The Volokh Conspiracy Archive

From Lowe v. Morris (Ga. 1853), which considers whether a writ of error issued by the Clerk of the Court should be dismissed on the grounds that it erroneously failed to include the seal of the Court. The rules of the court required clerks to include such a seal, but didn't prescribe the consequence if the rules weren't followed. The majority said that the writ remained valid:

The question is not, whether the parties to whom the writ of error was directed could be punished for not obeying it, because not in conformity with the rule; but the question is, whether the party applying for this writ of error, issued by the Clerk of this Court, shall be deprived of his constitutional right, merely because our own officer has omitted to put the seal of the Court to the writ, as directed by the rule? … The rule does not declare, that a writ of error issued in any other manner than that prescribed by the rule, shall be null and void ….

In my judgment, the rule is merely directory to the Clerk as to the manner in which writs of error issued by him shall be authenticated, and if he violates its provisions, it is an irregularity, which may subject him to personal peril and responsibility, but will not deprive the party of his constitutional right to be heard in this Court, as to the matters involved in the record which has been sent up here in obedience to our own mandate, attested by the official signature of our own officer, merely because he has failed to obey the direction of our rule of practice, in attaching the seal of the Court to the writ of error, which is in all other respects perfect.

Justice Joseph Lumpkin add a long, amusing, and somewhat rambling concurrence, including this passage; I quoted it on the blog back in 2008, but I just came across it again and thought I'd pass it along, in somewhat more detail:

For myself, I am free to confess, that I despise all forms having no sense or substance in them. And I can scarcely suppress a smile, I will not say "grimace irresistible," when I see so much importance attached to such trifles. I would cast away at once and forever, all law not founded in some reason—natural, moral, or political. I scorn to be a "cerf adscript" to things obsolete, or thoroughly deserving to be so. And for the "gladsome lights of jurisprudence" I would sooner far, go to the reports of Hartly, (Texas,) and of Pike and English, (Arkansas,) than cross an ocean, three thousand miles in width, and then travel up the stream of time for three or four centuries, to the ponderous tome of Sidenfin and Keble, Finch and Popham, to search for legal wisdom. The world is changed. Our own situation greatly changed. And that Court and that country is behind the age that stands still while all around is in motion.

11/16/1939: Justice Pierce Butler dies.

The Trump Administration recently announced a policy cutting US refugee admissions to a record-low of 7500 over the next year, while seeking to allocate those slots "primarily" be to Afrikaner South Africans and "other victims of illegal or unjust discrimination in their respective homelands." Given the administration's actions so far (admitting Afrikaners while seeking to bar virtually all other refugees), it is obvious few or no "other victims" are going to be admitted under the new policy. There is no remotely defensible justification for this policy, which is just a form of blatant racial and ethnic discrimination.

As explained in my previous post on this topic, I am not opposed to admitting Afrikaners, and there is even a plausible case they are legally eligible for refugee status, based on the South African government's discriminatory policies (which include various forms of affirmative action favoring Blacks as a way to compensate for the injustices of apartheid). But the idea that white South Africans have a stronger claim to refugee status than virtually every other group in the world is utterly absurd. Around the world, numerous racial, ethnic, and religious minorities, and victims of political persecution face vastly more severe discrimination and oppression.

There is no other good reason to privilege Afrikaners, either. In my earlier post, I criticized the idea that all or most white South Africans are inveterate racists, inimical to American liberal democratic values. That stereotype is simplistic and dated. But it's also wrong to make the opposite assumption, that they are somehow more attuned to those values than other would-immigrants and refugees. There is no basis for that assumption, either.

The same goes for claims that white South Africans can assimilate better based on language and culture. There are many potential English-speaking refugees who could do just as well, most obviously English-speaking Black Africans fleeing oppressive governments. And, as discussed in Chapter 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom, social science evidence indicates that immigrants from non-English speaking countries generally learn the language quickly, and otherwise assimilate successfully. In sum, there is no reason to think that Afrikaners are a better fit for America than other refugees, unless being American is somehow synonymous with being white.

