7/25/1965: Justice Arthur J. Goldberg resigns.
Today in Supreme Court History: July 25, 1965
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
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Second Lawsuit Challenging Trump's New Section 301 Tariffs Filed
It was filed by several businesses, including Learning Resources, Inc., which was also involved in the IEEPA tariff litigation.
In my last post, I did a brief overview of the new lawsuit challenging Trump's massive new Section 301 lawsuits filed by the Liberty Justice Center on behalf of two small businesses. LJC is the public interest law firm I worked with on V.O.S. Selections v. Trump, the IEEPA tariff case decided by the Supreme Court in February. There is now a second lawsuit challenging the tariffs, Learning Resources, Inc. v. United States. Their complaint is available here.
This case was filed by a group of several businesses, with Learning Resources, Inc., as the lead plaintiff. Learning Resources, which is a toy manufacturer, is the same firm whose case was consolidated with ours in the IEEPA litigation, and eventually gave its name to the Supreme Court decision. In that instance, their case was dismissed on jurisdictional grounds (it was, the justices decided, filed in the wrong court) and ours prevailed. In the present case, everyone agrees the only possible venue is the US Court of International Trade (CIT), where we filed our IEEPA case, and which also recently ruled against Trump's Section 122 tariffs (in another case brought by LJC). Trump's tariffs are making the CIT's workload great again!
As in the IEEPA litigation, Learning Resources is represented by prominent appellate litigator Pratik Shah, and others at Akin Gump.
The issues raised in the Learning Resources complaint are very similar to those in the LJC case. They too argue that the Section 301 tariffs violate statutory requirements, and that if Section 301 did grant the president the power to impose these massive tariffs, it would violate the constitutional nondelegation doctrine. But, unlike the LJC complaint, this one does not invoke the major questions doctrine. It also does not seek a class action certification. Thus, relief granted by the court would likely be limited to the specific plaintiff firms.
I think it likely that CIT will consolidate these two cases and consider them together. There may well be more Section 301 cases filed by businesses, public interest groups, and possibly state governments. We shall see.
Conservative Commentator Robby Starbuck's Lawsuit Alleging Google AI Had Defamed Him Can Go Forward
A Delaware trial court has denied Google's motion to dismiss, and concluded that, if the facts as alleged by Starbuck were true, he would have a legal basis for recovery.
[A.] In Delaware Superior Court Judge Meghan Adams today in Starbuck v. Google LLC, Starbuck alleged that Google AI had stated that
- "Starbuck had been accused of sexual assault and sexual harassment by multiple women."
- "Starbuck's nanny accused him of abuse and neglect."
- "Starbuck had been accused of rape of a minor."
- "Starbuck had stolen valor by claiming he was served in the military when he had not."
- "Starbuck had engaged in abusive behavior toward multiple women, including a fictitious ex-wife."
- "Starbuck was involved in the January 6, 2021 riot on the Capitol."
- "Starbuck had been accused of stalking and harassment by multiple women, including his fictitious ex-wife, leading to restraining orders and criminal charges."
- "Starbuck had been criminally convicted for violating a restraining order."
- "Starbuck posed an unacceptable level of risk to children due to his (fictitious) 'confirmed criminal record.'"
- "'… Robby Starbuck sexually abused a young woman when she was a teenager in the early 2000s, while she was in a youth group Starbuck was associated with.'"
- "Starbuck had worked in the adult film industry and had used his power and influence therein to pressure performers into uncomfortable scenes, engaged in financial exploitation, and had been accused of a non-consensual sexual act with a woman."
- "Starbuck had a criminal record that included a 2001 conviction for assault as well as other charges including drug use and disorderly conduct."
- "Starbuck shot a man in the leg with a 9mm handgun, was charged with a felony, and pled guilty to reckless endangerment."
(Note that "Google does not contend the Outputs are true.")
Google moved to dismiss, which under Delaware's Rule 12(b)(6) requires that Google show that, even the facts as pleaded by the plaintiff were conceivably true, the plaintiff would still lack a legal claim. Note that Delaware civil procedure doesn't follow federal procedure in requiring a showing of plausibility of the pleaded facts—it only requires a showing the pleaded facts are conceivable: "Our governing 'conceivability' standard is more akin to 'possibility,' while the federal 'plausibility' standard falls somewhere beyond mere 'possibility' but short of 'probability.'"
