, have abrogated our responsibility. 124 Cong.Rec. 5014.
The FTC did not have this rulemaking power in 1914 and it did not have this power when Humphrey's Executor was decided. But the D.C. Circuit bestowed broader power on the FTC in 1973. Several years later, Congress determined the FTC had acquired too much power, and tried to claw back that power through a legislative veto. Justice Barrett didn't know this sort of veto existed, but her intuition was exactly on point. I think Justice White's position is consistent with Barrett's question in Slaughter, as well as Justice Gorsuch's question in the tariff case. Indeed, until this moment, I hadn't really considered how White's Chadha dissent may have affected his future clerk's understanding of the bargain and the non-delegation doctrine. Gorsuch has extremely well-developed thoughts on this point.
I think we can speculate that veto was added in recognition of how much the FTC has evolved from the agency at issue in Humphrey's Executor. Eli Nachmany's excellent article, which was cited in the briefing traces the FTC's history, leading up to this 1980 change. In particular, the FTC's powers over rulemaking were vastly expanded by the D.C. Circuit in the 1970s. Eli explained:
I write about Judge Wynn's decision to rescind his senior status because Trump won.
Judge James Wynn of the Fourth Circuit was content to have President Biden replace him. But in December 2024, when it became clear Biden's nominee would not be confirmed,Wynn rescinded his senior status. He offered no actual reason, but we do not have to ignore reality: He didn't want Trump to replace him. Two other District Court judges made the same decision. Yet the judicial misconduct process refused to acknowledge this reality. I wrote two posts on this issue.
Judge Wynn was the subject of my latest column for Civitas Outlook. Here is an excerpt:
The judges offered no actual explanation for their decision. Judge Wynn, for example, wrote to President Biden that "after careful consideration, I have decided to continue in regular active service." Upon "careful consideration," is code for "further election." Senator Tom Tillis of North Carolina said that Wynn made this "brazenly partisan" decision because he "clearly takes issue with the fact that Donald Trump was just elected President." The Article III Project filed a judicial misconduct complaint against these three judges. The complaint charged that "Judge Wynn's decision to rescind his announcement was likely made because of the outcome of the 2024 presidential election." The group states that Wynn "had a change of heart solely because" Trump won.
Judge Wynn responded to the complaint. He didn't offer any actual explanation for rescinding his senior status. Wynn insisted that federal law does not prevent him from changing his mind. Rather, he said, "[c]hoices about retirement and senior status are deeply personal and often influenced by multiple factors." One would think that Wynn could offer some reason to defend his action. But he offered none. Instead, he insisted that he was under no obligation to explain his motivation. Wynn maintained that "no court has ever found it proper to inquire into an Article III judge's reasons for taking, or not taking, senior status." Wynn added, "Accusations of partisanship should not be entertained absent specific evidence of misconduct." If the judge made this decision for some legitimate reason, it would have been straightforward to state it. But he didn't; instead, he hid behind a legal process.
In October 2025, the misconduct complaints against Judge Wynn, and the other two judges were dismissed. Chief Judge Debra Livingston wrote the opinion in each case. Livingston found "there is no genuine issue of fact." She added that whether "the Judge considered the outcome of the election as one factor influencing his decision to withdraw the January 5 letter" was "a factual issue I need not resolve." Had Chief Judge Livingston simply asked Judge Wynn why he rescinded his senior status, the judge could have defended himself with some legitimate reason. But he didn't offer such a reason, because there is no plausible, legitimate reason. Regrettably, there is a brazen double standard for brazenly partisan judges. The federal courts routinely scrutinized President Trump's motivations for improper purposes. But when it comes to rooting out judicial misconduct, judges hide behind a veil of ignorance.
And the conclusion:
There is a never-ending stream of faux-outrage about judicial ethics, but these self-professed experts ignore actual problems where judges engage in partisanship. Let's not forget Justice Ruth Bader Ginsburg. Before the 2016 election, Ginsburg called Trump a "faker" and said she would move to New Zealand if he prevailed. And the day after the election, Justice Ginsburg wore her "dissent" jabot to Court. Ginsburg was clearly protesting Trump's election. Yet Ginsburg didn't leave the country, as her retirement would have given Trump the power to appoint her replacement. Ginsburg likely had the same thoughts as Judge Wynn. Fast-forward four years. On Ginsburg's deathbed, her last words were, "My most fervent wish is that I will not be replaced until a new president is installed." Ginsburg said what Wynn clearly thought. Should we just look at Ginsburg's action behind the veil of ignorance? She was a brazenly partisan critic of Trump, yet she decided a host of cases against Trump while in office. Is there much of a practical difference between what Ginsburg did and what Wynn did?
In recent years, there were routine calls for impeachment when Justice Alito's wife flew a flag, and Justice Thomas's wife engaged in politics. Yet when we see progressive judges personally crossing the lines into the political realm, there are only crickets. Here, the judiciary took no action to police political judges — not even a reprimand. Given this failure to acknowledge reality, the only remaining remedy for political judges is the political process. And if those steps are inadequate, further remedies should be on the table.
From Russell v. Mells, decided yesterday by Florida Court of Appeal (Second District) Chief Judge Matthew Lucas, joined by Judges Robert Morris and Susan H. Rothstein-Youakim:
Because [one] case citation [in defense counsel Attorney McLane's filing] appeared to have been "hallucinated" (most likely by a generative artificial intelligence program) and because the other two case citations contained misquotations, we issued an order to show cause to appellee's counsel. In our order, we directed counsel to file a written response explaining how these case citations and quotations were generated. We further warned that the response should also show cause as to why sanctions shouldn't be imposed.
In her response, Attorney McLane stated that the three case citations "were researched via computer generated searches" and acknowledged that she "failed to fully vet these searches." With respect to the two misquotations, she stated that "the errors … were not substantive in nature and were primarily the result of miss placed [sic] quotation marks." She conceded that the citation to "Cade v. Roberts" was "substantive but was not made for the purpose of misleading the Court." She then noted that there was Florida case law supporting "the substance of the argument" on this point, presumably meaning that the quoted text in her brief about motions to dismiss could find support elsewhere in Florida law. {She never tells us where, and there is no text we've found in Florida law that directly matches the purported quotation she set forth in the brief. But substantively Ms. McLane is correct.}
Lastly, we couldn't help but notice, the signature line of counsel's response to our order to show cause appears to have been executed by someone on behalf of Ms. McLane, instead of by Ms. McLane herself. {While a delegated signature execution may not have been a legal or ethical impropriety, under these circumstances, it certainly didn't make a good impression. In the future, our orders to show cause for these kinds of matters will specify that counsel must personally execute the written response, though that point really should not need to be stated.}
In essence, counsel has told us that her "computer generated searches" misstated the law but that she didn't mean to mislead the court when she filed those misstatements. We will take her at her word about her intentions. But what counsel seems to imply—that since the substance of the analysis in her brief wasn't necessarily wrong, her misstatements are not an issue we should be overly concerned about—is simply unacceptable. Indeed, we are deeply troubled by this brief and by this attorney's response.
12/11/1922: Pennsylvania Coal Co. v. Mahon decided.
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