On June 12, 1994, Nicole Brown Simpson and Ron Goldman were murdered. Five days later, O.J. Simpson took the LAPD on a low-speed car chase in his Ford Bronco. At the time, I was almost ten years old. All I remember about the initial crime was that the car chase coincided with the NBA Finals Game. The New York Knicks were playing against the Houston Rockets. I remember asking my parents who O.J. Simpson was. I had never heard of O.J. Simpson the football player, though I knew his character from the classic Naked Gun trilogy. (Don't even get me started on the sacrilegious remake.)
Yet, over the next year, everyone in America--even kids--became familiar with the trial. I remember hearing about Judge Lance Ito, Johnnie Cochrane, Marcia Clark, and Kato Kaelin. Years later, when I first heard of the Cato Institute, I thought it had something to do with O.J. Conversely, I learned about Kim Kardashian long before I knew who Robert Kardashian was.
The verdict was handed down on October 3, 1995. I remember the moment very clearly. I was in my 6th Grade Social Studies class, and our teacher, Mr. Segalowitz announced the verdict in class. (I presume he had heard it on the radio.) It seemed obvious to eleven-year old Josh that the jury got it wrong, but I knew nothing about the law to even say why.
Needless to say, views on the O.J. Simpson verdict split sharply across racial lines. I found an old CNN poll with these numbers:
Regardless of the verdict, most whites believe Simpson was guilty of murder; most African-Americans say he was innocent. Two-thirds of all African-Americans think that there was a conspiracy to frame Simpson for the murders; six in 10 whites don't believe in such a conspiracy.
And both groups suspect that racial issues continue to tint the other group's view of the case. Sixty percent of all whites believe that blacks who think Simpson is innocent hold that view mostly because of Simpson's race. Among African-Americans, 58 percent think that whites who maintain Simpson is guilty feel that way mostly based on Simpson's race.
Another CNN poll asked if the jury did the right thing: 88% of blacks said yes while 59% of whites said no.
Another poll from the Washington Post offered similar numbers:
The survey found that America remains divided sharply along racial lines over the Simpson verdicts. Eight out of 10 blacks interviewed said they agreed with the decision, including 66 percent who expressed strong approval of the verdicts. But 55 percent of all whites interviewed said they disapproved of the jury's decision, including 40 percent who said they strongly disapproved.
Blacks and whites also differed in their perceptions of whether, regardless of the verdict, Simpson actually killed his ex-wife, Nicole Brown Simpson, and her friend, Ronald L. Goldman. Seven in 10 blacks expressed confidence that Simpson did not kill the pair -- and an identical proportion of whites said he probably did.
Overall, the survey suggests that in the court of public opinion, the jury is perhaps hopelessly deadlocked: Eight in 10 blacks say justice was done in the Simpson case -- and two out of three whites disagree.
Three decades later, I'm not sure the views of the O.J. trial have changed very much. This Family Guy clip sums things up:
Some readers may have seen Lenore Skenazy's Reason article about how local authorities in Williamsburg, Virginia prosecuted Karyann Parkinson because she decided to let her five-year-old son walk by himself to collect goose feathers by a pond in a gated community. There is more to the story, but not anything that makes the government's actions seem any more reasonable.
I was at Ms. Parkinson's trial. She is a former student and neighbor. On this basis The Free Press asked for my thoughts on her proseuction and conviction. My article begins:
On a sunny day in June, Karyann Parkinson made a fateful choice that could affect her life for years to come: She let her 5-year-old son, Sam, walk alone to a neighborhood pond to collect goose feathers.
Nothing happened to Sam, at least not physically. But for her choice, Parkinson was charged with contributing to the delinquency of a minor, a first-degree misdemeanor in Virginia. In August, she was convicted by a local judge after a bench trial in the Williamsburg Juvenile & Domestic Relations District Court and given a six-month suspended jail sentence.
Knowing Parkinson—a then-neighbor and former student—and having attended the trial, it seems she was punished less for making a debatable parenting choice and more for refusing to come to heel when questioned about her decision. It's not so much that she let Sam collect goose feathers so much as that she did not genuflect to the proper authorities. That makes the case no less of an outrage. Parkinson has found herself in every parents' nightmare—hence why it made national news. So how, exactly, can a mother be given a suspended jail sentence for simply letting her son go for a walk?