Conservatives who favor color-blindness in government policy in other situations (as I do) would do well to condemn Trump's policy here. Otherwise, it sure seems like their support for color-blindness is limited to situations where whites are the ones disadvantaged.

In almost any other area of government policy, blatant racial or ethnic discrimination like this would be struck down by the courts. Unfortunately, Supreme Court precedents like Trump v. Hawaii have created a double standard under which the government can get away with discriminatory policies in the immigration field, that would not be permitted elsewhere.

I have argued this double standard is indefensible, and the Supreme Court should reverse precedents suggesting otherwise. That may not happen anytime soon. But, even if this kind of racial discrimination in refugee policy is legal under current (badly misguided) precedent, that doesn't make it right.

Trump's extension of refugee status to Afrikaners might, I have suggested, set a precedent for expanding it to a wide range of other groups, one that can be effectively exploited by a future, more pro-immigrant, administration. Perhaps it might someday lead the federal government to rethink the current unduly narrow legal definition of "refugee," which excludes victims of many types of severe oppression. Trump and his minions surely don't intend any such effects. But unintended effects often occur with government policies.

Regardless, Trump's policy of favoring white South Africans while barring almost all other refugees, is utterly reprehensible. If you support color-blindness and abhor racial and ethnic discrimination in other contexts, you should condemn it here, too.

This new article is here. The Introduction:

In the wake of the mega-million-dollar settlement of U.S. Dominion's defamation action against Fox News over the network's broadcast of false election fraud claims after the 2020 U.S. presidential election, shareholder derivative actions were brought in Delaware against the parent company Fox Corporation's board of directors for breach of fiduciary oversight duties under state corporate law. The shareholder plaintiffs claimed that the Fox Corporation board breached its fiduciary duties by allowing Fox News knowingly to air false programming that put the company at risk of massive defamation liability. The Delaware Chancery Court denied Fox Corp.'s motion to dismiss the action for lack of standing, so the derivative action is currently pending.

But should corporate fiduciary duty law be interpreted to impose liability on the boards of companies that own news outlets for failing to control defamation and other speech tort risks associated with the editorial judgments made by their news subsidiaries? What makes the In re Fox Corporation Derivative Litigation (hereinafter "In re Fox") significant beyond its specific facts is that the plaintiffs' rationales seek to expand and supercharge the traditional oversight requirements of corporate law. If accepted, this turn to strengthening the disciplinary power of corporate governance in the news media context is likely to undermine press functions and the public interest in a free and independent press.

The expansive interpretations of corporate governance principles advanced in In re Fox could attract support on the basis that corporate oversight duties can serve to minimize misinformation in political discourse. Surveys reveal that many Americans see political misinformation as a social threat. If using corporate law to combat misinformation could lead to robust censorship effects on falsity, then many could consider this a significant public benefit. This could incentivize additional lawsuits against the press.

At the same time, such a development is likely to undermine press activity in ways harmful to public discourse. If these kinds of corporate governance claims are successful, they promise to generate a regulatory regime of editorial control by risk-averse corporate boards with much broader business interests than the protection of press freedom. The possibility of multi-million-dollar personal liability for parent company board members—or at least corporate insurers—is likely to generate excessive board-level micromanagement.

It is reasonable to expect that this would lead directly to journalistic self-censorship by news subsidiaries, deter journalism discouraged by a press-hostile government, and worsen journalistic timidity in covering the powerful and litigious. The self-regulatory compliance and oversight systems likely to be implemented in media companies as a response to heightened governance liability will inevitably extend to coverage of matters beyond clearly false information.

11/15/1882: Justice Felix Frankfurter's birthday.

I thought I would flag in response to Josh's post that I served on a criminal jury three years ago—and that, unlike Josh, I recommend that other law professors do the same. I tweeted a bit about it shortly after my jury service:

In his post, Josh suggests that law professors might have trouble being good jurors:

The role of the jury is to find facts, not law. Law professors are professionals at conveying the law. I would like to think that I would follow the law exactly as the judge instructed me--indeed, I told the judge I would during voir dire. But I think it would be hard to entirely set aside my views on what the law is.

