From Gov. Janet Mills' message Friday "vetoing L.D. 1911, An Act to Automatically Seal Criminal History Record Information/or Certain Crimes":
This bill would direct the Judicial Branch to review decades of criminal docket files—much of this work by hand—to identify those that are to be removed from the public record. The sealing of these records would occur without regard for whether the subjects of the files have requested that they be sealed, whether victims have objected, or whether a compelling public interest exists in the records remaining accessible.
There are several significant problems with the legislation. First, as drafted, L.D. 1911 would mandate the sealing of records for Class D domestic violence assault—a result that is plainly contrary to the public interest. Second, a ruling by the U.S. Court of Appeals for the First Circuit strongly suggests that categorically sealing criminal records without conducting a case-by-case review of the circumstances violates the First Amendment.
From Manhattan trial judge Judy Kim in Rodney's Comedy Club v. Omari, decided April 17 but just posted on Westlaw a few days ago:
[P]laintiff's motion for an order enjoining defendant from "any further social media posts naming, inferring or addressing Plaintiff or Plaintiff's employees in any way or posts related to Plaintiff" and ordering her to "delete any and all posts on social media naming, inferring or addressing Plaintiff or Plaintiff's employees in any way" is denied.
"Prior restraints on speech are the most serious and the least tolerable infringement on First Amendment rights, and any imposition of prior restraint, whatever the form, bears a heavy presumption against its constitutional validity." Accordingly, "a party seeking to obtain such a restraint bears a correspondingly heavy burden of demonstrating justification for its imposition and, to do so, must show that the speech sought to be restrained is likely to produce a clear and present danger of a serious substantive evil that rises far above public, annoyance or unrest."
Plaintiff has not carried its burden here. While the law permits "the restraint of speech that communicate[s] a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," the allegedly libelous speech plaintiff seeks to restrain "does not meet this exacting constitutional standard."
Looks correct to me; though most courts generally allow injunctions barring repetition of material found defamatory attrial, pretrial anti-libel injunctions are generally seen as unconstitutional prior restraints (see my Anti-Libel Injunctions article). The court cites Brummer v. Wey (N.Y. App. Div. 2018) for these propositions; for more on that case (in which I filed an amicus brief, on behalf of Profs. Steve Shiffrin and Martin Redish and myself), see this post.
Back, to Rodney's Comedy Club, here is an excerpt from plaintiff's argument in favor of an injunction; remember that the substantive defamation claim is still pending and that this decision just dealt with the requested injunction, without determining whether the statements were true or false:
[P]laintiff has failed to sufficiently address the potential fair use and First Amendment claims related to the products in question that use "Don't Care Bears" (or a variation) along with marijuana imagery. Plaintiff relies heavily on the Supreme Court's decision in Jack Daniel's Props., Inc. v. VIP Prods. LLC (2023). There, the Supreme Court rejected a First Amendment defense to a dog toy that had the same shape and design as a bottle of Jack Daniel's whiskey. But key to the Court's holding was the fact that "the accused infringer ha[d] used a trademark to designate the source of its own goods—in other words, ha[d] used a trademark as a trademark." The Court made clear that its opinion was "narrow" and its infringement holding only covered cases "when the challenged use of a mark is as a mark."
That's not the case here. The "Don't Care Bears" defendants are not using the Care Bears marks as marks; unlike in Jack Daniels, for the most part, the products don't look like the products that plaintiff sells. They don't even use bears resembling Care Bears—some have teddy bears with bows, others have bears a-la the main character of Corduroy, still others have non-Care-Bears-looking bears that appear to have eaten too many Cheetos. For these, defendants seem to just be using "Care" and "Bear" as part of a phrase. So Jack Daniels is inapposite.
4/27/1822: President Ulysses S. Grant's birthday. He would appoint four Justices to the Supreme Court: Chief Justice Waite, Justice Strong, Justice Bradley, and Justice Hunt.
As I explained in my previous post, I recently tasked AI with comparing two transcripts of the 1807 treason trial of Aaron Burr. My ultimate question is, what do I do with the document that resulted? And that breaks down into two sub-parts. First, do I publish this, either just online informally or with some kind of journal? And second, how do I describe what my relationship is to it? Am I a co-author? The author? Just a prompter?
