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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Immigration Massively Reduces Budget Deficits
A new Cato Institute study provides the most comprehensive analysis of this issue to date.
A new Cato Institute study provides a comprehensive overview of the fiscal impact of immigration to the United States over thirty years, and finds that immigrants have reduced budget deficits by a massive $14.5 trillion from 1994 to 2023. Here is the authors' summary of the results:
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Every year from 1994 to 2023, immigrants have paid more in taxes than they received in benefits.
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Immigrants generated nearly $10.6 trillion more in federal, state, and local taxes than they induced in total government spending.
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Accounting for savings on interest payments on the national debt, immigrants saved $14.5 trillion in debt over this 30-year period.
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Immigrants cut US budget deficits by about a third from 1994 to 2023, and fiscal savings grew to $878 billion in 2023 (Figure 1).
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Noncitizens accounted for $6.3 trillion of the $14.5 trillion debt savings.
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College graduate immigrants accounted for $11.7 trillion in savings, while non–college graduates accounted for $2.8 trillion.
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The cohort of immigrants entering from 1990 to 1993, just before data collection began in 1994, was fiscally positive $1.7 trillion, and was still positive after 30 years in 2022–2023 (Table 1).
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Even including the second generation (see Box 1 for definitions), who are mostly still children who will become taxpayers soon, the fiscal effect of immigration was positive every year.
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Immigrants in all categories of educational attainment, including high school dropouts, lowered the ratio of deficit to gross domestic product (GDP) during the 30-year period.
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Without the contributions of immigrants, public debt at all levels would already be above 200 percent of US GDP—nearly twice the 2023 level and a threshold some analysts believe would trigger a debt crisis.
My Cato colleague David Bier (one of the coauthors of the study) provides further analysis of the results here. There are previous studies on this topic, such as the Congressional Budget Office's analysis in 2024. But the new Cato study is notable for its comprehensive nature, covering effects on all three levels of government, and separately considering many different types of immigrants, including both legal and illegal, immigrants with different education and skill levels, and more.
The overwhelming nature of the evidence here should all but bury the fiscal case for immigration restrictions, though I expect restrictionists to keep making the argument, regardless. I made some additional points against the fiscal argument for restrictionism in this post, and in greater detail in Chapter 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.
Obviously, there are many other rationales for immigration restriction, such as claims that immigration increases crime, spreads harmful cultural values, damages political institutions, and more. Restrictionists also argue that governments have a general right to exclude migrants for any reason they want, either because governments are analogous to homeowners, or because a particular ethnic or racial group are the true owners of a given country, and thereby have a "self-determination" right to exclude members of other groups. I critique these arguments and others in Chapters 5 and 6 of Free to Move and in various other publications, such as this one.
By the same token, I do not believe that the positive fiscal impact is the best rationale for ending or reducing immigration restrictions. In my view, it is far less significant than the immense negative impact of immigration restrictions on liberty and human welfare, including that of receiving-country natives, as well as that of would-be migrants.
But the fiscal case for restrictionism has special significance for some types of libertarians and conservatives who cannot otherwise rationalize the massive restrictions on liberty imposed by immigration restrictions, and therefore love to quote Milton Friedman's misleading line that "[y]ou cannot simultaneously have a welfare state and free immigration." It turns out you can, and immigration actually eases the fiscal burden of welfare spending.
Seven Pages Of Nixon Grand Jury Testimony Reveal The Real Threat Of the Deep State
Nixon's enemies within his own administration were spying on and trying to subvert the elected President.
The Watergate Special Prosecution Force (WSPF) did not terminate after President Nixon resigned August 8, 1974. Indeed, the prosecutors continued to investigate many facets of the Nixon presidency for some time. Some of these actions are stunning. Geoff Sheppard posted a memo that has to be seen to be believed: In September 1974, Phillip Lacovara suggested to Special Prosecutor Leon Jaworski that Ford's pardon of Nixon violated WSPF regulations, and was thus invalid. While the President usually has the absolute power to grant pardons of federal offenses, President Ford constrained his own powers by agreeing to the WPSF regulations. You wonder where Jack Smith and Robert Mueller got the idea that everything the President does is obstruction of justice?
