The Volokh Conspiracy Archive

Open Thread

What’s on your mind?

Eugene Volokh | 6.18.2026 3:00 AM

So argues Prof. Jack Goldsmith (Harvard) in his Executive Functions post. An excerpt:

The United States in the MOU pledges "immediately" to "issue waivers for export of Iranian crude oil, petroleum products and derivatives, and all associated services, including banking transactions, insurances, transportation, etc." (Emphasis added here and throughout.) These waivers presumably include waivers of U.S. statutory sanctions against Iran.

I don't think the president has the authority under domestic law to issue these waivers. The Iran Nuclear Agreement Review Act (INARA) of 2015 applies here and temporarily bars a president from waiving sanctions against Iran. The executive branch has counterarguments, to be sure. And it's doubtful that any institution will make the president comply with INARA in any event….

Read the post for much more.

From In re Gregorwicz v. Villa-Kennedy, decided today by Arizona Court of Appeals Judge Veronika Fabian, joined by Presiding Judge Michael J. Brown and Vice Chief Judge David D. Weinzweig:

[An] order of protection was based on the superior court's finding that Father's social media post, which disclosed his own HIV status and identified Mother as a former partner, was criminal harassment. Because Father's social media post was protected free speech, this Court vacates the order of protection….

Mother and Father were at one time in a relationship, which resulted in the birth of their child in 2024.

In May 2025, Mother posted a message on social media from an account with the name "Shelby Starbuck" to a group of more than 600 members. The post included an image of an HIV negative patch and this text:

Ordering a bunch of these lmao. Im sure you'd be surprised which of your friends cant wear it, but hey lets be transparent. Be safe out there! If anyone wants one lmk

Days later, Father posted his own message, using his real name, to the same group, which read:

From yesterday's decision in Commonwealth v. Brown, written by Justice Kevin Dougherty, joined by Justices Sallie Updyke Mundy, Kevin Brobson, and Daniel McCaffery; all the opinions put together come to 70K words, so all I include are short excerpts:

The prosecutor does not decide whether a defendant is entitled to relief under the Post Conviction Relief Act (PCRA). This is the exclusive province of the PCRA court.

Nonetheless, while not dispositive, a prosecutor's concession of relief is undoubtedly influential. Courts have long been instructed to give such concessions "great weight[.]"

But when the prosecutor sides with a defendant, there generally is no adversarial testing of the defendant's entitlement to relief, and the court is left without the benefits of opposing advocacy, including the presentation of counterarguments and exposure of misrepresentations of fact and law. The PCRA court's review is limited to the record before it. If relevant evidence is withheld from the court, this pertinent information goes unconsidered. The court is not permitted to conduct its own independent investigation of extra-record materials, and it is not equipped to do so in any case. For these reasons, an unreliable prosecutorial concession substantially risks the erroneous grant of relief by the court.

This is not to say a prosecutor should never concede relief. A prosecutor bears the responsibility of a minister of justice and not simply that of an advocate. Hence, a prosecutor is duty-bound to confess error, provided the facts and law call for it.

But the proviso is critical. When relief is not dictated by the record and law but merely advocated for personal, political, ideological, policy, or other non-legal reasons, a prosecutor's concession does not minister justice; it facilitates injustice.

Here, in this case reviewed under our King's Bench jurisdiction, the Philadelphia District Attorney's Office (DAO), on behalf of the Commonwealth, conceded that Lavar Brown (Brown), a convicted murderer sentenced to death for a separate murder, was entitled to a new trial based upon a facially untimely claim under the PCRA.

Upon careful review, we conclude this concession was not reliable. More specifically, we find the DAO conceded relief although none was warranted based on the existing record, violated its duty of candor to the PCRA court, withheld material evidence from the court, opposed efforts by amici to gain access to this evidence, submitted a false stipulation of fact, misstated facts in its pleadings, failed to conduct a reasonable investigation, and opposed a required evidentiary hearing. The predictable result was the erroneous grant of a new trial.

For more on the general question of listener protection and criminal harassment, see my Protecting Listeners from Unwanted One-to-One Speech, pp. 1432-33 (So. Cal. L. Rev. 2025) and, in much more detail, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking" (Northwestern U. L. Rev. 2013). For more on the underlying case, see the coverage by FIRE (Daniel Burnett & Aaron Terr).

Past Free Speech Unmuted episodes:

A short excerpt from Monday's long decision of the Colorado Supreme Court in Moreno v. Circle K Stores, Inc., written by Justice Maria Berkenkotter:

Seventy-two-year-old Mary Ann Moreno … sued her employer, Circle K Stores, Inc. … for wrongful termination. She asserted that she was fired for lawfully exercising her right to self-defense after she was cornered by an armed robber during one of her shifts and that her termination violated Colorado public policy….

