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

Phony checks, a twinkling of an eye, and sparkling sports gambling.

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

New cert petition! In 2022, a SWAT team blew up IJ client Carlos Pena's print shop in Los Angeles while trying to apprehend a fugitive—and the city stuck Carlos with the tab. But the Fifth Amendment requires just compensation when the gov't intentionally damages or destroys an innocent person's property, so we're asking the Supreme Court to take up the case and remind lower courts that that's been the law for a long time. (Click here for a lovingly crafted podcast on the history.)

This week on the Short Circuit podcast: We dive into the Byzantine flowchart that is civil forfeiture, as detailed in IJ's new report Policing for Profit 4.

  1. Third Circuit (over a dissent): It's only an events contract if it's regulated in the CFTC region of D.C.; otherwise it's just sparkling sports gambling.
  2. It's not George Costanza but rather the Fourth Circuit reminding us: "We live in a society." And here that means having to follow West Virginia's compulsory schoolchildren vaccination law, even though it lacks religious exemptions. Dissent: Seems like the Free Exercise Clause should require a religious exemption for a student in a virtual public school when the state exempts homeschoolers.
  3. Fourth Circuit (unpublished): Forcing an elderly widow to choose between agreeing to waive all of her claims against a city whose sewer system just flooded her home and being homeless for want of funds (on account of the aforementioned sewage) just might maybe be "undue influence" that voids the contract. To a jury with you! Dissent: A contract where one party had more bargaining power than the other isn't "undue influence." It's just a contract. Read More

Climate Change

Ninth Circuit Dismisses Kids Climate Case Against Discounting in Cost-Benefit Analysis

The kids climate cases continue to have standing problems in federal court.

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Today the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the G. B. v. U.S. EPA kids climate suit. The court seemingly had no trouble resolving this case, as it was only argued on March 5.

In this suit the plaintiffs argued, among other things, that the practice of discounting in assessing the threat of climate change is unconstitutional as it discriminates against younger people and future generations. The court did not reach the substance of this claim, concluding the plaintiffs lacked standing. Specifically, the panel found that the plaintiffs could not satisfy any of standing's three elements.

Of note, the Ninth Circuit dismissed the case without leave to amend the complaint. While the plaintiffs are likely to seek further review, such as through a petition for rehearing en banc or a petition for certiorari, this should effectively end this case

Judge Milan Smith wrote for the panel, joined by Judges Nelson and Gould. His opinion for the panel begins:

Plaintiffs-Appellants are eighteen minors who sue the U.S. Environmental Protection Agency (EPA) and other federal entities and officials (collectively, the Government) to challenge an economic tool that the EPA sometimes consults in its rulemaking process. Plaintiffs allege that the Government has a policy and practice of promulgating rules regulating greenhouse gas (GHG) emissions in reliance on cost-benefit analyses that "discount" the value of future costs and benefits. Discounting allows agencies like the EPA to translate the future value of money into present-day value, so they can compute the projected effects of a proposed regulation over time. Rooted in the "time value of money," discounting seeks to account for the economic observation that a dollar today is generally more valuable than a dollar tomorrow.

According to Plaintiffs, the EPA's use of discounting discriminates against children like them in violation of their constitutional rights because it favors present-day consumption over future consumption, which, Plaintiffs say, advantages adults at the expense of minors. Plaintiffs further allege that GHG regulations predicated on discounted future costs and benefits harm the environment because they allow greater GHG emissions (when compared against hypothetical regulations lacking this predicate), which in turn leads to increased atmospheric temperatures and extreme weather events, ultimately causing Plaintiffs to suffer a litany of downstream harms, such as damage to their homes, respiratory ailments, and anxiety over climate change.

The district court held that Plaintiffs lacked standing to pursue these claims. Rather than satisfying the familiar requirements of injury, causation, and redressability, the district court determined that Plaintiffs' lawsuit stumbled on all three. In particular, the court concluded that Plaintiffs' discrimination theory did not assert a cognizable injury-infact; that Plaintiffs' alleged environmental injuries are not fairly traceable to the Government's use of discounting; and that Plaintiffs' request for declaratory relief is unlikely to redress their asserted harms. Because of these deficiencies, the district court declined to grant Plaintiffs a third opportunity to plead their claims. We agree with the district court and now affirm.

