If so, consider nominating them for this award, by Dec. 15; note that the award is limited to relatively junior faculty members:
The AALS Section on Law and Religion seeks nominations for the 2025 Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that has made an outstanding scholarly contribution to the field of law and religion. To be eligible, a paper must have been published between July 15, 2024, and November 15, 2025. The author must be a faculty member at an AALS Member School (with no more than 10 years' experience as a faculty member) or a full-time fellow or VAP at an AALS member school. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Self-nominations are accepted. Nominations should be sent to Rick Garnett (rgarnett@nd.edu), Chair of the Berman Prize Committee, by December 15, 2025.
I've studied political prediction markets for years, and their early history is full of clever designs and unrealized promise. But what's happening now is fundamentally different. The scale, the liquidity, and the attention these markets are attracting represent a break from efforts of the past.
My broader project is to understand how we preserve liberty in an increasingly algorithmic world. Prediction markets are a fascinating case where individuals, freely pursuing their own incentives and acting on their own information, can generate a public good for the digital era: a clearer shared picture of a highly complex political environment. At the same time, they can also create strange feedback loops that require careful governance. So they're well worth studying.
To learn more, I decided to see them up close. Two weeks ago, I flew to New York City for election night and joined a group of academics, technologists, and prediction-market traders to run a real-time experiment betting on actual elections.
Over the course of the night, I witnessed a technology that has incredible potential to make us smarter and more informed about politics and the world—and which raises profound questions about what politics looks like in a world of live probability feeds where truth is often contested and frictionless information overwhelms our narrow attention spans….
Three questions that will make or break prediction markets for politics
D.F. was a [16-year-old] high school student in the summer of 2012 when she volunteered with Organizing for America, an arm of the Democratic National Committee, to work on the presidential campaign.
Killackey, a 38-year-old field organizer in the office, "allegedly 'groomed' D.F., leading to a sexual relationship between the two, which D.F. contends was unwanted and abusive":
He allegedly "took an immediate and unusual interest" in D.F. and openly flirted with her, referred to her as "precocious," and gave her gifts. D.F. alleges that Killackey was "groom[ing]" her "for sexual exploitation and abuse."
In June of 2012, D.F. asked staff at the Bristol office for a ride home from work, and Killackey agreed to give her one. D.F. alleges that Killackey flirted with her in his car and that she told him "she may have a crush on him." Killackey allegedly pulled the car over and, without D.F.'s consent, touched and spoke to her in a sexual manner. D.F. alleges that later that summer, Killackey "brought [her] to his apartment" and "proceeded to initiate sexual intercourse," after which a "sexually abusive relationship" continued throughout the summer and into the school year. The alleged sexual abuse happened in Killackey's car, at his apartment or in public parks. D.F. did not reveal the relationship or the abuse to the DNC or to any staff in the Bristol office.
D.F. sued the DNC for, among other things, negligent supervision, but the court threw that claim out:
From Trump v. CNN, Inc., decided today (correctly, I think) by Judges Adalberto Jordan, Kevin Newsom, and Elizabeth Branch:
In 2022, Plaintiff-Appellant Donald J. Trump filed a defamation suit against Cable News Network, Inc. (CNN). He complained that, by using the phrase "Big Lie" to describe his claims about the 2020 presidential election, CNN defamed him….
To be clear, CNN has never explicitly claimed that Trump's "actions and statements were designed to be, and actually were, variations of those [that] Hitler used to suppress and destroy populations." But, according to Trump, this assertion is implied in CNN's use of the phrase "Big Lie." Further, he argues, the phrase "could reasonably be interpreted … by facets of the CNN audience as accusations that [Trump] is doing exactly what the historical record shows [that] Hitler did in his monstrous, genocidal crimes against humanity." And, the argument goes, these accusations are false statements of fact because Trump did not do exactly what Hitler did. Hitler engaged in a monstrous genocide; Trump "exercis[ed] a constitutional right to point out concerns with the integrity of elections."
Trump's argument is unpersuasive. First, although he concedes that CNN's use of the term "Big Lie" is, to some extent, ambiguous, he assumes that it is unambiguous enough to constitute a statement of fact. This assumption is untenable. Although we haven't squarely addressed the point, case law from other circuits is persuasive. In Buckley v. Littell (2d Cir. 1976), the Second Circuit held that, by using the terms "fascist," "fellow traveler," and "radical right" to describe William F. Buckley, Jr., the defendant was not publishing "statements of fact." Buckley, 539 F.2d at 893. Rather, the court ruled, the terms were "so debatable, loose and varying[ ] that they [we]re insusceptible to proof of truth or falsity." Similarly, in Ollman v. Evans (D.C. Cir. 1984), the D.C. Circuit held that when the defendant called the plaintiff "an outspoken proponent of political Marxism," his statement was "obviously unverifiable."
