"[S]tatements made to third parties can be 'directed at' the victim," and thus criminal harassment if they're repeated and likely to cause serious annoyance or distress, "when they are designed to provoke an adverse consequence against the victim."
A person commits harassment [a class 1 misdemeanor] if the person knowingly and repeatedly commits an act or acts that harass another person or the person knowingly … [c]ontacts or causes a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means….
"[H]arass" means conduct [excluding] a {lawful demonstration, assembly or picketing} [1] that is directed at a specific person and [2] that would cause a reasonable person to be seriously alarmed, annoyed, humiliated or mentally distressed and [3] the conduct in fact seriously alarms, annoys, humiliates or mentally distresses the person.
This pretty clearly covers certain kinds of unwanted communications to a person (e.g., repeated unwanted seriously annoying phone calls). But does it also cover communications about a person? The statute does specifically cover one such communication: making "a false report to a law enforcement, credit or social service agency against another person." But what about true statements, or expressions of opinion, about someone that are reasonably seriously upsetting—e.g., complaints to employers, which might put the target's job in jeopardy (surely something that would seriously alarm, annoy, humiliate, or mentally distress people)?
Monday's unanimous Arizona Supreme Court decision by Chief Justice Timmer in Hernandez v. Loarca says the law does cover such speech about people:
Briana Hernandez and Luis Loarca had a past romantic relationship that resulted in the birth of their daughter …, who was ten years old at the time of the events at issue…. Hernandez obtained an order of protection against Loarca based on allegations that he engaged in domestic violence by harassing her at Daughter's school, where Hernandez was also employed. See A.R.S. § 13-3601(A)(2) (including harassment by one parent against the other as an act of domestic violence). Specifically, she alleged that Loarca harassed her by making negative statements concerning her to Daughter's teacher and the school principal….
We conclude that communications may be "directed at" a victim even when conveyed to a third party when they are designed to provoke an adverse consequence against the victim…. If such communications are designed to provoke an adverse consequence for the victim that would seriously alarm, annoy, humiliate, or mentally distress a reasonable person in the victim's position, and in fact do so, they constitute harassment. In short, § 13-2921(E) regulates conduct based on its target, not its transmission path.
As a recent Boston Globe article explains, the Trump Administration is trying to deport Russian dissenters against Vladimir Putin's war of aggression:
Russian asylum seekers are being rejected despite the likelihood they will be arrested back in Russia. It started during the Biden administration but has accelerated in President Trump's second term. Since Trump returned to office last year, US immigration authorities have deported possibly hundreds of Russian asylum seekers. This is according to estimates by Russian America for Democracy in Russia (RADR), an organization that assists antiwar Russians with finding legal aid and that has analyzed ICE data.
Russian refugee seekers deported by the administration include a 25-year-old man who defected from the army, was arrested upon his return to Moscow, and was charged with desertion. An opposition activist named Leonid Melekhin was sent to prison straight from the airport after his deportation flight from the United States in 2025, and he now faces a lengthy prison sentence. RADR estimates that another 1,000 Russians who have requested asylum are being held in US detention facilities.
Krasnov applied for asylum at the US-Mexican border back in 2023. He spent more than 14 months in detention until he was released in October 2024 after he joined a class-action lawsuit challenging unlawful detentions. Then he was detained once again during a check-in with ICE in February 2025.
Now he is certain that he will be sent to prison the moment he lands in Russia. One common fate for Russian prisoners is to be sent off to the Ukraine war. At one point, Russian prisoners accounted for 18 percent of all Russian casualties in the war. It baffles Krasnov that the Trump administration is providing more foot soldiers to fight against Ukraine, a US ally. "In Russia, every man is a potential cog in Putin's war machine. Why give him more cogs?''….
The Russians who have been detained by ICE include many immigrants who drive trucks for a living. It is a profession that has made them easy targets for immigration officials, who prowl the roads looking for suspicious-looking drivers or are able to look at their documents at checkpoints. "ICE officers are simply rounding up those who go right into their hands. Don't even have to make an effort to hunt anyone down,'' says Anastasia Topilina, whose husband, Alexander, was detained at a checkpoint in Laredo, Texas.
Alexander Topilin was being held in that detention center alongside about 20 other Russian-speaking truck drivers. His family had been forced to flee Russia because of threats from the police, who had singled Topilin out for his years-long participation in anti-Putin protests. After being detained at one of the rallies, he says that he was strangled with a "terry cloth towel'' to force him to confess to trying to "overthrow the current president.''