I didn't find that hard at all. In addition to be an officer of the court as a bar member, I swore an oath as a juror to render a "true verdict . . . according only to the evidence presented to [me] and to the instructions of the court." I took that oath with utmost seriousness. It didn't occur to me to violate my sworn oath out of some personal sense of what the law should be.

Josh also suggests that other jurors will be unable to think independently after hearing the views of a law professor:

The bigger problem is that other members of the jury pool would look to the law professor to explain the law. And even if I resisted offering any statement of the law, my view would be given undue deference.

That wasn't my experience. In my case, the other jurors knew from the open court voir dire that I taught criminal law and procedure at U.C. Berkeley (where I was teaching at the time). They knew that I was a former prosecutor who did occasional criminal defense work, too. And the case we had was in my area: Not only was it a criminal case, but it was a case involving offenses that I teach—although I teach the Model Penal Code version rather than the California Penal Code.

Nonetheless, the other jurors were independent and made their own judgment calls. I like to think that I made some good arguments about the evidence, and whether the government had proved particular elements of particular offenses beyond a reasonable doubt. (I thought they had proved some offenses but failed to satisfy their burden of proving other offenses.) But I was just one of the twelve jurors, and everyone had their own take on things. I intentionally took a light touch and tried to avoid saying too much. I explained a particularly confusing jury instruction once, and I tried to focus the discussion on the elements of the crime and the evidence. But no one was giving undue deference to me, at least as far as I could tell.

Anyway, maybe I'll write more about my time on the jury some day, as it was a fascinating experience.

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

In 2023, police in Marion, Kan.—armed with bogus warrants—raided the offices of a local newspaper, the home of the newspaper owner (a nonagenarian who died of a heart attack the following day), and the home of a city councilwoman who'd been critical of the mayor. And this week, Marion County and its sheriff agreed to a financial settlement, admitted the raids violated the First and Fourth Amendments, and apologized. The lawsuit proceeds, however, against the City of Marion and its now-former mayor and now-former police chief. Read all about it in the Marion County Record, or The New York Times, or quite a few other places.

Over at The Wall Street Journal, meanwhile, IJ's Anya Bidwell and Patrick Jaicomo call a spade a spade and say that this week's vote in the Senate to give senators—and only senators—a cause of action to sue federal officials (who, notably, are also stripped of qualified immunity) is an unqualified betrayal.

New on the Short Circuit podcast: TikTok star and real-life lawyer Reb Masel tells us a tale about how a moonshine argument led to years of jail without trial.

After Springfield, Mass. woman is arrested for disorderly conduct, she does three months of pre-trial probation without admitting any wrongdoing, and the charges are dismissed. She sues the arresting officers for excessive force. District court: Heck bar doesn't apply because it only prevents lawsuits that would impugn a conviction, and here there was none. Officers: That's an "excessively literal reading" of Heck. First Circuit: OK, but figuratively speaking, you're trying to stretch Heck way beyond its bounds. Affirmed. (Literally the result IJ urged.) Read More

This week, I was called for jury service. And, like in past years, I was dismissed. I think as a general matter, it is not a good idea for a lawyer to serve on a jury. Perhaps in a place like Washington, D.C., where a substantial percentage of the population is an attorney, such service is unavoidable. But at least in Houston, I was the only lawyer on the panel of fifty.

I think it is an even worse idea for a law professor to serve on a jury. The role of the jury is to find facts, not law. Law professors are professionals at conveying the law. I would like to think that I would follow the law exactly as the judge instructed me--indeed, I told the judge I would during voir dire. But I think it would be hard to entirely set aside my views on what the law is.