A different panel of the Ninth Circuit (Owens, Van Dyke, and Sung) will hear oral argument in yet another kids climate case, Trump v. Lighthiser, on Monday.

Free Speech

Allegations of Conspiracy Between Univ. of S. Florida and Jewish Groups, Brought by Students for Democratic Society Chapter, Rejected

"In essence, the plaintiffs argue that every time a Jew or Jewish organization contributes to (in this instance) a public university and that university, acting under established policy, disciplines a student who advocates for, in this instance, 'particularly Palestinian" policies, the simultaneous presence of the contribution and the discipline creates a plausible inference of a conspiracy between the contributor and the university to punish the "particularly Palestinian' advocate."

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Yesterday's opinion by Judge Steven Merryday (M.D. Fla.) in Tampa Bay Students for a Democratic Society rejects various First Amendment claims stemming from the group's expulsion by the University, largely for the reasons given in a decision I posted about in January. But it adds the following, responding to the plaintiffs' conspiracy claims:

The plaintiffs allege in the conspiracy claim (and without factual support) (1) that each defendant acted "outside the course and scope of … employment," (2) that "[e]ach individual defendant knew or should have known that their actions were in violation of Plaintiffs' constitutional rights," and "[i]n the alternative" (3) that "each Defendant acted with callous or reckless indifference [to] the Plaintiffs' rights." … In support of their conspiracy claim (or, absent sufficiently particularized facts, their conspiracy theory), the plaintiffs allege:

On May 5, 2024, the Tampa Jewish Community Centers & Federation (JCC) published a letter commending the USF administration for its zero-tolerance approach to Palestinian and allied student organizing against Israel's actions in Gaza since October 2023, and thanking [President] Law for meeting with them on multiple occasions and "work[ing]" with them to address "anti-Israel activity on campus" by what it called "anti-Israel students and agitators."

The JCC stated that the USF administration met with the Tampa Jewish Community Relations Council (JCRC) on multiple occasions since October 7, 2023, had been in 'ongoing contact' (outside the sunshine) with 'several key stakeholder groups,' had met with the Deputy Consul General of Israel for Florida, had watched a 42-minute propaganda film about Hamas, and had been paying for around-the-clock police presence at … Hillel [another Jewish Organization].

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Justice Sotomayor Opens Up About Her Colleagues

She blames her colleagues for the emergency docket situation, and faults Justice Kavanaugh for not knowing people who earn an hourly wage.

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Justice Sotomayor is on a speaking tour. In a series of public remarks, she has offered some striking comments about her colleagues.

On Wednesday, she spoke in Lawrence, Kansas about Justice Kavanaugh's concurrence in Noem v. Vasquez Perdomo.

"I had a colleague in that case who wrote, you know, these are only temporary stops," Sotomayor said, referencing a concurrence written by Justice Brett Kavanaugh, during an event Tuesday hosted by the University of Kansas School of Law. "This is from a man whose parents were professionals. And probably doesn't really know any person who works by the hour." . . .

"Those hours that they took you away, nobody's paying that person," she said. "And that makes a difference between a meal for him and his kids that night and maybe just cold supper." . . .

Why on earth would she drag Justice Kavanaugh's parents into this? President Trump was recently castigated for saying that Justices Gorsuch's and Barrett's families should be ashamed of them. Here, Justice Sotomayor is shaming Justice Kavanaugh because his parents were "professionals." Has Justice Sotomayor ever googled "Martha Kavanaugh"? Mrs. Kavanaugh taught history at a public school. I suppose being a teacher is a "professional." Both of Justice Kavanaugh's parents attended law school while raising their son. That should be admirable, right? But Justice Sotomayor just assumes they have white privilege.