Let me start by explaining how the memo was created, and then turn to the questions I have.
I. How the AI Memo Was Created
I need to start with what I did to help create the memo, as that might be relevant to my questions. The transcripts that needed to be compared were .pdfs of two-volume books from 1807 and 1808 that go for hundreds of pages, although the only parts I cared about were the parts on the privilege against self-incrimination. I used Claude (Opus 4.6 extended), and I tasked it with comparing the discussions of the legal arguments about the privilege against self-incriminagtion to get a better sense of whether my 2021 article on those arguments based on the Robertson transcript was accurate in light of the Carpenter transcript.
To say that "I tasked Claude" covers up a lot of detail, though. I went through around 30 rounds of prompting with Claude, over the course of a few hours. As I went along, I learned about what Claude could and couldn't do and pushed it to do a better job when it was resistant to do more. For example, when I first asked Claude to compare the documents, it declined, saying it was just too big a task to take the two long pdfs, to make them readable, and then to compare them. So I started with an easier task: Take my 2021 article, read it, and understand what it claims about the Burr trial, and then read the Carpenter transcript and write an article presenting a comparison. The first draft reply was a start, and made me think that the enterprise might be ultimately useful. But it left a lot to be desired.
Over time, I came to realize that there was an art to getting Claude to make the comparisons I needed. Ultimately it agreed to do a direct comparison of the two transcripts based on the claims I had made in my 2021 article. And I quickly realized that the comparison really needed lots of direct quotes and page references for everything, so that took a lot of extra time: Among other things, Claude had surprising difficulty with page numbers, in part because one of the two .pdfs had two volumes back to back and Claude could not figure out the pagination. I had to spot check, and I kept finding errors, which Claude had to keep correcting.
A big breakthrough came when I realized through trial and error that Claude could do comparison screenshots. That is, instead of just telling me what the two transcripts said, Claude could take screenshots of the relevant discussions and show them side-by-side. That way I could be more confident that I was getting a real comparison. Even then, the screenshots needed a lot of correction: Claude started off giving me only about 1/3 of the comparisons correctly, and I had to keep telling it to go back and make sure it was screenshotting the exactly equivalent sections.
As I neared the end, I also added more tasks. For example, I asked Claude to read the Carpenter transcript and tell me if my 2021 article had accurately summarized the arguments, as well as whether there were any parts of the argument from the Robertson transcript I had missed. I also asked Claude to say if there was any legal source Robertson had reported than Carpenter hadn't and vice versa, and any legal argument that one had reported that the other habn't.
After about 30 rounds of prompting, I ended up with a 22-page comparison memo. A typical page of the memo looks like this:
The good news, at least accordiing to Claude, is that all of the substantive points matched really nicely. The variations between the Carpenter transcript are apparently very minor, the kinds of things you might expect with two independent human beings trying to write down hours of court proceedings and hearing some small things differently. The parts I cared about were a match.
II. Should I Publish This, At Least in Some Way?
This brings me finally to the big queston I have, what do I do with this 22-page AI-generated memo? On one hand, if you're interested in my 2021 article, I think the AI comparison is of scholarly interest. The comparison is pretty noteworthy, at least for the small number of nerds who care about the substantive topic. On the other hand, the AI-generated memo doesn't slot into any traditional understandings I have of either scholarship or non-scholarship. So I don't know what to do next.
My uncertainty breaks down into two questions. First, do I publish this? And second, if I publish it in some sort of way, what should I state as my relationship to it? Let me explain my thinking as to both questions.
First, on the question of whether to publish this, I am conflicted. Read More
Among other things, Otis responds to my post from yesterday; an excerpt:
The main criterion in a democratic system is not whether a given prosecution is common, but whether in this particular case fairly evaluated, the facts could be viewed by a reasonable jury as establishing the prospective defendant's guilt beyond a reasonable doubt. For one thing, adopting the "common prosecution" criterion leaves open many of the problems it's supposed to solve. How "common" is common enough to be confident the case isn't merely political? Will that get decided by the line prosecutors — careerists (or, less generously, bureaucrats) or their more accountable (but also more political) superiors?