[B.] The court concluded that Starbuck "pleads sufficient facts indicating the Outputs were published to third parties," relying in part on Google AI's own statements about what happened:
Liberty Justice Center Files First Lawsuit Challenging Trump's Massive New Section 301 Tariffs
The complaint explains why the tariffs violate the requirements of Section 301, and also run afoul of the major questions and nondelegation doctrines.
Today, the Liberty Justice Center filed Burlap & Barrel, Inc. v. Greer, the first case challenging Donald Trump's massive new Section 301 tariffs. The complaint is available here. LJC is the same group that I worked with on V.O.S. Selections v. Trump, the IEEPA tariff case decided by the Supreme Court in February. LJC also filed one of the two cases challenging Trump's Section 122 tariffs, which prevailed in the US Court of International Trade in May (it is now on appeal).
The current case is before the US Court of International Trade. LJC's clients are two small businesses who import goods from many of the countries covered by the new tariffs.
I am not directly involved in the Section 301 case. But I completely support it, and commend LJC for getting it in so quickly. I know from personal experience how hard it can be to do this on short notice.
Commentators such as Peter Harrell, Scott Lincicome, Gregory Shaffer and Jeremiah May, and myself have previously laid out a variety of reasons why the Section 301 tariffs are illegal. I summarized them in my post yesterday. The LJC complaint makes many of these same points. To briefly summarize it argues:
1. The Section 301 tariffs violate many of the procedural and substantive requirements of the statute; Trump is trying to turn a law intended to target specific trade practices into a tool for waging a massive worldwide trade war against virtually all our trading partners, using "forced labor" as a pretext.
2. This runs afoul of the major questions doctrine (MQD), which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." If it is unclear whether Section 301 grants Trump the sweeping authority he claims, MQD requires resolving the ambiguity against the administration.
3. If Section 301 somehow does grant Trump the authority he claims, the law is unconstitutional under the nondelegation doctrine, which limits delegation of congressional power (here, the tariff authority) to the executive.
4. The constitutional avoidance canon requires interpreting Section 301 to reject the administration's position. This canon requires courts to interpret federal laws to avoid constitutional problems whenever it is "fairly possible" to do so. Here, doing so is needed to avoid a massive nondelegation issue.
Not surprisingly, I agree with all four of these arguments, and I will likely have more to say about them later.
Another notable aspect of the lawsuit is that the plaintiffs are seeking class action certification. If it is granted, and they prevail on the merits, the ruling will completely block the Section 301 tariffs with respect to virtually all importers, not just LJC's two clients.
I think it likely there will be additional lawsuits challenging the Section 301 tariffs. I hope to write more about these issues soon.
UPDATE: LJC has a helpful statement summarizing the case here.
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
An iPod, a walrus, and the Almighty Vice Lord Nation.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. Read More
Court Considering Whether Litigant Should Be Barred from Further Self-Represented Filings, Because of Fabricated Citations
The court orders the litigant to explain why she shouldn't be so barred, and notes that hallucinated citations are "a growing problem in Florida's appellate courts."
From Gouldy v. Chiasson, decided Wednesday by the Florida Court of Appeal (Judge Robert Gross, joined by Judges Melanie May and Spencer Levine):
This appeal arises from a frivolous underlying lawsuit Gouldy brought against Chiasson, an attorney, in connection with Chiasson's actions in representing appellees Amanda Munyan and Michael Peak in a related probate matter involving Gouldy.
We affirm the appeal in all respects and issue a separate order to show cause as to why Gouldy should not be barred from further pro se filings in this court. Gouldy's excessively long pro se brief contains frivolous arguments, misrepresentations of the record, a phantom case, and fake quotes from actual cases….
This case demonstrates a growing problem in Florida's appellate courts. The recent change in jurisdiction has given intermediate appellate courts jurisdiction to hear appeals from county court cases. The result has been that the amount of pro se appeals has significantly increased. Initially, the appellate courts were able to expeditiously handle the county court appeals.
