Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
From Magistrate Judge James M. Wicks (E.D.N.Y.) in Lask v. Sorid last month:
ORDER granting 91 Motion for Extension of Time to File Reply. Plaintiff's application for an extension and the querulous opposition (ECF No. 92) continue the path of bikeshedding or the application of Parkinson's Law of Triviality. Plaintiff's Reply shall now be filed on or before 9/21/2026. No further extensions will be granted.
For more on the subject, see here.
I thought I'd pass along the amicus brief that I just filed yesterday on behalf of Prof. Rebecca Roiphe (an expert in the law governing lawyers), Prof. Nadine Strossen (a free speech scholar and former President of the ACLU), and myself, supporting the cert. petition in Eastman v. State Bar (the decision below is here).
The brief seeks to explain to the Court why the underlying legal issues in this case are important and merit the Court's granting review. Like most other amicus briefs supporting petitions for review, it doesn't seek to argue about the truth or falsity of petitioner's statements: The Court generally grants review to resolve conflicts about what the right legal rule should be, not to resolve factual disputes. (You can also read another amicus brief supporting review, co-signed by our own Randy Barnett, among others.)
* * *
Summary of Argument
The last ten years have seen many attempts to punish or compel professionals' speech in the service of broader ideological goals. This Court rejected two such attempts, in NIFLA v. Becerra, 585 U.S. 755 (2018), and in Chiles v. Salazar, 607 U.S. 627 (2026). It should likewise consider the constitutionality of the punishment in this case—a punishment that, if left unreviewed, portends still more such attempts.
Petitioner John Eastman was disbarred in large part based on his public political statements. The State Bar concluded those statements were false, and therefore sanctionable. This raises an important and unresolved question of First Amendment law: When can lawyers be stripped of their livelihoods based on public political speech that is unrelated to any pending judicial proceeding and that is fully protected when said by ordinary Americans?
That question is especially important because it can arise—and indeed is likely to arise—in many cases in the future. "Tit for tat" may well be part of the nature of humanity. See Robert Axelrod & William D. Hamilton, The Evolution of Cooperation, 211 Science 1390 (1981); Herbert Gintis, Samuel Bowles, Robert Boyd & Ernst Fehr, Explaining Altruistic Behavior in Humans, 24 Evol. & Hum. Beh. 153, 154 (2003). It certainly seems to be part of modern American politics.
The mode of analysis in this case thus seems likely to proliferate in decisions both by deep blue state bars and deep red state bars. It seems likely to arise as to people involved in contentious disputes about federal elections, state candidate elections, state ballot measures, and ideological debates more broadly. In all these contexts, allegations that one's opponents are lying are par for the course: Indeed, another facet of human nature is to assume the worst motivations of one's adversaries and the best motivations of one's allies.
In the past, state bars have sought to punish people they viewed as left-wing extremists who endangered the established constitutional order. See, e.g., James E. Moliterno, Politically Motivated Bar Discipline, 83 Wash. U. L.Q. 725 (2005). This case is a reminder that the same approach is being revived today as to lawyers whom some state bars view as right-wing dangers. And, if the decision endures, it will likely be followed by many other such decisions. It is important that this Court make clear what rules govern this area of the law, so that they can be applied as evenhandedly as possible throughout the country.
To be sure, this case also involves other allegations of impropriety, such as alleged false statements to courts, to Eastman's own client (President Trump) and his team, and to Vice President Pence and his team. This amicus brief does not opine on those matters. As many cases (see Part IV) have made clear, if a government sanction—whether a criminal sentence, civil liability, dismissal from government employment, or disbarment—rests even in part on constitutionally protected speech, it cannot stand unless the government can show that it would have reached the same result absent the protected speech.
For this reason, this Court should grant certiorari to consider when lawyers can be disbarred for their public political speech.
10/6/2010: Snyder v. Phelps is argued.
What’s on your mind?
A panel discussion.
I enjoyed being on this panel with Nita Farahany of Duke Law School and Daniel Solove of the George Washington University Law School where we debated the proper role of artificial intelligence in the creation and production of legal scholarship—and, more broadly, how A.I. may change the job we have. For those interested, you can watch the panel here:
His recent Wall Street Journal column on this subject makes some interesting points, but raises more questions than answers.