My article concludes:
Parenting involves myriad difficult choices, not the least of which is determining when each child is capable of taking independent steps. Here there is a risk of allowing too much as well as of allowing too little. If a parent is too permissive, they risk seeing their child coming into danger. If a parent is not permissive enough, on the other hand, they risk stunting a child's development, including of their fortitude and resilience. Failure to allow and encourage greater independence at an earlier age no doubt contributes to the rise of anxiety and other mood disorders, particularly among children of middle- and upper-class families. Finding the right balance necessarily involves some degree of trial and error, as it is impossible to know whether, with a given child, a particular decision was overprotective or not protective enough until after the fact. On top of that, parents will weigh the balance differently, both for themselves as well as for children with varying capabilities.
Parents understandably agonize over such choices, acutely aware of the consequence of a wrong decision. This is enough for them to worry about. They should not have to worry about government officials second-guessing their choices or threatening criminal charges if a given cop or prosecutor determines a given choice was too permissive. One can conclude Parkinson was too permissive with Sam without thinking her decision was criminal.
Parkinson has appealed the judgment against her. And under Virginia law, she is entitled to a jury. A lone local district court judge was convinced debatable parenting choices could be subject to criminal sanction. We will see if a jury of Parkinson's peers agree.
Last Friday, the en banc U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal of a lawsuit filed by residents of Jackson, Mississippi, claiming that the city violated their constitutional rights by allowing the city's drinking water to become contaminated by lead and by falsely claiming the water remained safe to drink. By a 10-5 vote, the full court concluded in Sterling v. City of Jacksonthat there are no clearly established rights to clean drinking water or to accurate information from public officials under the Fourteenth Amendment.
Judge Englehardt wrote for the majority. His opinion begins:
For decades, the Supreme Court has cautioned lower courts to "exercise the utmost care whenever we are asked to break new ground" in the realm of substantive due process. Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 240 (2022) (quoting Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). Yet Plaintiffs, residential subscribers to the municipally supplied water service in Jackson, Mississippi, seek recognition of two new constitutional rights lacking any foundation in the history and tradition of our Nation—the right to be free from exposure to contaminated water and the right to accurate information from public officials. The Due Process Clause cannot, for the first time today, provide redress for Plaintiffs' alleged injuries, absent any historical basis for doing so.
Because Plaintiffs' injuries are not constitutionally cognizable, the district court's dismissal of their 42 U.S.C. § 1983 claims is AFFIRMED. The Constitution does not provide redress for every governmental wrongdoing. Rather, the remedy for Plaintiffs' injuries lies in pursuing tort claims, electing representatives who will better manage the public-water system, and petitioning their representatives for other remedies. And Plaintiffs have not been left to go at it alone. The State of Mississippi and federal government have worked for years, and continue today, to improve the City of Jackson's drinking water quality through regulations, investigations, and compliance plans. These already-established-andundertaken avenues are the proper course for rectifying the lead contamination. We will not expand the Fourteenth Amendment to create novel theories of constitutional liability.
The court readily acknowledged that this decision is in conflict with cases from the U.S. Court of Appeals for the Sixth Circuit, such as Guertin v. Michigan (6th Cir. 2019), but was unpersuaded by the Sixth Circuit panel's analysis in that case. From FN 5 of Sterling:
In Guertin v. Michigan, 912 F.3d 907, 920–21 (6th Cir. 2019), the Sixth Circuit held that plaintiffs plausibly alleged that public officials' actions during the Flint Water Crisis violated plaintiffs' right to bodily integrity. We are not bound, nor persuaded, by Guertin. The Sixth Circuit surveyed bodily-integrity precedent and found the right "indispensable," a "first among equals," with an "impressive constitutional pedigree." Guertin, 912 F.3d at 918–19 (internal quotation marks and citation omitted). We do not disagree that the right to bodily integrity is an important right. It is because the right to autonomy over one's person is so fundamental to our liberty that we are reluctant to weaken the right by applying it to conduct that would not have violated the Constitution when the Fourteenth Amendment was adopted. Guertin does not persuade us that Defendants' conduct resulting in Plaintiffs' exposure to contaminated water implicates the right to bodily integrity.
The split between Sterling and Guertin (and another Sixth Circuit case, Mitchell v. City of Benton Harbor from 2025), would seem to create an opportunity for Supreme Court review. On the other hand, it is difficult to see the Supreme Court being any more sympathetic to the plaintiffs' claims here than was the Fifth Circuit.
Judge Haynes dissented, joined by four other judges, largely on the grounds that it is premature to dismiss the plaintiffs' claims. In this posture, Judge Haynes argued, the plaintiffs should be at least entitled to pursue discovery given the plausibility of their claims.
My latest installment at SCOTUSBlog proposes a number of six-member rules: a super-majority should be able to achieve certain substantive ends. Here is a summary:
With the Deep-6, six members of the court could vote to deny a petition immediately and end all further deliberations.
