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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Some Reflections On The Lateral Hiring Market
Every year, professors move from lower-ranked institutions to higher-ranked institutions. But for the lateral market to sustain itself, schools have to continue to play the game: recruit laterals, hoping they improve the school's standing before they move onto greener pastures.
One way to measure this market is to analyze the track record of a new school that built its faculty from scratch. Over the past quarter century, the American Bar Association has granted provisional accreditation to about 20 law schools. Only three of those institutions have cracked the top 100 U.S. News rankings. Last year, FIU was at #77 and Drexel was at #82. U.C. Irvine, founded in 2007, is the outlier. The new state school has hovered between #20 and #40 over the past decade. A lot of the credit should go to Founding Dean Erwin Chemerinsky. But even after Chemerinsky departed for Berkeley in 2017, the rankings have stayed fairly consistent.
Starting from a blank slate, Irvine was able to build a faculty from the ground up, using both entry-level hires as well as laterals. I thought it might be worthwhile to analyze lateral hires and departures from Irvine over the past two decades. Here, I owe a debt to Brian Leiter and Dan Filler, who have charted these moves since 2006. Many of the posts on the Faculty Lounge, Concurring Opinions, and Leiter Reports can now be found on the Internet Archive.
I include the raw results below the jump. Here, I will offer some broader observations about the lateral hiring market. I don't think these patterns are limited to Irvine, but that institution is a useful measuring stick because it started so recently. All of my counts here are tentative. Please let me know if there are any errors.
By my count, between 2008 and 2026, at Irvine there were a total of about 40 lateral hires (including two deans).
Between 2008 and 2026, sixteen of these forty lateral hires later departed. Here, I will note the year they were hired and the year they departed.
- Erwin Chemerinsky (Hired in 2008, lateraled to Berkeley in 2017)
- Catherine Fisk (Hired in 2008, lateraled to Berkeley in 2017)
- Jennifer Chacon (Hired in 2009, lateraled to UCLA in 2018)
- Christopher Tomlins (Hired in 2009, lateraled to Berkeley in 2018)
- Olufunmilayo Arewa (Hired in 2009, lateraled to Temple University in 2014)
- Rick Hasen (Hired in 2011, lateraled to UCLA in 2022)
- Douglas NeJaime (Hired in 2013, lateraled to UCLA in 2015)
- Michele B. Goodwin (Hired in 2014, lateraled to Georgetown in 2023)
- Gregory Shaffer (Hired in 2014, lateraled to Georgetown in 2023)
- Sarah Lawsky (Hired in 2010, lateraled to Northwestern in 2016)
- Alexandra Natapoff (Hired in 2017, lateraled to Harvard in 2020)
- David S. Law (Hired in 2019, lateraled to Virginia in 2020)
- Rachel Moran (Hired in 2019, lateraled to Texas A&M in 2023)
- Aziza Ahmed (Hired in 2021, lateraled to Boston University in 2022)
- Jamelia Morgan (Hired in 2021, lateraled to Northwestern in 2022)
- Courtney Cahill (Hired in 2022, lateraled to USC in 2026).
In most of these moves, the professor transferred to a higher-ranked school. The average duration of a lateral hire who departed was about six years.
I exclude in this count two professors (L. Song Richardson and Mario Barnes) who departed for administrative positions, but then returned to Irvine. I also exclude Katie Porter who left teaching to serve in the House, but then returned to the faculty. Those aren't exactly laterals in the traditional sense of the term.
At least four of the lateral hires seem to have taken emeritus status: Bryant Garth, Kaaryn Gustafson, Robert Solomon, and Grace Tonner. As best as I can tell, sixteen recruited laterals are still teaching in a full-time status at Irvine: Christopher Leslie, Tony Reese, Mario Barnes, Katherine Porter, Sameer Ashar, Kenneth W. Simons, Victor Fleischer, Ji Li, Austen Parrish (Dean), Veena Dubal, Kevin Haeberle, Ari Waldman, Robert S. Chang, Andrew Gold, Trevor G. Reed, and Charles Tyler.