In a recent Wall Street Journal article, based on his forthcoming book on the same subject, Supreme Court Justice Samuel Alito offers his take on constitutional originalism. But in so doing, he raises more questions than compelling answers. Nonetheless, he makes a number of interesting points, about how to do originalism generally, and about specific constitutional issues. Here, I note a few of particular interest.
There is a longstanding debate among originalists as to whether the proper original meaning courts should apply is that understood by ordinary people at the time of ratification, that understood by lawyers and other well-informed experts, or that understood by hypothetical "reasonable" readers (many advocates of the latter approach assume the "reasonable" reader is highly knowledgeable about legal doctrine and methodology). I call this the divide between "elitist" and "populist" versions of originalism. Alito clearly comes down on the populist side:
When I think about the original public meaning of constitutional provisions, I sometimes envision a scene at a colonial-era tavern. After dinner, travelers and area residents gather around the fireplace and read newspapers that discuss the Bill of Rights. They read the text of the First Amendment and see that it prohibits Congress from making any law that impairs the free exercise of religion. What would they make of that language?
How likely is it that these men had read John Locke's writing on church-state issues? Even if they had some rough awareness of his ideas, how likely is it that they would assume that Congress had incorporated those ideas in the First Amendment? Originalism looks for the original public meaning, not the meaning that the most well-read and philosophically minded men of the day might have adduced.
In taking this position Alito seems to ignore the potential downsides of the populist approach. Among other things, ordinary people may be ignorant about a variety of constitutional issues, and may have particular difficulty interpreting technical legal terms embedded in the Constitution, such as "writ of habeas corpus" or "bill of attainder." Populist approaches to original meaning are also less likely than elitist ones to offer insight on how to deal with issues unanticipated at the time of enactment, such as new technologies, and new information.
Elitist approaches have their own downsides, of course. But those who advocate one or the other should grapple with these issues. I go into the relevant tradeoffs in more detail in my 2012 law review article "Originalism and Political Ignorance" and also in my earlier blog post on this topic. My own view is that it may be best to adopt a hybrid approach, balancing elite and popular understandings. Elite understandings are preferable when it comes to terms that ordinary people are likely to recognize as technical legal phrases that require a lawyer or other expert to understand. But the issue is a difficult one, and originalists need to consider it more. Maybe Alito's book will stimulate new analysis of this crucial issue.
Alito's analysis also elides the distinction, emphasized by many originalists, between original public and original "expected applications." The former is the linguistic meaning of the words, and the latter how they are expected to apply to particular issues. Expected applications depend in part on factual understandings, distinct from the meaning of the words. As facts or our understanding of them change, the same words may have different implications for particular cases, including some that were not and could not be expected at the time of drafting and ratification.
For example, Alito assumes it is obvious that originalism rejects a constitutional right to same-sex marriage, because almost no one expected such a thing back when the Fourteenth Amendment was ratified in 1868. Thus, he doubles down on his view that Obergfell v. Hodges, the 2015 ruling striking down laws banning same-sex marriage, is wrong. But, as discussed in the amicus brief I filed in that case (together with Andrew Koppelman), there is a strong originalist case for Obergefell once you combine the original linguistic understanding of the words with new knowledge about the nature of same-sex relationships. This is particularly true if you accept (as many originalists now do) that the the Fourteenth Amendment bans most, if not all, forms of sex discrimination.
On another Fourteenth Amendment issue, Alito also reiterates his longstanding view that the Due Process Clause, not the Privileges or Immunities Clause, is the proper source of various "unenumerated" rights, including "incorporation" of the Bill of Rights against state governments:
If we simply read the text of the 14th Amendment, the Due Process Clause seems an unlikely home for substantive rights. Another provision, the Privileges or Immunities Clause, declares that no state "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." But in the Slaughter- House Cases (1873), the Supreme Court reduced that clause to minor importance.
In McDonald [v. City of Chicago], prominent scholars filed a brief urging the court to jettison Due Process incorporation and revive Privileges or Immunities. During oral arguments, the attorney representing Otis McDonald latched onto this argument. He didn't get far. Justice Scalia interrupted him and said that while the Privileges or Immunities argument was "the darling of the professoriate," it was contrary to a century of case law. Scalia recommended that the attorney stick to those precedents.
Why did Scalia, a former law professor, say that? Because accepting the Privileges or Immunities argument would have opened a can of worms. Libertarians, social conservatives, progressives, socialists and others could all make a pitch for whatever rights they favored.