In April 2020, as the COVID outbreak was unfolding, Walton County, Florida, closed all beaches--public and private. Did this ordinance, as applied to private beaches, constitute a taking of private property under the Fifth Amendment? Yes it did, according to the U.S. Court of Appeals for the Eleventh Circuit in an opinion released yesterday.
Judge Lagoa wrote for the panel in Alford v. Walton County, joined by Judges Brasher and Carnes. Her opinion begins:
The Takings Clause of the Fifth Amendment provides that "private property" shall not "be taken for public use, without just compensation." U.S. Const. amend. V. Here, we consider whether a Walton County ordinance that proscribed all access to privately-owned beaches constitutes a "taking" under the Fifth Amendment. We hold that it does.
Despite the County's significant infringement on property rights, the district court granted summary judgment in favor of Walton County, noting that the ordinance was enacted during the COVID-19 pandemic. But there is no COVID exception to the Takings Clause. Instead, the government must respect constitutional rights during public emergencies, lest the tools of our security become the means of our undoing. "The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom. As John Adams tersely put it, '[p]roperty must be secured, or liberty cannot exist.'" Cedar Point Nursery v. Hassid, 594 U.S. 139, 147 (2021) (quoting Discourses on Davila, in 6 Works of John Adams 280 (C. Adams ed. 1851)).
Accordingly, after careful review, and with the benefit of oral argument, we affirm the district court's dismissal of the Landowners' prospective claims, but we reverse the district court's judgment on the Landowners' Takings Clause claim. Because we hold that the County effectuated a "taking" of the Landowners' property, we need not address the Landowners' claims under the Fourth and Fourteenth Amendments. On remand, the district court shall consider the amount of "just compensation" that the Landowners are entitled to. U.S. Const. amend. V.
Here is how Judge Lagoa summarizes the conclusion that taking occurred:
From Thursday's decision in In re M.B. (written by Chief Justice William Wooton):
The petitioner ("the petitioner") is the guardian ad litem of M.B., a two-year-old child who has been in the continuous care of the … foster parents … since shortly after his birth. The petitioner appeals from the February 29, 2024, order entered by the Circuit Court of Kanawha County, West Virginia, denying her motion to remove M.B. from the foster parents' home, arguing that because his placement in the home cannot lead to permanency, i.e., adoption, it would be in his best interest to be placed with another family that can offer him permanency.
The petitioner offers several bases for her contention that the foster placement here cannot lead to permanent placement. First, the petitioner contends that the foster parents, being members of an Old Order Amish community, would restrict M.B.'s formal education to grades one through eight and thus deprive him of his constitutional right to a thorough and efficient education. The petitioner also argues that remaining with Amish foster parents would not be in M.B.'s best interests because he would not have regular pediatric checkups, would not be vaccinated, would not be exposed to technology, and would not learn to drive. Finally, the petitioner suggests that M.B.'s adoption into the Amish community is problematic, at best, in that the community might not welcome a biracial child.
The respondent, the West Virginia Department of Human Services, and the foster parents, argue that to the contrary, it is in M.B.'s best interests to remain in what all parties acknowledge to be a loving home with the foster parents and his three siblings, who are part of the family unit…. [W]e affirm the circuit court's denial of the petitioner's motion to remove M.B. from the foster parents' home….
From Eighth Circuit Judge David Stras (joined by Judges Steven Grasz and Jonathan Kobes) in yesterday's U.S. v. Taylor:
Taylor, who was born in Vietnam, moved to the United States over 20 years ago. Along with her husband, she settled in Sioux City, Iowa, where she was active in the local Vietnamese community.
In 2020, Taylor decided to run her own version of a get-out-the-vote campaign. The idea was to help Vietnamese Americans, some of whom struggled with English and were unfamiliar with our election system, register and vote. Her motives were not purely altruistic: she hoped they would vote for her husband, who was a candidate in the election.
Absentee voting was common during the pandemic. Taylor made it easy by bringing the necessary forms, translating them, having voters complete them, and returning them to the county auditor's office. Once the ballots arrived in the mail, Taylor would come back and help fill them out.