If my math is right, out of a total of forty laterals, twenty-four remained and sixteen departed. The departure rate of hired laterals is about 40%. Or, you might say the retention rate is 60%, but that number is harder to rely on because some professors took emeritus status or retired, so were not really on the move.
Moreover, based on my count, there are four professors that Irvine hired on the entry-level market who lateraled out of Irvine: Alejandro Camacho (UCLA), Seth Davis (Berkeley), Jonathan Glater (Berkeley), and Leah Litman (Michigan). If you factor in these departures, the retention rate is even lower.
In an ideal world, the number of lateral hires should far exceed the number of lateral departures. Schools that recruit scholars should be able to retain them. But the world is far from ideal. Professors who lateral to one school will often be recruited elsewhere. Indeed, I think it is a positive that a school recruits and develops scholars who go onto other institutions. More realistically, the number of lateral hires should roughly match the number of lateral departures to keep the faculty at parity: for every lateral that departs another lateral should be hired. At least at Irvine, the number of lateral hires that remained is fairly close to the number of lateral hires that depart. I don't know how Irvine's retention rate compares to other schools. This is something I might compute in the future.
Still, with all of those caveats, to keep a law school's reputation at parity, the rate of lateral departures needs to approximate the rate of lateral hires. If more scholars depart, and cannot be replaced, a school's standing might drop. Indeed, the public might wonder why so many scholars are heading for the door. One might reply that new scholars can be recruited through entry-level hiring. The entry-level market can be unpredictable, and junior scholars can take many years to develop. And again, those entry-level hires who make a name for themselves are likely to be recruited by a higher-ranked institution. It's hard to keep home-grown talent, unless the school either pays up, or the professor has some personal reason to stay.
Another premise is that laterals are expensive. It often takes a lot of money to persuade a professor to move their family from a place they built a strong reputation. Very often professors will sign a retention bonus to promise they will stay at a new law school for a few years. But once those contractual terms lapse, the professor can move up to another school that will pay a greater sum. This happens all the time.
I welcome comments, feedback, and corrections.
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ICE is Now Even More Unpopular than the IRS
The agency's growing unpopularity may make it easier to abolish it.
A recent Pew Research Center survey finds that Immigration and Customs Enforcement (ICE) is by far the most unpopular federal agency, easily outstripping even the widely despised IRS. According to Pew, 56% of Americans disapprove of ICE, compared to only 35% who approve. That's substantially worse than the IRS (which is disapproved by only a 46-37 margin).
Other recent surveys show growing public support for abolishing ICE. For example, a July YouGov poll indicates that 48% support abolition, compared to 40% who oppose it. Another survey, conducted in March of this year, showed a similar 50-39 margin in favor of abolition.
The fact that ICE is unpopular doesn't by itself prove the agency should be abolished. Having written a book and many other publications on widespread public ignorance about government policy, I would be the last to argue that popularity is a good metric of a policy's - or an agency's - merit. But, in this case, public opinion is right. As I explained in an August 2025 article in The Hill, and a follow-up piece for the Boston Globe, (non-paywalled version here), ICE's many abuses do indeed justify abolishing it. And the case for doing so has been strengthened by more recent events, such as the brutal killing of two US citizens in Minnesota.
While ICE abuses have been exacerbated by the policies of the second Trump Administration, many predate it, and are inherent in the entire enterprise of mass deportation.
As explained in my article in The Hill, abolishing ICE would not completely end interior deportations. But it would make them heavily dependent on the cooperation of state and local governments, thereby strengthening constitutional federalism and reducing incentives for abuse, at least to a significant degree.
In that article, I also explain how support for abolition be further bolstered by combining it with shifting ICE funds to state and local law enforcement. This undermines the principal political obstacle to abolition: the fear that getting rid of ICE would increase crime. Transferring the funds to state and local police would help defuse such concerns, win the support of law enforcement agencies, and foster genuine reductions in violent and property crimes; social science evidence shows that putting more police on the streets has that effect, whereas deportations do not.
