The Volokh Conspiracy Archive

A nice line from Fifth Circuit Judge James Ho in his dissent from denial of rehearing en banc Thursday in Lopez v. Ramirez:

I'm grateful to Judge Smith [who wrote the principal dissent from denial of rehearing] for flagging this case for our attention, and share his dismay that the court is denying rehearing en banc. The mediation order should have been sufficient to establish appellate jurisdiction over this interlocutory appeal from the denial of qualified immunity….

A final point: In footnote 6 of his dissent, Judge Smith notes that the [panel opinion, which he is arguing should be reheard -EV] found support in our court's "equally errant" unpublished decision in De Leon v. Munoz, 2025 WL 957500 (5th Cir.).

I joined that unpublished decision. That decision, to be clear, found appellate jurisdiction in De Leon—the same result that both Judge Smith and I urge here. That said, footnote 2 of the per curiam decision separately suggests that there was no appellate jurisdiction at an earlier stage in the case.

From Chief Judge James Boasberg (D.D.C.) yesterday in World Prof. Ass'n for Transgender Health v. FTC:

When parties seek an extraordinary remedy, they must make an extraordinary showing. After expedited briefing and a hearing yesterday, the Court finds that Plaintiff World Professional Association for Transgender Health has not made that showing in its request for a Temporary Restraining Order to block the Federal Trade Commission's enforcement action in a different forum. It therefore will deny WPATH's Motion for Temporary Restraining Order.

To obtain a TRO under Federal Rule of Civil Procedure 65(b), a movant must show that (1) it "is likely to succeed on the merits"; (2) it "is likely to suffer irreparable harm in the absence of preliminary relief"; (3) "the balance of equities tips in [the movant's] favor"; and (4) such order "is in the public interest."

Earlier this year, WPATH sued the FTC in this Court alleging that the Commission's investigative efforts violated its First Amendment rights. In that challenge, this Court in May partially granted WPATH's Motion for a Preliminary Injunction halting the "implement[ation] or enforc[ement of]" the "issued CID [Civil Investigative Demand]" that the FTC had served on WPATH seeking a broad range of internal records. The Court held that WPATH had shown that it was likely to succeed on the merits of its claim that the FTC issued the CID in retaliation for WPATH's constitutionally protected speech and that Plaintiff faced irreparable harm without preliminary relief. The Court declined, however, to grant WPATH broader relief, confining its holding to the facts that gave rise to the specific CID before it.

The FTC and several states then brought a separate enforcement action against WPATH in the Northern District of Texas. They allege that WPATH violated the FTC Act's prohibitions on unfair or deceptive trade practices and false advertising. WPATH returned to this Court and sought a TRO enjoining the FTC from pursuing its Texas litigation. Plaintiff contends that the FTC's suit concerns the exact same subject matter as its previously filed pre-enforcement challenge in this Court and would frustrate the pre-existing preliminary injunction. It asserts that the FTC should proceed in this Court, not the Northern District of Texas, and it seeks an anti-suit injunction to that effect.

From Judge Kenneth Karas (S.D.N.Y.) Friday in Center for Judicial Accountability, Inc. v. Legislative Correspondents' Ass'n:

On October 8, 2025, Plaintiff Elena Sassower …, proceeding pro se, along with the Center for Judicial Accountability, Inc. … brought this Action, alleging the 34 Defendant media outlets and journalism-related entities … conspired to commit "journalistic fraud," "institutional reckless disregard for truth," and "defraud[ed] purchasers, contributors, [and] taxpayers" in violation of the First Amendment to the United States Constitution.

No, said the court; an excerpt:

[CJA] claims Defendants' "violation of First Amendment responsibilities and journalistic codes by the press, including most of the [D]efendants herein, has meant that all of [CJA]'s hard, painstaking work, spanning more than three decades, has brought no corruption-eradicating changes[ ] when even a modicum of press adherence to such responsibilities and codes … could have brought sweeping[,] corruption-eradicating changes," but this alleged injury is too remote and speculative to constitute an injury in fact….

CJA also claims that "[t]he near total press suppression of any report of [its] work, other than in minimizing, deprecating terms, deprived it of any public profile and appreciation [ ] and all the benefits flowing therefrom[,]" but "the constitutional right of free speech has never been thought to embrace a right to require a journalist or any other citizen to listen to a person's views, let alone a right to require a publisher to publish those views in his newspaper." Accordingly, because CJA has no legally cognizable right to favorable press coverage of its work, it cannot assert an injury-in-fact on this basis….