Recently, however, it appears that many pro se litigants, in both county and circuit courts, are using artificial intelligence platforms to generate appellate briefs and motions. While the prose in these filings is generally readable, many AI-generated submissions contain phantom authority, misstatements of the record, and fabricated quotations.
"Plaintiff Argues That, If She Does Not Use Her Chosen Name, She Will Suffer Serious and Lasting Effects to Her Mental Health"
Not a basis for allowing what is in effect a form of pseudonymity, says a district court.
From Davis v. Surefire Hospitality Group, LP, decided Wednesday by Judge Marilyn Horan (W.D. Pa.):
Plaintiff has identified herself as Kimberly Davis in all filings in this case, while Defendant argues that Plaintiff's legal name is Matthew Grinage. As such, Defendant argues that Plaintiff does not comply with Federal Rule of Civil Procedure 10(a). Defendant provides documentation, including her application for employment with Defendant's restaurant, where she used her legal name, Matthew Grinage. The parties do not dispute that Plaintiff has not yet completed a formal legal name change process.
In her brief, Plaintiff argues generic allegations that the use of her legal name causes her "distress, mental anguish, and harm." Plaintiff argues that, if she does not use her chosen name, she will suffer serious and lasting effects to her mental health.
Rule 10 states that the "title of the complaint must name all parties." The core intent of Rule 10(a) is to assure public access, transparency, and accountability in judicial proceedings. Following historical practices of publicness, proper access to litigants' names is important. Rule 10, along with Rule 17, reinforces that court proceedings must remain open and accessible to the public, demands clarity in how parties are identified and ensures the public record accurately reflects the identity of who is before the court and why.
Jewish Teacher Sued Portland Public Schools + Union for Discrimination Over Colleagues' Anti-Israel Speech
(among other things). A federal Magistrate Judge has recommended that the lawsuit be dismissed.
From yesterday's Report and Recommendation by Magistrate Judge Jeff Armistead in Doe v. Portland Ass'n of Teachers, Doe's allegations:
Doe was born in Israel and takes his Jewish religious faith and ethnic heritage seriously. For Doe, the State of Israel is essential and integral to his devout religious faith. Although Doe immigrated to the United States, he maintains close ties to Israel and his family there. In the 2023-24 school year, Doe worked for PPS [Portland Public Schools] as a high school math teacher.
When he started working for PPS, he chose not to become a dues-paying member of PAT [Portland Association of Teachers], exercising his First Amendment right not to support union political speech and public sector collective bargaining. Nevertheless, because Doe is a PPS teacher, PAT is his exclusive representative by way of Oregon's Public Employee Collective Bargaining Act (PECBA) and the collective bargaining agreement (CBA) PAT has with PPS….
Curricula. Doe alleges that PAT collaborates with Oregon Educators for Palestine (OEP) in its publications, including by co-publishing a guide called "Teach Palestine!" The guide references resources for teaching about Palestine, "encourages teachers to use their classroom to teach anti-Isreal views[,] and includes detailed curricula recommendations for pre-K through high school." Among the recommended resources in the "Teach Palestine!" guide is "Teaching While Muslim," which includes the statement "75 years ago, a lot of decision makers around the world decided to take away Palestinian land to make a country called Israel. Israel would be a country where rules were mostly fair for Jewish people with White skin" and encouragement to make signs that include the slogan "Free Palestine."
The "Teach Palestine!" resource guide also includes "Let's Go to Palestine." That lesson—directed at elementary school—includes the statement "Palestine is currently under a brutal occupation by Israel. We pray for a truly free Palestine so that the Palestinians can prosper and we can all visit freely." Also recommended in the guide is "Handala's Return," which includes the statement: "A group of bullies called Zionists wanted our land so they stole it by force and hurt many people." The "Know Your Rights!" guide, also co-published by PAT and OEP, includes references to CBA provisions that protect teachers in teaching what are, according to Doe, anti-Israel views.
Today in Supreme Court History: July 24, 1997
Open Thread
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Trump Imposes Massively Harmful and Illegal Section 301 Tariffs
The new policy is based on sham investigations, and runs afoul of the major questions and nondelegation doctrine.