More importantly, to focus on commonality system-wide is to risk losing focus on why we have a criminal justice system to begin with, namely, to hold wrongdoers to account and give justice to their victims. Contrary to some of my liberal and libertarian friends, I do not see "the system" as being perpetually on trial. Its balance and fair-mindedness are, to be sure, "on trial" before the legislature, which properly has the power to address systemic problems, such as they may appear to be. But they are not on trial in deciding whether Mr. Smith or Mr. Jones from the SPLC fleeced any given contributor by giving him a song-and-dance rendition of what his money would be used for.
The flaw in Prof. Volokh's second criterion (whether the SPLC's fundraising actually was fraudulent) is that this is simply a question of fact for the jury to decide. It goes to the strength of the case, not its legitimacy….
The SPLC indictment does raise non-trivial questions about weaponization of law and the boundaries of prosecutorial discretion, but in my view, having been a federal prosecutor under administrations of both parties, falls inside those boundaries.
As I've mentioned before, Bill and his coauthor Paul Mirengoff are my go-to people for hardheaded, pragmatic, but principled conservative views. They tend to be somewhat more conservative than I am, but I always find their work interesting (and well-written).
I have a question about how to present the results of legal scholarship generated in part with AI. I pose it as "an April 2026 question" because what AI can do is changing quickly. I would guess that how we think about AI assistance in legal scholarship will change over time, too. But I wanted to explain why I ask, and then open it up for feedback. I'm very interested in your thoughts.
I'm going to present the question in two posts. In this post, I'm going to explain why I turned to AI for help with a scholarly problem I had. In my next post, I will explain what AI was able to do and present my question about what I should do with what AI produced.
Here's the context. A few years ago, I wrote a law review article, Decryption Originalism: The Lessons of Burr, 134 Harv. L. Rev. 905 (2021). The article sought to understand the original public meaning of the Fifth Amendment privilege against self-incrimination and its possible application to unlocking cell phones. It was based on a fascinating historical coincidence: In 1807, in the treason trial of Aaron Burr, there had been an extensive oral argument and then subsequent opinion by Chief Justice Marshall on how the privilege applied to obtaining testimony from Burr's private secretary about an letter in cipher that Burr was thought to have sent.
I wrote my 2021 article based in large part on a transcript of the proceedings made in shorthand by a lawyer in the courtroom. The lawyer, Mr. Robertson, had written everything down: Every argument, every legal source, even all the pincites, in what he claimed was a verbatim reconstruction of the proceedings. The idea of the article was that, given the prominence and experience of the lawyers in the case, the details of the 1807 arguments would likely reflect the Founding-era understanding of the privilege. So my article presented a very detailed reconstruction of what the lawyers relied on, what sources they looked to, and what arguments they made, all based on the Robertson transcript.
That article came out in 2021, and I moved on to other projects.
Just last year, however, I became aware that there is a second and independent transcript. Another lawyer, one Mr. Carpenter, claimed to have done the exact same thing that Robertson claimed to have done. Like Robertson, Carpenter claimed to have written down the whole trial in shorthand, including the legal sources and pincites. Both Carpenter and Robertson had published their transcripts as books shortly after the trial ended. The Robertson transcript is much better known. It is the one referenced in histories of the Burr case, and it was the one that was cited as the report of the trial in 19th Century caselaw. Those references had pointed me to the Robertson transcript, and I had studied it in great detail. I hadn't known the Carpenter transcript even existed.
This created a problem. The premise of my 2021 article is that the Robertson transcript accurately presented the arguments made in the Burr case about the privilege against self-incrimination. But a quick skim of a few spots in the Carpenter transcript suggested that they were not identical. There were things that appeared in one or not the other, or arguments presented somewhat differently, or parts summarized in different ways. If Robertson and Carpenter independently reported the same things, I could be pretty confident that it happened that way. But what if they reported key moments and arguments differently? In that case, I couldn't be confident that my 2021 reconstruction of the privilege arguments in the 1807 Burr trial was accurate.