On this issue, Alito differs with fellow conservative originalists Clarence Thomas and Neil Gorsuch, both of whom advocate reviving Privileges or Immunities. It is also ironic that Alito rejects Privileges or Immunities revival for fear of opening up a "can of worms" that enables judges with different ideologies to "make a pitch for whatever rights they favored." After all, this is exactly the same argument Alito and other conservatives have long deployed against "substantive" due process. It's not clear why Privileges or Immunities Clause would be any worse. If anything, the fact that there's lots of original meaning evidence about what rights qualify as "privileges or immunities" might make it less subject to judicial manipulation than substantive due process is. While Alito is wary of what he calls "academic originalism," the extensive academic work on the meaning of Privileges or Immunities could help guide judicial discretion here. And, again, at the very least, it might be less subjective than the Due Process Clause approach.
Alito also emphasizes "the necessity, except in unusual circumstances, to heed precedent, since overturning it can have unsettling consequences." Despite his distaste for Obergefell, in a recent CBS interview he indicates that it likely should not be overturned because "a great deal had changed in the country as a result of Obergefell [and] [t]here was a lot of reliance in various ways on the decision in Obergefell." Alito is referring here to the hundreds of thousands of same-sex couples who have gotten married and started families in reliance on the Supreme Court's ruling.
Skeptics will note that Alito has in fact voted to overturn a number of longstanding precedents, most notably in the Dobbs case, overturning Roe v. Wade (1973), which had established a constitutional right to abortion. Alito's argument that Roe did not engender significant reliance interests strikes me as unpersuasive. Many women likely did rely on the availability of abortion as way to escape an unwanted or medically dangerous pregnancy. That doesn't necessarily prove Dobbs is wrong. But it does mean that defenders of that decision and other reversals of longstanding precedent need a better theory of how to weigh reliance interests against other considerations.
In fairness, Alito is far from alone among Supreme Court justices in failing to develop a compelling and coherent answer to this question. Other justices - both liberal and cosnervatives - have had trouble with this, as well. I have previously argued that "Stare decisis will not stop the justices from overturning a precedent they think is badly wrong and causes significant harm" - a point I believe applies to jurists across the political spectrum. Even significant reliance interests might be overcome in a situation where the maintenance of a wrong precedent itself causes grave harm. Jurists of different stripes are willing to reverse precedents that are "egregiously wrong and deeply damaging," as Alito put it in Dobbs. The big disagreement is over which cases fall into that category.
That is one reason why Brown v. Board of Education and later decisions striking down segregation laws were justified, despite the fact that they narrowed or overturned longstanding precedents that many state and local governments had relied on heavily. Segregation laws caused such great harm, that even substantial reliance interests had to be subordinated to the need to end it. Similarly, if you believe - as many pro-lifers do - that abortion is the moral equivalent of murder, Dobbs might be justifiable even if Roe did create substantial reliance interests. But notice that this approach to reliance interests requires courts to engage in a balancing of interests that many might argue is not within judicial competence.
There is more to be said about Alito's Wall Street Journal article, and CBS interview. And, I expect, many of these issues are covered in greater detail in his book. But, for now, I will stop here. I may have more to say after I have had a chance to read the book.
"Public criticism is not for everyone. But if it's too much to take, you can always resign."
From Judge James Ho's concurrence Friday in Pittsburgh Logistics Sys., Inc. v. Glen Rose Transp. Mgmt.:
I write separately to address Plaintiff's understandable objections to the magistrate judge's ex parte meeting with Defendant. After all, ex parte meetings are "strongly disfavored" and "often reversible error," as our court rightly observes today.
I get why the magistrate judge felt compelled to engage in an ex parte dialogue, after he received a series of unusual emails from Defendant's corporate representative. It's no fun being criticized for one's life's work.
But "[h]olding office in America is not for the faint of heart." "With leadership comes criticism—whether from citizens of public spirit or personal malice."
[I.] Defendant's corporate representative sent a series of ex parte emails to the magistrate judge. The emails expressed frustration with perceived excessive and unnecessary delays in the judge's resolution of the case.
One of those emails referenced the fact that "I have many friends who are … Texas congressmen, US representatives, and one close U.S. Senator," and that the corporate representative was "consider[ing] asking my Texas friends to write to you and ask why I have to continue waiting."
The email was sent at a time when it was publicly known and reported by the media that the judge was actively being considered and promoted in certain circles for appointment to the district court.