Sometimes, however, Taylor did more than just help. If she learned that a voting-age child was away from home, perhaps at college, she would instruct someone else in the family to complete the necessary forms and then vote on their behalf. For others, she just completed those steps herself. She turned in a total of 26 doctored documents, all with handwriting or signatures that were not the children's own….
11/18/1811: Justice Gabriel Duvall takes judicial oath. Professor David P. Currie said that an "impartial examination of Duvall's performance reveals to even the uninitiated observer that he achieved an enviable standard of insignificance against which all other justices must be measured."
Today, Princeton professor and prominent conservative political theorist Robert George resigned from the Heritage Foundation board in protest of Heritage President Kevin Robert's defense of anti-Semitic "influencer" Tucker Carlson and his support of Nick Fuentes, an even more virulent right-wing anti-Semite. George's resignation is the latest of a wave of departures from Heritage, including that of my George Mason University colleague Adam Mossoff, who wrote an eloquent statement explaining why he resigned from his position as a visiting fellow at Heritage.
For more detailed accounts of the Heritage controversy and reactions to it, see accounts by Cathy Young at the UnPopulist, and conservative Boston Globe columnist Jeff Jacoby. See also David Bernstein's post about the recent Federalist National Lawyers' Convention panel that addressed the issue of right-wing anti-Semitism, including the Heritage incident.
As Young indicates, the rot at Heritage extends far beyond this one incident, and began years ago. George and Mossoff are far from the first to leave Heritage in reaction to its descent into illiberalism and bigotry. A number of leading Heritage scholars and policy analysts departed for similar reasons during the last decade, including fiscal policy expert Jessica Riedl (then known as Brian Riedl), and foreign policy analyst Kim Holmes (a former Heritage vice president).
I myself was a Heritage intern way back in 1994 (when I was a college student and Heritage was a very different institution). I would not work with them today, and I reached that conclusion years ago, based on their descent into illiberal nativism and nationalism. In December 2022, I turned down an invitation to contribute to the new edition of the Heritage Guide to the Constitution. I told the editor (who is my former student and current co-blogger Josh Blackman) that I was busy. That was true, in so far as it went. But my main reason was revulsion at Heritage's shift towards illiberalism and nationalism. If Heritage was still the organization I remembered from 1994, I might well have found the time to contribute.
Not wishing to provoke an unpleasant exchange, I shied away from fully explaining my reasons to Josh. I was wrong to do so. I should have told the full truth. I hope late is better than never, so I am doing so now.
Sadly, the problem here goes beyond the bigotry of a few "influencers" or the flaws of specific leaders at Heritage and some other conservative institutions. Rather, as Kim Holmes put it, this is the predictable consequence of "replacing conservatism with nationalism." A conservative movement that increasingly defines itself in ethno-nationalist terms as a protector of the supposed interests of America's white Christian majority against immigrants and minority groups cannot readily avoid descending into anti-Semitism, as well.
My Cato Institute colleague Alex Nowrasteh and I wrote about the connections between nationalism and bigotry in some detail in our 2024 article "The Case Against Nationalism." We are working on a follow-up piece that specifically addresses links to anti-Semitism and related current controversies surrounding the conservative movement.
In addition to right-wing anti-Semitism, there are also left-wing versions, some of which have also become more prominent in recent years. I wrote about some of them in a 2023 post on the roots of far-left support for Hamas. Right-wing anti-Semitism should not lead us to turn a blind eye to the left-wing varieties (and vice versa).
In his resignation letter from the Heritage board, Robert George urged Heritage to be guided by the principles of the Declaration of Independence, especially the idea that "that each and every member of the human family, irrespective of race, ethnicity, religion, or anything else…, is 'created equal' and 'endowed by our Creator with certain unalienable rights.'" George is right to emphasize the importance of equal rights, regardless of race, ethnicity, and religion. Unlike nationalist movements focused on ethnic particularism, the American Founding was based on universal liberal principles. Those principles remain the best protection for Jews and other minority groups. Left and right alike would do well to recommit to them.
UPDATE: I have made minor modifications to this post.
My two petitions for writs of mandamus challenge the Justice Department's violation of the Crime Victims' Rights Act and argue for substantive "public interest" review of prosecutors' dismissal motions.