This court first recognized a public-policy exception to the at-will employment doctrine in Martin Marietta Corp. v. Lorenz (Colo. 1992). There, we identified a number of circumstances under which an at-will employee may bring a claim for wrongful discharge: if the employee was terminated for (1) refusing to engage in an illegal act, (2) performing a public duty, or (3) exercising an important job-related right or privilege. To serve as the basis for such a claim, the right must be clearly expressed, sufficiently public, and granted to workers….

This case requires us to decide if the right to self-defense, established either by section 18-1-704, C.R.S. (2025) ("section 704"), or by article II, section 3 of the Colorado Constitution ("article II, section 3"), meets the test we articulated in Martin Marietta. In answering the certified question, we first determine that both the statute and the constitutional provision clearly express the boundaries and extent of the right to self-defense based on their explicit language and the extensive and well-defined body of case law regarding self-defense.

Next, we decide that the right to self-defense is inherently a public right, rather than an individual proprietary right, because it is an essential, inalienable right guaranteed to all people. Finally, we conclude that the right to self-defense, as expressed by both the statute and the constitutional provision, is a right that is job-related insofar as the need to exercise the right to defend oneself from an unprovoked attack can occur anywhere, including at work.

While we conclude that this is a right granted to all people that is not left at the door simply because a person enters the workplace, we emphasize that the scope of the exception that we recognize today is narrow. It is limited, importantly, to self-defense as an essential, inalienable right. And, critically, the exception applies only when an employee lawfully exercises the right in response to an unprovoked attack at work.

6/17/1963: Sherbert v. Verner is decided.

A very short excerpt from yesterday's Seventh Circuit opinion in Betts v. Boone County, written by Chief Judge Michael Brennan and joined by Judge Michael Scudder:

The Coroner of Boone County, Illinois, engaged in abhorrent and macabre behavior. Wesley Hyland kept several skulls as trophies from the deceased he examined. One was that of Louise Betts. Over four decades later, after the coroner's death, the County returned her skull to the Betts family. The family sued the County under 42 U.S.C. § 1983 for violating the Due Process Clause of the Fourteenth Amendment.

The question in this appeal is whether Hyland's actions established an "official policy" of unconstitutionally retaining human remains [which would make the County liable -EV]. We hold the answer is no. The County is not liable under Monell v. Department of Social Services (1978), because state law requires that coroners return bodily remains to families. Hyland frustrated an official policy rather than established one….

The Bettses' § 1983 suit alleges that the County violated the Fourteenth Amendment by depriving them of property without due process. The first question is whether they have a property interest in their sister's remains….

Illinois recognizes that family members have a property right to a next of kin's remains, as the district court concluded, and on appeal the County does not appear to disagree. As the Supreme Court of Illinois has held, "while in the ordinary sense, there is no property right in a dead body, a right of possession of a decedent's remains devolves upon the next of kin in order to make appropriate disposition thereof, whether by burial or otherwise." …

[But] a municipality is not liable under § 1983 unless the deprivation of a constitutional right is caused by a municipal policy or custom. The problem, however, is defining "policy," as § 1983 does not use that term. To fill the gap, caselaw has established that a plaintiff may demonstrate a policy or custom that causes a constitutional deprivation in one of three ways: (1) an express policy of the municipality; (2) a widespread practice constituting custom or usage; or (3) an act by a person with final policymaking authority. This appeal concerns the third way….

An excellent resource from Prof. Ed Lee (Santa Clara). The focus is on tort lawsuits brought against AI companies or otherwise based on defendants' use of AI software; this is separate from Damien Charlotin's AI Hallucination Cases Database.

From Judge April Perry (N.D. Ill.) today in Doe v. Thomas. Some context:

From Trump Media & Tech. Group Corp. v. WP Co. LLC, decided today by Judge Tom Barber (M.D. Fla.); seems correct to me (and note that the court leaves room for some "targeted redaction of very limited and specifically identified information"):

Plaintiff Trump Media Technology Group, Inc. ("TMTG") brought this lawsuit for defamation against WP Company LLC (the "Post") arising from an article titled "Trust linked to porn-friendly bank could gain a stake in Trump's Truth Social," published by the Post on May 13, 2023. The article described events related to a contemplated merger between TMTG and Digital World Acquisition Corp. ("DWAC") as part of taking TMTG's "Truth Social" business public.

According to the article, in late 2021, Patrick Orlando, CEO of DWAC, arranged for $8 million in loans to TMTG from an entity known as "ES Family Trust" as part of a deal in which ES Family Trust would acquire an equity interest in the public entity to be formed from the merger. The article reported that some of the funds were wired by another entity, Paxum Bank, which had ties to ES Family Trust and to the adult film industry.