Many of the same constitutional and other constraints apply as with tariffs.
Today, Lawfare published my new article "The President Doesn't Have Unlimited Power to Impose Import Bans." Here is an excerpt:
President Trump recently tried to use Section 338 of the notorious Smoot-Hawley Tariff Act of 1930 to ban several categories of Canadian imports outright, as well as to impose tariffs on others. This led some to fear that Trump has discovered a largely unlimited power for the president to restrict imports.
Courts have thus far constrained Trump's efforts to impose sweeping tariffs, most notably in the Supreme Court's decision in Learning Resources, Inc. v. Trump (a case I helped litigate), which struck down Trump's massive imposition of tariffs under the International Emergency Economic Powers Act of 1977 (IEEPA). But perhaps import bans would be different. Trump himself said after the IEEPA decision that "I can destroy the trade. I'm even allowed to impose a foreign country destroying embargo."
That claim is badly wrong. Like tariffs, import restrictions are a congressional power under the Constitution, not an executive one. Thus, the president cannot impose import bans without congressional authorization. While some statutes delegate import restriction authority to the president, that power is strictly limited. And, as with tariffs, interpreting these authorities in a way that gives the president a blank check to impose import bans would run afoul of the major questions doctrine and constitutional nondelegation.
It remains to be seen whether Trump or a future president might decide to claim sweeping authority to impose import bans at will. But when and if such an effort materializes, courts should strike it down.
The rest of the article goes into the relevant issues in greater detail, including considering several statutes that might potentially be used in any effort to institute sweeping executive-imposed import bans.
How would The Butler vote?
I think the debate about Todd Butler's nomination to the Fifth Circuit has been revealing. There is no actual argument that Butler bears resemblance to any of the other Fifth Circuit nominees over the past three decades. Instead, the argument goes, he has done enough to meet some arbitrary threshold for a circuit court nomination, and those who disagree are idiots. I don't pretend to be an expert in politics. Indeed, were I someone seeking the favor of those in power, I would just keep my mouth shut. Talk less, smile more, as they say. But I never keep my mouth shut. Instead, I read the decisions of the Fifth Circuit very closely and talk about them.
Friends and those who support the nomination have pointed to a few things in Butler's defense. First, Butler wrote very strong briefs defending qualified immunity on behalf of paying clients. Okay. QI is an issue that divides conservatives. Justices Scalia and Thomas did not agree. Judges Willett and Oldham do not agree. This is not exactly a useful predictor of Judge Butler's jurisprudence. And there is nothing particularly controversial about this work. No one receives a medal of courage for insurance defense work.
Second, Defenders have also pointed to the responsibility of becoming the managing partner of Phelps Dunbar's office in Jackson, Mississippi. Phelps Dunbar has 18 offices and about 500 lawyers. By my count, there are about 30 attorneys in the Jackson office, including one of Butler's most vigorous defenders on social media. Okay. That responsibility is something. I suppose the managing partners of the seventeen other offices are also viable nominees for the Fifth Circuit. Same for the managing partners at each of the offices for all of the other firms on the AmLaw 200.
Third, Defenders declare that Edith Hollan Jones did not have public service experience before being appointed to the Fifth Circuit. Judge Jones was the General Counsel of the Texas GOP from 1982-1983. That year, a Democrat won the Texas Governor's race, and Lloyd Bentsen was serving his third term. Texas was not yet the GOP Powerhouse it became in the 1990s. A young Edith Jones was boldly building the Republican party of Texas. Likewise, Judge Jerry Smith was the City Attorney of Houston, and argued City of Houston v. Hill before the Supreme Court. If anyone is trying to compare Todd Butler, as the nominee, to Smith and Jones in the 1980s, I would gladly have that conversation.
Fourth, the truth also comes out that Butler did in fact attend my 2022 talk to the Jackson Federalist Society chapter. I stand corrected. I distinctly remember meeting several of the dignitaries in the room, but not Butler. But the truth matters. I went back through my archives and found a photograph from the event, and Butler was there. If attendance at a few FedSoc meetings is sufficient to make one a viable Fifth Circuit nominee, I would point out that Scott Stewart was also in the room.
Like I said, there is not much in the "affirmative" column for Butler, and there is quite a bit in the "negative" column. Perhaps the most dispiriting aspect of this process is the message it sends. A current conservative law student who will be clerking on the Fifth Circuit sent me this message:
I wanted to write and thank you for raising awareness about the questionable Todd Butler nomination. As you correctly noted, seats of this magnitude must be reserved for people who have dedicated some portion their life to the Cause/public service. I am eager to see if this turns into another Judge Ozerden situation— time will tell!
