The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Free Speech

Racial Slurs as Actionable Intentional Infliction of Emotional Distress

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From Allen v. Noble, decided last week by Judge Latonia Williams (Conn. Super. Ct. New Haven), plaintiff's factual allegations (for Noble's side of the story, as to the now-dropped criminal charges against her apparently based on the same incident, see this N.Y. Post op-ed—she denies that she used slurs, and claims that surveillance video footage shows "[n]o confrontation, not even any interaction, with the accuser"):

[P]laintiff alleges the following facts. The plaintiff is an American citizen of African descent, who, during the times alleged in the complaint, was employed as a parking lot attendant for Pro-Park Mobility. The defendant Noble, during the times alleged in the complaint, was the executive director, employee, and agent for service of process of the defendant Buckley Institute. On or about a date prior to July 6, 2023, one or both of the defendants entered into an agreement with the plaintiff's employer to rent parking spaces for one or more of Buckley Institute's employees, including Noble, in the parking lot where the plaintiff works as an attendant (parking lot).

The complaint alleges that on or about July 6, 2023, while the plaintiff was at the parking lot, he informed Noble that the lot was full and he could not provide for her parking needs. The complaint alleges that the plaintiff overheard Noble state, "fucking niggers," and that the plaintiff did not respond to her.

The complaint further alleges that on July 13, 2023, while the plaintiff was on duty within the parking lot, Noble told him she could not find a parking place in the parking lot and the plaintiff said the parking lot was full and could not accommodate her. The complaint alleges that Noble replied: "You's niggers get jobs and don't know how to act!," and that the plaintiff did not respond to her.

The complaint further alleges that on or about July 27, 2023, the plaintiff observed Noble arrive at the parking lot and found that, due to the lot being full, there was no space within the parking lot to park her car. The complaint alleges that at that time, in the presence of, and within the earshot of two individuals and the plaintiff, Noble orally referred to the plaintiff as a "nigger" three times over a parking lot issue.

The complaint states that "[t]he plaintiff, by dint of … Noble's racially odious, racially demeaning, cruel, abhorrent, and racist epithets towards … [the plaintiff] had the capacity to hold him up to public ridicule, public humiliation, and has caused him great annoyance, embarrassment, shame, degradation, and moreover, he has suffered in his reputation and has lost the good will of many persons with which he otherwise would have enjoyed by dint of … Noble's heinous and foul misconduct she directed towards him." …

The court allowed plaintiff's intentional infliction of emotional distress claim to go forward:

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There Is No Equitable Constitutional Cause Of Action To Challenge The Presidential Record Act Policy

The Supreme Court needs to bring clarity to this issue.

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Last month, I wrote about the Office of Legal Counsel's opinion finding that the Presidential Records Act was inconsistent with Trump v. Mazars. Somewhat remarkably, several writers have attacked the opinion, but minimize, or even ignore, Mazars.

The American Historical Association filed suit, arguing that it is injured because at some point in the future, it will not be able to access certain presidential documents. Federal district court Judge Bates has found the new policy is likely unconstitutional. You know things are going south when the first sentence is a quote from 1984.

Again, even more remarkably, the court finds that Mazars has little bearing on the case.

Mazars is even less on point. There, the Supreme Court only concluded that the legislative subpoenas in question implicated the separation of powers, without determining how each factor panned out. And Mazars involved Congress's implied investigative powers; it focused on the lack of authority to issue legislative subpoenas without any discernable legislative purpose. That discussion is not relevant here because Congress has independent, enumerated authority to enact the Records Act under the Property Clause and the Necessary and Proper Clause, without relying on any implied authority.

Mazars was a delicate compromise by the Supreme Court, with a different composition at a different time. I suspect that even the Chief will not be pleased with how his ruling is being cast aside.

Lets put aside the merits for now. The plaintiffs have no equitable constitutional cause of action. Yet Judge Bates finds a cause of action on two grounds.

First, the court invokes Youngstown:

Most importantly here, plaintiffs likely have an equitable constitutional cause of action under Youngstown (Historian-Oversight Count I and Press-CREW Count IV) . . . In other words, and as in Youngstown, this case "involve[s] the conceded absence of any statutory authority, not a claim that the President acted in excess of such authority." Dalton, 511 U.S. at 473. And "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." Youngstown, 343 U.S. at 637 (Jackson, J., concurring). "Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution." Id. at 638. As icing on the cake, the government itself argues that the President has "conclusive and preclusive" power over presidential records, squarely placing this case within the Youngstown framework.