With the Skip-6, if, after briefing, it becomes clear to six justices that the case is easy to resolve, oral arguments can be skipped.
With the Refer-6, six justices, at any point, can vote to refer any pending matter to the full court.
With the Release-6, for any matter, six justices can force the release of a judgment immediately.
With the Stop-6, if any six members of the bench agree, the chief justice could terminate an individual justice's seriatim round.
I will have one more installment in my series on Supreme Court reform next week. Then, a new series will begin on the evolution of a constitutional law casebook.
From Apelbaum v. Lambert, decided Friday by Judge Robert White (E.D. Mich.):
Yaacov Apelbaum and his cybersecurity firm, XRVision, Ltd. (Plaintiffs), commenced this diversity breach of contract and defamation action against attorney Stephanie Lynn Lambert [the case caption calls her Stefanie Lynn Lambert], her law office {collectively referred to as the Lambert Defendants}, and Bill Bachenberg, after the parties allegedly contracted for Plaintiffs to investigate potential fraud during the 2020 general election….
Following the 2020 election, the Lambert Defendants, with financial assistance and partial direction from Bachenberg, promoted various claims of election fraud, including through lawsuits challenging election results. Pursuant to these efforts, the Lambert Defendants pursued various election fraud investigations, and they hired Plaintiffs to conduct forensic analyses of election results and/or procedures in Michigan and Pennsylvania. As particularly relevant here, the parties in March 2022 "entered into an agreement for Plaintiffs to perform a forensic analysis of Fulton County, Pennsylvania's elections systems, in exchange for $200,000." The parties later expanded the scope of Plaintiffs' analysis "for an additional fee of $350,000."
Plaintiffs allegedly performed their obligations of this agreement, but after they found and reported no evidence of election fraud in June 2022, Defendants never paid them as agreed. Further, the Lambert Defendants also allegedly started a defamation campaign against Plaintiffs around August 2022 to dissuade the Pennsylvania Senate, among others, from doing business with Plaintiffs. According to Plaintiffs, they had at the time finalized negotiations with the Pennsylvania Senate to perform a forensic analysis of the whole state's election system, but Lambert Defendants' conduct caused the Pennsylvania Senate to terminate this relationship….
The court allowed plaintiffs' defamation claims against the Lambert defendants to go forward (because of Bachenberg's settlement agreement with the parties, the claims against Bachenberg weren't considered). The defamation allegations were basically this:
From Friday's decision in Flannery v. Eckenwiler by D.C. Circuit Judge Bradley Garcia, joined by Judges Cornelia Pillard and Michelle Childs; as usual, note that in these cases dealing with motions to dismiss, the court focuses on the facts as plausibly alleged by the plaintiff—there has been no factfinding on what the facts actually are:
Eric Flannery owns and operates The Big Board, a Washington, D.C. bar and restaurant. When the District imposed masking and proof-of-vaccination requirements due to the COVID-19 pandemic, Flannery publicly criticized those policies and The Big Board refused to comply with them. Months after the District lifted the requirements, Advisory Neighborhood Commission 6C (ANC 6C) formally opposed renewal of The Big Board's liquor license. Flannery and The Big Board sued, alleging that the members of the Commission violated the First Amendment by opposing the renewal in retaliation for Flannery's public criticism and his restaurant's noncompliance with the District's policies.
The court concluded that "The Big Board's refusal to comply with the orders was not expressive conduct protected by the First Amendment," so not renewing his license based solely on such refusal would have been constitutional:
The Supreme Court has "rejected the view that conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Rumsfeld v. FAIR (2006). Instead, we must ask whether, in context, the conduct is "inherently expressive." … [When] observers would have "no way of knowing" whether conduct is communicative without additional "explanatory speech," that is strong evidence that the conduct is not "inherently expressive."
The district court had thrown out the case with no opportunity to file an amended complaint; the Ninth Circuit agrees that plaintiffs lacked standing to bring the claim, but allows them to refile an amended complaint to "cure the standing deficiencies" (if they can).
This case arises from an ethnic studies model curriculum for high school classrooms developed and championed by the Liberated Ethnic Studies Model Curriculum Consortium (the Consortium), an advocacy group. The proposed curriculum has not been formally proposed to nor adopted by the Los Angeles Unified School District (LAUSD). But the plaintiffs—who are Jewish parents with children enrolled in LAUSD and teachers within that district—claim that at least two teachers are informally using the curriculum, which allegedly promotes anti-Zionist and antisemitic ideals. The plaintiffs also allege that the Consortium, along with the LAUSD public school teachers' union and individuals affiliated with these organizations, wield informal influence over district-wide curricular offerings. The plaintiffs sued, asserting civil rights claims under federal and state law. The district court dismissed with prejudice for insufficiency of the pleadings….