As for the claim that Justice Kavanaugh "doesn't really know any person who works by the hour," that claim is demonstrably false. Many of the employees at the Supreme Court earn an hourly wage. Does Kavanaugh know none of them? We know from the confirmation process that at one of his high school friends worked at a grocery store. Moreover, Justice Kavanaugh has long volunteered to hand out meals to homeless people in the District of Columbia. These individuals likely earn an hourly wage, if that. But why make this claim at all? This was certainly on Justice Sotomayor's mind for some time, and she felt compelled to say it aloud.

Sotomayor continued:

"Life experiences teach you to think more broadly and to see things others may not," Sotomayor said. "And when I have a moment where I can express that on behalf of people who have no other voice, then I'm being given a very rare privilege."

This comment about "life experiences" harkens back to her "Wise Latina" speech. I would encourage you to read Ed Whelan's recent Confirmation Tales post on the topic. Sotomayor gave this speech many times, and certainly believes it. I suppose a "Wise Latina," with the richness of her experiences, gains insights on the meaning of the Fourth Amendment that the son of two white lawyers lacks.

Justice Kavanaugh's parents routinely attend Court sessions. I hope Justice Sotomayor apologizes for this remark.

Why would Justice Sotomayor say something like this to publicly shame her colleague? The answer, I think, would be revealed during remarks on Thursday at the University of Alabama.

"I dare say that with virtually all of them, I certainly have a civil relationship. And with many of them, I think I dare say that I have a friendship,"

Virtually? That means less than all. There are apparently some Justices that she does not have a "civil relationship" with. There are only eight other Justices. How many is "virtually all"? Seven? Six? She is friends with many. That would seem to be a majority, so perhaps five? So she is friends with five, and has a civil relationship with six or seven? Is that where are? The fact that Justice Sotomayor is taking public shots at Justice Kavanaugh suggests their relationship is not on the "sunrise side of the mountain."

Who else doesn't make the cut? I think back to the kerfuffle from 2022 when Justice Gorsuch refused to wear a mask and Justice Sotomayor was apparently troubled. Gorsuch and Sotomayor issued a joint statement saying "While we may sometimes disagree about the law, we are warm colleagues and friends." Is that no longer true? Are they no longer friends? With the benefit of hindsight, that statement seems as sincere as hostages reading a script with a gun pointed to their head.

Justice Sotomayor also blamed her conservative colleagues for the shadow docket emergency:

The Supreme Court has itself to blame for the flood of emergency appeals it's now receiving, Justice Sonia Sotomayor said Thursday.

"We've done it to ourselves," Sotomayor said during an appearance at the University of Alabama Law School. "The newspapers are filled with reports about how many emergency motions we are receiving. It's unprecedented in the court's history."

Is Justice Sotomayor okay? I follow the Supreme Court very closely. Too closely, maybe. But this level of obsession allows me to notice when things change. And my spider senses are tingling with Justice Sotomayor. Something seems very off this term, much more than usual. There was a recent red flag during oral argument in Trump v. Barbara.

Justice Sotomayor asked Cecilia Wang, counsel for the ACLU, about an apparently non-existent case:

JUSTICE SOTOMAYOR: Ms. Wang, on the earlier answer you gave to Justice Gorsuch on the temporary sojourners' cases, those were distinct cases, correct, where the parents had come to the U.S. and didn't want to give citizenship to their kids, took them out immediately, correct?

MS. WANG: I'm sorry, Justice Sotomayor, I'm not sure which cases you're referring to.

JUSTICE SOTOMAYOR: All right. I'll --I'll --that, we can look it up.

And in at least three recent cases, Justice Sotomayor forgot her spot during the round-robin questioning and jumped in when it wasn't her turn: Watson v. RNC, Enbridge Energy v. Nessel, and Wolford v. Lopez.

I suspect at some point, people will look at Justice Sotomayor, who did not step down during the Biden Administration, the same way that people look at Justice Ginsburg, who did not step down during the Obama Administration.

Birthright Citizenship

Did the Solicitor General Misrepresent Flournoy Article in Birthright Citizenship Oral Argument

It is often useful to consult the original source.