The article also reported that TMTG paid a finder's fee of $240,000 in connection with the loans to Entoro Securities, a Texas entity of which Orlando was a managing director. The article stated that neither the loan-for-stock deal nor the payment of the finder's fee had been disclosed to shareholders of DWAC or the SEC, and presented the opinion of New York University law professor Michael Ohlrogge that these matters could affect the value of the shares and should have been disclosed.

TMTG filed suit against the Post for defamation and conspiracy …. [T]he case has been narrowed to address only two of the statements in the article: (1) "The companies also have not disclosed to shareholders or the SEC that Trump Media paid a $240,000 finder's fee for helping to arrange the $8 million loan deal with ES Family Trust;" and (2) "The recipient of that fee was an outside brokerage associated with Patrick Orlando, then Digital World's CEO." …

Because there is a presumption in favor of public access to court proceedings, Local Rule 1.11(a) expressly limits a party's ability to file information under seal to "compelling" circumstances:

From the Tenth Circuit today in Roe v. Colo. Jud. Dep't, decided by Judge Richard Federico and Judges Scott Matheson and Nancy Moritz:

Appellant previously held a Colorado law license. As alleged in her complaint, Colorado attorney regulators first found her disabled from the practice of law and then disbarred her. The Colorado Supreme Court later precluded her from representing herself in Colorado courts. She then filed this pro se federal civil action against the Colorado Judicial Department and officials involved in the disability and disciplinary proceedings, alleging those proceedings were discriminatory and unlawful in numerous ways.

Appellant filed her complaint using the pseudonym Jane Roe instead of her real name…. Nonparties the Colorado Freedom of Information Coalition (CFIC) and Eugene Volokh filed an objection to her motion to restrict….

"… Federal Rule of Civil Procedure 10(a) requires the names of all parties to appear in the caption of a complaint, and the title of all other pleadings must name the first party on each side." … "'[L]awsuits are public events' and 'there is no legal right in parties to be allowed anonymity.'" "'Ordinarily, those using the courts must be prepared to accept the public scrutiny that is an inherent part of public trials.'" …

From Doe v. Univ. of N.C. Sys., decided today by Chief Judge Martin Reidlinger (W.D.N.C.):

On November 10, 2025, the Court ordered the Plaintiff's counsel to show cause as to why they should not be sanctioned for the many errors in the documents they submitted to the Court, including: (1) citing two cases that do not appear to exist (i.e., hallucinated citations); (2) quoting material that does not exist in the cases purportedly quoted (i.e., hallucinated quotations); (3) mischaracterizing holdings of cited cases; (4) citing cases that have no bearing on the proposition for which they were cited; and (5) failing to provide pinpoint citations and information identifying the courts from which opinions issued.

On November 19, 2025, during a hearing on the show cause order, the Plaintiff's counsel admitted these errors and explained that, in large part, the errors resulted from misuse of artificial intelligence software (including a misunderstanding of how to properly use artificial intelligence) and a failure to verify the outputs of artificial intelligence software, even though the Plaintiff's counsel had signed certifications stating that they had verified every statement and every citation in the documents they submitted to the Court. The Plaintiff's counsel expressed remorse and offered to write an article for the state bar journal explaining their errors and the potential pitfalls of misusing artificial intelligence. The Court agreed that such an article—"an article that essentially says, we really screwed up and we almost got put under the jail, don't fall into the pit that we did"—could help other lawyers wake up to the seriousness of attorney misuse of artificial intelligence. The Court has refrained from discharging the show cause order pending counsel's preparation of the article.

The Plaintiff's counsel submitted their proposed article to the North Carolina State Bar Journal, and it has now been published. Fred W. DeVore III and Rob Wilder, Guarding Against AI Errors: Ethical Risks for NC Attorneys, N.C. State Bar J. 1, 8-12 (Summer 2026) (hereinafter "the Article"). Now before the Court is the issue of whether this Article is sufficient to purge the show cause order and the proposed contempt/sanctions that arose from counsel's errors.

On May 29, DOJ asked Judge Ross to recuse in United States v. Raffensperger, a suit to obtain Georgia election records. The motion sat on the docket for more than two weeks. On June 15, DOJ filed a notice of intent to file a petition for a writ of mandamus. That motion apparently got Judge Ross's attention. This morning, she recused from the case.

Judge Ross doesn't quite admit that she is the subject judge. She only presents facts as stated by the United States.

Based on media accounts, the United States asserts that the undersigned attended an event likely hosted by Fani Willis, the now former Fulton County District Attorney. [Doc. 112 at 6]. According to the United States, considering Willis's affiliation with the Democratic Party and her role in prosecuting President Donald J. Trump for election fraud, the undersigned's attendance at an event hosted by the Willis campaign creates an appearance of bias in this proceeding. [Id. at 6–7].

At this point, who is Judge Ross kidding?