This analysis completely misunderstands why there was a cause of action in Youngstown. In the Steel Seizure case, the government seized the plaintiffs' property. That control of private property created a traditional cause of action. The court here conflates the merits analysis ("conclusive and preclusive") with the threshold question of whether there is a cause of action that was recognized in 1787. Seth Barrett Tillman and I discuss this issue in our article on causes of action:

In Youngstown, the mill owners did not assert a free-floating equitable cause of action to challenge Secretary Sawyer's illegal seizure. Rather, the mill owners' brief explained that their cause of action was based on resolving "a simple cloud on title" of the mills.307 The cause of action to resolve a cloud on title, the mill owners argued, "has always moved equity to grant relief because no other remedy is complete or adequate."308 The mill owners contended that "[t]he seizure of the properties and business of the plaintiffs, with its host of uncertainties and legal and practical problems arising from the ambiguous position in which the owners are left, should appeal to equity at least as strongly as a cloud on title."309 Youngstown was decided half a century before Grupo Mexicano. Still, the mill owners used a Grupo Mexicano-like framework to establish equitable jurisdic-tion. They demonstrated that their cause of action was "analogous" to an equita-ble cause of action that would have been recognized by the High Court of Chancery in 1789.310 The government seized the mill owners' property. That sei-zure, much like a taking or temporary taking, nullified their property rights. The plaintiffs did not rely on a generalized allegation of ultra vires conduct by the Secretary of Commerce; instead, they relied on a cause of action to quiet title— their title to their property. Here too, Youngstown was in the heartland of histori-cal equity jurisdiction involving disputed property rights.

Youngstown is completely inapposite. The government is not regulating any property the plaintiffs currently have. At most, they are asserting some future interest in property. The Plaintiffs fail to identify any analogous equitable cause of action.

Judge Bates invokes a second ground for an equitable cause of action: Armstrong v. Exceptional Child Center.

For similar reasons, plaintiffs likely also have an equitable cause of action under Armstrong v. Exceptional Child Center. There, the Supreme Court observed that the "power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations." 575 U.S. at 327 (quotation omitted). As a result, where a statute implicitly precludes review, plaintiffs cannot circumvent that preclusion by relying on equity. Id . . . Here, in contrast, Armstrong I and Armstrong v. EOP, 1 F.3d 1274, 1294 (D.C. Cir. 1993) (Armstrong II), establish that certain kinds of review involving the Records Act are implicitly precluded by the statutory scheme while others are not.

It is remarkable that civil rights groups have been citing this case for more than a decade, even though the Court found there was no cause of action. Every single case that cites Armstrong has to distinguish the precedent.

In recent years, the Court has clawed back on implied and equitable causes of action. Should this case ever make it to the Supreme Court, I would predict five solid votes to find there is no cause of action, and in the process reject these free-floating claims based on perversions of Youngstown and Armstrong.

Tariffs

US Court of International Trade Refuses to Stay Injunction Against Trump's Section 122 Tariffs

The decision means the injunction blocking collection of the tariffs will not be blocked while litigation continues.

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On May 8, the US Court of International Trade ruled that Donald Trump's massive new Section 122 tariffs are illegal, in cases brought by the Liberty Justice Center (on behalf of two small businesses) and 24 state governments, led by Oregon. Today, the CIT rejected the Trump Administration's motion to stay the injunction blocking further collection of the tariffs until the litigation over the case is done.

This is a potentially very significant ruling. Last year, in the case challenging Trump's IEEPA tariffs, LJC and I secured an injunction against them from the CIT, but that injunction was then stayed until the Supreme Court finally decided the case, almost a year later. That led to the collection of some $166 billion of illegal tariffs, and caused all sorts of harm that cannot be compensated by refunds (which the Trump administration only recently finally began to pay). As I explained at the time the IEEPA stay motion was being litigated:

One factor courts consider in assessing a motion to stay is which side is likely to ultimately prevail on the merits….

Another key factor is which side is likely to suffer "irreparable harm" if they lose on the stay issue. We argue that our clients - and thousands of other businesses - will suffer great irreparable harm if a stay is imposed. They will lose sales due to higher prices, good will can be lost, relationships with suppliers and investors will be disrupted, and more. Those harms can't be made up merely by refunding tariff payments months from now, after the appellate process concludes.

In today's ruling, the CIT recognized the significance of these issues, noting that "[a] stay will compound the losses, such as 'lost profits and damage to business relationships, investments, and innovation' as a result of the Section 122 tariffs."

The immediate effect of this ruling is limited. The administration is likely to appeal it to the US Court of Appeals to the Federal Circuit, and ultimately perhaps even the Supreme Court. Moreover, the CIT injunction in this case is limited to the state of Washington and the two businesses represented by LJC. For procedural reasons, the court decided these are the only plaintiffs who have standing to challenge the tariffs, because they are the only ones who presented sufficient evidence that they directly import goods subject to the tariffs.  But, as noted in my post about the CIT ruling on the merits of the case, many of the other states involved in the litigation likely also import covered goods, and they should be able to move to get a broader injunction, quite possibly one that would apply nationwide.

The CIT seems to have learned from the mistaken decision to stay the injunction against the IEEPA tariffs. Hopefully, the Federal Circuit and (if the issue gets there) the Supreme Court will rule the same way.

Libertarianism

Matt Yglesias on Libertarianism, Abundance Liberalism, and a Possible Alliance Between the Two

Yglesias supports an alliance and has key points of agreement with libertarians, but also criticisms of libertarianism. I welcome former and respond to the latter.