Speaking of obstruction, there is a fascinating article in the New York Times Magazine by James Rosen, titled "The Secret History of the Deep State." He reveals seven pages of never-before-seen grand jury testimony from 1975 between former-President Nixon and WSPF prosecutors. The story is very long, and I cannot do justice to it in a single post.
The biggest takeaway is that an Navy enlisted man, Yeoman Charles Radford, who worked in the White House, was a mole. No, not for the Soviets, but for the Joint Chiefs of Staff. He would routinely make copies of documents from Nixon administration officials and share them with people in the Pentagon. Radford would pilfer documents from Henry Kissinger and Alexander Haig and make copies of them.
Selected to accompany General Haig, Kissinger's deputy, on trips to Vietnam and Cambodia, Radford deployed all his gifts for theft, including raiding the general's briefcase. According to "Silent Coup," Radford turned over "a huge government envelope overflowing with hundreds of pages of documents." . . .
In June 1971, having received superlative reviews from General Haig, Radford was chosen to accompany Kissinger on a tour of Asian capitals. On a stopover in Pakistan, the accompanying press were told falsely that Kissinger had fallen ill; in fact, he flew secretly to Beijing to finalize Nixon's trip. "Don't get caught," warned Radford's direct supervisor, Adm. Robert Welander, ahead of his departure. Once again, the yeoman snatched every document within reach, including rifling Kissinger's briefcase. Radford collected so much material that he enlisted a contact at the embassy in New Delhi to ship it back to the Pentagon via secure diplomatic pouch.
The purpose of this espionage was to check the incumbent president from taking actions that the deep state opposed. You have to read through a lot of background to get to this shocking takeaway. Here is the key excerpt, where Nixon reveals to the prosecutors about the deep state "can of worms":
That's when Nixon warned the prosecutors not to open "that can of worms," adding, "There is even more, because [Radford] not only ——"
Ruth, the lead prosecutor, interjected: "We are not opening it up."
"Yeoman Radford was not only there," the ex-president persisted, "but he was a direct channel to the Joint Chiefs of Staff."
There it was, finally — the secret Nixon had sought to keep under wraps: It was not the far left that most actively sought to sabotage the Nixon-Kissinger foreign policy but the hard right, not lowly pencil-pushers in the civil service but the most senior commanders at the Pentagon.
The prosecutors had heard enough. They did not want Nixon to elaborate. Jay Horowitz, the last questioner, cut in.
"Sir, if I might take us back now to ——"
Nixon would not be deterred.
"This indicates to the members of the grand jury, if I might address them for a moment, why it is that" the Radford project "had to be top secret." He added: "Particularly, I didn't want the Joint Chiefs of Staff involved."
Nixon had no intention of exposing the affair's full depths; even here, he wished not to join in vilification of the services, something that was pervasive when Vietnam veterans were often jeered on return to U.S. soil as "baby killers."
After some additional questioning on other subjects, Horowitz consulted the grand jurors, then declared, "No further questions."
Ten minutes later, with the grand jurors and the stenographer hustled from the room, Ruth and Davis conducted a final interview with the witness. The prosecutors' memos, previously unpublished, show that they interrogated Nixon on four additional topics, including proposals, captured on the tapes but never enacted, to hire thugs to attack antiwar demonstrators.
Do you see what happened? Nixon was fully aware that there was a deep state in his own administration. He employed the "Plumbers" to plug those leaks. But he would only reveal the depth of the deep state before a secret grand jury investigation. The Watergate Prosecutors, who were part of the DOJ deep state, did not want Nixon to talk about the Pentagon deep state. And for five decades, this testimony was sealed, until Rosen reported on it.
The Deep State was real in Nixon's time:
Donald Trump Makes the Case for Decentralized Control of Elections Great Again
Trump's call to "nationalize elections" leads prominent election law scholar Rick Hasen to reverse his longstanding support for such a policy.
Donald Trump's recent calls for Republicans to "national elections" have led UCLA law Prof. Rick Hasen - one of the nations leading election law scholars - to reconsider his longstanding support for such nationalization. In an insightful recent article in Slate, Hasen explains the reasons for this change of heart:
If you look around the world at advanced democracies from Australia to Canada, they have an independent governmental body in charge [of] all national elections. The body imposes uniform standards for registration, ballot access, voting machinery, and much more….