News of the death of Randolph Mantooth, who played paramedic Johnny Gage on Emergency! reminded me of my UCLA colleague Paul Bergman's 2007 article, Emergency!: Send a TV Show to Rescue Parademic Services!; an excerpt:

This essay … seeks to document the pivotal role of Emergency! in producing an array of legal changes that resulted in an explosion in the availability of paramedic services during the time that the TV show aired new episodes….

The legalization of paramedic services required major changes in legal principles relating to both criminal and civil liability. For example, laws in all states made it a crime for non-physicians to practice medicine without a license. These laws rendered paramedic services unfeasible due to the fact that many of the medical functions that paramedics could have performed constituted the practice of medicine. Paramedics could be criminally prosecuted under these laws even if they had undergone training and could demonstrate expertise in carrying out their paramedic tasks.

Civil liability rules also posed significant challenges for the development of paramedic services. Paramedics could be ordered to pay damages for any harms that patients incurred due to paramedic negligence. A showing of negligence was not a significant hurdle for plaintiffs to overcome since, in most jurisdictions, performing illegal medical procedures constituted negligence per se. Even apart from the negligence per se reasoning, paramedics were likely to be held to the same standard of care as physicians.

The Senate Report on the Emergency Medical Services Systems Act of 1973 summarized the legal challenges facing the development of paramedic services. The report stated that "[t]he reported bill directs the Secretary to conduct a study of the legal barriers to the effective delivery of medical care under emergency conditions …. The provision of emergency medical services is affected in some states by inflexible laws on licensure, malpractice and liability."

Adding to the need for legal changes that would have to occur if paramedic services were to develop and expand was the opposition demonstrated by many physician and nurse groups to the paramedic concept. For example, two researchers writing in 1969 surveyed over 1,300 Wisconsin physicians. The researchers asked the physicians whether they would be willing to permit paramedics to perform duties closely related to their medical specialties. The majority of physicians responded in the negative.

From Akerlund v. Atlas Air, Inc., decided yesterday by the Eleventh Circuit, Judge Britt Grant, joined by Judge Robin Rosenbaum and Embry Kidd:

A group of plaintiffs, employees in the commercial aviation business, personally reject their companies' pandemic-era policies on masks, testing, and vaccination. The district court dismissed the third amended complaint for lack of personal jurisdiction and failure to state a claim, and we affirm.

The claims in this case are remarkably weak, at least as pleaded. We are more candid than usual in this assessment because the plaintiffs' counsel Anthony F. Sabatini has not been candid with us. Sabatini filed multiple briefs replete with fake and hallucinated citations. Even after being warned. "Always a bad idea." Chief Justice John G. Roberts, Jr., 2023 Year-End Report on the Federal Judiciary, at 6 (2023). By outsourcing his legal work to an AI algorithm, Sabatini violated his ethical duties to both his clients and this Court….

Though the filings in this case were substandard in a variety of ways [I excerpt some of the substantive analysis below -EV], we have saved the worst for last. The plaintiffs' counsel Anthony F. Sabatini's filings are riddled with citations to nonexistent, "hallucinated" cases. His opening brief relies on at least eight such cases, including one purportedly decided by this Court.

After the defendants identified this problem, Sabatini acknowledged in his (untimely) proposed reply brief that those citations were "erroneous or unverifiable," and sought to withdraw his reliance on eight listed cases. At this point, things go from bad to worse: the eight cases Sabatini "withdrew" did not match a single one of the eight hallucinated cases in his opening brief. And not only were they not the right cases—all eight were also hallucinated.

7/11/1921: Chief Justice William Howard Taft takes oath.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Beyond the Brief podcast: In the 1970s, the Supreme Court upheld requirements that banks report their clients' cash transactions of $70k (adjusting for inflation) or more. Fast forward to today, and the feds are demanding disclosure of transactions of just $200. Yowza! Are there any constitutional limits on financial surveillance?