I previously wrote about this issue back in September of last year, and the points I made still apply:
[A]busive treatment of Russian dissenters fleeing Putin occurred under Biden, as well. And I condemned it at the time. But Trump's expansion of the deportations and collaboration with the Russian government is worse.
Beginning soon after Russia's full-scale invasion of Ukraine, I have argued the US and other Western nations should open their doors to Russians fleeing Putin's increasingly repressive regime. It's the right thing to do for both moral and strategic reasons. Morally, it's wrong to bar people fleeing brutal repression and, in some cases, seeking to avoid being drafted into an unjust war of aggression. Strategically, we benefit from depriving Putin of valuable manpower and from enabling the Russian refugees to contribute to our economy and scientific innovation (Russian immigrants and refugees are disproportionate contributors to the latter). I have also advocated for Ukrainian refugees, whose interest I cannot easily be accused of neglecting.
I would add that the 1980 Refugee Act gives anyone crossing a US border the right to apply for asylum, and Russians fleeing persecution for opposing Putin's war have an obviously strong case for getting it. US law grants asylum to people who enter the United States and meet the legal definition of "refugee," defined as "any person who is outside any country of such person's nationality…. and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Russians threatened with imprisonment and other repression because they oppose Putin's war undeniably qualify as victims of persecution based on "political opinion." In today's Russia, you can get a prison sentence for spreading what the Kremlin calls "false information" about the war, which includes such things as referring to Putin's "special military operation" as a "war."
Elsewhere, I have made the case for expanding the legal definition of "refugee," which excludes many people fleeing various types of horrific violence and oppression. But Russian war dissenters clearly qualify under the current narrow definition.
In sum, Trump's effort to deport Russian anti-Ukraine War dissenters is simultaneously unjust, illegal, and harmful to US foreign policy interests. But at least you can say Trump is consistent. His abusive treatment of Russian dissenters is of a piece with his efforts to deport people seeking to escape other oppressive anti-American regimes, such as those who fled Cuba and Venezuela, Iranian Christians, and Afghans who escaped the Taliban (including many who aided the US during the war).
Conservative Boston Globe columnist Jeff Jacoby makes some additional related points in this article.
On or about May 15, 2025, in the Eastern District of North Carolina, the defendant, JAMES BRIEN COMEY JR, did knowingly and willfully make a threat to take the life of, and to inflict bodily harm upon, the President of the United States, in that he publicly posted a photograph on the internet social media site Instagram which depicted seashells arranged in a pattern making out "86 47", which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States.
In violation of Title 18, United States Code, Section 871(a).
A second count also alleges this violated the federal interstate threats statute, 18 U.S.C. § 875(c).
I think this prosecution is unjustified, and will get thrown out. Let me quickly analyze why.
Threats: To "eighty-six" someone is, to quote the Oxford English Dictionary, "to eject or debar (a person) from premises; to reject or abandon; (in earliest use) to refuse to serve (a customer)." (In context, "47" means Trump, who is now the 47th president.) Here are the examples the OED gives:
In a recent Atlantic article, prominent conservative legal commentator Gregg Nunziata argues that conservatives should rethink their advocacy of sweeping executive power, and support tighter limits on presidential power:
The second Trump administration has revealed American Caesarism in nearly full bloom. Despite ambitions to fundamentally change the course of the country, this administration has no real legislative agenda. Instead, the president governs by executive orders, emergency decrees, and extortionate transactions, using his power to reward his friends and punish his enemies. He's launched foreign military adventures and full-blown wars seemingly based on personal whim, and has made the military a political prop and a tool for domestic law enforcement. With Congress sidelined and the courts reluctant to check Donald Trump's excesses, America has been left with what some legal scholars have described as an "executive unbound"—and with a president who threatens to supplant the republic in all but name….
The central premise of the Constitution is that liberty requires divided authority. The accumulation of power in one branch of government is, as James Madison warned, "the very definition of tyranny." Americans are already feeling the consequences of this imbalance: Because executive orders, emergency declarations, and unilateral action lack the durability of legislation passed by Congress, policies swing wildly from one administration to the next. Families and businesses cannot plan ahead, which undermines investment, growth, and prosperity.
American Caesarism did not emerge overnight with the election of Trump, but over the course of decades. And though conservatives alone did not create this state of affairs, many were key proponents of a vision of politics centered on one commanding figure—a vision that is now destabilizing our country. I have spent my career in the conservative legal movement, which has included advising Senate Republicans on judicial nominations. I have become convinced that if the Madisonian republic is to endure, conservatives must reckon with our role in bringing the nation to its current breaking point, and work to reestablish the checks and balances that we helped erode.