In The Voting Wars [a 2012 book], I argued that by joining other advanced democracies we could decrease the amount of partisan fighting and litigation over election rules, increase the competence of election administration, and assure we have a system run with integrity and fair access to voting….
Donald Trump has caused me to abandon this argument. As I wrote in the New York Times last summer, when the president tried to impose his authority over various aspects of American elections via an executive order: "What I had not factored into my thinking was that centralizing power over elections within the federal government could be dangerous in the hands of a president not committed to democratic principles." At this point, American democracy is too weak and fragile to have centralized power over elections in the hands of a federal government that could be coerced or coopted by a president hell-bent, like Trump, on election subversion. Courts have ruled that parts of Trump's executive order are unconstitutional because the president has no role to play in the administration of elections.
Trump's comments on nationalizing elections ironically prove the point that we should not nationalize elections. He apparently wants to target the administration at blue states, doing who-knows-what to make it harder for people to vote for Democrats. He desperately fears a Congress controlled by Democrats that could check his and his administration's power…..
Hasen adds that the Supreme Court's turn towards unitary executive theory magnifies these risks:
The Supreme Court provides another reason for not nationalizing our elections. The court could soon fully embrace that "unitary executive" theory that there can be no exercise of executive power by the federal government that ultimately does not report to the president. (It's an argument with an exception likely to be applied to the United States Federal Reserve, in order to protect the value of the justices' 401(k)s.) The unitary executive theory, if adopted, would mean that presidential control over an election body might be constitutionally required. The Trump experience shows why that would be far too risky.
If, as is likely, the Supreme Court makes an exception for the Federal Reserve, I think the main motive for that will be maintaining the integrity and independence of the monetary system, not just protecting the justices' retirement accounts. That said, Hasen is right that unitary executive theory magnifies the risks of nationalizing elections.
I myself am a longtime advocate of decentralizing most functions of government as much as possible, primarily because it increases opportunities for people to "vote with their feet," enhances and protects diversity, and reduces the dangers of political polarization. I have never been as enthusiastic about decentralization of election administration as about most other policies, because I think few if any people engage in foot voting based on the former. Many people decide what jurisdiction to live in based on such factors as taxes, job opportunities (heavily influenced by government policy), crime, education, and housing policy. Very few move because State A is better at election administration and vote counting than State B. Also, like Hasen, I recognize that some other federal democracies, such as Canada, do reasonably well with centralized election administration.
That said, as Hasen now recognizes, there are serious dangers to election centralization in our system, ones having little to do with foot voting. For these types of reasons, I have never been a supporter of election centralization, though I wasn't as strongly opposed to it as I am on many other issues. Hasen is right to note that Trump's actions make the dangers of centralization greater and more obvious than they might have been in the past. Thus, it is clear that I, too, underrated the benefits of electoral decentralization, albeit perhaps not as much as Hasen did.
As Hasen notes, Article 1, Section 4 of the Constitution the Constitution gives states primary responsibility for election administration, subject to override by congressional legislation. It is unlikely that Congress will enact any significant legislation along those lines anytime soon, and any such effort should be opposed. Unless and until Congress does act, courts should strike down Trump's efforts to nationalize elections by executive fiat, as several have already done in response to his attempts to change voter ID rules by executive order and gain access to state voter rolls.
Finally, kudos to Hasen for his willingness to publicly reverse a position he had prominently advocated in the past, when the evidence warrants doing so. Many academics and other public intellectuals either stick to their guns no matter what the evidence indicates, or shift without ever acknowledging that they previously held the opposite view.
I myself have shifted a few positions over the years, but none of these reversals were on issues as central to my work or my worldview as nationalizing election administration was for Hasen. For example, it wasn't hard for me to change my view on unitary executive theory, because UET was never a central commitment for me to begin with. Other academics and intellectuals can learn from Hasen's example.
My Thoughts On Typos In Blog Posts
Earlier today, I wrote a post about whether a minor typo in a clerkship application should disqualify the candidate. Fittingly, my post had typos. I think I've fixed them, but maybe there are others.