The court agreed that the plaintiffs lacked standing:
Absent more concrete allegations, the plaintiffs have not shown that they personally suffered the harm of religious or racial discrimination. The complaint does not allege that the curriculum—despite being used in two classrooms—is being taught at any classroom or even school where the plaintiffs' children attend or plaintiff-teachers work. The alleged harm—the mere knowledge that the curriculum is being taught at two classrooms at LAUSD, which has over 100,000 high school students across dozens of schools—is too remote and speculative to constitute an injury-in-fact.
Our circuit's standing precedent does not require the plaintiffs to allege that they or their children were directly exposed to antisemitic elements of the curriculum. But they must at least allege having personally suffered some harm plausibly attributable to the curriculum's spread within the district or the plaintiffs' schools—for example, that the plaintiffs have suffered an independent act of antisemitism causally linked to the curriculum's use within LAUSD or the school…. [Nor do they] offer … facts that would suggest inevitable or likely exposure to the curriculum (or its harmful effects)….
But the court concluded that plaintiffs should have been given leave to file an amended Complaint:
On August 28, petitioners in Viramontes v. Cook County, Illinois, and Grant v. Higgins filed their opening brief challenging the "assault firearm" bans of Cook County and the state of Connecticut that were upheld by the Seventh and Second Circuits respectively. The cases are consolidated, and the petitioners in each are represented by Cooper & Kirk. The question presented is: "Whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles." As the brief explains, the rifle is a paradigmatic American arm and the AR-15 is the paradigmatic American rifle. Textually, such semiautomatic rifles are "arms," they are in common use and are thus protected under the Court's precedents, and nothing in the Nation's historical traditions justifies banning them.
By the following week's deadline, some forty-five amicus briefs had been filed, all in support of petitioners except for two claiming not to support either party. The Court's docket is here if you'd like to skim through the briefs. Overall, the briefs address the entirety of the ever-expanding arguments that have been advanced since the first ban was passed in 1989 (unsurprisingly, California's), as the lower courts struggle to ignore the holdings of one Supreme Court decision after another, from Heller and Bruen to Rahimi and Wolford. I'll mention just an illustrative handful of the many fine briefs here.
In Viramontes, the Seventh Circuit asserts that virtually no difference exists between the semiautomatic AR-15 and the fully-automatic M16. On behalf of the Second Amendment Law Center, my brief quotes from the 1963 classification by ATF's predecessor agency of the Colt AR-15 Sporter as semiautomatic only and not in the machinegun category. It further shows the incongruity of the "assault weapon" definitions – Cook County bans a semiauto rifle if it has no stock, Connecticut bans it if it has a stock, and Maryland doesn't ban either.
Professor William English's brief summarizes his new 2026 National Firearms Survey, which follows up on his 2021 survey, showing that that roughly one in ten American adults currently owns an AR-15 or similarly styled semiautomatic rifle: "25.0% of gun owners currently own an AR-15 type rifle, 12.9% currently own other similarly styled semi-automatic rifles, and 30.0%—approximately 26.4 million adults—currently own at least one firearm in one of these two categories." The 2026 English survey reflects that there are approximately 60 million AR-15 style or similar semi-automatic rifles of the types banned by Cook County and Connecticut. This is the most advanced research on common use and its results appear consistent with prior surveys by organizations such as the Washington Post.
Dr. Angus McClellan takes a deep dive into Anglo-American law's "dangerous and unusual" rule showing that the law sometimes restricts "(i) when and where arms were displayed, (ii) how they were used, and (iii) what type of weapon was involved." Under 1791's principles, AR-15-style rifles parallel the longbow, musket, and handgun as the arms of law-abiding people that government may not prohibit.
The brief of Tennessee and 26 other states, just by being filed, exemplifies how normal it is for citizens to possess semiautomatic rifles and how much of outliers are the handful of states that ban them. As it states, the 27 "Amici States' citizens are among the millions of Americans who own AR-15 platform and other similar semiautomatic rifles for numerous lawful purposes—including for hunting, for sport, and for defense of self and others."
The brief of Ballistics Experts is full of technical research summarizing how AR-15 ammunition causes wounds typically no more severe than wounds caused by ammunition from other rifles and some handguns. The Second Circuit in Grant made the ridiculous claim that it inflicts wounds the size of a "Coke can" and decapitates victims.