The bigger problem is that other members of the jury pool would look to the law professor to explain the law. And even if I resisted offering any statement of the law, my view would be given undue deference. For example, several years ago, I was called for jury duty in a criminal case. During voir dire, the defense counsel said "Professor Blackman, what does the Fifth Amendment say?" I immediately realized how fraught that question was. The jury would immediately look to me to answer legal questions. I replied, somewhat evasively, "Which Clause?" I suppose he could have been asking about the Takings Clause? He replied, "Self incrimination" and moved on. This week on jury duty, counsel for the plaintiff revealed that he was one of my students. Again, the jurors would now look to me to judge whether my former student was correct. During a sidebar at voir dire, I told the judge, and both counsel, about my concern that the other jurors would look to me to determine the law.

For good reason, I was excused from jury service. I do not know if either lawyer used a peremptory challenge, or challenged me for cause. Is being a law professor per se grounds for a strike? I don't know.

I welcome emails from any other law professors who have been selected for a jury.

Just a reminder to click through to YouTube and hit "like" on my new short Esperanto film, "Nova Espero," or "A New Hope," which I've submitted to an Esperanto film festival (the 7th American Good Film Festival). (When I say "short," I mean it's under five minutes long. Hit CC if you don't see the English subtitles.)

I'm embedding the film below, but most importantly, please click through to YouTube and "like" ("thumbs-up") the video there: "audience favorite" gets a special prize in this film festival! Voting only lasts a few more days, so please do it now.

Brown, who worked at the Florida Fish and Wildlife Conservation Commission reposted this item from an Instagram account that "posts satirical social commentary from the perspective of a whale":

This was apparently a reference to Kirk's comments that part of the price of the Second Amendment is that there would be "some gun deaths":

[At an event] held days after three children and three adults were killed in a school shooting in Nashville … Kirk [was] asked by an audience member how to make the point that protecting the Second Amendment is important. Kirk responded that the amendment "is there, God forbid, so that you can defend yourself against a tyrannical government." But "having an armed citizenry comes with a price, and that is part of liberty," he said.

"You will never live in a society when you have an armed citizenry and you won't have a single gun death," Kirk later said. "That is nonsense. It's drivel. But I am — I think it's worth it. I think it's worth to have a cost of, unfortunately, some gun deaths every single year so that we can have the Second Amendment to protect our other God-given rights. That is a prudent deal. It is rational. Nobody talks like this. They live in a complete alternate universe."

(This is of course similar to the arguments that rights supporters routinely make when other rights lead to some amount of foreseeable deaths—the Fourth Amendment, the privilege against self-incrimination, the right to bail in many case, and so on. Characterizing it as "not caring at all" about the deaths strikes me as a poor argument, but that's a separate matter.)

This post became broadly seen (through the "Libs of TikTok" account) and led to lots of criticism, including criticism sent to plaintiff's employer, the Florida Fish and Wildlife Conservation Commission, which fired her. Plaintiff sued, seeking a preliminary injunction ordering her reinstatement. Judge Mark Walker's decision yesterday in Brown v. Young (N.D. Fla.) denied that preliminary injunction.

Yesterday, we filed our amicus brief in W.M.M. v. Trump, an Alien Enemies Act case currently before the en banc Fifth Circuit. I coauthored the brief, submitted on on behalf of the the Cato Institute, the Brennan Center for Justice (NYU), legal scholars Geoffrey Corn and John Dehn, and myself. Geoffrey Corn and John Dehn are leading academic experts on national security law, and former Army officers and military lawyers. Prof. Corn was formerly the Army's senior legal adviser on the law of war.

The brief builds on our earlier amicus brief in the same case, filed before a three-judge Fifth Circuit panel, which ruled against the Trump Administration. It argues that the it is illegal to use the Alien Enemies Act - which can only be invoked in the event of a war, invasion, or predatory incursion, or threat thereof - as a tool for peacetime deportation. Illegal migration and drug smuggling do not qualify as an "invasion" or "predatory incursion"; these terms refer to military attacks on US territory. And courts should not defer to administration claims that an invasion has occurred, when it very obviously has not.

If courts endorse the broad definition of "invasion" advocated by the administration, dire consequences will follow. Border states would be able to engage in war against neighboring nations even without congressional authorization, and the federal government could suspend the writ of habeas corpus and detain people (including U.S. citizens) at will.