To Judge Ross's credit, she does the right thing and steps aside based on her relationship with Fani Willis:

Nevertheless, the Court finds that recusal is appropriate based on the unique facts of this case. Specifically, this case concerns the Trump administration's efforts to obtain Georgia's unredacted voter registration list in furtherance of the administration's objective to uphold election integrity in Georgia, and Willis is known for her role in the prosecution of President Trump over his alleged interference in Georgia's elections. Both the Trump administration's present and Willis's past efforts have become heavily polarized. Thus, the Court cannot discount the potential that the undersigned's attendance at an event sponsored by Willis's campaign, even if that attendance was "only for the purpose of reuniting with former colleagues[,]" Judicial Council Report at 17, would lead an objective observer to perceive that the undersigned supports Willis's position. And perceived support of Willis's position on election integrity could cause an objective observer to significantly doubt the undersigned's impartiality in this case. Therefore, out of an abundance of caution for the potential perception of bias, the undersigned will disqualify herself from further proceedings in this case.

I will assume for present purposes that Judge Ross actually read this order before signing it. This order further suggests Judge Ross has no intent to resign. Impeachment is the only path forward.

Ben Keener and I have posted a new paper on the original meaning of the Citizenship Clause of the Fourteenth Amendment. This one provides an extended analysis of the English common law origins of the native birth rule and of the debates in the 39th Congress over the meaning of the Citizenship Clause that they adopted as part of the Fourteenth Amendment. Ben has written about this issue before here, and I have written about it here and here. Although the Court will be ruling on this issue shortly, whatever the Court chooses to say will be unlikely to end the scholarly and political discussion. To do that, one must write a very long law review article.

The historical materials are unambiguous and unsurprising. As Coach Dennis Green once said, "They are who we thought they were." The English rule simply meant that those born on territory governed by the English sovereign and subject to the sovereign's rule were native-born subjects, and the Americans inherited that rule and understood it as such after the Revolution. When the 39th Congress sought to repudiate the Dred Scott decision and entrench a native-birth rule in the Constitution so that future political actors could not shrink or override the common-law rule and decide as a matter of policy which of the native-born they would prefer not to recognize as citizens, they drafted language that communicated the same, longstanding, common-law rule and they understood themselves to be doing so and said so explicitly and repeatedly.

From the conclusion:

The Citizenship Clause of the Fourteenth Amendment is neither mysterious nor indeterminate. It codifies a rule whose substance has been stable across four centuries of Anglo-American law: those born within the territorial reach of the sovereign's actual governing authority are, by that fact alone, natural-born citizens. The twin conditions of native birth and subjection to the jurisdiction of the United States do the same work today that Coke's "ligeance" and "obedience" did in 1608, that Blackstone's "allegiance" and "dominions" did a century and a half later, and that Kent's "jurisdiction" and "allegiance" did on the eve of the Civil War. The drafters of the Fourteenth Amendment did not invent a rule, disguise one, or leave one half-finished. They entrenched a rule already established in American practice and debased only by the aberrant Taney Court decision the Amendment was written to repudiate.

Read the whole thing here.

6/16/1960: The 23rd Amendment is submitted to the states.

The Volokh Conspiracy

Open Thread

"The President is Legally Barred from Waiving Iranian Sanctions as Pledged in the Iran [Memorandum of Understanding]"

Disclosing One's HIV+ Status Isn't Criminal Harassment of Ex

Pennsylvania S. Ct. Finds Pattern of "Lack of Candor" in Philadelphia D.A. Krasner's Filings Urging Reversal of Murder Convictions

Shrexting: Free Speech or Criminal Harassment?, on Free Speech Unmuted

Can Employer Fire You for Self-Defense on the Job?

Today in Supreme Court History: June 17, 1963

Open Thread

AI Tort Lawsuit Tracker

"Needless Cost Increases" from "Both Counsels' Choices to Follow the Path of Most Resistance"

Disbarred Lawyer Can't Pseudonymously Challenge Her Disbarment

Lawyers' Bar Journal Article Discussing Their AI-Hallucination Errors Doesn't Entirely Satisfy Judge, but …

Judge Ross Recuses From Election Interference Case

Birthright Citizenship, the Common Law, and the 39th Congress

Today in Supreme Court History: June 16, 1960

Open Thread

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

I WANT FREE MINDS AND FREE MARKETS!

I WANT TO FUND FREE MINDS AND FREE MARKETS

SUPPORT HONEST JOURNALISM

PUSH BACK

HELP KEEP MEDIA FREE & FEARLESS

STAND FOR FREE MINDS

PUSH BACK AGAINST SOCIALIST IDEAS

FIGHT BAD IDEAS WITH FACTS

BAD ECONOMIC IDEAS ARE EVERYWHERE. LET’S FIGHT BACK.

JOIN THE FIGHT FOR FREEDOM

BACK JOURNALISM THAT PUSHES BACK AGAINST SOCIALISM

FIGHT BACK AGAINST BAD ECONOMICS.