Finally, the brief of the United States is everything one would expect professionally from the Solicitor General's office. All the bases are covered, but it makes the point often ignored that traditional legislative practice provides useful and further guidance to applying the common-use test. Specifically, "the longstanding and widespread legality of a class of arms usually suggests that law-abiding citizens can and do possess such arms for lawful purposes."
There are many other fine amici briefs that have been filed, but the sheer number is overwhelming. Suffice it to say that no stone has been left unturned in demonstrating the Second Amendment's protection for AR-15 platform and similar semiautomatic rifles. Look for a ton of briefs to be filed next in support of respondents. Oral argument is set for December 2.
Last week, the Trump administration lost two more sanctuary city cases, adding to a long list of similar defeats. They did manage to rack up a rare win in this area, one they secured because of an unusual connection to the Contracts Clause of the Constitution. The losses were well-deserved. The win raises some difficult issues, though I think ultimately the administration deserves to lose here, too, and perhaps appellate judges will see things that way.
"Sanctuary" jurisdictions are state and local governments that restrict their law enforcement agencies and other employees from assisting federal immigration enforcement and deportation efforts. Trump has suffered a long string of defeats in his efforts to coerce sanctuary cities and states into giving up their policies, going back to his first term.
In cases where the administration has tried to directly coerce states and localities into cooperating, courts have rightly ruled this violates the Supreme Court's "anti-commandeering" precedents, a series of decisions reached primarily by conservative justices, which hold that the federal government may not force state and local governments to help enforce federal law or carry out under federal purposes. In cases where Trump has sought to withhold federal funds from sanctuary jurisdictions, courts have (also rightly) ruled that the executive cannot impose conditions on federal grants that were not authorized by Congress and (in some cases) that the Trump conditions are unconstitutionally coercive. For my analyses of Trump II court decisions on these issues, see here, here, and here.
Last week's Trump defeats were largely in line with these numerous previous precedents. In United States v. New Jersey, a federal district court upheld New Jersey Governor Mikie Sherrill's Executive Order No. 12, which bars federal immigration enforcement officers from entering "nonpublic" areas of state government property for purposes of trying to enforce civil immigration law, except in a few unusual situations, such as when there is a federal court order requiring entry. The anti-commandeering analysis here is straightforward. New Jersey cannot be forced to let federal law enforcement use its property. As the court puts it, "EO12 does not prevent the United States from carrying out federal immigration laws; rather, it declares that New Jersey will not provide its own resources to assist the United States in these efforts. If New Jersey were required to offer its resources, such a requirement would violate the anticommandeering doctrine."
The court also rejects the argument that EO 12 violates "intergovernmental immunity," a legal doctrine barring states and localities from discriminating against the federal government and "regulating" it. As Judge Georgette Castner explains in her opinion, a successful discrimination claim requires proof that federal officials were being treated different from a "comparator" - state or local officials or private sector employees engaged in similar activities. There are no state, local, or private activities equivalent to federal immigration enforcement.
I made similar points here, in reference to an earlier case where this doctrine came up in the sanctuary jurisdiction context. I would add that the whole doctrine of intergovernmental immunity strikes me as bogus, judge-made law. There is no provision in the Constitution requiring it. And the federal government is not some historically oppressed minority group protected by the antidiscrimination provisions Fourteenth Amendment. Where state and local governments are otherwise free to refuse to help the feds, that autonomy should not be forfeited merely because they choose to support potentially similar activities by state or local governments, or by the private sector. Obviously, a district court cannot refuse to obey Supreme Court precedent in this field. But I hope the Supreme Court might someday reevaluate that precedent.
In United States v. City of Rochester, a federal district court rejects the Trump Administration's lawsuit against Rochester's sanctuary city policy restricting cooperation with federal immigration enforcement, in various ways. Judge Frank Geraci applied fairly standard anti-commandeering reasoning, and also rejected an intergovernmental immunity claim, for much the same reasons as similar arguments lost in United States v. New Jersey.
These two cases also involve various procedural issues, which I will leave to others. The Justice Department may well appeal one or both rulings. But I think it's unlikely either will be overturned, as both are in line with extensive precedent.
Trump did pick up a rare victory in a sanctuary case in United States v. Virginia. This case involves a challenge to Virginia's new law barring state and local governments from engaging in Section 287(g) partnerships with ICE, under which state local enforcement helps ICE engage in immigration enforcement. The new state law requires termination of such arrangements unless federal officials accede to a variety of conditions.