I agree with most of Nunziata's points, and certainly with his bottom-line conclusion that the conservative legal movement, the judiciary, and especially Congress should all do much more to constrain executive power.
I would extend Nunziata's logic in several ways. First, as I have argued at length in various previous writings, the nondelegation and major questions doctrines pioneered by conservative judges and legal scholars can be valuable tools for constraining executive power, and they should be used more. We've already seen some beneficial effects of them in the tariff case recently decided by the Supreme Court. And there is much more potential there, for example when it comes to constraining dangerous presidential efforts to "nationalize" control over elections.
Second, I would amplify Nunziata's calls for stronger judicial review of and congressional control over invocations of executive emergency powers. I previously wrote about that here and here. Courts should not defer to presidential assertions that an "invasion," "unusual and extraordinary threat," or other emergency justifying use of sweeping powers exists. They should demand proof. And Congress should impose time limits on emergency powers, and make clear that legal limitations on emergency powers are subject to nondeferential judicial review.
Third, even if "unitary executive" theory is otherwise sound, it should not be applied to the exercise of authority over issues that were not themselves within the original scope of federal authority. If we are not going to eliminate such unoriginalist expansions of federal power entirely, we should at least not allow concentration of that vast authority in the hands of one person.
I do have a few reservations about Nunziata's analysis. I think he underrates the potential impact of the Supreme Court's ruling in the tariff case (which I helped litigate). Nunziata is right that the Court based its decision primarily (thought not "solely," as he put it) "on the determination that the emergency authority at issue does not authorize tariffs" and that the Court did not address Trump's bogus invocation of a national emergency. But, as recounted in my Atlantic article about the case, all six justices in the majority emphasized that the president could not claim unlimited power to impose tariffs for any reason, and the three conservatives also ruled against Trump based on the major questions doctrine, thereby signaling their willingness to utilize against future power grabs on "foreign affairs" powers, including those by Republican presidents. Justice Gorsuch also emphasized nondelegation considerations.
I think Nunziata may also underrate the extent to which the Supreme Court's rulings limiting judicial deference to executive agencies can be utilized to constrain the presidency. He notes that "the judiciary remains less willing to confront executive overreach outside of the regulatory context, especially in matters of purported national security." This is true to an extent. But the logic of these decisions applies broadly to all assertions of executive power, and multiple federal judges - including conservative ones - have applied them in a nondeferential way in the tariff case, and in litigation over the president's claims that illegal migration and drug smuggling qualify as "invasion." On the other hand, it is also true that a few conservative judges have claimed the president deserves virtually absolute deference on the latter issue. I go over the relevant precedents and critique the case for deference in this article.
For me as a libertarian, it's generally easy to oppose executive power grabs because - in addition to constitutional considerations - I also oppose the vast bulk of them on moral and policy grounds. That's true of Biden's student loan forgiveness plan, Trump's actions on immigration and tariffs, and more.
By contrast, executive power poses some difficult dilemmas for both left-liberals and conservatives. They may often welcome sweeping executive power when "their" guy is in the White House, hoping that he will use it for beneficial purposes, even as they fear its exercise when the shoe is on the other foot. To them I can only say that a massive concentration of power in the hands of one person is inherently dangerous, at odds with the constitutional design, and - as Gregg Nunziata explains - a serious potential menace to the republic. At the very least, these concerns should lead you to support tighter constraints on executive power than you might otherwise advocate.
NOTE: Gregg Nunziata is Executive Director of the Society for the Rule of Law. I am a member of SRL's Advisory Council (an unpaid position).
A new study just published by the prestigious American Economic Review may be the most important recent social science article most nonexperts have never heard of. It's entitled "Zero-Sum Thinking and the Roots of US Political Differences" and the authors are Sahil Chinoy, Nathan Nunn, Sandra Sequeira, and Stefanie Stantcheva. Here is the abstract:
We investigate the origins and implications of zero-sum thinking: the belief that gains for one individual or group tend to come at the cost of others. Using a new survey of 20,400 US residents, we measure zero-sum thinking, political preferences, policy views, and a rich array of ancestral information spanning four generations. We find that a more zero-sum mindset is strongly associated with more support for government redistribution, race- and gender-based affirmative action, and more restrictive immigration policies. Zero-sum thinking can be traced back to the experiences of both the individual and their ancestors, encompassing factors such as the degree of intergenerational upward mobility they experienced, whether they immigrated to the United States or lived in a location with more immigrants, and whether they were enslaved or lived in a location with more enslavement.