I thought it might be useful to give my own thoughts on proofreading. Blogging is for me a form of release. I have lots of thoughts in my head, and writing them down helps me to make sense of things. My primary audience when I write is not you (sorry) but is me. Longtime readers may recall that while clerking for Judge Boggs, I was not allowed to blog. So I made my blog private, and continued writing blog posts that no one would see. (Well, a few friends had the password, but the site was not for public consumption.) When my clerkship finished, all of the posts were made public. To be sure, some posts I write are intended to influence public discourse, but most of my blogging is introspective.
To that end, typos don't bother me. I want to make sure my writing is clear and understandable, but my goal is not perfection. Each subsequent round of review takes time that I could be using to do something else. If I were to ensure that each post was flawless, I would end up writing far less. That is not a tradeoff I find worthwhile.
There is another aspect of my writing process that may not be obvious. I often have very discrete blocks of time to write, and I do not wish the project to extend beyond that block. Maybe I have 30 minutes before class starts to pump something out. Or it is late at night, I'm getting tired, and I need to wrap up a post before I call it a night. Today, for example, I had about 30 minutes on the elliptical, in which I conceived, wrote, and published the clerkship post. (I keep my laptop on a music stand adjacent to the elliptical so I can type while working out.)
You might ask, why don't I just pause the project when the time block finishes, and resume later. I'm sure I could fix errors after some sleep. But that wait is agonizing for me. My goal is to sort through my thoughts as quickly as possible, and move onto the next topic. To leave a post unpublished would make me keep coming back to it over and over again. I doubt I would be able to fall asleep if a project was still not fully developed. Once I hit the "Publish" button I can sign off and move on to the next project.
There are a few regular readers who email me typos. I will usually fix these promptly. I promise, I will respond pleasantly. Comments about typos will not be read.
For those curious, I wrote this post in a single five-minute block, after having thought about it for the past hour or so. I proof-read it once.
Should A Clerkship Application Be Summarily Rejected For Having A Minor Error?
One of my most important roles is advising my students on clerkships. This process has changed significantly since I clerked from 2009-12. (I wrote about my story here.) Back in the day, under the hiring plan, law students would apply to clerkships over the summer after 2L. Judges were only allowed to contact applicants on a particular day in early September. And all interviews would be conducted over the the following week. Of course judges cheated then. Indeed, these "off plan" hires led to the implosion of the plan.
Today, we live in a free-for-all. I am reliably informed that at top-ranked schools, judges interview students and make offers before the first semester of grades are released. Some judges will hire students after they graduate college before they begin law school. Soon enough, high school students will start lining up judicial clerkships. Why wait?
At most other law schools, the clerkship process begins in earnest after two semesters of grades are released. By the time three semesters of grades are released, students are already interviewing for positions and accepting offers. Students can then apply for a second clerkship (the trend) with their fourth semester of grades. Most 3Ls in the clerkship game already have their careers planned out for several years.
As they say, don't hate the player, hate the game. I work closely with my students at South Texas. I would submit that our clerk placement rate rivals schools that have been in the game for far longer. You can see our clerk roster here. But these efforts take a lot of work at very early junctures. Invariably, students have to target specific judges based on a range of factors, and hope the process works out. If they are dinged for unexpected reasons, it may become too late to rally for other judges.
One of the most difficult aspects of this process is the application screen. Imagine a student submits an application with a superlative package. They are top of their class, have glowing references from professors who got to know them personally, thrived on journal and moot court, plus had relevant legal experience. The student has done everything right since they stepped foot on campus. But there is a glitch in the resume or the cover letter or the writing sample. Mind you, these materials have been reviewed by the student countless times, and also screened by professors and career service staff. Yet, something slipped through.
Should the application automatically be nixed? I can see both sides of the equation.
On the one hand, judges need to be able to implicitly rely on a clerk. That relationship requires that the student to have an exceptional attention to detail. Any error that leaves chambers ultimately falls to the judge, not the clerk. As the argument goes, if a student can submit a clerkship application with an error, that shows a lack of judgment that will infect the entire clerkship. How can this student be trusted? Application rejected. And for what it's worth, when a clerk application is rejected, the applicant will seldom figure out why. After years of excellent work, a stray hyphen or a margin error can quietly disqualify the candidate from a career-altering clerkship.