Those are willing to risk their lives, fortunes, and sacred honors to promote the rule of law will be passed over for those who simply cash a paycheck. We need to recognize those and reward those who display courage, not those who simply skate by and have friends in high places.
The most useful metric to predict how Judge Butler will vote is Judge Southwick's record. It is clear enough that Judge Southwick chose Butler as his heir apparent. And like most judges who do so, we can safely assume that Southwick has picked someone who will uphold his judicial legacy. So, let's Ask Jeeves: how will the Butler vote?
I searched for recent Fifth Circuit en banc votes. Again, on 17-member Court, the vote often splits 9-8. If a senior judge is on a panel, or there is a recusal, or a conservative member has some idiosyncratic take, the vote usually goes the other way.
Here are cases where Judge Southwick dissented from the en banc court's majority opinion. In many of the cases, Southwick joined a dissent from Judge Higginson.
My research here was fairly quick, and I'm sure I missed some relevant cases. But these cases speak to how Judge Southwick votes on the most consequential Fifth Circuit cases. I don't expect that a Judge Butler would vote much different. If there is any evidence that he disagrees with Judge Southwick on these sorts of matters, it should be known before he receives a lifetime commission. And no, I don't care how he votes on cases involving qualified immunity and other lawsuits against municipalities.
Occasionally, I hear people make arguments in favor of constitutional rights claims by arguing that the Constitution was set up to protect liberty. And it most certainly was—in part.
But I think that it's a mistake to treat this as a goal above all others, as the Preamble to the Constitution itself reflects (and of course the specific provisions within the text of the Constitution and the Amendments—which are part of the Constitution—do as well):
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The Constitution was set up to do many things at once, and I want them all. I would like our government to provide for justice, and protect domestic tranquility, and defend us against our enemies, and make the country wealthier, and protect liberty.
To be sure, these interests are sometimes in tension: For instance, national defense will often undermine liberty to some extent, and liberty will often undermine national defense. On the other hand, the interests often go together: For instance, liberty will generally produce more economic growth, and wealthier countries also generally find it easier to defend themselves. In any event, the Constitution sets up our federal government to try to secure all these benefits, rather than to categorically prioritize one (whether liberty or national security or the general welfare) above the others.
In which I reject the suggestion that my arguments do not support the respondent's position before the Supreme Court
I appreciate my friend Michael Buschbacher taking the time to respond to my amicus brief in Suncor Energy v. Boulder County and my other work in this space. That he and others believe my work is worth responding to suggests that he and others believe it is important. (As they say, if you are taking fire, you must be over the target.) Yet he is mistaken to think that my arguments–-let alone the relevant history or legal principles–support the petitioners in this case.
To understand our disagreement, it is important to understand what is and what is not at issue in Suncor. The question is not whether the plaintiffs here (or in other climate cases) are making bold, ambitious, or potentially overbroad claims. Nor is it whether the alleged chain of causation is too attenuated and the attempt to attribute harms in Colorado to emissions elsewhere too speculative to support liability. Nor is it whether there are grounds to narrow or pare down the scope of the conduct they challenge or damages they seek. Rather, the question is whether the plaintiffs are wholly precluded from making their claims under state law, such that the case must be dismissed. After all, the Suncor petitioners are asking the Supreme Court for only one thing: An order reversing "the Colorado Supreme Court's decision to allow Boulder's claims to proceed." That request should be denied, which is why I filed a brief in support of the respondents.
As framed by Mr. Buschbacher, "the central question in Suncor is whether states and municipalities can apply their own law to regulate the greenhouse-gas emissions of fuel producers and users." This is not quite right. The plaintiffs' claims do not target emissions, as such. Rather, their claim is that the production and marketing of fossil fuels by the defendants has caused or contributed to harms in Colorado, and Boulder County seeks compensation for such harms.
In considering the plaintiffs' claims, it is worth remembering that state tort law is routinely applied to conduct that occurs outside of the given state's borders. Consider routine product-liability claims. The law of the jurisdiction in which the harm occurred is often applied to companies that manufactured, sold, or marketed allegedly defective products elsewhere. And, provided the requirements of personal jurisdiction have been satisfied, this presents no constitutional problem. Such claims must be properly constrained, but they are not precluded.