Last Thursday, families who lost relatives in the crashes of two Boeing 737 aircraft petitioned the Fifth Circuit to reinstate the criminal charge against Boeing. In two petitions I filed, the families asked the Circuit to reverse District Judge O'Connor's approval last week of the Justice Department's motion to dismiss the conspiracy case against Boeing. The petitions explained that the Department violated the Crime Victims' Rights Act (CVRA) by not fully conferring with the families about its dismissal plans—and by concealing a deferred prosecution agreement (DPA) from the families in the initial phases of the case. The petitions also argue that Judge O'Connor failed to fully assess whether dismissing the case was in the "public interest." Today, the Fifth Circuit consolidated the two petitions and ordered the Justice Department and Boeing to respond. In this post, I set out the case's current procedural posture and then the families' arguments.
I've blogged about the Boeing criminal case a number of times before, including here, here, and here. In a nutshell, Boeing lied to the FAA about the safety of its 737 MAX aircraft. The Justice Department charged Boeing with conspiracy for these lies, but then immediately entered into a DPA to resolve the criminal case. In subsequent litigation, the families proved that the 346 passengers and crew on board the two doomed 737 MAX flights were "crime victims" under the CVRA—they had been directly and proximately harmed by Boeing crime. This makes Boeing's conspiracy crime the "deadliest corporate crime in U.S. history," as Judge O'Connor described it.
In the most recent proceedings, the Justice Department moved to dismiss its earlier-filed charge against Boeing in favor of resolution through a non-prosecution agreement (NPA). Earlier this month, I blogged about Judge Reed O'Connor (U.S. District Court for the District of the Northern District of Texas) granting the Justice Department's motion. In his order, Judge O'Connor essentially agreed with many of the factual objections that I have made for the families who lost loved ones because of Boeing's crime. But, reluctantly, Judge O'Connor dismissed the charge, concluding that he lacked a legal basis for blocking the Department's ill-conceived non-prosecution plan.
Last week, the victims' families filed two challenges to the dismissal. I'll focus here on the petition challenging the NPA. A related petition challenges the earlier DPA reached in the case because of the Department's CVRA violations. Here's the introduction to the families' petition challenging the NPA (some citations omitted): Read More
Prof. Jane Bambauer (Florida) and I just submitted this amicus brief in Commonwealth v. Meta, which is now pending before the Massachusetts high court (and which is reviewing this trial court order that had let the claim go forward); thanks to Jay M. Wolman (Randazza Legal Group, PLLC) for his invaluable pro bono help as local counsel, and to law students John Joonhee Cho and Jonathan Tao, who worked on the brief. Here's the Summary of Argument:
[1.] Social media platforms create expressive products. Their choices about how to craft and format those products are presumptively protected by the First Amendment.
That protection extends to the very features the Commonwealth demands Meta remove. Push notifications, for instance, allow social media platforms to speak to users about new content. Endless scrolling, autoplay, and ephemeral features let social media platforms decide how users see speech on the platforms, just as a newspaper chooses how to format the front page or a film director chooses whether to break up a movie into multiple episodes. Whether these features constitute Meta's own direct speech, or are structural decisions about how Meta presents third-party speech, Moody v. NetChoice, LLC, 603 U.S. 707, 716-17 (2024), they stem from constitutionally protected decisions about where, when, and how speech is communicated (and, as to the "like" button, what speech is communicated).
[2.] A social media platform's design features shape how users speak through the platform. Push notifications amplify user speech by informing other users about the posts. "Likes" give users the ability to express their views about a post and see what others think about the post. "Likes" also communicate to social media platforms about what content the user enjoys, and thus help platforms determine what further content to show the user. And users may benefit from features like endless scrolling or autoplay because those features make information easier to access.
The same is true of users who are minors. Like adults, "minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them." Erznoznik v. Jacksonville, 422 U.S. 205, 212-13 (1975) (citation omitted). [P]rotected speech "cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them." Brown v. Ent. Merchs. Ass'n, 564 U.S. 786, 794 (2011) (citation omitted). The same principle governing the violent images in Brown—Brown struck down a restriction on violent video games, regardless of the "ideas" the games conveyed—applies to other display and content features such as autoplay, "likes," and endless scrolling.