New on the Short Circuit podcast: Two Sixth Circuit First Amendment cases that go together "like cocaine and waffles." With a special appearance by Captain Justice, Guardian of the Realm and Leader of the Resistance. [link forthcoming]

D.C. Circuit: "Heavy is the crime when a government official trades on his office for personal gain." And separately, this "expediter" who facilitated bribes from nightclub owners to a D.C. tax official, and whose sentencing-guideline recommendation more than doubled after he declined a plea deal, didn't pay a "trial penalty." (He'll serve a below-guidelines nine years and change.)
After a brief tour through some of the D.C. Circuit's standing case law, gun owners challenging D.C.'s ban on carrying on Metro get standing by virtue of alleging they paid more money by taking alternative forms of transportation. (Your summarist is puzzled why circuit precedent seems to require pleading such ancillary costs when the plaintiffs are the people being directly regulated by a law they say is unconstitutional.) Read More

AI in Court

Lawyer Shows "Complete Disregard for His Ethical Obligations to Make Accurate Representations to the Court," Magistrate Judge Says

"He has been sanctioned repeatedly for his reliance on AI without verifying the quotations and citations .... Worse still, while he represented to a court last year that he understands words 'must never be enclosed in quotation marks unless they accurately reflect the precise language of the cited source,' he brazenly minimizes and attempts to justify identical behavior here."

Eugene Volokh | 7.10.2026 2:41 PM

From today's opinion by Magistrate Judge Jennifer Willis (S.D.N.Y.) in Dixon v. Cartagena:

On June 1, 2026, Roc Nation filed a motion for sanctions against Defendants Dixon, Blackburn, and T.A. Blackburn LLC …. This Court set a briefing schedule requiring Defendants' opposition to be filed by June 30, 2026. On July 1, 2026, Blackburn filed Defendants' opposition motion. Counsel for Roc Nation filed a motion to strike the filing because it was "untimely, exceeds this Court's word limit, and contains what appear to be AI-hallucinated citations."

On July 7, 2026, Blackburn filed a response to the motion to strike in which he argued that because every case cited to is real and "each was cited for a proposition it actually holds," the allegation of AI hallucinations is inaccurate. Blackburn does not dispute that on seventeen occasions he included language in quotation marks that is not identical to language in the cited cases but states that "[w]here quoted language does not track the source verbatim, it is a paraphrase or compression that faithfully states the court's holding—the ordinary work of legal argument, not the invention of fake law that the 'AI hallucination' cases condemn." In addition to defending the choice to quote language that does not exist in the cases cited, Blackburn accuses Roc Nation of "failing the identical citation audit," and includes a list of forty citations that he alleges are not reflected in the cases verbatim.

In response to Blackburn's filing, counsel for Roc Nation filed a letter informing the Court that Roc Nation did not use AI in "identifying authority for its own motions nor in reviewing the authority cited in Plaintiff's opposition." Regarding the accusation of forty instances of misleading or inaccurate quotations, Roc Nation states "[i]t also appears that some of Plaintiff's accusations are based on hallucinations from the very 'assisted citation-verification tool' Plaintiff claims to have used." For example, Blackburn claims Roc Nation:

From Tassinari v. Salvation Army, decided Monday by Judge Leo Sorokin (D. Mass.); I'd love to hear what list members think of it:

[Plaintiffs] assert that TSA [The Salvation Army] maintains a policy at its Adult Rehabilitation Centers that prevents such individuals from accessing medication for their disorder [including methadone and buprenorphine for Opiod-Use Disorder [OUD]], in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Fair Housing Act, 42 U.S.C. § 3604…. [The Salvation Army] operates twenty-nine Adult Rehabilitation Centers ("ARCs") in that territory. TSA refers to ARC participants as "beneficiaries." ARCs provide beneficiaries with housing and basic living necessities for six to twelve months, during which time beneficiaries live on site and participate in "work therapy" by working full time at the ARCs or processing donated goods for resale at Salvation Army thrift stores….

TSA views ARCs as "residential churches," and it considers the operation of ARCs to be one of the ways it practices its religion. TSA considers "the highest priority of the ARCs" to be "bring[ing] the beneficiaries into a personal relationship with God." ARCs "serve[ ] men and women with social, emotional and spiritual needs who have lost the ability to cope with their problems and provide for themselves."

Beneficiaries need not be Salvationists—the vast majority are not—and they may continue to practice their own religion if they do so on their own time. But all beneficiaries are required to acknowledge that The Salvation Army is a church and must agree to participate in Salvationist religious activities as a condition of their ARC participation. Beneficiaries meet at least biweekly with their assigned spiritual counselor. They must also attend Sunday morning chapel services, a midweek service, daily devotions, and weekly Bible classes.

Abstinence from alcohol and addictive substances is a core tenet of The Salvation Army's religious beliefs. sincerely believes, as a matter of its religion, that long-term use of narcotics to treat addiction is not true rehabilitation, and that "abstinence and the power of God unto salvation is the only form of successful rehabilitation."