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Image of abundance. (Avid Reader Press)

 

In April, I wrote a post praising "abundance liberalism" (despite some reservations about it) and urging an alliance between abundance liberals and libertarians. Matt Yglesias - one of the most prominent abundance liberal political commentators - has written an insightful piece responding to mine. He supports the idea of an alliance and notes other points of agreement, but also makes various criticisms of libertarianism.

First - and most important - Yglesias endorses the proposal for alliance:

Somin argued that his fellow travelers in the libertarian camp should seek an alliance with the center-left. The traditional Cold War-era "fusionist" alliance between libertarians and cultural conservatives is, he thinks, dead and should be replaced by an effort to build bridges with the abundance camp on the center-left, even if he thinks we don't go far enough.

I am all for this alliance.

Welcome! Yglesias's support - while much more significant than mine (because he has much greater political influence) - may not by itself be sufficient to make this alliance happen. But it's definitely a step in the right direction.

Second, Yglesias seems to at least partly agree with my argument that many liberals are inconsistent in endorsing deregulation in some areas (e.g. - housing and immigration), while refusing to do so in others, without offering any consistent rationale for the distinction:

[T]he concept of abundance ought to mean more than progressives owning up to overregulation of the housing sector being a problem.

Housing is the single largest sector of the economy, so problems there loom unusually large….

But the basic principles about the positive-sum nature of market exchange and the tendency of regulatory systems to become cesspools of rent seeking are quite general.

In a saner, better world, the Trumpian turn away from liberalism inside the Republican Party coalition should have meant a process of reconciliation between Democrats and at least some of the market liberals of the center right. Instead, a large share of the Democratic Party has reacted to the Republicans' abandonment of markets by simply embracing alternative zero-sum accounts of the economy like greedflation.

The point here is indeed "quite general" and Yglesias and other abundance liberals have done valuable work in making that clear, including, for example, in his recent article condemning efforts to bar institutional investors from owning housing. They don't generalize this insight as much as they should. But the recognition that it is indeed a general insight that applies to most, if not all, policy areas is significant.

Third, Yglesias is right to note that which parties and groups libertarians (and other free market advocates) end up aligned with is a matter of historical contingency. Whether the most logical coalition for them is with the conservatives, left-liberals, or some other group will vary depending on the salient issues of the day, the structure of the political system, and other factors.

Yglesias nonetheless offers several criticisms of libertarianism, which I will now address. Even if we continue to differ on these points, they don't preclude an alliance. But they are worth considering, regardless.

First, Yglesias argues libertarians have a tendency towards "extremism":

Normal ideologies have a directional valence relative to the status quo without committing their adherents to the most extreme possible version of the ideology. But the concept of a "moderate libertarian" doesn't seem to exist.

Most libertarians are indeed extreme relative to the status quo. But, as I have argued elsewhere, extreme ideas are often right. Whether a position is moderate or extreme relative to the current distribution of opinion, or relative to status quo public policy, says little about its correctness:

[E]xtremist defenses of liberty often turn out to be right. Before the Civil War, abolitionists who wanted to immediately free all the slaves and grant equal rights to blacks were extremists. The moderate position was either to maintain the status quo or seek gradual abolition, perhaps coupled with relegating blacks to second-class citizenship or deporting them to Africa.

For most of human history, only extremists favored giving women the same liberties as those enjoyed by men…..

We would be much worse off if not for these and other examples of extremism in defense of liberty. Some of the greatest historical triumphs of liberty were set in motion by people who were extremists relative to the mainstream views of their day.

None of this proves that extreme views are always right, and moderate ones always misguided. The point is not that we should always adopt the most extreme possible positions, but that there is often little or no relationship between the validity of a position and its distance from mainstream opinion. Mainstream public opinion is heavily influenced by ignorance and irrational thinking, and therefore is at best a very weak barometer of truth. Extremism isn't always a virtue, but neither is it necessarily a vice, either.

I think extreme libertarian views are largely correct. Yglesias thinks otherwise. But such disagreements should be resolved by logic and evidence, not appeals to "moderation." Whether a view is extreme or not says little about its truth.

Extreme views are often politically more difficult to push through for political reasons than more moderate ones. But, as noted in my earlier post on extremism, there is still often value in advocating them. In addition to the reasons I gave before, I would note that promoting true-but-extreme ideas can help expand the "Overton Window" of what is politically feasible in the long run.

Yglesias also argues that libertarians too often claim that "the worries [cited by advocates of regulation] are overblown — because if they're not overblown, there is a reasonable argument for regulation, and a libertarian is never going to say there's a reasonable argument for regulation." For example, he cites libertarians who he believes downplay the risks of smoking.

There is some truth to this point. When people advocate regulation to solve some problem, many libertarians do indeed tend to dismiss evidence that there is a problem at all. And sometimes this dismissal overlooks strong empirical evidence to the contrary. Notable examples include global warming and the Covid pandemic (in both of which cases libertarians were overrepresented among those wrongly claiming there is little or no problem at all).