[3.] The Commonwealth's lawsuit improperly asks judges and juries to second-guess Meta's choices about how it and its users will communicate. By concluding that it was legally sufficient for the Commonwealth to allege that "the harm alleged could be reasonably avoided and that such harm was not outweighed by Instagram's countervailing benefits," Mem. & Order 23, Meta Br. 84, the Superior Court essentially concluded that Meta's speech can be restricted if it is seen as negligent. But this Court and other courts have recognized that the First Amendment bars such negligence claims based on speech—for instance, claims that a late-night show featuring a dangerous stunt was negligently aired, a magazine describing autoerotic asphyxiation was negligently published, or a movie depicting violent youth gangs was negligently distributed. This Court should likewise recognize that judges and juries ought not be able to impose liability on Meta based on a theory that its speech was "unfair," Mem. & Order 21, Meta Br. 82, or failed a harm-benefit negligence-style balancing analysis.
This new article [UPDATE: link fixed] is here. The Introduction:
Over the past decade, the Roberts Court has sought to disrupt two major domains of the First Amendment: the Religion Clauses and free speech. These interests have recently merged to yield a flurry of cases raising complex questions at the intersection of free speech and religious liberty. This Article argues that the Court's emerging approach to such cases threatens to unravel longstanding free-speech doctrine and the core values underlying it.
These dangers are on full display in the Court's analysis of a recent case addressing the constitutional quandary posed by the religious speech of public employees. Kennedy v. Bremerton School District involved Joseph Kennedy, a high-school football coach and devout Christian who, after each game, knelt in prayer at midfield, joined by players, adult community members, and the media. After repeatedly requesting that Kennedy refrain from this so-called "demonstrative prayer," Bremerton School District placed Kennedy on administrative leave due to its concerns about the consequences of his behavior, including the difficulty of ensuring security at the games and the risk that the District would be violating the Establishment Clause by allowing Kennedy to continue. Kennedy refused to reapply for his coaching job and alleged that the District had violated his free-speech and free-exercise rights.
The Supreme Court has long recognized that public employees like Kennedy enjoy some degree of free-speech protection. In recognizing this qualified protection, the Court seeks to strike a careful balance. On one hand, employee-speech doctrine vindicates public employees' free-speech rights. On the other, it aspires to vest in school districts, government agencies, and other public institutions the leeway to manage themselves—and their workforces—effectively. To negotiate this fundamental tension, for public-employee speech, the Court has eschewed the stringent review typical of other areas of free-speech doctrine in favor of a more flexible balancing test: When a public employee speaks as a citizen on a matter of public concern, the Court balances the "interests of the [employee] … in commenting upon matters of public concern" against "the interests of the State … in promoting the efficiency of the public services it performs through its employees." However, when an employee speaks as part of her public employment, the employee is owed no free-speech protections at all because it is, in effect, the government—not the employee—speaking.
Kennedy appreciated little of this fragile détente. Taking up both Kennedy's free-speech and free-exercise claims, the Court granted certiorari on the questions of "whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection" and "whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it." Justice Gorsuch authored an opinion for a six-Justice majority holding that the District's actions violated Kennedy's free-speech and free-exercise rights, and that the District's Establishment Clause interest failed to save its otherwise unconstitutional action.
[UPDATE 11/17/2015 10:21 am: Sorry, post title originally accidentally omitted the "as a 'Jane Doe'" (which of course is what this decision is about, see below); I've revised the title to include it. My apologies!]
Ex-Employee Can Sue Planned Parenthood for Race Discrimination as a "Jane Doe," Because Abortion Providers Had Been Physically Attacked
Jane Doe, a former Planned Parenthood employee, is suing Planned Parenthood for race discrimination (and some related employment claims). Usually, employment claims are brought in the plaintiff's own name, at least unless there's some highly personal element (such as alleged sexual assault) that's part of the case.
But Doe asked to be pseudonymous—and was allowed to be pseudonymous—simply on the basis that her having worked at Planned Parenthood might expose her to criminal attack. On this theory, anyone who worked for an abortion clinic would likewise be entitled to pseudonymity in any case in which such employment would be disclosed. In principle, the same would be true as to any other occupation where there appears to be some general risk of violence due to public hostility—or for that matter any case where the person's political or religious views might expose them to some such general risk. And the judge just granted the motion (Doe v. Planned Parenthood of Illinois(N.D. Ill.))….
This court's prior order allowing plaintiff initially to proceed under a pseudonym is vacated. Plaintiff's generalized statements of danger do not outweigh the normal rule that parties to federal cases must proceed under their names.
Here's part of Planned Parenthood's motion that led to the reversal:
11/17/1880: The United States and China sign treaty that protects Chinese laborers residing in the United States. This treaty was implicated in Yick Wo v. Hopkins (1886).