The federal court held that this law violates violates the Contracts Clause of the Constitution, which bars states from enacting any "Law impairing the Obligation of Contracts." There is very little relevant precedent on whether the Contracts Clause applies to a situation like this one. But I am skeptical of the court's position for two reasons. First, it is not clear that the Contracts Clause applies to contracts between the states and the federal government, as opposed to those between two private parties, or between states and private parties. The Contracts Clause is in signifcant part rooted in natural rights reasoning about contractual obligations. States, unlike private individuals, do not have natural rights, as understood at the time of Founding. They are entities set up to protect the natural rights of their people.
Second, in view of ICE's numerous and repeated illegal actions - including many thousands of illegal detentions (including of US citizens), large-scale unconstitutional racial profiling, violence against protestors (including the indefensible killing of multiple US citizens), state and local cooperation with ICE is itself a form of facilitating large-scale lawlessness unless and until ICE policies are massively changed. Standard contract law indicates that contracts that facilitate illegal purposes are themselves illegal, and should be declared null and void.
This issue was not directly raised in the Virginia case (though Virginia did argue that it seeks to terminate the 287(g) agreements in part because of ICE abuses. But I hope it will be considered in future similar cases.
Since its decision in the 1934 Blaisdell case, the Supreme Court has allowed states to constrain contracts in all sorts of ways, based on various public policy considerations. I think Blaisdell and other similar rulings are mostly wrong. But lower courts are bound by them, and last week's decision does not, in my view, take sufficient account of these precedents. Virginia's public policy reasons for ending 287(g) agreements (e.g. - limiting ICE abuses and reserving state law enforcement resources for non-immigration issues) are at least as compelling as those allowed in various previous cases.
The court also holds that the Virginia law violates intergovernmental immunity. I think this holding is flawed for much the same reasons as intergovernmental immunity arguments were rejected in the New Jersey and Rochester cases. There is no other type of intergovernmental cooperation that is meaningfully similar to Section 287(g) agreements. Thus, there is no discrimination. And, as Virginia correctly argued, the law does not improperly "regulate" federal officials, because it only restricts the actions of its own state and local government agencies. The only obligations potentially imposed on the feds are those which they must meet if they want to establish new Section 287(g) agreements. But such quid pro quo bargaining is an inherent element of most agreements.
The impact of the Virginia ruling is likely to be limited. Judge Stephen Payne's decision does not bar the state from barring state and local agencies from entering into new 287(g) agreements. It just prevents immediate termination of previously existing ones, as only the latter "impairs" an existing contractual obligation. And, as Judge Payne notes, local governments can generally terminate existing agreements if they provide 90 days notice. Thus, Virginia can still quickly end 287(g) agreements within its jurisdiction simply by amending its law to require state and local agencies that are parties to such agreements to give the required notice, and terminate the agreements after 90 days are up. At the very least, Virginia can still end all 287(g) agreements by its state and local government agencies once those currently in force expire.
All three of last week's ruling may well be appealed. If so, we will see what happens in appellate courts.
[Orin Kerr writes: My colleague Julian Nyarko reached out to me with an interesting guest post looking into whether AI is being used to write parts of law review articles published in top journals, using estimates from Pangram's AI detection software. Professor Nyarko's basic finding, as I understand it: Most law review articles published in top journals this year have no AI writing at all, although some have a small amount of AI writing, a handful have a substantial amount, and one article was more than 50% AI-written. I reprint Professor Nyarko's post below. All that follows was written by Professor Nyarko.]
Over the last few weeks, there has been some interesting discussion around the use of AI in the writing of law review articles, with views among legal scholars varying quite widely. To me, the question of whether AI use ought to be prohibited or even just frowned upon is genuinely hard.
In my area of empirical legal studies, I believe most scholars would agree that the process of *thinking* through a project and the process of *writing* the paper, while not unrelated, are largely separate undertakings. This is because empirical analyses are often planned and executed in meticulous detail, and the main figures and tables are created before a single word of the article's narrative prose is drafted. Indeed, the increasingly prevalent practice of preregistration disincentivizes scholars from changing what is thought to be the core contribution--the empirical analysis--during the final stages of writing the paper. Granted, the originally intended framing and the interpretation of the results may undergo some changes during the drafting process. But those are also the parts of a paper that empiricists tend to read most skeptically. In fact, when reading a research article, many empirical scholars make it a point to first examine the tables, figures, and the method section, precisely because they want to get a chance to form their own views on what the data says before looking at the authors' interpretation of it.
That said, I also understand that this sentiment about AI in writing is not necessarily shared within many other legal subfields. When a doctrinal or non-formal theoretical argument is the main contribution, the process of writing it down can infuse precision and rigor, laying bare limitations and nuances that the thinker-writer is then forced to reconcile. The discussion is further complicated by the fact that not all AI use is the same. Among others, AI could be used to write from scratch, to rephrase, to edit, to polish--and to the extent that there is a AI writing displaces thinking, this effect would likely differ across these specific use cases.