On the other hand, a clerkship application must be viewed as a whole. The resume is the sort of document that is reviewed so many times that errors become invisible. I think most professors have experienced this sort of fatigue when reviewing the same law review article through multiple rounds. Litigators have similar experience with briefs. The usual remedy is to have a fresh set of eyes to look over the materials--whether research assistants, student editors, or fellow associates. But doesn't that fresh look defeat a primary purpose of the application: to determine the applicant's attention to detail. Thus, there is a paradox. Applicants who try to play by the rules, and do not seek outside help, are more likely to include disqualifying errors. Applicants who skirt the rules, and seek outside help, are less likely to include disqualifying errors, and the judge will never know it. And now with AI, I have very little trust that the work students submit is actually their work. The importance of the written application becomes far less than the value of the references.
As regular readers of my posts can guess, I am not one to disqualify people for small errors--especially when the application is otherwise excellent. We should never judge a person by their worst moment, especially when every other aspect of the application is golden. Are typos and errors a problem for courts? You bet they are. Don't believe me? The Supreme Court has an errata page for all of the corrections to opinions. Mind you, these are opinions reviewed by some of the smartest law school graduates around and double-checked a full staff of editors at the Court who scan citations. Errors will always slip through. It's okay. I think most parties would rather have a timely opinion that gets the law right than an absolutely flawless opinion that takes far longer.
Still, I warn all of my students that failure to strictly scrutinize their clerkship applications could lead to a summary rejection, and they will never know it. It can't be my job to find these errors, so the burden falls on them.
Today in Supreme Court History: February 8, 1941
2/8/1941: Justice Willis Van Devanter dies.
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"Any Business in America Would Rather Not Have Their Internal Documents out in the Public"
"But that does not mean that litigants have a right to hide them from the public once they are implicated in court proceedings."
From Judge Gail Weilheimer (E.D. Pa.) Thursday in Cultivatr, Inc. v. Peterson; the analysis strikes me as quite correct:
Cultivatr, Inc. and Sproutr, LLC … ask this Court to seal portions of the transcript of a bench trial held before the Court, claiming that publication will do harm to their business interests. Because this Court finds that they have not made a showing strong enough to outweigh the public interest in open proceedings, the Motion is denied….
This matter was commenced by Counterclaim Defendants Cultivatr and Sproutr as declaratory judgment Plaintiffs, with Nora Peterson filing a breach of contract counterclaim. The dispute centered around a verbal promise made by Cultivatr's principals to Ms. Peterson to grant equity in Cultivatr in exchange for Ms. Peterson's agreeing to join Sproutr as an executive. After a three-day bench trial, this Court issued findings of fact and conclusions of law, ultimately holding that Cultivatr indeed breached an enforceable verbal agreement when it failed to provide Ms. Peterson with the shares it owed her….
[T]he Cultivatr Parties ask this Court to seal portions of the bench trial transcript which deal with an investment into Sproutr made by a third party (the "Investor"). The Cultivatr Parties ask this Court to redact every mention of the name of the third party…. [T]he Cultivatr Parties also seek to redact large swaths of testimony and argument which discusses the investment, and particularly: (1) the amount of money invested; (2) the percentage of Sproutr acquired; and (3) the different options explored for treating the money as a matter of accounting….
Today in Supreme Court History: February 7, 1870
2/7/1870: Hepburn v. Griswold decided.
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Fourth Circuit Rejects Facial Challenge to Two Trump Anti-DEI Executive Orders
"What plaintiffs are really asking us to do is read subtext into the Provision's text."
From Nat'l Ass'n of Diversity Officers in Higher Ed. v. Trump, decided today by Fourth Circuit Chief Judge Albert Diaz, joined by Judges Pamela Harris and Allison Rushing:
In the first days of his second term, President Donald J. Trump issued two Executive Orders ["Ending Radical and Wasteful Government DEI Programs and Preferencing" and "Ending Illegal Discrimination and Restoring Merit-Based Opportunity"] that directed executive agencies to end "diversity, equity, and inclusion" ("DEI") programs within federal grant and contract processes…. The district court entered a preliminary injunction, but we stayed it pending appeal. We now vacate the district court's injunction and remand….
[1.] The court rejected a Due Process Clause vagueness challenge to the "Termination Provision" of the first executive order, which directed "all [federal] agencies, departments, and commissions to":
terminate, to the maximum extent allowed by law, all DEI, DEIA, and "environmental justice" offices and positions (including but not limited to "Chief Diversity Officer" positions); all "equity action plans," "equity" actions, initiatives, or programs, "equity-related" grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, or grantees.