Libertarian economist Bryan Caplan once outlined "six stages of libertarian denial" that government regulation to address some issue is justified (I commented on Caplan's theory here). Stage 1 is "Deny the problem exists." Often, that denial is warranted, as many restrictions on liberty really are enacted in response to bogus or vastly overstated problems. But not always.

But it's also important to remember that there are a range of other libertarian criticisms of government intervention, which apply even if there is some genuine problem out there. As Caplan summarizes, they include 1) arguments that government is the cause of the problem, 2) arguments that intervention will make the problem worse rather than better, 3) arguments that the the government solution isn't worth the cost, and 4) appeals to non-consequentialist principles of liberty and autonomy. Caplan also notes the possibility of 5) "Yield on libertarian principle, but try to minimize the deviation."

More sophisticated libertarian thinkers recognize that we often have to rely on points 1-4, and that rare cases of 5 also exist. Thus, on smoking, gambling and other similar issues, which Yglesias raises, most libertarians recognize that there are risks to health and financial well-being. But we argue that 1) people still have a right to decide for themselves whether the risks are worth the benefits (a person can rationally decide that the enjoyment they get from smoking or gambling outweighs the risk), 2) government systematically does a poor job of such balancing, worse than individuals deciding for themselves, and 3) enormous harm is caused by creating large black markets for risky goods that many people want to consume (the harm caused by alcohol Prohibition and the War on Drugs are notable examples). Escaping Paternalism: Rationality, Behavioral Economics, and Public Policy, by libertarian economists Mario Rizzo and Glen Whitman (which I reviewed here), is a great overview of these sorts of flaws in paternalistic policies. And most of their points apply even in cases where the behavior in question really is risky.

Yglesias's next critique of libertarians is that "[t]hey rightly sing the praises of capitalism as a driver of growth, prosperity, and progress. But they tend to ignore the extent to which actual modern industrial economies were built with a large state role in transportation, electrical utilities, banking and monetary policy, and other commanding heights of the economy." Serious libertarian thinkers recognize there has been a large governmental role on many of these issues. But they argue that all or most of them would be better handled by the private sector.

Elsewhere, I have summarized how libertarian scholars have done extensive work showing that the private sector is superior to government at providing a wide range of local and regional public goods, but are not as strong on issues involving nationwide and worldwide public goods. But even if we need government intervention to deal with some of the latter, that's only a small portion of the activity of the modern state.

Yglesias claims libertarians don't sufficiently appreciate the value of democracy:

From Nozick's "demoktesis" thought experiment, where he analogized voting to slavery, to Peter Thiel's 2009 proclamation that "I no longer believe that freedom and democracy are compatible," there have always been those who resolve the contradiction between property rights and democracy in favor of property.

I believe this resolution breaks faith with the fundamental classical liberal commitment in the Declaration of Independence and elsewhere to equal rights under law. Democratic self-governance has many well-known flaws, but Winston Churchill's famous turn of phrase "the worst form of government except for all those other forms that have been tried" holds true today.

Most libertarians would agree that democracy is superior to other forms of government. Nozick's "demoktesis" parable from his classic book Anarchy, the State and Utopia, is not to the contrary. He wasn't trying to show that authoritarianism is superior to democracy, but that unjust policies that violate human rights cannot be justified merely because they are enacted through a democratic process. As for Peter Thiel, the man is not a libertarian and has not been for a long time.

But, even if democracy is better than dictatorship or oligarchy, it still has severe flaws, such as tyranny of the majority, and widespread voter ignorance and bias.  Thus, it needs to be subjected to tight constitutional constraints. Many left-liberals readily recognize this when it comes to noneconomic "personal" liberties, and discrimination on the basis of race, sex, sexual orientation, and other such categories. Libertarians' distinctive contribution is to emphasize that these concerns also arise when it comes to the economic powers of the state, and that the distinction between "economic" and "personal" freedoms is largely fallacious, or at least misleading. Abundance liberals may not be willing to go so far. But their appreciation for the importance of economic liberty and property rights in many spheres should lead them to at least recognize that the economic powers of government should be subject to at least some significant constraints.

Lastly, Yglesias notes that "the abusive aspects of Trumpian governance have relatively little to do with the specific state functions — infrastructure spending, the welfare state, paternalistic regulation — that divide progressive liberals from right-libertarians." At least as to paternalistic regulation, this isn't true. The War on Drugs is a form of paternalistic regulation, and it is a key rationale for some of Trump's worst abuses, such as the murderous Caribbean boat strikes, and efforts to claim there is an ongoing "invasion" of the United States justifying invocation of sweeping emergency powers. In addition, Trump's assault on free speech relies heavily on the FCC - the type of regulatory agency libertarians have long warned against and argued for abolishing.