As the authors show, zero-sum worldviews cut across party and ideological lines (though slightly more prevalent among Republicans than Democrats), and are strong predictors of political views on issues like redistribution, the use of racial preferences for affirmative actions, and immigration restrictions.
The authors' analysis of the determinants and correlates of zero-sum worldviews is also groundbreaking. Most notably, they find that experiences of upward mobility and immigration (including having immigrant parents or grandparents) are strongly negatively correlated with zero-sum thinking. On the other hand, zero-sum thinking has a strong positive correlation with having ancestors who experienced slavery and others forms of forced labor or even just living in an area where slavery was historically prevalent.
Among American Blacks, this latter effect is, as the authors recognize, partly caused by a history of segregation and discrimination that persisted after slavery was abolished. The same can be said of the impact of living in an area where slavery was prevalent (which also are almost always areas where there was a high degree of later segregation and other discrimination). But it is notable that the impact of past enslavement is also significant among other groups, such as Jews whose parents or grandparents were forced laborers during the Holocaust.
The impact of immigration is particularly noteworthy in light of current debates over immigration restrictions. Libertarians and free-market conservatives sympathetic to restrictionism often argue that immigration should be curtailed because it might lead to increased welfare state spending. But the Chinoy, et al. study shows that zero-sum thinking is a major determinant of support for redistributive policies, and immigrants and children of immigrants are much less prone to it than other voters, even after controlling for a variety of other variables. This is actually an additional important pathway by which immigration is likely to reduce the burden of the welfare state, rather than increase it. I went over some additional flaws in the welfare state rationale for immigration restrictions in this post, and in Chapter 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.
The same goes for concerns that immigration might increase "woke" policies like affirmative action racial preferences. Chinoy, et al. also show that support for these policies is heavily driven by zero-sum assumptions, and immigrants and their children are far less likely to hold such views than natives. I outlined some other ways in which immigration reduces support for affirmative action here.
I don't want to overstate the importance of these points. As also noted in Chapter 6 of my book, recent immigrants tend to vote and otherwise participate in politics at lower rates than natives. That considerably diminishes any effect they have on political outcomes, whether good or bad. But to the extent they do have a marginal impact, it's likely to reduce political pressure for redistribution and racial preferences rather than increase it.
I would add that, as the authors point out, zero-sum worldviews are likely to be important for a range of issues beyond those they tested. For example, in addition to heavily influencing views on immigration, I would expect them to also influence views on protectionism. Indeed, a measure of zero-sum attitudes towards international trade is (quite properly) one of the authors' questions gauging zero-sum attitudes.
I would also expect zero-sum views to be crucial determinants of attitudes on such policies as rent control and "NIMBY" restrictions on housing construction. If you think the economy is a zero-sum game generally, you are probably more likely to also believe that housing is a zero-sum game between landlords and tenants, and between long-time residents and developers and potential migrants. Indeed, survey data on housing issues shows that much opposition to zoning reform is driven by false beliefs that new housing construction will not reduce prices, and other kinds of economic ignorance driven in part by zero-sum assumptions.
While most of the authors' evidence is limited to the United States, they note some data that suggests similar effects in other countries. Testing their hypothesis further in other countries is an important potential topic for future research.
As regular readers know, I am generally hostile to zero-sum thinking and the policies it leads to. I think zero-sum assumptions about immigration, housing, the interests of the poor and minority groups, and most other issues are largely wrong, and lead to pernicious policies. In previous writings, I have extensively critiqued zero-sum assumptions about immigration (e.g. here and here), and housing, among other issues. In most cases, zero-sum games only arise if pernicious government policies (often themselves based on zero-sum assumptions) needlessly create them. For example, housing can be a zero-sum game when exclusionary zoning blocks new construction in response to demand.
However, those more sympathetic to various types of zero-sum thinking than I am can also find value in the Chinoy, et al. article. Effects I view as pernicious, they might actually see as beneficial (and vice versa). Either way, the impact of zero-sum thinking on political views is an incredibly important field of study, and I commend the authors of this article for making a major advance in our understanding.
The above covers only part of what's in the article. There is much more. Serious students of this subject should make sure to read the whole thing.
Blanchard v. Augusta Bd. of Ed., decided yesterday by Judge Stacey Neumann (D. Me.), held that the First Amendment was likely violated by school board public commentary policies forbidding
"gossip,"
"abusive … language.,"
"vulgar language," and
"complaints or allegations … at Board meetings concerning any person employed by the school system or against particular students," also described as "[p]ersonal matters or complaints concerning student or staff issues."