The court reasoned:
Plaintiffs argue that the provision never defines "equity-related," so there isn't "any guidance as to which grants or contracts must be terminated." Thus, "agencies are free to terminate grants and contracts as they please, even based on protected speech."
But therein lies plaintiffs' dilemma. The Termination Provision, on its face, doesn't ask anything of them, nor does it regulate private conduct. Instead, it instructs the President's subordinates to act, and then only "to the maximum extent allowed by law." The Provision, at this stage at least, is nothing more than "an outward-facing" policy directive from the President to his agents…. "Any concerns of vagueness regarding exactly what authority an agency may have to terminate a grant are internal considerations for the agency itself." …
The President may determine his policy priorities and instruct his agents to make funding decisions based on them. President Trump has decided that equity isn't a priority in his administration and so has directed his subordinates to terminate funding that supports equity-related projects to the maximum extent allowed by law. Whether that's sound policy or not isn't our call. We ask only whether the policy is unconstitutionally vague for funding recipients.
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Arkansas tooth picks, selective schools, and inconsistent travel plans.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Where there is a right, there is also a legal remedy when that right is invaded—unless federal agents violate the Constitution. Over at The Unpopulist, IJ's Anya Bidwell and Marie Miller take stock of the Federal Tort Claims Act, state tort law, Bivens claims, and Section 1983 analogs, and chart a path toward reconstructing first principles.
New on the Short Circuit podcast: A primer on how to sue YouTube. Or work with it. It's up to you.
- "No fraud is more odious than an attempt to subvert the administration of justice." When an opinion starts that way, you know you're in for a bad time. So it is in this First Circuit case, involving a Puerto Rico man who tried to get his ex-wife not to testify against him in a civil case, allegedly by promising to make concessions in their ongoing custody battle.
- The statute of limitations on a legal malpractice claim doesn't start running until the plaintiffs have reason to know they've been harmed by the malpractice, says the First Circuit, and it's no fair to say the plaintiffs should have read these highly technical patent documents in order to figure out they were getting malpracticed. That's what the lawyers were for in the first place. Read More
"Thick on Words but Thin on Substance"
More from the transcript of a hearing in Flycatcher Corp. Ltd. v. Affable Avenue LLC:
And the lawyer's response:
The court's reaction to Mr. Feldman's "confusing justification":
In short, Mr. Feldman acknowledged ending up with citations that "did not exist," but failed to provide a coherent explanation as to how. Was the error a product of AI hallucination from the initial drafting stage? Was it somehow a case name mismatch on Google Scholar (setting aside the greater importance of the reporter citation)? Did another case improperly cite Mr. Feldman's case, accidentally supplying him the wrong citation? Did an AI program introduce errors at the cite-check stage where none had existed previously? Representative of much of his colloquy with the Court, Mr. Feldman's explanations were thick on words but thin on substance.
For more on what happened in the case, see the post below, Lawyer's Repeated Filings with AI Hallucinations Lead to Default Judgment Against Client.
How to Make Friends and Influence Judges
From the transcript of a hearing in Flycatcher Corp. Ltd. v. Affable Avenue LLC:
Unsurprisingly, the judge (Judge Katherine Polk Failla [S.D.N.Y.]) viewed this not as an important correction, but as Mr. Feldman's "attempt[] to minimize his responsibility." For more on what happened in the case, see the post below, Lawyer's Repeated Filings with AI Hallucinations Lead to Default Judgment Against Client.
Lawyer's Repeated Filings with AI Hallucinations Lead to Default Judgment Against Client
Presumably the client's potential remedy now would be a malpractice lawsuit against the lawyer.
From Flycatcher Corp. Ltd v. Affable Avenue LLC, decided yesterday by Judge Katherine Polk Failla (S.D.N.Y.):
Mr. Feldman was not dissuaded by Court orders or the threat of sanctions from filing unchecked, AI-generated submissions with false legal citations. And when given the opportunity to explain his conduct in person, Mr. Feldman chose to give many answers, only a few of which were true. The Court has reviewed the options available to it and, in particular, has carefully considered whether a lesser sanction would suffice.