Parts of the brief draw on my new article, "Immigration is Not Invasion," which analyzes the meaning of "invasion" under the Constitution and the Alien Enemies Act, in greater detail.

[DB: This is a guest post from my Scalia Law colleague Professor Adam Mossoff, reprinting his letter to Heritage Foundation President Kevin Roberts resigning his position as a visiting fellow at the Foundation. As Adam says, this is a time for choosing on the political right: you either abandon conservatism and stand with Tucker Carlson and nihilism, collectivism, Nazism, and Jew hatred, or you stick up for (conserve, if you will) the American traditions of individual rights, religious and ethnic pluralism, and the rule of law.]

Dear Dr. Roberts,

It is with a heavy heart that I am resigning my Visiting Fellow position in the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation. My resignation is effective immediately.

Please know that I did not come to this decision lightly, as it has been truly an honor to work for John Malcolm in the Meese Center for the past six years. John represents the best of Heritage, and he has inspired me. I have been tremendously proud of my legal memoranda on intellectual property law and innovation policy, and of the Intellectual Property Working Group that has been my charge. I am even more proud of my chapter on the Copyright and Patent Clause in the new edition of the Heritage Guide to the Constitution, an impressive monograph representing the fruits of a multi-year productive effort by John and his co-editor, Josh Blackmun.

Unfortunately, your October 30 video, and your subsequent interviews, videos, and commentary, have made it clear to me that Heritage is no longer the storied think tank that I was proud to join in 2019.

I waited two weeks to send my resignation notice because I did not wish to act in haste, and I wanted my decision to be the result of a considered judgment, not a reaction based on the passions of the moment. Thus, I have been following closely the follow-on commentary and discussions by you and others, both externally and internally. From these observations, I have concluded that your October 30 video, as confirmed by your subsequent comments, interviews, and meetings, was not a mere mistake; rather, it reflects a fundamental ethical lapse and failure of moral leadership that has irrevocably damaged the well-deserved reputation of Heritage as "the intellectual backbone of the conservative movement" (your words in your October 30 video).

Your October 30 video was indefensible. So were your purported explanations and backtracking in subsequent interviews and social media posts. The October 30 video was worse than a poor choice of words or a mere mistake; it was a profound moral inversion to use the language of ancient antisemitic blood libels, such as "globalist class" and "venomous coalition." It was especially loathsome to use this same language to defend Tucker Carlson.

Tucker is quickly following Candace Owens down the very dark path of Jewish conspiracy theories and defenses of Nazis. (After Candace's "explanation" a couple years ago of Kristallnacht as a burning of communist books and not an attack on Jews, this was the final straw for me and my judgment has been repeatedly confirmed by her in the ensuing years.) Similar to Candace's "just asking questions" strategy, Tucker is increasingly hosting friendly, head-nodding-in-agreement interviews with people who explicitly praise Nazis and are unrepentant in their antisemitic slurs of Jews and Israel, such as his interviews of Darryl Cooper and Agapia Stephanopoulos. Tucker's friendly, smiling interview with Nick Fuentes, an avowed Nazi, was simply the nadir of Tucker's increasing number of friendly interviews with nihilists and antisemites.

[Readers: this post has a long windup before it gets to the relevant Federalist Society panel. If your patience wears thin, feel free to scroll to the end.]

The last decade has been an extraordinarily difficult one for Jewish Americans. It began in 2015, when Donald Trump's populist candidacy unleashed a wave of vicious antisemitism on social media from right-wing extremists convinced that Trump was secretly on their side and that his presidency would end what they imagined to be "Jewish control" of the United States.

That same year, the far left surged within the Democratic Party with the rise of Bernie Sanders. After Trump's election, leftist antisemitism surfaced quickly—most prominently in the antisemitism scandal that roiled the Women's March movement and in a venomous campaign against the Anti-Defamation League fueled by fabricated claims of racism.