From Sullivan v. Schiman, decided Tuesday by the Illinois Appellate Court (Justice John Anderson, joined by Justices Linda Davenport and Matthew Bertani):

Schiman posted on Facebook—falsely—that [Dr.] Sullivan sexually abused her during [a medical examination at a hospital] …. Following a multi-day bench trial, the circuit court agreed that Sullivan was actually (not just presumptively) harmed but awarded $1 in nominal damages….

On January 23, 2022, Schiman went to the St. Margaret's Hospital emergency room for treatment of severe abdominal pain. Sullivan, an emergency physician, performed a physical examination of Schiman. Based on the examination, Sullivan informed Schiman that he recommended performing a rectal exam to assess for the presence of blood and mucus. Schiman consented, and Sullivan performed the exam with a nurse present.

Shortly after the exam, Schiman accused Sullivan of performing an unnecessary rectal exam in an aggressive manner. The next day, she filed complaints with the hospital, the Illinois Medical Board, and the Spring Valley Police Department, alleging that Sullivan sexually assaulted her during the exam. On March 25, 2022, the Bureau County State's Attorney's Office declined to file any charges and closed the case.

On March 31, 2022, Schiman posted the following statement (the Post) on Facebook:

In January 2024, in End Citizens United PAC v. FEC, a divided panel of the U.S. Court of Appeals for the D.C. Circuit concluded that the Federal Election Campaign Act does not create a cause of action to challenge the FEC's exercise of enforcement discretion.

In October 2024, the full court voted to rehear the case en banc (as I noted in this post). Interestingly enough, the grant of rehearing expanded the issue before the court, perhaps for the purpose of cleaning up circuit precedent in this area.

Oral argument was held in February 2025.

It is now July 2026, and there is still no opinion.

It's been over two-and-a-half years since the original panel opinion, and over twenty months since the panel opinion was vacated, and the case is still not resolved.

As I noted in my post from 2024, this case implicates important questions concerning judicial review of agency non-enforcement decisions. So what is taking so long? Is there not a majority in support of a single rationale? Something else? Those of us interested in judicial review of agency action--and, in this case, agency inaction--would like to know!

Back in the day, the D.C. Circuit was known for relatively quick resolution of cases. The court does not typically hear oral argument over the summer and judges were expected to finish up their opinions during that time--and well before oral arguments were held in the fall. (This also meant that clerks rarely had to hand off cases to their successors, as the cases one set of clerks worked on would be largely resolved when the new clerks began.) I do not recall whether this informal rule applied to en banc decisions, but a single case sitting around this long is still quite unusual for this court.

Perhaps the reasons for the delay with End Citizens United PAC will become evident once the opinion is ultimately released. Until then, we will just keep waiting.

7/10/1832: President Jackson vetoes the bill to recharter the Second Bank of the United States. He wrote that the bill was unconstitutional.

From the Encyclopaedia Londinensis or, Universal dictionary of arts, sciences, and literature; Volume XIV; Edited by Wilkes, John. (London 1816), via Wikimedia

I was recently reminded of one of the Epigrams of the Roman poet Martial (Marcus Valerius Martialis, colloquially pronounced in English as "Marshall"). It is about the lawyers of his day, but it reflects—in an exaggerated way, of course—something that some lawyers, and many law students, tend to do today in their briefs, especially briefs that deal with glamorous subjects such as constitutional law. Here is a translation I much liked, by Roger Dickinson-Brown, reprinted with permission:

There is no poison here, no rape or force—
a simple case: my neighbor stole my goats.
But my expensive lawyer will discourse
on the whole history of law. He quotes
book, precedent and chapter 'til he's hoarse.
Fine, noble words! But what about my goats?

From Spengler v. Coop. Educ. Serv. Agency 7, decided yesterday by Seventh Circuit Judge Michael Scudder, joined by Chief Judge Michael Brennan and Judge Candace Jackson-Akiwumi:

In 2018, Becky Spengler started working as a special education administrator in Wisconsin. A couple years into the role, her supervisors pushed her and the rest of her team to adopt an "equity mindset," which required everyone to interrogate their implicit racial biases and privileges. Spengler understood the demand differently. She thought she had to believe that all white people—and only white people—are naturally racist. Spengler refused to adopt the equity mindset, and as a result, her employer demoted her to a different job….