The parties had agreed that the public comment period was a "limited public forum," a place opened up by the government for speech on particular subjects. In a limited public forum, speech restrictions must be viewpoint-neutral and reasonable. The court then held that the four restrictions noted above violated one or both of these elements:
[1.] Gossip:
By its terms, the gossip prohibition turns on what is being said: "rumors or information about the behavior or personal lives of other people." See Gossip, Merriam-Webster. Such a category of speech does not exist solely and definitively outside of that which relates to school or education matters. Comments about the conduct or personal behavior of teachers, administrators, or Board members may indeed bear directly on school operations and policy….
[And] Policy BEDH provides no objective standard to distinguish "gossip" related to school and education matters from other such commentary. That lack of clarity leaves speakers guessing at what is allowed and invites arbitrary enforcement by officials presiding over the meetings. Without a workable line, there is no "sensible basis for distinguishing what may come in from what must stay out." In practice, the rule allows the presiding officer's own sensibilities to determine what counts as "gossip," which "openly invites viewpoint discrimination."
Last fall, the Pentagon announced a new policy governing Pentagon Facility Alternate Credentials (PFACs), the passes journalists have historically used to access the Pentagon. The new policy restricted this access and implemented rules that would allow the Pentagon to revoke credentials if the holder was determined to be a "security or safety risk to Department personnel or property." A reporter could be deemed a "security or safety risk" "based on the unauthorized access, attempted unauthorized access, or unauthorized disclosure" of Department information.
The New York Times (NYT) and one of its journalists, Julian E. Barnes, filed suit to enjoin several provisions of the policy as unconstitutional under the First and Fifth Amendments, and as arbitrary and capricious under the APA. On cross-motions for summary judgment, the district court held that the rules governing when a PFAC may be denied for "security" reasons were unconstitutionally vague in violation of the Fifth Amendment because they "fail[ed] to provide fair notice of what routine, lawful journalistic practices" would trigger credential revocation.
Turning to the First Amendment, the court noted there was no dispute that "[t]he regular presence of PFAC holders at the Pentagon … enhanced the ability of journalists and news organizations … to keep Americans informed about the United States military." Moreover, this arrangement had "pos[ed] no security or safety risk to Department property or personnel." By contrast, the district court concluded that the record was "replete with undisputed evidence that the Policy" was specifically, and unreasonably, designed to deprive "disfavored" journalists of access to a nonpublic forum. Accordingly, the district court granted summary judgment to the plaintiffs on their constitutional claims, without addressing the APA claim.
The next business day, the government replaced the invalidated policy with a new one that revised provisions the district court had declared unconstitutional and announced new "physical security restrictions" for all PFAC holders. Those restrictions required that PFAC holders be escorted in all areas of the Pentagon "at all times" and limited their opportunities for entry to five approved purposes. At the same time, the Department announced that the previously available workspace in the "Correspondents' Corridor" was closed and that a new workspace "will be established in an annex facility."
This paper studies how generative AI has reshaped entry into the federal civil court system. Drawing on administrative records covering more than 4.5 million non-prisoner federal civil court cases from FY2005-FY2026 and 46 million PACER docket entries matched to those cases, we document three sets of findings.
First, the number of pro se cases—or self-represented cases—is increasing dramatically, rising from a long-term steady-state average of 11% to 16.8% in FY2025. This increase is concentrated in case types characterized by formulaic document production and absent from more complex, attorney-intensive categories.
Second, we argue these cases are placing larger burden on federal district courts. Pro se cases are not terminating faster, and this combined with the increased case numbers suggests more cases for judges to process. Moreover, intra-case activity is up, with the total volume of docket entries per court generated by pro se cases in their first 180 days up 158% from pre-AI means to 2025.
Third, we directly validate that AI use is increasing in federal courts. Using a random sample of 1,600 complaints drawn from an 8-year period (2019-2026), we find that a large and growing share of complaints are flagging positive for AI-generated text, from essentially zero in the pre-AI period to more than 18% in 2026.
Don't know how it's carrying over to state courts, but one would think that it would.
"This Article presents a corpus of primary sources that were written by presidents, attorneys general, United States attorneys, special counsels, and others between the 1850s and the 1950s."
In 2024, as part of my research on the Jack Smith case, I compiled a corpus of primary sources about special counsels before Watergate. Much of this research was novel and had not been assembled before.