In sum, I am largely unpersuaded by Yglesias's critiques of libertarianism. He, perhaps, will not be persuaded by my response. But he is right that libertarians and abundance liberals have much in common, and have much to gain from an alliance. As noted in my original post on abundance liberalism, that alliance can be based on extensive agreement on multiple key issues (housing, immigration, free trade, nuclear power, and perhaps others), and some important broader principles (individualism, understanding of Econ 101), even if there are persistent differences on other points.

Free Speech

"Plaintiff Was Enticed by an Attractive, Busty Jewess, and Wet His Mouth with a Drink of Partially Unknown Provenance"

"Plaintiff suspects he was poisoned by Jews."

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That's from plaintiff's follow-up arguments for pseudonymity filed Saturday in Doe v. Trustees of Univ. of Pa. (E.D. Pa.). Judging by the address listed in the filings, as well as the rhetoric (e.g., "The Jews are a racial supremacist organization whose stated goal is to exterminate and enslave all non-Jews"), this seems to be the same John Doe who was denied pseudonymity in a case I wrote about in February, see No Pseudonymity for Man Suing Harvard Alleging Jews Aim "to Exterminate or Enslave All Non-Jews".

I expect the same ruling on pseudonymity in this case as in that one (despite the addition of the busty Jewess, who did not seem present in that case); to quote Judge Allison Burroughs' decision in that case, Doe v. President & Fellows of Harvard College:

While it is within the Court's discretion to allow a party to proceed under a pseudonym, "[a]s a general rule, the presumption is that all judicial proceedings remain open to the public." "The presumption against pseudonymous litigation gives way only in 'exceptional cases.'" The analysis is as follows: "1) there is a presumption in favor of disclosure; 2) a party may rebut the presumption by showing that a need for confidentiality exists; 3) the court must balance the need for confidentiality against the public interest in disclosure." Alleged risks of harm that are speculative in nature, generalized, or without corroboration do not justify anonymity.

Having considered Plaintiff's Motion, the Court finds that Plaintiff has not rebutted the presumption in favor of disclosure. Plaintiff states that the litigation involves sensitive personal information regarding Plaintiff's ethnic heritage and academic records, and Plaintiff's identification would risk causing Plaintiff "unusually severe" professional, financial, and physical harm. The alleged risks that Plaintiff sets forth in his motion are without corroboration and do not rise above a level of mere speculation. Further, lawsuits often "implicate substantial amounts of private information," and if warranted going forward, the Court may employ tools such as redacting or sealing documents to manage privacy concerns that arise during the litigation. In light of the foregoing, Plaintiff's Motion, is DENIED.

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Politics

Imposing Imposter Syndrome

DEI creates, and exacerbates, the very problem DEI is designed to eradicate.

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I often hear people describing "imposter syndrome." At a high level, imposter syndrome is a self-doubt that you are able to accomplish the role you have been chosen for. I think virtually everyone has self doubts about their own abilities. Indeed, it should happen to all of us. Under the so-called Peter Principle, employees are promoted based on their success until they reach a level at which they can no longer be successful. This principle afflicts almost all lawyers, professors (present company included), and judges.

Imposter syndrome takes on a different meaning in the DEI context: a non-white person feels like they do not belong in a predominantly white environment. In other words, they have to act as an imposter in that space. A primary goal of DEI is to reduce imposter system, and make everyone feel welcome and included (that is the "inclusion" in DEI). But in many regards, DEI creates, and exacerbates the very problem of imposter syndrome.

First, imposter syndrome may often be a byproduct of mismatch theory. If a person is admitted to a university, or promoted to a higher position, based on their race, and has objectively lower credentials, that person very well may feel the doubt of imposter syndrome. It may objectively be true that a person admitted through racial preferences does not belong, but for the misguided intentions of social architects. Justice Thomas has written eloquently about how his degree from Yale was worthless because of the perception that affirmative action created. And Thomas has likely explained that would-be beneficiaries of affirmative action would not suffer from affirmative action at an institution where they are matched.

Second, DEI attempts to mitigate imposter syndrome by establishing racial "affinity" groups within organizations. Many workplaces held retreats and offer other mentoring events solely for people based on their race. Universities had separate graduation ceremonies for black and hispanic students. Some colleges even arranged separate housing for minority students. Again, these are efforts intended to make people feel more included and less like an imposter. But in reality, these groups serve to balkanize people based on the very barriers that led to the imposter syndrome in the first place. Moreover, these groups raise doubts among those outside the affinity groups about how inclusive the organization actually is.

Third, speaking of people outside the affinity groups, DEI mandates cultural re-education to eliminate these doubts. Separate graduation ceremonies and racial housing are described as the most normal thing possible, and opposition to them is anti-anti-racist. People are taught to believe, simultaneously, that everyone is welcome but programs are needed to provide a greater welcome to certain people. To paraphrase George Orwell, all workers are equal, but some workers are more equal than others.