Farewell to Weil
Today the law firm of Weil Gotshal announced that it would wind down. I don't have any connections to the firm, though I did have one vignette to share that I wrote for another project. It concerns Greg Coleman, the first Texas Solicitor General.
In 2001, Coleman returned to Weil Gotshal to head his firm's Supreme Court practice. In 2006, Coleman took on a case that would change the face of constitutional law. He represented a municipal utility district from Northwest Austin, which challenged the constitutionality of Section 5 of the Voting Rights Act, known as the "preclearance requirement." This case had the potential to revolutionize voting rights, and bring our country closer to a colorblind Constitution. Unfortunately, Coleman's firm did not see things that way. As Senator Cruz recalled, "his partners at the firm lost their freaking minds." Coleman, who was dedicated to his client and the Constitution, left that firm and joined what would become Yetter Coleman LLP. In 2009, Coleman would argue two landmark Supreme Court cases that would set the stage for future constitutional restorations.
Farewell to Weil.
How Wolford v. Lopez Refines Second Amendment Doctrine
Court's rejection of the Vampire Rule has broad implications
The Supreme Court's June decision in Wolford v. Lopez prevented the obliteration of the right to bear arms in five States, holding that governments may not make carrying a licensed handgun presumptively illegal almost everywhere. 609 U.S. 185 (2026). Important as the result is, perhaps of even greater significance is how Wolford clarified Second Amendment doctrine. According to Wolford:
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Determining whether a challenged law falls within the "plain text" of the Amendment is much simpler than some lower courts and gun control advocates have claimed.
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Modern gun control laws do not always have to be justified by analogies from past practices, but analogies cannot be based on oddities and outliers.
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Racist gun control laws from the past, which were long ago repudiated by constitutional amendment, are not valid precedents for infringing the rights of modern Americans.
This essay will also discuss the Hawaii Attorney General's argument that only a weak version of the Second Amendment should apply in the Aloha State. And the argument that Hawaii's "Vampire Rule" to prohibit licensed carry throughout the State did not even implicate the Second Amendment.
The Bigger Problem With Judge Ada Brown's Woke Tirade: She Said The Quiet Part Out Loud About "White Saviors"
Many lawyers and judges harbor the "anti-racist" views that Judge Brown spewed, but have the mental faculties to keep it private.
For some time, I've heard rumors about unusual behavior from Judge Ada Brown in the Northern District of Texas. I was hesitant to write about the situation, because my information was incomplete and some of it was revealed in confidence. Now, the accusations are public, in part, because Judge Brown personally disclosed items to the press and others.
At the outset, let me praise the other members of the Northern District of Texas, and in particular, Chief Judge Reed O'Connor. They have picked up all of the cases that Judge Brown has not decided. These are very busy judges, and they have quietly assumed even more responsibilities to ensure the business of the court continues. Judge O'Connor has been routinely maligned by the press but he is a gracious and thoughtful member of his court who never seeks the spotlight. Indeed, it seems that Judge Brown has attacked Judge O'Connor, who has bent over backwards to help her. No good deed goes unpunished.
Moreover, I need to praise the leadership of Chief Judge Jennifer Walker Elrod. She has given Judge Brown every possible benefit of the doubt and made the process as transparent as possible. I need to contrast Chief Judge Elrod's performance with that of Chief Judge Moore in the Federal Circuit. Judge Newman has been subjected to a stealth impeachment through arbitrary one-year suspensions, and only after nearly two years was the case reassigned to another circuit. Judge Brown has been given shorter suspensions after she refused to decide cases. She has had every opportunity to make her case.
Now, onto the substance. There seems to be something seriously wrong with Judge Brown. Her behavior in court that has been reported in the press is extremely troubling. Her refusal to decide cases seems to be an abdication of her responsibility as a federal judge. And her unwillingness to participate in any disciplinary proceedings suggests something is amiss. I will hold off on opining on these issues in more depth, as I suspect more facts will come out.
Here, I want to focus on Judge Brown's behavior in court that gave rise to an ethics complaint earlier this year. Jacqueline Thomsen of Bloomberg Law, who has her finger on the pulse of the Fifth Circuit, offers the stunning details. Here is a summary:
A lawyer's misconduct complaint against US District Judge Ada Brown stemmed from a hearing during which she repeatedly directed racial insults at him, according to documents reviewed by Bloomberg Law.