This Article presents a corpus of primary sources that were written by Presidents, Attorneys General, United States Attorneys, Special Counsels, and others between the 1850s and the 1950s. This corpus reproduces primary sources from more than a dozen archives to present a better legal account showing how Special Counsels were retained by Attorneys General under Presidents Buchanan, Andrew Johnson, Grant, Garfield, Theodore Roosevelt, and Truman.
During these six presidential administrations, Attorneys General retained outside lawyers as Special Counsels either: (1) to assist a U.S. Attorney with prosecutions, or (2) to assist the Attorney General with an investigation. In none of these matters did the Attorney General appoint an outside lawyer as a Special Counsel, and then delegate to him the powers now claimed by modern special counsels: all of the powers of a Senate-confirmed U.S. Attorney.
There was one outlier. In 1924, during the Coolidge Administration, Congress enacted legislation establishing Senate-confirmed special counsels to prosecute Teapot Dome Scandal defendants. These Special Counsels were afforded "total independence." It is doubtful that these positions would be consistent with the Supreme Court's modern separation of powers jurisprudence.
This practice shows that the positions of special counsels in the post-Watergate era are not analogous to the positions of special counsels in the pre-Watergate era. Thus pre-Watergate history does not provide support for the modern, post-Watergate special counsel and the vast powers that they are purportedly vested with.
The issue of the special counsel has fallen to the wayside for the moment, but I suspect this article will prove useful at the appropriate time.
Ali v. Mindful Care, Inc., decided two weeks ago by the Illinois Human Rights Commission rejected claims by Ali, who had been an employee of a mental health services clinic. (Commissioners Janice M. Glenn and Gregory E. Vaci wrote the opinion, with Commissioner Mony Ruiz-Velasco dissenting.) Ali claimed that:
[O]n January 3, 2024, a video she was in gained popularity on social media… [T]he video was made on December 29, 2023, and showed Petitioner, off duty, taking down a poster that was attached to an outdoor pole. [According to the employer,] {the video showed Petitioner removing posters depicting children that were kidnapped in Israel on October 7, 2022, by the group Hamas and being held hostage} …. [I]n response to the video, she was harassed by hate groups, including one that she called "Stop Antisemitism." … [T]he poster she was taking down was intended to create fear, justify the genocide in Palestine, and encouraged the killing of Palestinian children….
Petitioner was allegedly fired on the grounds that "the video was not a good look for Employer," that the employer "was being called antisemitic by online commentators" and was "losing patients as a result of the video" and "the action Petitioner took was misaligned with Employer's core values and … Petitioner's conduct showed a lack of empathy toward the events on October 7, 2022."
Petitioner claimed:
[Petitioner] is Muslim and holds genuine religious beliefs associated with Islam…. [T]he sanctity of human life is included in her religious beliefs and the idea that every life is worthy of equal respect and dignity, regardless of their religion…. Islam teaches that resistance in the face of oppression, expulsion, and persecution of faith is necessary, and that resistance can take many forms and need not be violent…. [T]he need to resist was especially prevalent because, among other reasons, Muslims around the world view solidarity with Palestinians and resistance to Israeli occupation as an act of their Islamic faith….
The panel rejected Ali's religious harassment claim: Read More
Yesterday, the Supreme Court heard oral argument in Monsanto Co. v. Durnell. The facts of this case are likely not of concern to most constitutional law scholars, but the dispute is of serious concern to the business community. The plaintiff sued Monsanto (which is owned by Bayer) for harms caused by the Roundup herbicide. (Don't call it a pesticide, as Justice Thomas--a former Monsanto employee--reminded us.) The jury awarded $1.25 million in compensatory damages based on a failure to warn about possible harms. Bayer counters that the EPA did not require those additional warnings, so the state tort claims is preempted.
Going into the argument, I struggled to count to five votes for the plaintiff. Preemption is an area where the Court's conservatives do not line up neatly. Justice Thomas, the Court's most committed federalist, has often been skeptical of federal preemption. See his opinion in Hencely just last week. I thought Justice Gorsuch would be in a similar spot. I was fairly certain Justice Kavanaugh would be troubled by the possible economic effects on companies like Monsanto, and would favor broad federal preemption. I suspected that Chief Justice Roberts would fall in a similar camp. Same for Justice Alito. I wasn't sure where Justice Barrett would be. It It was conceivable that Justice Kagan would favor broad federal preemption to promote uniformity, but I was doubtful.