Under current law, the federal government has the authority to preempt plaintiffs' claims should it want to do so, but it hasn't. Nor has the federal government ever enacted any statute governing the conduct targeted by the plaintiffs' claims. This likely explains why, as the litigation has gone on, the petitioners have de-emphasized their statutory arguments in favor of the broad–and untenable–claim that the constitution wholly precludes any state law claim against conduct that produces harm across state lines or international boundaries.
Mr. Buschbacher notes my concern about "home cooking"-- and this is a legitimate concern. There are limits to the extent to which states may impose the consequences of their policy choices on their neighbors. It is one thing for state courts to hear tort claims seeking recompense for damages born within their jurisdiction due to out-of-state conduct. It is quite another for state courts to impose punitive damages or demand compliance with local standards in far off places. This is the boundary the Court has already drawn in limiting the imposition of punitive damages for what is lawful out-of-state conduct. But the concern for state prerogatives cuts both ways. If Colorado may not impose its policy judgments upon conduct occurring elsewhere, then neither may other States impose upon Colorado the costs of the conduct they license. As with punitive damages, concerns about legitimate state authority may well counsel narrowing Boulder County's claims–as my brief concedes–but they do not justify preempting them.
Mr. Buschbacher raises International Paper v. Ouellette, but fails to heed its lesson. In Ouellette, a majority of the Court concluded that, due to the federal Clean Water Act, Vermont plaintiffs could not sue a New York paper mill under Vermont law because doing so would subject the facility to potentially conflicting legal standards, only one of which had been blessed by the federal government. The mill in Ouellette was subject to regulation as a "point source" under the CWA, and (owing to the CWA's cooperative federalism structure) this regulation was carried out by New York authorities under New York law. Accordingly, the decision as to how much the mill could discharge in waters of the United States was, for purposes of federal law, a matter of New York law–and to this Vermont law had to yield.
The Court in Ouellette made this point explicit, noting that "if affected States were allowed to impose separate discharge standards on a single point source, the inevitable result would be a serious interference with the achievement of the 'full purposes and objectives of Congress.'" Yet insofar as state-law claims do not threaten to impose "separate . . . standards on a single point source" there is no conflict and no basis for preemption. And here, as Mr. Buschbacher knows, Boulder's claims do not target conduct–let alone emissions–that are subject to regulation under federal law.
While barring the application of Vermont law to an out-of-state point source subject to the CWA's regulatory scheme, Ouellette expressly preserved the ability of plaintiffs to pursue state law claims against the out-of-state mill; the justices were unanimous on this point. As the Court summarized its own holding:
Nothing in the Act prevents a court sitting in an affected State from hearing a common law nuisance suit, provided that jurisdiction otherwise is proper. Both the District Court and the Court of Appeals erred, however, in concluding that Vermont law governs this litigation. The application of affected-state laws would be incompatible with the Act's delegation of authority and its comprehensive regulation of water pollution. The Act preempts state law to the extent that the state law is applied to an out-of-state point source. [Emphasis added.]
Mr. Buschbacher suggests that the plaintiff's invocation of Colorado law in their complaint should nonetheless be fatal to their claim. Again, reference to Ouellette is instructive. There, as here, the plaintiffs filed suit under their home state's law. And yet, after concluding that Vermont plaintiffs could not sue a New York point source regulated as such under the CWA under Vermont law, it did not order dismissal of the case. Rather, the case was remanded to the lower courts where appropriate state law was applied as the litigation proceeded. Further efforts to bar the suit were rejected and International Paper ultimately offered substantial settlement. So even if one were to conclude that Boulder County can do no more than seek to apply home-state law to each of the defendants' operations (something I do not believe current law requires), the petitioners' plea to reverse the Colorado Supreme Court and dismiss the case must be rejected.
According to Mr. Buschbacher, "Boulder County's suit is almost entirely about conduct far outside of Colorado" (emphasis added). I think this framing settles the question. Even were I to concede ever point Mr. Buschbacher makes, it would not justify dismissing the case, for insofar as Boulder County's suit includes petitioners' conduct that occurred in Colorado, it must be allowed to proceed, at least with regard to such conduct. I believe that current law allows for more; Mr. Buschbacher disagrees. But this is a dispute about the permissible scope of this litigation, not whether it should be allowed to continue. It is the latter question the petitioners have put before the Court, and that is the question my brief addresses.