Attorney Ezra Young, who has represented a Black woman professor suing over a tenure denial, filed a complaint against Brown following the April 2026 hearing in Dallas, he confirmed in an interview with Bloomberg Law. Young's complaint and the judge's formal response were among the documents that Brown circulated in an Oct. 17 email to lawyers, judges, and members of the media.
Throughout the hearing, the judge, a Black woman with Native American ancestry, accused Young of mistreating Black attorneys, took "judicial notice" of her own background in making findings against Young, and repeatedly referred to Young, who is Latino, as being White. Brown called the hearing months after she revoked Young's ability to practice in her courtroom to weigh whether the lawyer should face sanctions.
"I think what's happening here, quite candidly, is you are very intimidated for some reason, Mr. Young, with Black excellence, in light of your White mediocrity. Yeah. Right?," Brown said, according to the transcript. "You should write that down. I mean, you — I'm — you look like a White man, right?"
"I'm not White, Your Honor," Young replied, adding that he's Latino.
"Well, you are White-presenting; is that fair to say?" Brown said, according to the transcript. Young said that he's "fair-skinned," and Brown said that Young had "White privilege" when he argued his client didn't receive key evidence in the case.
"You're the White savior, come to save all the stupid Black lawyers in Texas who need your help, from New York," Brown later said, according to the transcript. . . .
During the April 24, 2026 hearing, Brown accused Young of "racial bullying" toward Black attorneys in the case.
Brown also said that Young was acting like a "Chad," a term Young wasn't familiar with. The judge said it was the male version of a "Karen." "It's someone who calls the manager when they don't get their way. They stomp their foot when the rules are supposed to apply to them, right?" Brown said, according to the transcript. . . .
During the April hearing, Brown took issue with an article headline describing the case when it went before the Supreme Court of Texas. The article quoted a brief filed by Young that referenced another law professor apparently comparing what happened in the tenure denial to a "lynching."
The judge accused Young of making up that quote to "get a headline."
"And so when I read a headline — a sensationalized, very racialized headline that says, 'it's like I've been lynched,' and it's literally got no connection to this case, I have to ask you, Mr. Social Media, Main Character Chad, White Hero, Savior, Loves to Help Black People Be An Ally, where the lynching in this case came from?" Brown said, according to the transcript.
She also apparently gave Young a copy of a 1920 newspaper article that described a lynching. "So we don't find lynching jokes funny down here, sir," Brown said, according to the transcript.
The implication of Young's defense is that a Latino person cannot be racist against African Americans. That claim is wrong on its face, even under the misguided intersectionality pyramid. The bigger problem is that Young, a lifelong liberal, is unaccustomed to being called a racist.
Toward the end of the hearing, Young said that Brown seemed to be "using vicious stereotypes about White people, when I've repeatedly disclosed to this Court I am Latino."
He said that it appeared that Brown "is trying to tar and feather me for anti-Black animus, that has never been raised by anyone but this Court," according to the transcript.
"This Black woman?" Brown replied.
"No, Your Honor. This Court," Young responded.
Young later said he was "concerned that this Court has made light of my actual work as a civil rights lawyer." Brown asked Young what he has done for Black people, as she viewed his actions in the case toward Black attorneys as "abuse."
Young said he has gone "out of my way" to support the work of Black professors and others. When he described his interest in representing the plaintiff in the case, Brown cut him off.
"Can I pause and just tell you, I appreciate, on behalf of Black people, your White saviordom," Brown said.
"Your Honor, again, I'm not White," Young replied.
This is Ezra Young.
I'll let other people decide how "White presenting" Young is. Young has taught a class titled "Critical Race Theory, and Transgender People and the Law" at Cornell Law School. Young's scholarship "explores the rights of trans persons and is situated in the nascent field of critical trans theory." Young served as board secretary of the African American Policy Forum and was a founding board member of the National Trans Bar Association. Young's post doctoral studies focused on trans rights, Critical Race Theory, and intersectionality and were supervised by Kimberlé Crenshaw. Young is Admitted to practice in the Chickasaw Nation. In what universe can Judge Brown possibly claim Young is some sort of "white savior" who is hostile to black litigants?