Today, the Trump Administration announced massive new tariffs, supposedly authorized by Section 301 of the Trade Act of 1974:
The Trump administration on Thursday finalized new double-digit tariffs on dozens of U.S. trading partners as it seeks to reconstitute sweeping duties struck down by the Supreme Court in February.
The new duties, which range from 10 to 12.5 percent, follow a five-month investigation into trading partners' efforts to root out products made with forced labor from their supply chains and are set to take effect just as a temporary global 10 percent tariff expires.
Starting Friday, 17 trading partners — including Canada, the European Union, Indonesia, the United Kingdom and Mexico — will face a 10 percent duty, along with another 10 countries that agreed to address forced labor through signed trade agreements with the U.S.
Another 43 other countries, including Japan, China, South Korea and Australia, will face a 12.5 percent tariff rate….
The Section 301 tariffs may be meant to replace temporary Section 122 tariffs, which expire today, and which were rightly invalidated by the US Court of International Trade in May (though appellate litigation continues, and Trump may yet hope to use Section 122 again). The new tariffs will predictably raise prices for consumers, reduce economic growth, inflict grave harm on the US economy, and further poison our relationships with allies and trading partners.
As I have previously explained, the planned Section 301 tariffs are illegal for some of the same reasons as the IEEPA tariffs invalidated by the Supreme Court in February, in a case I helped litigate. Georgetown University scholar Peter Harrell outlined some additional reasons why the Section 301 tariffs are illegal, in a guest post here at this site. Unlike IEEPA, Section 301 does authorize some tariffs. But it does not permit a massive power grab like this.
In a Dispatch article published today, my Cato Institute colleague Scott Lincicome - an expert on trade policy - explains in detail why the forced labor "investigations" supposedly justifying the Section 301 tariffs are a sham, and a pretext for a massive presidential power grab. As he notes, the conclusion of the "investigations" was clearly predetermined in advance, the tariffs imposed have no real connection to any genuine forced labor issues, and many of the countries subject to the massive new tariffs actually have tighter restrictions on goods produced by forced labor than the US itself does. He concludes that, if courts uphold these tariffs, the president would have the kind of unlimited tariff authority the Supreme Court denied him in the IEEPA case:
The forced labor action is a clear abuse of the law and a serious departure from past U.S. government practice—even under President Trump. By no reasonable measure can it be considered anything other than a ham-fisted way to reinstall Trump's tariff wall and protect it from another IEEPA-like defeat in federal court. In the latter case, the administration might be successful: Section 301 is more legally durable than the untested IEEPA and, while the forced labor action is obviously flimsy, a court might simply be unwilling to question the president's determinations and actions. We shall see.
If the courts do rubber-stamp these tariffs, their problems will likely extend well beyond just this sham case. Section 301 could become a way for USTR to tariff any country, at any rate, and for any reason and duration, as long as it checks the law's minor procedural boxes. The actual merits of the case, the quality of the agency's findings, or its efforts to consider public input won't really matter. Just say a country doesn't adequately do something you say is harmful and then apply blanket tariffs after meaningless hearings and comments. Voila.
This is precisely the open-ended tariff power grab the courts checked with their IEEPA rulings, just with a little more procedural window-dressing. In such a case, Section 301 would be a broad tariff generator instead of the targeted tool Congress thought it designed, and it'll surely be used by Trump or any future president who wants to tariff trading partners over carbon emissions, labor standards, AI regulation, or anything else. Republicans cheering the forced labor tariffs today should consider how they'll feel when a Democrat holds the tariff pen.
As explained in my and Peter Harrell's earlier posts on the Section 301 tariffs, Trump's policy violates the requirements of Section 301 itself, and also runs afoul of the major questions doctrine, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." At the very least, Section 301 does not clearly authorize the president to start a massive trade war against almost all our major trading partners on the basis of a sham investigation and dubious pretexts.