My scholarly obligation, it seemed to me, was to conduct some sort of comparison of the two transcripts to alert readers to any meaningful discrepancies between them that might relate to my 2021 article. But this would also take a lot of time, as I would first have to go back and re-familiarize myself with the very long Robertson transcript, and then go through all of it and compare everything relevant from my 2021 article with the Carpenter transcript. It's certainly doable, but also pretty time-consuming. It's been on my list of scholarly things-to-do since last year.
And then in March 2026, I wondered: Hmmm, is this something that AI can do for me? These days, AI is really good at going through large documents and summarizing them, comparing them, and the like. And it just gets better and better as the weeks pass. Maybe, instead of going through the two transcripts myself, I can save time by asking an AI service to go through the two transcripts and compare them. Maybe AI can tell me quickly if there are substantive disparities between what Robertson says the lawyers argued and what Carpenter says the lawyers argued.
At least, I figured, it's worth a try. In my next post, I'll say how it went, and ask what I should do with the document AI produced.
On April 15, Justice Clarence Thomas delivered a lecture at the University of Texas at Austin in honor of the 250th Anniversary of the Declaration of Independence.
Here's a taste:
The second paragraph of the Declaration proclaims: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…." Throughout my youth, these truths were articles of faith that were impervious to bigotry or discrimination. The American Heritage Dictionary of the English Language defines "self-evident" as "obviously true, and requiring no proof, argument or explanation." Whether they had a divine source, or a worldly one, they were never questioned. They were the Holy Grail, the North Star, the rock – immovable and unquestioned.
Despite the multiplicity of laws and customs that reeked of bigotry, it was universally believed among those blacks with whom I lived and who had very little or no formal education, that "in God's eyes and under our Constitution we are equal." This was also the case with my nuns, most of whom were Irish immigrants. At home, at school, and at Church, we were taught that we are inherently equal; that equality came from God; and that it could not be diminished by man. We were made in the image and likeness of God. That proposition was not debatable and was beyond the power of man to alter. Others, with power and animus, could treat us as unequal but they lacked the divine power to make us so.
Somehow, without formal education, the older people knew that these God-given or natural rights preceded and transcended governmental power or authority. When you lived in a segregated world with palpable discrimination and the governments nearest to you enforced laws and customs that promoted unequal treatment, it was obvious that you did not get your rights or your dignity from those governments, but from God. Though not a literate man, my grandfather often spoke of our rights and obligations coming from God, not from the architects of segregation and discrimination. Men were not angels. They were subject to the constraints of antecedent rights. And, we were not subject to them even as we were subjected to their whims. We knew that life, liberty, and property were sacrosanct. These truths were self-evident to the adults in our lives and were taught to us as undeniable truths. Those around us could endure with dignity the insults of segregation because they knew that, in God's eyes, they were equal.
All too often, there is an unfortunate tendency, when discussing the Declaration, to make these self-evident truths and first principles of government obscure. Intellectuals want you to believe that our founding principles are matters of esoteric philosophy or sophisticated debate. Even those who support them too often talk about them as if they were academic playthings. They overcomplicate them, take the spirit out of them, and discuss them in a manner that puts us to sleep.
Justice Thomas' speech has received significant attention, and stoked a fair amount of controversy, largely over Justice Thomas' criticism of progressivism. In the New York Times, prominent Supreme Court critic Jesse Wegman even suggested Justice Thomas should apologize for his remarks.
Were Justice Thomas' remarks really so outrageous? So readers can make up their own minds, here is a transcript, courtesy of Civitas Outlook, and the video is below.
This evening, immediately after I turned my phone on, I saw headlines about shots fired at the Washington Hilton where President Trump was attending the White House Correspondents Dinner. For the second week in a row, I do not get a leisurely return to the cloud. Shavua Tov.
For the past two years, the Federalist Society has held its national lawyers convention at the Washington Hilton, better known as the Hinckley Hilton. This is the place where John Hinckley, Jr. shot President Reagan and Press Secretary James Brady in 1981. You may better know Brady as the namesake of the Brady Gun Control Act that was challenged in Printz v. United States. Randy and I feature a photograph of the hotel in our discussion of Printz.
In 2023, I bid farewell to the Mayflower, and in 2024, I wrote about the new experience at the Hilton. The experience was, on balance, negative. I am beyond grateful that the Convention will be returning to the Mayflower in 2026 (thanks Sheldon).