Some people may be shocked at what Judge Ada Brown said in court, but the truth is that she is parroting standard dogma from Anti-Racists and Critical Racial Theorists. The charges may be completely absurd for someone like Ezra Young, but imagine the black plaintiff was represented by a white lawyer. Would that person be a "White Savior"? Think of the most famous white lawyer in American literature. Could even Atticus Finch from To Kill a Mockingbird be derided as a "White Savior"? Yes.
Welcome to the world of academia.
In 2015, Law Professor Osamudia R. James wrote an essay in the New York Times, titled Now We Can Finally Say Goodbye to the White Savior Myth of Atticus. Here is an excerpt:
Foundation for Individual Rights and Expression Cases (2025-26) and Their Ideological Valence
FIRE has billed itself as a nonpartisan organization that fights speech restrictions that are seen as left-wing, right-wing, and no-wing. Some have, however, argued that FIRE mostly fights left-wing restrictions (and thus mostly protects right-wing speakers), and goes after only a few right-wing restrictions as supposed "tokens" to hide its true nature.
To test that, I used Westlaw to find all 2025 and 2026 court opinions that mention FIRE as a lawyer for a party, and tried to classify them. Note that I'm not including cases where there has been no court decision yet or cases where the last court decision was before 2025. I'm also not including the many cases where FIRE has filed amicus (friend-of-the-court) briefs: This is partly to keep the list manageable, but chiefly because amicus briefs, while potentially valuable (I file plenty myself), don't represent the same level of commitment of resources as representing a party would.
Here is the list of the 23 cases that I found that meet my criteria, listed in reverse chronological order by the date of the most recent decision in the case that I could find. For each restriction, I've tried to indicate whether it's a restriction that basically comes from the right, from the left, or from neither direction; sometimes, as you can see, it's difficult to figure that out. I may have missed some cases, but I think this should be a pretty complete and at least representative list:
Today in Supreme Court History: October 28, 1787
10/28/1787: James Wilson gives speech to the Pennsylvania ratification convention, arguing that there was no need for a Bill of Rights.
Open Thread
What’s on your mind?
1,000,000 Miles on United
I've completed approximately 2 round trips from the Earth to the Moon.
A few moments ago, I crossed the 1,000,000 mile threshold on United Airlines. There was nothing particularly special about this flight. (I'm en route from Denver to Birmingham for a talk tomorrow at the University of Alabama.) The flight attendant gave me a brief congratulation (shortly after I initially published the post.) It was just like any other flight. If my math is right, a million miles is roughly two round trips from the Earth to the moon.
I started accruing United miles around 2012 when I moved to Houston. United and Continental had just finished the merger. For the first eight years or so, I sought to earn as many miles, as that was the key to status. Longtime readers will recall that I took mileage runs to Singapore, Hong Kong, and Sydney to make status at the end of the year. All of these tickets were purchased at low rates. The goal was to fly as far as possible while spending the least amount of money. By 2016, I had already accrued nearly 300,000 lifetime miles. But shortly before the pandemic, United switched the format. Now, to make status, you had to spend money, not fly miles. It made more sense to take a very expensive trip to San Francisco than to take a very cheap trip to Singapore. As a result, my pace of collecting miles dropped precipitously. I barely flew in 2020 through 2022. I ramped up in 2023. In 2024, I reached about 750,000 miles. And it took another two years to complete the goal.
Hitting the one million mile mark provides me with lifetime gold status. That status, alas, is basically meaningless. There are very few benefits with gold status that are not provided by the United Club credit card. In the past, United would let you gift your status to a companion--for me that is 1K--but United will only allow you to gift gold status.