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One of the Solicitor General's primary claims in the Trump v. Barbara oral argument was that the Trump Administration's position on birthright citizenship aligns with the consensus of commentators in the late 19th and early 20th centuries, the Supreme Court's decision in Wong Kim Ark notwithstanding. Setting aside whether post-ratification commentary is a reliable guide to the original public meaning of a constitutional provision--particularly where, as here, many opponents of the Fourteenth Amendment sought to narrow the scope of its guarantees--many scholars (and amicus briefs) contest the SG's claim.

One point of contention concerns the opinions of Richard W. Flournoy, Jr., an attorney in the State Department who wrote several articles related to citizenship, including "Dual Nationality and Election," 30 Yale Law Journal 545 (1921).

Although the government did not cite Flournoy's article in its opening brief, the SG did mention it at argument. In response to a question from Justice Kagan, the SG said:

I disagree with the way you've characterized the understanding of Wong Kim Ark. And I would point to something that's emphasized in their amici's briefs, which is, in 1921, Richard Flournoy, who becomes a senior State Department official in the Roosevelt administration and pushes their theory as to temporary sojourners, writes a Law Review article in 1921 where he says: I think that children of temporary visitors should be citizens. But he admits that is not the understanding of Wong Kim Ark. He admits Wong Kim Ark did not hold that.

And he admits that there's an array of authorities that go against him. He talks about careful and reliable, high authorities And that's referring to the consensus that we point out in pages 26 to 28 of our brief, where you've got 12 treatises from 1881 to 1922 that all say --including for decades after Wong Kim Ark, that say children of temporary sojourners are not included. What happens between 1921 and the 1930s? Well, Mr. Flournoy became a senior State Department official, and he adopted that as the policy of the Roosevelt administration. So their argument is basically saying there wasn't this consensus going back to 1898. The consensus, as their own author admits, goes entirely in the opposite direction for 50 years, right? For 50 years, from the framing of the clause, through the 1920s, maybe 60 years, the general understanding when it comes to what's at issue here and was not at issue in Wong Kim Ark is that children of temporary visitors do not become citizens under the clause.

The SG makes an interesting (if unintentional) concession here: The federal government adopted the conventional view of birthright citizenship in the 1930s, so this was the prevailing understanding when Congress codified the current statutory rule concerning birthright citizenship. It was how federal law was understood and enforced and (as the SG's reply brief notes) the 1940 statute was not understood to make any change to the underlying law. (Indeed, the SG's reply brief cites Flournoy's 1940 testimony to Congress on this point.) This supports my claim that, whatever one thinks of the original public meaning of the 14th Amendment's citizenship clause, the established public meaning of the relevant statutory provisions at the time of their enactment was the conventional understanding.

But what of the SG's specific claims about what Flournoy wrote in 1921? Some scholars, such as Evan Bernick, accuse the SG of misrepresenting Flournoy's article and what it said about Wong Kim Ark.

The surest way to evaluate this claim is to go to the source. So here (as best as I can tell) is the relevant portion of Flournoy's 1921 article (at 552-53).

Notwithstanding the decisions of the courts mentioned and others to the same effect, the law of this country concerning citizenship by birth has been misstated by a number of writers on international law, who have assumed that, in order that a person born in the United States of alien parents may have American citizenship, his parents must have been domiciled in this country at the time of his birth. This error seems to have originated with Wharton, who seems to have gone so far as to hold that persons born in the United States of alien parents were not citizens of the United States, under the provisions of the Civil Rights Act, since their parents were "subject to a foreign power." He seems to have fallen into the error of construing these words as equivalent to "subjects of a foreign power." He cites several declarations of Secretaries of State in support of his opinion, but these declarations are not in accord with the decisions of the courts. Mr. Hannis Taylor, relying partly upon Wharton, expresses his opinion that "children born in the United States to foreigners here on transient "residence are not citizens, because by the law of nations they were not "at the time of their birth 'subject to the jurisdiction,"' and Wharton's opinion has also been followed by such careful and reliable authors as Hall and Westlake. I should hesitate to question the view expressed by such high authorities were it not for the fact that it is clearly contrary to the decisions of our courts. It is true that the decisions in Re Look Tin Sing and United States v. Wong Kim Ark did not directly decide the precise point that persons born in the United States of aliens who are mere sojourners or transients are citizens of this country, since in each of these cases the parents were domiciled in the United States, so that it was not at issue. However, both of those decisions relied to a considerable extent upon the decision in Lynch v. Clarke, in which the person concerned, who was declared to be a native citizen of the United States, was born in this country of alien parents who were mere sojourners. What is more important, all of these decisions were based upon the theory that the law of citizenship of the United States was taken from the common law of England, and the latter makes no distinction between persons born in the country of alien sojourners and those born of domiciled aliens.