It also wishes to be clear that its problems with Affable's submissions are not the use of AI per se, but rather Mr. Feldman's (i) knowing decision to use flawed methods of legal research and cite-checking; (ii) his inexplicable refusal to verify his submissions before filing them with the Court; and (iii) his unwillingness to come clean once these issues were revealed to the Court. Ultimately, the length and breadth of Mr. Feldman's misconduct warrant terminal sanctions….
Mr. Feldman violated Rule 11 repeatedly and brazenly, despite multiple warnings from the Court and fellow counsel. In his motion to dismiss brief, Mr. Feldman submitted documents containing fake cases and misattributed quotes hallucinated by AI. Then, when the Court called him out for this behavior and ordered him to show cause why it should not sanction him for misusing AI in violation of Rule 11, he relied on AI to draft the Response.
The Court can forgive the abrupt shift in tone and the irrelevant historical references; what it cannot forgive is Mr. Feldman's inclusion of another faulty citation and his persistent failure to verify his citations. And as further proof that he had learned nothing from his interactions with the Court, Mr. Feldman spontaneously submitted a proposed reply brief containing yet another nonexistent case while awaiting a hearing on the Order to Show Cause.
Harassment Restraining Order Stemming from Dispute Among Local Political Figures Vacated on Appeal
From J.W. v. T.S., decided Tuesday by Massachusetts Appeals Court Judges Justices Maureen Walsh, Robert Toone & Gloria Tan. The plaintiff appears to be Julia Prange Wallerce, who had been on the Winthrop Planning Board and the Winthrop Transportation Advisory Committee and had been Assistant Director of Transportation at the Metropolitan Area Planning Council, and the defendant appears to be Todd Sacco, who had run for the Winthrop City Council in 2023:
What began as friendly social media conversations about local politics between two people from Winthrop devolved into a situation in which the plaintiff felt targeted by the defendant's comments in his social media posts, private messages, and text messages. On January 18, 2024, the plaintiff applied for a harassment prevention order (c. 258E order), pursuant to G. L. c. 258E, after her requests that the defendant stop communicating with her went ignored….
To obtain a harassment prevention order, a plaintiff must demonstrate "harassment," which the statute defines in relevant part as "[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property." In reviewing the issuance of a harassment prevention order, "we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences," that the defendant committed three or more qualifying acts of harassment aimed at a specific person…. The plaintiff bears the burden of establishing that the three acts were "maliciously intended," defined by the statute as being "characterized by cruelty, hostility, or revenge."
"The definition of 'harassment' in c. 258E was crafted by the Legislature to 'exclude constitutionally protected speech,' … and to limit the categories of constitutionally unprotected speech that may qualify as 'harassment' to two: 'fighting words' and 'true threats.'" True threats have been defined as "words or actions that—taking into account the context in which they arise—cause the victim to fear [physical] harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." …
The plaintiff's testimony at the evidentiary hearing, which the judge credited, included her testimony that in 2017 she and the defendant had "amicable conversations about community issues" on social media and later by text messages, e-mail messages, and telephone. However, in the following year or two, the defendant began sending her countless e-mail and text messages that contained offensive language, insulting and ridiculing her about her positions on bike lanes and transportation issues.
Lawyer's Motion "Does Not Contain a Single Citation Identifying Relevant Legal Authority That Supports Plaintiff's Position"
From Judge Jorge Alonso (N.D. Ill.) yesterday in Doe v. Doe Defendants 1-10; note that plaintiff is represented by a partner at a midsize law firm:
Plaintiff has filed two motions before the Court. A motion 3 to proceed under pseudonym and a motion 4 for expedited discovery. Motion 3 does not contain a single citation identifying relevant legal authority that support's Plaintiff's position. And motion 4 contains just one citation to the language of Federal Rule of Civil Procedure 26(d)(1). Motion 3 and motion 4 are denied without prejudice. If Plaintiff wishes to proceed on these arguments, Plaintiff shall refile these motions by 2/11/26 with proper citations that support's Plaintiff's position.
For a few uncontroversial motions, one can sometimes get away without citations. (That's especially so if the other side has appeared and consents to the motion.) But for motions like this, that's generally not enough, as the judge's order reflects.