Going forward, United had substantially increased the cost of making status. For 2026, I could earn 1K status with 60 segments and about 22,000 PQP. For 2027, segments no longer matter and I will need to hit 32,000 PQP. Unless something significant changes in my spending, I won't be able to meet that threshold. I could become a free agent, and take flights on whichever airline provides the best deal, but living in Houston severely limits my options. So I will likely stay tied to United, albeit without 1K status.
At this point, even 1K status is less desirable than it once was. I rarely receive complimentary upgrades. And even when I use plus points, the upgrades are still rare on busy routes. I can't remember the last time I was upgraded on a flight to DCA or EWR. (I was upgraded on the flight to Birmingham.) United, and the other airlines, would much rather sell an upgrade than provide it to a loyal flyer. The value proposition just isn't what it used to be.
On the plus side, United now has Starlink on most of the flights, which makes the skies far more productive.
Hasan Piker Sues Scott Jennings
From the complaint in Piker v. Jennings; of course, this is just Piker's side of the story—I expect we'll get Jennings' in a forthcoming motion to dismiss:
On August 11, 2026, Scott Jennings falsely told a nationwide podcast audience that Hasan Piker was "out there calling for Black voters to be lynched." He falsely told his listeners that Mr. Piker had a "plan of returning our country to lynchings." And then he falsely told his social media followers that Mr. Piker "says the USA should resume lynchings against black people."
All of Mr. Jennings' accusations are false. Mr. Piker has never advocated the lynching of Black Americans, or anyone else. He has never called for a return to lynchings. And he has never proposed anything remotely resembling the supposed plan that Mr. Jennings falsely attributed to him.
Mr. Jennings did not merely mischaracterize something Mr. Piker said. He took a false, fabricated, and manipulated video of Mr. Piker, added a made-up quotation that Mr. Piker never uttered, and then made accusations that went beyond even what the manipulated footage purported to show. Mr. Jennings presented those accusations as fact, telling his viewers to "[l]isten for yourself" about Mr. Piker, knowing that he was playing a falsified video of Mr. Piker for those viewers, and completely disregarding the truth of Mr. Piker's actual words.
The underlying footage came from a broadcast nearly two years earlier on Twitch, an online streaming service owned by Amazon. On October 29, 2024, Mr. Piker was reacting to a debate between two Black political commentators, one liberal and one conservative. When the conservative commentator blamed "woke DAs" for policies supposedly harming Black Americans, Mr. Piker mocked him by sarcastically portraying that comment as nostalgia for an era before the civil rights movement. Laughing, Mr. Piker said:
Alibaba and the Forty Lobbyists, and the First Amendment
From a long opinion yesterday by Judge Eumi Lee (N.D. Cal.) in Alibaba Group Holding Ltd. v. U.S. Dep't of Defense:
On February 13, 2026, the United States Department of Defense ("Department") publicly designated Alibaba Group Holding Limited as a "Chinese military company" ("CMC"). On June 30, 2026, 10 U.S.C. § 4663 went into effect, barring the Department from contracting with any company who retained the same lobbyist as a CMC. Alibaba asserts that Section 4663 has caused lobbyists to withdraw from representing Alibaba for fear of losing other clients.
The court issued a preliminary injunction, concluding § 4663 likely violates the Free Speech Clause and the Petition Clause:
Alibaba is an e-commerce and cloud-computing company that provides products, technology, infrastructure, and services to consumers and businesses for civilian and commercial use. Alibaba provides U.S. companies and businesses with a platform to sell their products to consumers in China. Additionally, it provides commercial cloud services to companies, including U.S. companies, operating in China and other countries. Alibaba has developed open-source AI models, including Qwen, with a focus on "commercial applications that make it more efficient and secure for businesses to sell goods to consumers in China." Alibaba is publicly listed on both the New York Stock Exchange and Hong Kong Stock Exchange.