For more on the case, here are (some of) my posts on the subject (with more to come):
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as a First Amendment claim, though only as to his own right to wear "Wantagh Warriors"-related gear at games and school functions.
From Wantagh Union Free School Dist. v. N.Y. State Bd. of Regents, decided Thursday by Second Circuit Judges John Walker, Michael Park, and Eunice Lee:
Plaintiffs-Appellants Wantagh Union Free School District, the Wantagh Union Free School District Board of Education, and Board member Anthony Greco appeal from the district court's April 28, 2025 judgment dismissing their challenge to Part 123 of the Regulations of the New York Commissioner of Education. Part 123 regulates the use of Indigenous names, logos, and mascots in New York public schools. Section 123.2 prohibits public schools from using or displaying such names, logos, or mascots "other than for purposes of classroom instruction." Section 123.5 requires schools to bar their officers and employees from "utilizing or promoting" them while on school property or at a school function.
The District's middle and high school sports teams have competed as the "Wantagh Warriors," using a logo of a Native American man in a headdress. To comply with Part 123, Wantagh planned to retire the logo but keep the "Warriors" name. The New York State Education Department rejected that plan, and this suit followed….
The court concluded that plaintiffs had no power to sue the state in their official capacities:
The government's argument, which the court apparently found persuasive: "The denial was not arbitrary but based on documented allegations, even if unsubstantiated."
An excerpt from McWilliams v. Costa, decided Wednesday by Judge Stefan Underhill (D. Conn.):
This civil rights action under 42 U.S.C. § 1983 and Connecticut law challenges Defendants' unconstitutional denial of Plaintiff Michael McWilliams' pistol permit application ….
[As alleged in the Complaint,] McWilliams was a "secondary school teacher, a single homosexual male, and an adoptive parent." McWilliams "has no criminal record and has never been arrested or charged with any crime." McWilliams previously owned firearms, including a handgun from 2022-2023 and a long gun from 2010-2015.
From 2018 to 2024, allegations regarding McWilliams's behavior as a foster parent followed him as he moved to and resided in several different states. Those allegations resulted in investigations by both federal, state, and local authorities. McWilliams maintains that none of the allegations was ever substantiated and that no investigating authority ever found evidence of McWilliams's wrongdoing. I now summarize each of the allegations that McWilliams cites in his complaint.
First, McWilliams provided housing to Tyler Joseph, an 18-year old male, in Marshfield, Wisconsin, but later asked Joseph to leave the home due to behavioral issues. Joseph's friend Hunter Mattheisen then accused McWilliams of engaging in sexual misconduct with Joseph and of distributing psilocybin mushrooms. McWilliams claims that the Marshfield Chief of Police wrote a letter in November 2022 stating that the department "had not established any probable cause to arrest [McWilliams]." McWilliams further maintains that Marshfield police investigated those claims and "concluded they were baseless."
Teams of high school students will present arguments about the constitutionality of the Texas Ten Commandments Law.
The lesson plan includes all of the instructions. Please register at the Institute for Competition Sciences. Please review the winning submissions from previous years: 
Upcoming events at Penn Carey Law and CWRU at which I will discuss what we learned from oral argument in the Supreme Court's first case of the term.
This morning, the Supreme Court will hear oral argument in Suncor Energy v. Boulder County, in which fossil fuel energy companies are asking the Supreme Court to conclude that all state-law-based tort suits over damages allegedly caused by climate change are preempted. Assuming the Court reaches the merits, its decision could be quite significant for environmental law, climate policy, and American federalism.
I am scheduled to participate in two events analyzing the Suncor oral argument.
On Friday, October 9, I will be talking about the case at the University of Pennsylvania's Penn Carey Law School. The event, "Discussing the Scope of Preemption in Emission s Lawsuits," will also feature James Goodwin of the Center for Progressive Reform is sponsored by the law school's Environmental Law Project and is part of Penn's Climate Week.
On Tuesday, October 13, I will again discuss the Suncor argument at the Case Western Reserve University School of Law. This event, "Hot Times at the High Court: Suncor v. Boulder County and the Future of Climate Litigation," is a webinar (though we will have an in person audience too). It will feature Professor Paul Salamanca of the University of Kentucky. Registration info is here.
For more on the case, here are (some of) my posts on the subject (with more to come):
10/5/1953: Chief Justice Earl Warren takes the oath.
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