But whatever one's preferred normative position is, I thought it would be helpful to get a descriptive sense of how prevalent AI use actually is in legal research. So this is what I want to report on here. Since I personally am not convinced that AI writing should be stigmatized (although I remain open to persuasion), I'm not going to name any articles or authors and will only report a few aggregate results. Read More
From Judge Michael Newman (S.D. Ohio) Friday in Moorman v. Doe No. 1; since this is a decision at the temporary restraining order stage, the factual assertions are preliminary conclusions by the judge, not final findings of fact:
Plaintiff Sean Moorman … alleges Defendants—seven unidentified United States Immigration and Customs Enforcement ("ICE") officers, in their official capacities—have retaliated (and continue to retaliate) against him for engaging in activity protected by the First Amendment ….
The motion for TRO was filed around 7 P.M. on Tuesday, September 1, 2026. The Court heard extensive oral argument the next day at 4 P.M., lasting more than one hour…. At the time of the phone conference, the AUSA [who represented the government -EV] failed to contradict the Moorman's factual assertions and requested a two-week extension to file a response brief. As detailed herein, based on the serious nature of the allegations involved, and the threat of ongoing constitutional violations, this extension would be inappropriate. See Elrod v. Burns (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.")….
Moorman volunteers as an "ICE watcher" in his spare time. As uncontradicted by the AUSA, Moorman "lawfully and peacefully" documents interactions between ICE officers and the Springfield community, noting potentially violent or unlawful action by ICE officers….
According to Moorman, by August 20, 2026, certain ICE officers had identified Moorman as an ICE watcher and began "lashing out" at him. Specifically, on August 20, 2026, Moorman recorded … [an] ICE vehicle driven by Defendant John Doe No. 2…. "John Doe No. 2 turned his Jeep around and accelerated dangerously towards [Moorman]'s vehicle as though to ram it, before veering away at the last moment and disappearing."
Labor Day is a great time to remember that we can make workers vastly better off by empowering more of them to vote with their feet, both within countries and through international migration.
Each Labor Day since 2021, I have written posts explaining how breaking down barriers to labor mobility can help many millions of workers around the world. The main points everything last year's post are just as relevant today. So I am reprinting it with some updates and modifications, many of them related to the awful deterioration in immigration policy over the last year:
Today is Labor Day. As usual, there is much discussion of what can be done to help workers. But few focus on the one type of reform that is likely to help more poor and disadvantaged workers than virtually anything else: increasing labor mobility. In the United States and around the world, far too many workers are trapped in places where it is difficult or impossible for them to ever escape poverty. They could vastly improve their lot if allowed to "vote with their feet" by moving to locations where there are better job opportunities. That would also be an enormous boon to the rest of society.
Internationally, the biggest barriers condemning millions to lives of poverty and oppression are immigration restrictions. Economists estimate that eliminating legal barriers to migration throughout the world would roughly double world GDP - in other words, making the world twice as productive as it is now. A person who has the misfortune of being born in Cuba or Venezuela, Zimbabwe or Afghanistan, is likely condemned to lifelong poverty, no matter how talented or hardworking he or she may be. If they are allowed to move to a freer society with better economic institutions, they can almost immediately double or triple their income and productivity. And that doesn't consider the possibility of improving job skills, which is also likely to be more feasible in their new home than in their country of origin.
The vast new wealth created by breaking down migration barriers would obviously benefit migrants themselves. But it also creates enormous advantages for receiving-country natives, as well. They benefit from cheaper and better products, increased innovation, and the establishment of new businesses (which immigrants create at higher rates than natives). Immigrants also contribute disproportionately to scientific and medical innovation, including vaccines and other medical treatments that have already saved millions of lives around the world.
The Trump Administration's massive assault on immigration of virtually every kind is predictably harming both migrants and native-born Americans, condemning hundreds of thousands of the former to a lifetime of poverty and oppression, and denying the latter the growth and innovation immigration facilitates. Most recently, thanks in part to a badly flawed Supreme Court decision, it has depriving hundreds of thousands of Haitians and others of legal status, thereby gravely harming both these migrants and the many US industries that depend on them.
As with lowering immigration restrictions, breaking down domestic barriers to labor mobility would create enormous benefits for society as a whole, as well as the migrants themselves. Economists estimate that cutting back on exclusionary zoning would greatly increase economic growth. Like international migrants, domestic ones can be more productive and innovative if given the opportunity to move to places where they can make better use of their talents.