"Prior to being designated [a CMC], Alibaba had retained over two dozen lobbyists and multiple lobbying firms to represent its interests before Congress and the Executive Branch" [including] … "… the Executive Office of the President, the Federal Communication Commission [("FCC")], the Federal Trade Commission, the Consumer Products Safety Commission, the Department of the Treasury, and [other entities]" …. "They presented Alibaba's views on legislation, rules, regulations, executive orders, and other government policies of commercial interest to the company. Specifically, they advocated regarding export expansion, small business export promotion, technology policy, access to U.S. capital markets, e-commerce-related issues, consumer-protection laws, and intellectual property." …
Two Brief Discovery-Related Orders in Trump v. BBC
From Magistrate Judge Enjolique A. Lett (S.D. Fla.):
[1.] Defendant served its Notice of Subpoena Duces Tecum to non-party Mar-a-Lago Club, LLC ("MAL") seeking two discrete categories of documentation: (1) documents sufficient to identify the total number of applications for MAL membership from January 6, 2020, through January 6, 2026, and (2) documents sufficient to identify the total cost of membership and initiation fees for a new MAL applicant from January 6, 2020, through January 6, 2026. Defendant contends it needs this information for discovery purposes to generally contest Plaintiff's allegation of damages of "not less than $10,000,000,000."
The scope of discovery is broad, allowing each party to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case…." Notably here, non-party MAL has neither moved to quash the subpoena nor raised any burdensome objections. In fact, the only issue before the Court is Plaintiff's contention that the subpoena seeks discovery outside the permissible scope of the amended pleadings.
The Court disagrees. The Amended Complaint alleges Defendant's defamatory actions "injured President Trump in his profession, occupation, and trade," "damaged President Trump in his occupation," and "damaged his professional reputation." As Chief Executive of the United States, it is publicly known that President Trump often carries out his presidential duties in MAL. See, e.g. President Donald Trump meets with Ukrainian President Volodymyr Zelensky at Mar-a-Lago.
Free Speech Unmuted: Flock Cameras and the Fourth Amendment, with Orin Kerr
Not quite free speech, but free speech adjacent, and I think of interest to many of our regular Free Speech Unmuted listeners.
Do you have a right to privacy on public roads? Hoover fellow and Stanford legal scholar Orin Kerr joins me in this episode to discuss Flock cameras, the networked license plate readers fueling debate over police surveillance. We discuss how the Fourth Amendment applies to tracking people's movements; whether police should need a warrant to search camera databases; how to balance investigative benefits with the potential for abuse; and what we still don't know about these tools' effectiveness in protecting public safety.
Jane Bambauer, my regular cohost, couldn't join us this episode, but will be back as usual in the next one. And also check out our past episodes:
Also check out our past episodes:
W. Va. Law Restricting Disclosing Home Addresses and Phone Numbers of Judges and Police Struck Down, but …
the court suggests that a narrower law, which only requires removal and nondisclosure after the plaintiff makes a specific demand, may be constitutional.
From today's opinion in Jackson v. Thomson Reuters Am. Corp., by Fourth Circuit Judge Paul Niemeyer, joined by Judges Steven Agee and Pamela Harris; the law covers :
West Virginia's Daniel's Law …, which is designed "to enhance the safety and security" of judicial and law enforcement officials, prohibits the disclosure by any person or entity of the home addresses or unpublished telephone numbers of … {"any active, formerly active, or retired judicial officer, prosecutor, … public defender, … or law-enforcement officer"} if a reasonable person would believe that such a disclosure would create a risk of harassment or harm. The law authorizes protected persons to bring a civil action for damages….
As distinct from the Daniel's Laws in other States, … West Virginia's version does not require that the Covered Person, upon discovering an improper disclosure, notify the person or entity that disseminated the information and request that the person or entity delete the information before liability arises. In addition, for liability to arise under West Virginia's version, the person or entity need not know that they have disclosed a Covered Person's information. The only limiting principle of § 5A-8-24(e) liability is that the information must have been disclosed "under circumstances in which a reasonable person would believe that providing such information would expose another to harassment or risk of harm to life or property." …
For generations now, home addresses and telephone numbers have been disseminated to the public, initially through Whitepages and Yellow Pages and now through "people search" services on the Internet. The public has thus long had the facility to look up the name of a person and obtain that person's address and telephone number. Sharing that information has been the gateway to communication and the exchange of ideas or messages that have long been protected by the First Amendment. In the digital age, such information may now be shared with greater efficiency, but the tradition continues with the understanding that it is protected speech.