If, somehow, Section 301 does authorize this action, it would violate the constitutional nondelegation doctrine, which limits delegation of legislative power to the executive. Tariffs are a specifically enumerated congressional power. While the Supreme Court's nondelegation precedent is far from completely clear, last year's decision in FCC v. Consumers' Research held that delegations of the power to impose taxes and other financial levies must have a clear "floor" and "ceiling" and that "[t]he guidance needed is greater when an agency action will affect the entire national economy than when it addresses a narrow, technical issue" [quotation omitted]. There is no meaningful floor or ceiling under the administration's approach to Section 301. And the power claimed is clearly one that massively affects the "entire national economy."
In the IEEPA case, the Supreme Court emphasized that "the president does not have the power to "impose tariffs on imports from any country, of any product, at any rate, for any amount of time." Chief Justice Roberts went on to note that, while some statutes do grant the president tariff authority (among which he specifically cited Section 301), "[w]hen Congress has delegated its tariff powers, it has done so… subject to strict limits."
Trump's power grab today respects no such limits. I hope and expect it will be challenged in court. And when that happens, courts should strike it down, just like they did with the IEEPA and Section 122 tariffs.
Justice Kagan Rejects Charge that Supreme Court Is "Rubber Stamp" for Trump Administration
In recent remarks before the Ninth Circuit Judicial Conference, Justice Kagan rejects the conventional liberal narrative about the Supreme Court.
Some legal and political commentators claim that the Supreme Court has bent over backwards to appease or affirm the Trump Administration. In recent remarks before the Ninth Circuit Judicial Conference, as reported by Politico, Justice Elena Kagan rejected this common narrative.
From Politico:
"I don't see this as a court that is just like, 'We're just going to rubber stamp what the current administration does.' You know, quite the opposite," Kagan said to a judicial conference here Thursday. "I think that that is a bad rap." . . .
Kagan, a liberal justice and Obama appointee, said the 6-3 decision scuttling Trump's tariffs was extraordinary.
"Tariffs is probably the key policy issue for this president. I mean, something he campaigned on, he ran on, he cared an enormous amount about," she said. "I don't think that there are all that many decisions in the recent times, where a court strikes down such an important policy to a a sitting president."
That the Court is conservative--and reaches conservative decisions--is not evidence that it is under President Trump's sway.
"You just have to deal with the fact that there's a conservative court doing things that conservative jurists have long thought it appropriate to do, and I can really dislike that. But it has nothing to do, I think, with becoming the arm of this current administration," she said.
Kagan also said that the justices were unaffected by President Trump's decision to attend oral argument in the birthright citizenship case, another case of extreme importance to Trump in which the Court rejected his position, and even dissenting justices raised questions about the breadth of the Trump Administration's position.
"It was sort of like….from the court's point of view, a non-event," Kagan said in her first public remarks on the unusual spectacle. "Honestly, the vibes in the courtroom were the vibes in the courtroom on any other day." . . .
Kagan also noted that Trump left about halfway through the two-hour session. "It was a long argument. You really did kind of think he probably had other things to do," she said.
"So, I don't know. I think he probably won't come back," she added, prompting laughter from the audience.
"There Is an Error in the Supreme Court's Analysis in Loper Bright."
The Supreme Court's Chevron decision did not cite the Administrative Procedure Act perhaps because it was not an APA case.
In Loper Bright Enterprises v. Raimando, the Supreme Court overturned Chevron U.S.A. v. NRDC's holding that federal courts should defer to reasonable agency interpretations of ambiguous statutory provisions. In Loper Bright, the Court concluded that Chevron deference was incompatible with the Administrative Procedure Act. As Chief Jsutice Roberts explained, Section 706 of the APA provides "'the reviewing court'—not the agency whose action it reviews—is to 'decide all relevant questions of law' and 'interpret . . . statutory provisions.'"
The Chevron opinion made no effort to reconcile its holding with the language of the APA. Indeed, the Chevron decision did not mention the APA at all. But perhaps there was a good reason for that.
In a footnote to his dissent in Hospital Menonita de Guayama v. NLRB--a case in which the D.C. Circuit was instructed by the Supreme Court to reconsider its prior decision deferring to an agency interpretation under Chevron--Judge Ray Randolph addresses this "error" in Loper Bright.