Many proposals to help workers have a zero-sum quality. They involve attempts to forcibly redistribute wealth from employers, investors, consumers, or some combination of all three. Given that virtually all workers are also consumers, and many also have investments (e.g. - through their retirement accounts), zero-sum policies that help them in one capacity often harm them in another. Breaking down barriers to labor mobility, by contrast, is a positive-sum game that creates massive benefits for both workers and society as a whole; it similarly benefits both migrants and natives.
The same is true of breaking down barriers to the mobility of goods. Tariffs and other trade restrictions harm many more workers than they benefit, by increasing prices (which disproportionately hurt lower-income workers), and increasing the cost of inputs used by domestic industries (leading to lower employment levels and wages). In February, the Supreme Court struck down Trump's massive and unconstitutional IEEPA tariffs in a case I helped litigate. But the administration has sought to replace them with equally illegal and harmful tariffs enacted under various pretext, such as combating "forced labor" or addressing "balance of payment deficits." Litigation on these policies is ongoing.
Some on the left point out that, if investors are allowed to move capital freely, workers should be equally free to move, as well. It is indeed true that, thanks to government policies restricting labor mobility, investment capital is generally more mobile than labor. It is also true that the restrictions on labor mobility are deeply unjust. In many cases, they trap people in poverty simply because of arbitrary circumstances of birth, much as racial segregation and feudalism once did. The inequality between labor and capital, and the parallels with segregation and feudalism should lead progressives to put a higher priority on increasing labor mobility.
At the same time, it is worth recognizing that investors and employers, as a class, are likely to benefit from increased labor mobility, too. Increased productivity and innovation create new investment opportunities. The biggest enemies of both workers and capitalists are not each other, but the combination of nativists and NIMBYs who erect barriers to freedom of movement, thereby needlessly impoverishing labor and capital alike. Despite conventional wisdom to the contrary, even current homeowners often have much to gain from curbing exclusionary zoning policies that block the construction of housing needed by workers seeking to move to the region.
There are those who argue against increasing labor mobility, either on the grounds that existing communities have an inherent right to exclude newcomers, or because allowing them to come would have various negative side-effects. I address these types of arguments here, and in much greater detail in Chapters 5 and 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom. As I explain in those earlier publications, nearly all such objections are wrong, overblown, or can be ameliorated by "keyhole solutions" that are less draconian than exclusion. In addition, the vast new wealth created by breaking down barriers to mobility can itself be used to help address any potential negative effects. In the book, I also push back against claims that mobility should be restricted for the benefit of those "left behind" in migrants' communities of origin.
In recent years, there has been important progress on reducing exclusionary zoning. Several states have also enacted occupational licensing reform, which facilitates freedom of movement between states. But there is much room for further improvement on these fronts. And when it comes to international migration, we are in a period of horrific regression.
Workers of the world, unite to demand more freedom of movement!
9/7/1958: The U.S. District Court for the Eastern District of Arkansas denied the Little Rock School Board's petition to suspend its integration program. In Cooper v. Aaron (1958), the Supreme Court ordered the integration of Central High School.
In the discussion of the Kyrsten Sinema alienation of affections case, several commenters took roughly the following view: Spouses have promised fidelity to each other, and if they break those promises, they are at fault towards the other spouse. But one spouse's lover hasn't made any promises to the other spouse. The lover therefore can't be said to be at fault.
I don't think that view is right, and I don't think it fits the norm for how our legal system treats analogous scenarios. I think that on balance the abolition of the alienation of affections tort (which has happened in 45 states) is a good idea. But not for the reason that "the lover isn't at fault, only the spouses are."
Rather, alienation of affections is analogous to complicity liability. If Alan commits an intentional wrong against Betty, either a crime or a tort, and Cathy encourages Alan to do that, Cathy is generally liable. The term sometimes used for this is "solicitation," though sometimes it's seen as a form of aiding and abetting.
If Cathy helps Alan in committing the wrong, or participates in committing it, Cathy is likewise liable for aiding and abetting or conspiracy. (Both those concepts apply to civil liability as well as criminal liability.)
Perhaps most analogously to alienation of affections, if Alan breaches his contract with Betty, and Cathy encouraged him to breach it, she will in many situations be liable for intentional interference with contract. Likewise if Alan breached a fiduciary duty to Betty, and Cathy encouraged that breach.
9/6/1983: The City of Richmond solicited bids for installing plumbing fixtures at the city jail. The J.A. Croson Company's bid was denied because it did not meet the "set-aside requirement" for minority contractors. The Supreme Court declared this decision unconstitutional in City of Richmond v. J.A. Croson Co. (1989).