In a similar vein, it has long been custom and practice to record for public examination the names and addresses of persons buying, selling, and financing real property. And it has been the tradition to share publicly information about taxes, appraisals, liens, and voting.
To be sure, while the dissemination of such information is protected speech necessary to the exchange of ideas, it can also contribute to abuse and the pursuit of harmful and, indeed, malicious ends, as exemplified by the murder of Daniel Anderl. To address such abuse, governments have enacted laws like Daniel's Law in an effort to restrict the dissemination of home addresses and unpublished telephone numbers of specified public officials who serve in roles important to society. And the parties here agree that those governments have a compelling interest in enhancing the safety and security of such officials. The task, therefore, is to draw an appropriate line between protecting the dissemination of such information while, at the same time, excepting from dissemination the same information when it creates a potential for harm of specified public officials.
Romance Scam Prevention Act Signed into Law
Will it move the needle on dating app fraud?
Last week, President Trump signed into law the Romance Scam Prevention Act that Congressman David Valadao (CA-22) introduced and that received bipartisan sponsorship. In short, this new federal law requires dating apps and services to notify users who have interacted with someone who was removed for fraudulent activity.
The scale of romance scams is enormous, with Americans losing $1.5 billion in 2025 as per the FTC and global losses coming in yearly at over $1 trillion. Dating apps play a significant role in the phenomenon because they present predators with the perfect pool in which to fish for victims. According to a year-long investigation whose results were released in recent weeks, U.S. Sen. Maggie Hassan concluded that Match Group has greatly lagged behind in its efforts to implement the best technological safeguards available. This is especially relevant because Match Group (which controls most of the best-known dating apps such as Tinder, Hinge, and OkCupid) continues to dominate the dating app market and hence its failures put many users at risk.
The new legislation may help users who are still in touch off-app with fraudsters who have been removed. That is a very narrow slice of users, however, and the system largely depends on whether dating apps effectively remove said fraudsters in the first place. The Romance Scam Prevention Act, however, places no obligations on apps to remove fraudsters or to prevent their joining apps in the first place. It is theoretically possible that the passage of even this fairly weak dating-app-related legislation, in conjunction with the issuance of Sen. Hassan's report, will put some pressure on apps and signal that stricter laws could follow if they don't improve their safety measures. As of now, however, the new law itself is unlikely to stop more than a minimal percentage of romance scams.
Last, it is worth mentioning that financial harm to dating app users, while very important, is far from the only damage resulting from dating apps' continued lackluster use of safeguards. For a crucial example, according to a Columbia Journalism Investigations survey, one third of women who use dating apps report having been sexually assaulted or raped by someone they met on an app. Neither the Romance Scam Prevention Act nor other congressional action so far addresses these many acts of violence or other related harms.
The Occasional Left-Right Sotomayor-Gorsuch Alliance on Liberty-Related Cert. Opinions
The Supreme Court is asked to review several thousand cases each year. It agrees to review fewer than 1% of them. It takes four votes of the nine to decide to review a case. (The grant of review is generally called a "grant of certiorari" or just a "cert. grant.")
Sometimes Justices write opinions dissenting from a denial of cert., arguing that the Court should have taken the case. And sometimes they write opinions respecting the denial of cert., explaining why it made sense to deny review in this case but noting that the Court ought to consider the question in future cases.
Such opinions are often solo opinions, and are sometimes signed by two or three Justices from the liberal or conservative wings of the Court. But it turns out that Justices Sotomayor and Gorsuch have also jointly filed nine such opinions, eight just for themselves and one for themselves plus Justice Kagan. All of them, it seems to me, at least suggest that the Court ought to move the law in a somewhat more government-restrictive direction (loosely speaking); most of them specifically point to somewhat broader constitutional rights protections. Prompted by two such opinions earlier this month, I thought I'd note the cases and the issues they involved.
Today in Supreme Court History: October 27, 1787
10/27/1787: First Federalist Paper is published.