Spengler … alleges that her employer violated the First Amendment by retaliating against her for what she believes and what she declines to believe. The district court never considered this claim, determining that Spengler insufficiently pleaded it…. [W]e disagree and remand for further proceedings….

In 2018, [Wisconsin state] Cooperative Educational Service Agency 7 hired Spengler as an Integration Director…. CESA 7 hired Spengler to effectuate a contract with the Wisconsin Department of Public Instruction [DPI] …. Spengler trained and supported the special-education directors for the 38 school districts within CESA 7. She also worked as a coach who provided professional learning to help teachers and staff implement training and particular workplace practices….

Spengler claims that after a couple years, DPI began focusing on race by requiring coaches to adopt an "equity mindset." According to DPI's Coaching Competency Practice Profile, a coach with an equity mindset "cultivates … the willingness and ability to see and speak to how their power and privilege are at work to systematically advantage some while simultaneously disadvantag[ing] others," helps others understand "how their thoughts and actions may negatively impact marginalized … communities," and "surfaces the impact of white supremacy and the history of whiteness on systems" while working "to disrupt and dismantle its effects."

Spengler thought the push for coaches to have an equity mindset was itself racist and discriminatory against white people. As she saw it, DPI's worldview anchored itself in a belief that "the natural state of White people—unlike people of color—is to be racists." When she voiced her disagreement with this perspective, tension emerged among Spengler and her co-workers.

From Wysocki v. Nassau County, decided Tuesday by Judge Sanket Bulsara (E.D.N.Y.):

Dennis and Lisa Wysocki were issued New York State pistol licenses by the Nassau County Police Department's ("NCPD") Pistol License Section ("PLS") in September 2017 and February 2021 respectively. In 2022, both applied for and were issued unrestricted concealed-carry pistol licenses.

The Wysockis live with their minor daughter, who was in middle school in February 2023. On February 8, 2023, their daughter told a school counselor she had been feeling depressed and described past thoughts of harming herself using a rope. The counselor asked her if there were firearms in the home, and she confirmed their presence.

On February 10, 2023, the Wysockis took their daughter to the Cohen Children's Medical Center. She was evaluated by psychiatrist Dr. Joshua Stein who concluded she "does not represent an imminent danger to self or others" and could return home. On February 11, 2023, Child Protective Services ("CPS") caseworkers and NCPD officers visited the Wysockis' home in response to the school report. The NCPD officers examined their gun safes, confirming that the firearms were stored in locked safes with trigger locks.

On February 13, 2023, Dennis Wysocki called the PLS and spoke with Officer Vito Scaglione ("Scaglione") to report his daughter's comments and the visit from the police. He relayed that the officers had examined the safes, confirmed that their firearms were properly stored, and that his daughter had been evaluated and discharged by Dr. Stein as not an imminent danger to herself or others.

During the phone call, Scaglione informed Dennis that their pistol licenses were going to be suspended given their daughter's expressed thoughts of self-harm and that they would have to surrender their guns. That same day, the Wysockis took their firearms to a federal firearms licensee for safekeeping and went to the PLS office to provide Scaglione with a receipt confirming this transfer.

7/9/1868: The Fourteenth Amendment is ratified.

The Volokh Conspiracy

"A Black Robe Is No Guarantee of Gray Matter"

World Professional Association for Transgender Health (WPATH) Can't Go to D.C. Federal Court to Block FTC Enforcement in Texas Federal Court

Lawsuit Against Media for Keeping People "Clueless" Thrown Out

Emergency! and the Legalization of Paramedic Services

Florida Politician (Anthony F. Sabatini) Faulted for AI Hallucinations in Briefs

Today in Supreme Court History: July 11, 1921

Open Thread

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Lawyer Shows "Complete Disregard for His Ethical Obligations to Make Accurate Representations to the Court," Magistrate Judge Says

Salvation Army Has First Amendment Right to Ban Methodone Use by People in Its Adult Rehabilitation Centers

Nominal Damages Aren't Enough When There's Evidence of Emotional Distress in Defamation Per Se Case

What Happened to End Citizens United PAC v. FEC?

Today in Supreme Court History: July 10, 1832

Open Thread

"But What About My Goats?": The Roman Poet Martial on Lawyers

Claim That State Employee Was Unconstitutionally Demoted "Because She Did Not Share" Education Agency's Views on Race Can Go Forward

Banning Parents from Possessing Guns Because Their Child Has Described Thoughts of "Harming Herself Using a Rope" Violated Second Amendment

Today in Supreme Court History: July 9, 1868

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