At some point, I hope there is a true and complete reckoning about the harms caused by DEI. We have come so far from the days of intentional racial discrimination that an entire industry was concocted to make people feel racial resentment. First, there was a shift from disparate treatment (actual discrimination) to disparate impact (well, there's no actual discrimination, but let's make up some statistics). Second, there was the concept of political correctness ("PC"), where even if you were not being racist, you still could not talk about certain topics that would offend people. Third, there was the concept of microagressions--racism so subtle that you need a microscope to even see it. Fourth, there was implicit bias--people needed to take a completely debunked test to identify non-existent latent racism in their subconscious. Imposter syndrome is in keeping with all of these tests. The Supreme Court's decision in Callais was a long-time coming, and a reflection of how far we've come as a society: actual racial discrimination violates the Constitution, but all of these other attempts to find "razzle dazzle" racism should be discarded.

My advice to young law students and lawyers facing these sorts of self-doubts that you do not belong or lack the ability to succeed? Do what I did: fake it till you make it. Figure out what the successful people in your field do and do that, or even better, do more than that. And if you suffer defeat (we all do), don't wallow in it. Don't hang onto that defeat. Don't blame other people for your defeat. Don't blame society for your defeat. Don't latch onto abstractions like imposter syndrome or white privilege. Figure out how others have overcome that sort of setback, and do that, or even better, do more than that.

Free Speech

Use This One Weird Trick to Keep Your Name Out of an Upcoming Sexual Assault Lawsuit Against You

Or at least try: A court considered it, but ultimately said no.

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Here's the story, somewhat simplified, from a case now labeled Breskin v. Blattberg (D. Mass.) (I had filed an amicus brief opposing pseudonymity, as part of my general opposition to pseudonymity in defamation cases, see, e.g., Roe v. Smith):

  1. Son v. mother federal lawsuit threatened: Blattberg accuses his mother, Breskin (a psychologist), of having sexually abused him 30 years ago, when he was 4 to 7 years old. The son claims he "did not remember the abuse until 2024." The son's lawyer sends a demand letter to the mother, threatening to sue, with a draft Complaint attached. They apparently agree that the son's lawsuit won't be filed until the end of February. (Again, remember that these are just the son's claims; nothing has been proved.)
  1. Mother v. son state lawsuit filed first, pseudonymously, and under seal: In late February, the mother gets to the courthouse first, by suing the son in Massachusetts state court for defamation over his sexual assault allegations, which the mother says the son had made to third parties (including her mother and other relatives). She claims the son is trying to extort her, and has long "suffered from serious and severe mental illness." The case is filed as Doe v. Doe. The same day, the mother asks that the Complaint be sealed (impounded, in Massachusetts terminology), and the Massachusetts court agrees immediately:

After review, the court treats the current motion as an ex parte motion to impound under MA R Impound P Rule 3. The court finds that immediate and irreparable injury may result if the motion is not allowed. See MA R Impound P Rule 3(a). Nevertheless, under the Rule, an interested party must have an opportunity to be heard in opposition within ten days of this order. MA R Impound P Rule 3(a).

  1. Son v. mother federal lawsuit filed, mother v. son removed to federal court: The next day after the mother sues, the son sues the mother in federal court (there's apparently diversity jurisdiction), using the caption Blattberg v. Breskin. The day after, he removes the mother's Doe v. Doe case to federal court, as he's entitled to do because he and his mother are citizens of different states.
  1. Mother's motion to dismiss and seal son v. mother lawsuit, and to proceed pseudonymously on the strength of the pseudonymous mother v. son lawsuit: Four days after the son sues, the mother moves to dismiss the son's federal case, on the grounds that she "previously filed a prior pending action against the Plaintiff arising from the same alleged facts and causes of action." She also moves to seal the son's federal case, and seeks a protective order "against any additional disclosure of the parties' identities." Judge Richard Stearns (D. Mass.) shows at least temporary openness to this; he declines to dismiss the case, but consolidates the mother's and son's now-federal cases, and rules,

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Free Speech

Court Rejects First Amendment Claims Against NYPD Commissioner Brought by "Most Wanted CEOs" Card Makers

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From yesterday's decision by Judge Hector Gonzalez (E.D.N.Y.) in Harr v. City of N.Y.:

In 2003, in connection with the invasion of Iraq, the United States Department of Defense developed a deck of playing cards, titled "Iraqi Most Wanted," to help familiarize troops with members of Saddam Hussein's government and inner circle. Approximately 20 years later and days after UnitedHealthcare CEO, Brian Thompson, was shot and killed, Plaintiffs James Harr and Comrade Workwear, LLC developed a deck of cards, modeled after the U.S. military's deck, titled "Most Wanted CEOs." … Plaintiffs' cards:

featured a well-known corporate executive, their affiliated company, and a QR code linking to educational content about the harm their company allegedly caused, with each suit representing an industry—pharmaceuticals and chemicals, essential goods and housing, finance and tech, and weapons and oil—all based on public information, with no contact details or other personal information included.