But having spent some time at the Hilton, I can see why it poses unique security threats. To start, it is a functional hotel. Even if there is a "hardened" event in the ballroom (located in the basement), there are still thousands of guests walking around inside and outside the building.
When I traveled to the convention last November, Vice President Vance was speaking at the 250th U.S. Marine Corps Birthday Ball. Because I was a hotel guest, I was able to clear the perimeter security. Later that evening, I decided to go to the gym, which was accessible through a different elevator. The gym was also in the basement. After I finished working out, just of curiosity, I walked towards the ballroom. By that point, the event was over, Vance had left, and the magnetometers were gone, but I was able to walk right to the the ballroom, even though access was still being restricted. The thought crossed my mind of how easy it would be to sneak into the venue.
There are many unknowns now.
President Trump is about to give remarks in the Brady press room.
Update: It appears the alleged shooter was a guest at the hotel. The video shows he was taken down near the Terrace Foyer on the Terrace Level. You can see from this map how close the Health Club was.
A short excerpt from Thursday's 76-page decision by Judge Jessica Clarke (S.D.N.Y.) in Doe v. Black (see also this article yesterday by Politico [Erica Orden]):
This case is an action under the New York City Victims of Gender-Motivated Violence Protection Law. Plaintiff Jane Doe alleges that Defendant Leon Black brutally raped and assaulted her in New York City in 2002, when she was only sixteen years old. She claims that prior to this assault, she was abused and groomed by Jeffrey Epstein ("Epstein") and Ghislane Maxwell ("Maxwell")—who then trafficked her to other men, including Defendant.
Although the parties have exchanged almost no discovery, Defendant brings a Motion for Case-Terminating Sanctions based on lies, fraud, and spoliated evidence that he contends render this case rotten to the core. Ultimately, the Court finds that both Plaintiff's former attorney Jeanne Christensen ("Ms. Christensen"), on behalf of Wigdor LLP ("Wigdor"), and Plaintiff Jane Doe have engaged in serious, sanctionable misconduct in this case. However, taking seriously its obligation to remedy prejudice with lesser sanctions where available, the Court finds that this misconduct need not doom Plaintiff's claim.
The Court issues various factual and legal findings to support sanctions here. Plaintiff's former counsel—Ms. Christensen—lied repeatedly to the Court and to opposing counsel in this litigation about what was happening in a related action. Ms. Christensen also directed Plaintiff to destroy a relevant social media account that Plaintiff used to communicate publicly about her experiences as a purported Epstein victim. And, Plaintiff falsified sonogram images in her personal journals, which her First Amended Complaint relies on to support the allegations in this action.
With the Supreme Court set to hear argument in the geofence warrant case, Chatrie v. United States, on Monday, I thought I would provide links to all my posts relating to the case and the issues over the years. Here they are, in reverse chronological order:
Plaintiffs … bring this action arising from an early-education investment project in Shenyang, China, asserting claims under the Foreign Sovereign Immunities Act, the Alien Tort Statute, and the Torture Victim Protection Act. Plaintiffs filed an eight-page Complaint on the public docket. They concurrently moved to file a separate, unredacted Complaint—together with a voluminous set of exhibits—under seal….
Plaintiffs' Motion arises from concerns that the Complaint contains "sensitive information relating to personal safety, foreign-related legal procedures, and ongoing matters involving foreign government entities." Two flaws, however, pervade their request: the scope of information Plaintiffs have redacted far exceeds the narrow request they claim to advance, and the harms they invoke—threats from Defendants themselves—are harms that sealing cannot prevent….
I blogged Wednesday about the indictment of the Southern Poverty Law Center for, among other things, supposedly defrauding donors. The theory is that the SPLC raised money by telling donors that it was aiming to "dismantle" violent extremist groups—but spent over $3M paying hate group leaders for information and, in at least one instance, to actually put out hate messages at the SPLC's direction. The indictment also alleges that, to hide the source of the funds, the SPLC caused false statements to be made to banks: It had its employees open accounts that it claimed were owned by them personally, on behalf of certain shell entities, but were really owned by the SPLC. I thought it might be helpful to think about this using a hypothetical, and seeing what we think about both the SPLC case and the hypothetical together.