The intervening years brought a series of horrifying episodes: the Pittsburgh synagogue massacre; antisemitic murders in the New York area by members of radical African-American cults; hundreds of attacks on visibly Jewish pedestrians in New York City; and increasing efforts by activists to exclude Jewish participants who were not openly anti-Israel. Surveys showed antisemitic attitudes rising sharply for the first time since the 1940s, albeit from historically low baselines.

October 7 intensified the troubling preexisting trends. Mainstream outlets have lavished attention on the fringe of Jews who have literally aligned themselves with pro-Hamas activism, while devoting far less attention to the mainstream Jewish community and what it has endured. Many Jews—especially progressive Jews—were stunned that non-Jewish friends showed little empathy or concern for them in the aftermath of the worst massacre of Jews since the Holocaust. Even before Israel mounted any significant counterattack, some of those friends expressed more sympathy for the perpetrators than for the victims.

College campuses where Jews once felt extremely comfortable, such as Columbia and Penn, saw open celebrations of the October 7 massacre. Some SJP chapters even posted images glorifying the Hamas hang gliders used to murder and kidnap civilians in peacenik kibbutzim. Anonymous campus apps overflowed with antisemitic content. Jewish students faced harassment, shunning, and a spate of violence. Universities that had spent years proclaiming their commitment to equity and diversity responded with indifference—and in some cases effectively sided with the Hamasniks.

From a declaration in Green Building Initiative, Inc. v. Green Globe Int'l, Inc., a case I wrote about last month (Apparent AI Hallucinations in Filing from Two >500-Lawyer Firms):

In preparing the Reply brief, I performed legal research on Westlaw for authorities supporting arguments set forth in the brief. I included some of those authorities I found on Westlaw into the brief.

In generating the Reply brief, I also used Microsoft's Copilot for its editing functions in an effort to review and improve the draft document by fixing grammar, spelling, and improving badly phrased sentences. To be clear: I did not use Copilot for research nor would I use generative artificial intelligence for legal research since I am aware of generative AI's potential for "hallucination." Because I am concerned about client privacy, I cut and paste only the portions that did not contain any client information from the Word document into Copilot, and then I pasted Copilot's revisions back into the document.

Not by way of excuse, but rather explanation of context, unfortunately, I was in a rush to complete the initial draft of the Reply brief because I was traveling to the east coast related to a terminal illness in my family, and I failed to pay close enough attention to the details of what I was doing when I was drafting the brief. I entered a prompt into Copilot to instruct it to improve the writing in the brief, and merely expected Copilot to refine my writing; I never expected Copilot to insert any case citations, much less hallucinated ones. As such, I did not carefully review the Reply as revised by Copilot, and therefore, I did not recognize that Copilot inserted two hallucinated citations, especially since Page v. Parsons is an Oregon Court of Appeals decision frequently cited in anti-SLAPP cases. I made a terrible error in not doing so before filing the document….

11/14/1922: Pennsylvania Coal Co. v. Mahon argued.

The Volokh Conspiracy

A Nice Little Rant on Oldies-not-Goodies from Georgia Supreme Court Justice Joseph Lumpkin (1853)

Today in Supreme Court History: November 16, 1939

Open Thread

Trump's Racially Discriminatory Refugee Policy

Journal of Free Speech Law: "The Fox Effect? Implications of Recruiting Corporate Law to Combat Misinformation," by Lili Levi

Today in Supreme Court History: November 15, 1882

Open Thread

My Experience as a Law Professor Juror

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

A Law Professor On A Jury?

My Esperanto Film, "Nova Espero" ("A New Hope"), Needs Your Likes!

Again with the Heckler's Veto in a Government Employee Speech Case

Our Amicus Brief in W.M.M. v. Trump - En Banc Fifth Circuit Alien Enemies Act Case

Why I Am Resigning from the Heritage Foundation (Guest-Post by Adam Mossoff)

An Extraordinary Panel at the Federalist Society's National Lawyers' Convention

Hallucinated Citations Created When Using Generative AI "to Improve the Writing in [a] Brief"

Today in Supreme Court History: November 14, 1922

Open Thread

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