Having now listened to the oral arguments, I will stand by my prediction. Everyone lined up about where I expected. Despite Paul Clement's best efforts, I'm not sure where Monsanto finds five votes. Indeed, the Justices seemed to have very few questions for Ashley Keller, counsel for the Durnell. Perhaps they were a bit tired, as the argument in Chartrie stretched nearly two hours, but Keller was able to talk uninterrupted for several minutes. And with about ten minutes remaining, and no further questions coming, Keller sat down. As a general rule, the side that gets the most questions is more likely to lose. Then again, the Justices may have been spent after the Fourth Amendment case.
Justice Alito was entirely silent during the argument except when he perked up during an exchange about Loper Bright. I flagged this issue in a prior post. Everyone agrees that Congress can preempt state law through a statute. But what about when an agency purports to preempt a state law through regulations? Under the Chevron regime, the agency would likely get deference when its regulation interprets a complex (ambiguous) statutory regime. But after Loper Bright, does that agency still receive deference? And if the agency does not receive deference, can a state court, in a tort suit, interpret the federal statute to determine if there is federal preemption? In other words, who gets to interpret the statute: the agency or the court. Who decides? Loper Bright would seem to suggest that courts decide legal questions, rather than agencies. Or does Loper Bright not envision a role for state courts to decide the preemptive effect of federal regulations?
In response to my two-part series (1, 2) on what to do with AI-generated scholarship, my good friend and former colleague Daniel Solove writes in with a question/comment:
What's the difference between you here and a judge? A judge directs legal opinions and puts their name on them, so aren't they doing the same thing, just with a human writer vs. AI?
Claude is just a law clerk.
Fair questions. I disagree, because I think the norms of authorship for legal opinions and scholarship are different.
Judicial opinions are exercises of formal government power, and the fact that one judge signs it is just a convention. Say there's a federal court of appeals case heard by a three-judge panel of Judge Ay, Judge Bee, and Judge Cee. If the panel hands down a published ruling, what makes the document important is that the formalities are met. It's a ruling in the case issued by a three-judge panel authorized to issue it that is binding authority in the circuit. It really does't matter who formally signed the ruling. It's equally important as precedent whether it is signed by Judge Ay, Bee, or Cee, or whether it is unsigned and issued per curiam.
Plus, we don't think it's really just the judge who signed the opinion whose view is reflected within it. We understand that an opinion signed by Judge Cee was really the collective view of all three judges. Perhaps it's more that of Judge Cee than the other judges, but it's something that Judges Ay and Bee could go along with, too.
In that setting, where individual authorship really doesn't matter and the document is important because of the formalities, it makes sense that we wouldn't have a law clerk's signature on an opinion they helped draft (or, in some cases, drafted entirely). The opinion is an institutional message, and it's the institution that matters. The names on the document don't matter much, but they understandably reflect those in the institutions who have the power over the message.
I see scholarly norms as different, at least when it comes to traditional law review articles. With scholarship, the scholar is saying, this is my view. I see the norms of scholarship as more like that of a soloist at a jazz concert. At a jazz concert, the solo is the musician's time to make a statement. If a tenor saxophonist gets up on the bandstand to begin their solo and instead pulls out a phone and hits "play," playing back a recorded solo performed by John Coltrane, we wouldn't say that the soloist is just as fantastic as John Coltrane. We wouldn't celebrate the soloist for expertly finding that Coltrane solo and skillfully hitting "play" at the right time. Instead, we would feel cheated. The soloist was supposed to make a statement, and instead he made no statement of his own at all.
I get that such norms can be contingent. What kinds of expression are valuable for their individuality, and which kinds are not, is something to debate rather than to logically resolve. And at some point, the selection of others' works can become a kind of statement of its own. But when it comes to AI, or at least my own AI-generated scholarship, I see AI as doing more than just executing my formal directives. So I see the scholarly norms as different, and I don't see AI as "just a law clerk."
Or so it seems to me. Curious what others think on this.
But the judge suspends his decision pending appeal, so that the appellate court has "time to consider and decide the merits of this case, absent unnecessary procedural deadlines."
In the wake of Hamas's October 2023 terrorist attack on Israel, the University of Pennsylvania's then-President Elizabeth Magill and others affiliated with the school stated publicly numerous times that Jewish faculty, employees and others at Penn had been subject to vile acts of antisemitism and harassment on campus…. Prompted by these statements, … [t]he EEOC … issued an administrative subpoena, with which Penn refused to comply, seeking contact information for Penn employees who may have been victims of, or witnesses to, such harassment…. The Court granted the EEOC's application [for] {judicial enforcement of the subpoena}, requiring Penn to comply with most of the subpoena by May 1.