Let's say that the SPLC prosecution didn't happen in 2026, and we're now in 2030. Gavin Newsom is President, and the Justice Department announces an indictment. The target is a prominent conservative activist group. The indictment alleges the group raised money by telling conservative donors that it would fight antifa and other sometimes violent left-wing extremist groups. It turns out that it developed an extensive network of paid informants within the leadership of those groups, and indeed paid money to at least one to actually spread leftist extremist messages.
The Justice Department says all this was fraud on the donors, and also that in the process the group had employees open bank accounts using group funds but claiming the funds were personal, and thus lied to the banks and violated anti-money-laundering rules. What would we, as people sympathetic in some measure to the group's overall mission, think?
[1.] I expect some of us might think the group was being kind of slimy. It's been talking about all this left-wing extremism it's fighting, but how much of it was actually ginned up by the group instead?
[2.] At the same time, some of us might think the group is being pretty cunning. Here it's getting lots of information about its enemies. To the extent it's prodding some of its paid informants to actually say extremist things, maybe it's effectively discrediting its enemies. And if we think there really would be plenty of genuine violent left-wing extremism even without the group's funding, we might think that its spending was actually pretty useful to its stated cause. Slimy and effective, after all, aren't always inconsistent for political advocacy groups. Sure, the sliminess might on balance cancel out the effectiveness, but maybe not always.
[3.] We might also wonder whether the Newsom Administration is targeting the group because of its ideology, rather than out of a fair application of neutral prosecutorial judgment. That's always a plausible concern with prosecution of political groups by political actors, but especially in so in a highly politicized time.
From PETA, Inc. v. Reynolds, decided Thursday by the Eighth Circuit (Judge Steven Grasz, joined by Judges James Loken and Raymond Gruender):
[Iowa's] general trespass statute defines "trespass" to include "[e]ntering or remaining upon or in property … after being notified or requested to abstain from entering or to remove or vacate therefrom by the owner …." "A person has been notified or requested to abstain from entering or remaining upon or in the property … if … [t]he person has been notified to abstain from entering or remaining upon or in property personally, either orally or in writing …." When an ordinary trespass does not result in bodily injury or property damage exceeding $300, the offense is a "simple misdemeanor" and is punished by a fine between $105 and $855 and up to 30 days of imprisonment.
In 2021, Iowa decided its general trespass statute was not deterring trespassers from unlawfully entering private property to record their trespasses. So it enacted § 727.8A to create a new "trespass-surveillance" offense, which it treated more harshly than ordinary trespass. For instance, under § 727.8A,
[a] person committing a trespass as defined in section 716.7 who knowingly places or uses a camera or electronic device that transmits or records images or data while the device is on the trespassed property commits an aggravated misdemeanor for a first offense and a class "D" felony for a second or subsequent offense.
Iowa punishes aggravated misdemeanors with a fine between $855 and $8,540 and up to two years of imprisonment, and class D felonies with a fine between $1,025 and $10,245 and up to five years of imprisonment.
Two … animal-welfare groups, including ICCI [Iowa Citizens for Community Improvement], developed as-applied challenges on remand, contending the statute's prohibition against using cameras while trespassing chills their members' speech when applied to prevent them from recording on private property that is otherwise open to the public after being asked to leave but not to stop recording. Relevant here, ICCI alleges its members intentionally record themselves committing ordinary trespasses, "particularly … at political and corporate sites," to draw attention to their activities. ICCI alleges its members are willing to suffer the consequences for ordinary trespass but the heightened penalties for trespass-surveillance have chilled their speech….
Whether the First Amendment protects ICCI's members' speech in this context is an open question. We know "freedom of speech includes expression through the making and sharing of videos" in some instances. But the Supreme Court "has never held that a trespasser … may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes …." Lloyd Corp. v. Tanner (1972); see also Hudgens v. NLRB (1976) (holding picketers "did not have a First Amendment right to enter [a privately owned] shopping center for the purpose of advertising their strike"). We need not resolve this question because even assuming recording while trespassing implicates the First Amendment, ICCI's as-applied challenge fails.