There is an error in the Supreme Court's analysis in Loper Bright. Much of the Court's reasoning (and a part of Justice Gorsuch's concurrence) is devoted to criticizing the Chevron opinion for ignoring section 706 of the Administrative Procedure Act, 5 U.S.C. § 706. See, e.g., 603 U.S. at 397-400, 411-12; id. at 428 (Gorsuch, J., concurring). The Court's critique is unfounded. It is unfounded because section 706 of the APA did not apply to judicial review of the EPA rule at issue in Chevron. Section 706 did not apply because Chevron was not an APA review case. The Clean Air Act superseded the APA: "The provisions of section 553 through 557 and section 706 of Title 5 [the APA] shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies." 42 U.S.C. § 7607(d)(1). The problem the Court identified in Loper Bright was not with Chevron itself, but with courts, including the Supreme Court, indiscriminately adopting the Chevron formula in later cases in which section 706 of the APA did apply.
Foreign Law in American Courts
Sharia Divorce Law in American Courts
An interesting demonstration of how foreign law—including Islamic law—is sometimes applied (pursuant to American law) in American courts.
From Pennsylvania appellate court in Adewale v. Adewale, decided by Judge Correale Stevens and joined by Judge Anne Lazarus and Jack Panella on June 22, but just posted on Westlaw in the last couple of days:
Wife claims the trial court erred in determining that the parties' marriage was void ab initio based on its finding that Wife was married to another individual at the time of the parties' purported marriage. {Although we affirm the trial court's order finding the parties' marriage to be void, we refer to the parties as "Husband" and "Wife" for ease of review.} …
The parties were married on April 21, 2011 in Lagos, Nigeria in a ceremony under Nigerian statutory law. {As discussed infra, Nigeria has a plural legal system where different legal systems (statutory law, customary law, and Islamic law) apply to different communities in Nigeria. [Similar systems exist in other countries, including, for instance, Israel. -EV]}
As Wife had become a U.S. citizen after receiving a Diversity Visa through the lottery program in 1999, she filed for Husband's entry into the U.S. as her spouse in 2012. In April 2013, Husband joined Wife in the U.S.; both of the parties are now dual citizens of Nigeria and the U.S….
During the divorce process, "Husband began to question the validity of the parties' marriage as he discovered that Wife may have been married to another person at the time of the parties' marriage," and the trial court explored that:
The trial court recognized that the law of the state in which a marriage is celebrated governs the validity of the marriage. "[I]f a marriage is invalid under the laws of the state wherein it was celebrated it will not be recognized elsewhere, regardless of the laws of the present domiciliary state or of the forum." … "[A] marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state[.]"
The appellate court cited various Pennsylvania authorities on this, which are consistent with how other courts handle the matter; note also that "state" here refers to foreign countries as well as U.S. states. The trial court took extensive evidence related to the subject; here are some excerpts (though the facts are considerably more complex):
No Pseudonymity for Sex Offender Immigration Detainee Who Speculates He May Face Harm in Syria if Identified
From Alobid v. Marin, decided March 9, 2026 by Magistrate Judge Alka Sagar (C.D. Cal.), but just posted on Westlaw in the last couple of days:
Petitioner, an immigration detainee who is proceeding pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 and also filed a Motion for Leave to Proceed Under a Pseudonym.
"As a general rule, 'the identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity.'" A party's "use of [a] fictitious name[ ] runs afoul of the public's common law right of access to judicial proceedings, and [Fed. R. Civ. P.] 10(a)'s command that the title of every complaint 'include the names of all the parties[.]'"
Nevertheless, the Ninth Circuit has "allowed the use of pseudonyms in exceptional cases where necessary 'to protect a person from harassment, injury, ridicule or personal embarrassment.'" "When a party requests 'Doe' status, the factors to be 'balance[d] … against the general presumption that parties' identities are public information,' are: '(1) the severity of the threatened harm; (2) the reasonableness of the anonymous party's fears; and (3) the anonymous party's vulnerability to such retaliation.'" The party seeking anonymity has the burden of proving it should be allowed to proceed anonymously.
Today in Supreme Court History: July 23, 1936
Open Thread
What’s on your mind?