On December 15, 2024, Plaintiffs unveiled the final designs for the Most Wanted CEO cards and launched preorders. The product description for the cards read: "For educational and entertainment purposes only." Later that day, NYP [the New York Post] published an article on its website that claimed Plaintiffs "call[ed] online for the death of corporate executives" and linked "the release of the playing cards to the recent homicide of UnitedHealthcare CEO Brian Thompson" (the "Article"). The Article included a screenshot of one of Plaintiff's social media posts which contained the phrase: "The CEO must die." The screenshot in the Article omitted Plaintiffs' caption to the post, a "disclaimer" that read, in part: "When we say the CEO must die, we mean the structure of capitalism must be broken."

On December 16, 2024, NYP published the Article as its cover story. Overnight, the Article, and, consequently, Plaintiffs' playing cards were front-page news. That same morning, New York City Police Department ("NYPD") officers arrived at Harr's home and spoke with his fiancée. A little later, officers interviewed Harr at his workplace and "questioned him about the cards and whether he had violent intent or ties to any extremist groups." Plaintiffs allege Harr informed the officers that "he was an independent artist running a merchandise company, that the cards were a symbolic and educational project, and that he had [already] made public disclaimers rejecting violence."

The next day, [NYPD] Commissioner Tisch spoke at a press conference announcing that an individual had been arrested in connection with the investigation of Mr. Thompson's homicide (the "December Press Conference"). Plaintiffs allege that Commissioner Tisch "held up [the print edition of the Article] and falsely described [Plaintiffs'] playing cards as a 'hit list,' call[ed] him an 'extreme activist,' and part of a 'lawless, violent mob' calling for the 'targeted assassination' of CEOs." …

The Commissioner's statements, Plaintiffs claim, marked the inception of a campaign to punish Plaintiffs for the cards. In their view, the Article, NYPD interviews, and December Press Conference were part of "a coordinated effort to distort the nature of [Plaintiffs'] work and publicly reframe [them] as a threat in order to support a broader narrative around political violence and public disorder."  Before and after the December Press Conference, Plaintiffs were "de-platformed" (i.e., permanently disabled from accessing) several social media and e-commerce platforms that were integral to their business.

Approximately two months after the December Press Conference, law enforcement officials from the NYPD "served a seizure warrant on the FedEx facility where Plaintiff[s'] inventory of playing cards was being stored, resulting in the confiscation of [their] entire preorder shipment." Plaintiffs assert that confiscation of their merchandise was carried out at the behest of Commissioner Tisch and part of Defendants' coordinated effort to "systematically strip[ ] [Plaintiffs] of access to the platforms and tools that allowed [them] to speak, sell, and operate," and inflict "reputational, financial, and constitutional harm." …

Plaintiffs sued Commissioner Tisch, arguing that she unconstitutionally retaliated against them based on their constitutionally protected speech. The court concluded that plaintiffs had sufficiently alleged that their speech didn't fall within the First Amendment exceptions for true threats and incitement:

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The Dangerous Allure When Untalented People Use AI

Patent nerds should not pretend to be talented enough to boast about making a Schoolhouse Rock video.

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I recently spoke at my daughter's Girl Scouts troop about America's 250th birthday. I brought a box of tea bags, and hid them in the students' backpacks. I then had the girls search through everyone's bags to illustrate the dangers of the writs of assistance. We then threw all the tea bags into a bucket of water to simulate the Boston Tea Party. (I wanted to simulate the Boston Massacre with nerf guns, but I was overruled.) My daughter often complains that no women signed the Declaration of Independence, so I brought a huge parchment copy of the Declaration, and had all the girls sign them with ballpoint quills. They really felt part of the movement.

At the end of the session, I showed them the classic Schoolhouse Rock video, "The Shot Heard Round The World." I wondered how these young kinds would react to such an old school video from 1975. The animation is crude but the narrative is timeless. The music is still entertaining and the lyrics are clear. The Scouts were enraptured and understood exactly what happened. Plus they connected my lesson earlier about the Revolutionary War with the video. They all booed at the Red Coats and King George.

There is a reason we still watch these videos five decades later. Great care, art, and attention was put into producing this video.

This brings me to the Federal Circuit's attempt at a "School House" rock video. I've since learned that Judge Newman was in the room when Chief Judge Moore played the video. The consensus was "WTF?" They literally erased a federal judge from the video. I understand there is a Senate Appropriations Committee hearing coming up with the Judiciary. The Administrative Office should be held to account for Moore's narcissistic taxpayer-funded fever-dream.

But beyond the substance, I have to criticize the art. It is obvious someone asked AI to generate a theme song about the Federal Circuit. And the output reflects that process. The tune was so bland and boring. The lyrics were completely unmemorable. Even now, I can't remember a single line from the song. The animations were clean enough, but the motions were so unnatural. And the imagery made no sense. Why was Ronald Reagan leading a Conga Line with Uncle Sam in the caboose? Why did the Judges wave glow sticks at Studio 54? Why did Chief Judge Moore fly off the bench to do a dance routine?

Anyone with artistic talent would have realized this video was terrible. But that is the dangerous allure of AI: it allows people without talent to pretend to be talented. Before AI, this video could have never been made. With AI, this video should never have been made. And, because everyone at the Judicial Conference was a captive audience, they have to dutifully applaud. No one will be watching this video in fifty years. I doubt anyone will be watching it in five days.