Penn, and later the intervenors, moved to stay the Court's order pending appeal…. Penn does not have a strong chance of prevailing on appeal but makes, narrowly, a showing of irreparable harm. Staying the Court's order will not substantially injure the EEOC and a stay will allow the Third Circuit Court of Appeals to address in an orderly manner a matter of great public interest….
A request for a stay pending appeal prompts four questions: (1) whether the applicant has made a strong showing it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether a stay will substantially injure the other party in the litigation; and (4) whether the public interest favors a stay….
Penn does not have a strong chance of success on the merits, and its motion further exposes its vulnerabilities on appeal. The charge of discrimination is valid, the EEOC's subpoena seeks information relevant to the charge and the subpoena does not unduly burden Penn. The subpoena also does not violate substantive due process or the First Amendment. The Court explained its reasoning in its memorandum opinion [see this post], and Penn either ignores that reasoning, mischaracterizes it, or objects to it on superficial and conclusory grounds….
The Supreme Court held oral argument this morning in Chatrie v. United States, the geofence warrant case. I live-tweeted the two-hour argument over at both X and Bluesky, and click the links there to see the play-by-play. For those wanting the big picture, here are my initial thoughts right after the argument:
(1) The most important takeaway is that the Justices seem likely to reject the broader arguments Chatrie made that geofence warrants are categorically unconstitutional or cannot be drafted in ways that could identify suspects. They seem likely to rule that geofence warrants can be drafted constitutionally, rejecting the 5th Circuit's view in Smith. I suspect they will likely hold that geofence warrants have to be limited in time and space, and leave the details to lower courts. There were some Justices who wanted to address the multi-step process of Google's warrant procedure and say new warrants were needed for those steps—that was the view, if I recall correctly, suggested by Justices Sotomayor and Jackson. But I don't know if the majority will get that far.
(2) I don't know if the Court will rule on whether there was a search. I would guess that they assume a search and say the warrant was constitutional, so they don't have to decide the search question. There was a lot of discussion of whether location history records were kept in a virtual private locker, and I heard the government conceding that this was a viable theory of protection for cloud-stored *content* records, like calendar entries and photos stored in the cloud, that the user directly controls. But I don't know if the Court will weigh in on that or just assume a search and focus on the constitutionality of the warrant.
(3) I was somewhat surprised by the government not pushing back more late in the argument, especially in response to arguments that its search arguments are maximalist, or that there were practical problems with getting warrants, or that warrants might be needed if the revealed location was a home. Late in the argument, the government seemed in a conciliatory mindset, perhaps sensing a victory on the warrant issue that it didn't want to place at risk. But Smith v. Maryland expressly holds that voluntary disclosure from the home that reveals presence in the home is still not a search. And more broadly, there's no practical problem with getting warrants for Location History because the technology doesn't exist anymore, and probable cause was not challenged back when there was. In any event, what matters going forward is all the other online records that exist online: IP logins, etc. (See my book for some of the other kinds of records that are important in investigations.) Those are records that lower courts have held don't require warrants, and it would be a massive shift in practice if the Court ruled on the search issue in ways that implicated those different records. I was surprised the government didn't flag that; that's what matters practically speaking. Anyway, maybe that counsels in favor of just assuming a search here, or maybe the Court will get into that. Stay tuned.
(4) There was some discussion of a bunch of the side issues: Do Terms of Service matter? Does privacy legislation matter? Can we recognize a mosaic theory? These are each massive questions on which lower courts are split. Although I think there are correct answers to each of the three questions— Full disclosure, I have articles on each of these topics arguing that the answers are, respectively, no, no, and no—I am not sure that the Court will get into them.
(5) Justice Alito expressed some frustration that the Court had granted cert to render what amounted to an advisory opinion, both because the good faith exception obviously applies and because Google no longer stores these records. Justice Alito suggested that he might rule for the government on the good faith exception even though the Court denied cert on that question presented. He also hinted that perhaps it was the minimum of four Justices among his colleagues who voted to grant in the case. Justice Sotomayor weighed in that guidance in this area was important. So presumably Justice Sotomayor voted to grant cert in the case, and Justice Alito did not.
(6) There was some discussion of the Stored Communications Act and how it applies. It wasn't a particularly strong discussion, I thought; it's a complicated question, and this was no context in which to delve into the glorious statutory details. I don't think the statute is relevant to the Fourth Amendment issue, for all the reasons I explained here. But if the Court does weigh in on the SCA, it might surprisingly lead to an important SCA precedent, albeit on a question not really briefed.