If I may draw a contrast, the award-winning Garland Walker Inn of Court in Houston puts on an annual musical review. This year, in honor of America 250, the Inn produced a show about those who signed the Declaration of Independence, and those who did not. It was funny, moving, and always entertaining. We are blessed in Houston to have such talented judges and lawyers (some of whom are my former students). Chief Judge Elrod and Judge Charles Eskridge were among the leads. One of the lead singers had performed on Broadway. The group did a reprise at the Fifth Circuit Judicial Conference. It was a rousing success.

Even during the pandemic, members of the Houston bench were able to produce a hilarious video inspired by Hamilton.

Patent nerds should not pretend to be talented enough to boast about making a Schoolhouse Rock video. Also, they should stop erasing Pauline Newman.

Bill Maher On The Blatant Double Standard For Antisemitism

"But China, Russia, Sudan, Iran, Myanmar, Haiti, the Congo, North Korea, all way worse. And that's how you know it's anti-Semitism. It's the inconsistency."

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I am not a fan of Bill Maher. I saw him perform when I was a Summer Associate in 2008 in Washington, D.C. I found him far more smug than funny. Whatever. Not my cup of tea. But I was moved by his recent segment titled "New Rule: No Jews, No News." He makes the obvious, and powerful point, that modern discourse about "colonialism" and "genocide" is simply anti-semitism dressed up in academic garb. It is also noteworthy that there were only scattered applauses in the crowd. The reliably liberal audience was unsure whether it was safe to laugh. Watch it all, or read the transcript after the jump.

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AI in Court

"Instead, Claude Just Made Up More Stuff"

"How [plaintiff's lawyer] then could have blindly and solely trusted Claude to remedy the brief is difficult to fathom."

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From Brooks v. Lowes Home Centers LLC, decided yesterday by Judge Jerry Edwards, Jr. (W.D. La.):

In resolving a prior motion in this case, the Court discovered that the plaintiff's briefs contained misquoted or mischaracterized precedent…. Mr. Wilkins[, one of plaintiff's lawyers,] took full responsibility. Wilkins explained that he utilized an artificial intelligence ("AI") platform, Claude, to generate the brief. As part of his process, Mr. Wilkins had Claude's draft reviewed by a human law clerk, who discovered that Claude had hallucinated quotations. Mr. Wilkins then confronted Claude with the identified errors and entrusted Claude to correct them. Instead, Claude just made up more stuff. Mr. Wilkins filed that second output into the record without review.

To prevent this from happening again, Mr. Wilkins will have "a human with a law degree" perform a final check of every citation and quotation before filing briefs with the Court. Now for the Court's sanction.

We commend Mr. Wilkins for his candor, honesty, and the remedial measures he has undertaken since the filing of the offending brief. But these mitigating factors do not excuse Mr. Wilkins' conduct. "At the very least, the duties imposed by Rule 11 require that attorneys read, and thereby confirm the existence and validity of, the legal authorities on which they rely." Unchecked, unleashing AI on the Court creates a "burden." Ignorance of the risks of AI usage is no longer an excuse. And here, Mr. Wilkins affirmatively knew the risks. How he then could have blindly and solely trusted Claude to remedy the brief is difficult to fathom.

Wilkins was therefore sanctioned $1000.

Free Speech

Plaintiff's Immigration Concerns Don't Justify Pseudonymity

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From Thursday's decision by Magistrate Judge JoAnna Gibson McFadden in Doe v. Amazon.com Servs. LLC:

Jane Doe has sued Amazon.com Services LLC for employment discrimination and seeks to proceed under a pseudonym in all public filings….

In short, Doe is concerned that naming herself publicly in this suit will somehow impair her ability to acquire documents necessary for her pending permanent residency application…. According to her motion, she is present in the United States on an employer-sponsored work authorization, and her lawful status "is dependent on maintaining continuous, non-disrupted employment." She "is engaged in an active employment-based permanent residency process," and her "permanent residency application is currently pending before the United States Department of Labor." This process "consists of multiple sequential stages that must be completed in a defined order and within specific timing constraints." Once the Department of Labor completes its review, Doe "must initiate the next phase within approximately three months" and must complete the phase in "December of this year."

Among the materials Doe must submit and verify is "detailed experience documentation, including letters from prior employers describing specialized skills."  … She acquired "a substantial portion of the specialized skills that [she] must document" while she worked for the defendant. She "must therefore rely on documentation, verification, or references associated with Defendant, or individuals associated with Defendant, to satisfy immigration requirements." …

Doe contends that "[p]ublic identification of [her] in connection with this [employment discrimination] litigation creates a material risk of impairing [her] ability to obtain necessary cooperation, references, or documentation from the limited available sources during this critical period" of her immigration process. "Delays in obtaining required documentation within the relevant window may affect the sequencing and timing of subsequent stages." …

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