"But," one may ask, "if a Chinese merchant and his wife are returning" from Europe to China via the United States, and a child is born to "the woman in San Francisco the day before they sail, is such child, by "the mere accident of having first seen the light in this country, a citizen "of the United States?" Absurd as it may seem, the child is indeed a citizen of the United States under the law of this country, although it is also a Chinese citizen under the law of China. Although it is unfortunate that such cases are possible, there is, on the other hand, much practical advantage in a system in which mere proof of birth in the United States is sufficient proof of citizenship. This is remarked upon by Judge Sandford in the opinion [Lynch v. Clarke] to which I have called attention.

It is certainly true that Flournoy acknowledges the narrowness of Wong Kim Ark's holding and that some treatise writers adopted a different view from his, but I think that is as far as it goes. He hardly concedes a "consensus" on the subject and embraces the dominant understanding of Wong Kim Ark as grounded in the common law rule articulated in Lynch v. Clarke. At the very least, it appears that the SG misspoke.

If there is another portion of the Flournoy article relevant to this point, I am happy to post that as well.

Free Speech

"There Is No Constitutional Right to Possess a Cell Phone in Class"

"Furthermore, to temporarily deprive a student of his cell phone during a class or a test and return it to them after the class or test is completed (or even at the conclusion of the school day) is not a constitutional violation."

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Sound reasoning, I think, from Judge Andrew Hanen (S.D. Tex.) Tuesday in Brown v. Splendora Indep. School Dist. Plus a bit more on other topics, which should offer a flavor of the set of complaints that plaintiff brought:

"On or about March 12, 2025, during a class testing period, Teacher [Name Not Specified in Allegations] removed RB from the classroom and referred him for suspension." (emphasis added). The reason he was removed, as specified in Plaintiff's Amended Complaint, was that RB refused to sit in his assigned seat, was being difficult, and was talking across the room while others were taking the test. RB claimed at the time that he perceived his being sent to the office to be "racial injustice." To make matters worse, RB then called the teacher a "racist." Brown admits in his Amended Complaint that RB was mistaken in this notion.

Brown claims that refusal to sit in one's assigned seat, being difficult, and talking during a test is not enumerated in the Student Code of Conduct and therefore cannot be the basis for discipline. To reach this conclusion, Brown again employs a very selective reading of the Code of Conduct.

The Code of Conduct requires students to demonstrate courtesy. Talking across the classroom, being difficult, and calling the teacher a "racist" while others are trying to take a test certainly violates that tenant.

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Justice John Marshall Harlan's Lecture Notes On Wong Kim Ark

An excerpt from my 2013 co-authored article on Harlan's constitutional law lectures.

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Last week, while listening to the oral argument in Trump v. Barbara, I was pleasantly surprised to hear Justice Gorsuch ask the Solicitor General and Cecilia Wang, counsel for the ACLU, about Justice Harlan's constitutional law lectures concerning Wong Kim Ark. Back in 2013, Brian Frye, Michael McCloskey, and I transcribed and published all of Harlan's lecture. This was done the old-fashioned way, without the benefit of AI. We went to the Rare Books room at the Library of Congress, and photographed more than 500 pages of archived materials. We also published an article in the George Washington Law Review analyzing the lecture notes.

Given the recent attention to Justice Harlan, I thought it would be helpful to reproduce both our discussion of Harlan's lecture on Wong Kim Ark, as well as the full transcript from the classes from before and after Wong Kim Ark was decided. (Yes, Harlan talked about the case while it was pending, and previewed his vote). Those excerpts appear in this post.

The ACLU and Justice Gorsuch accurately quoted the lecture notes, but I think you need to read the full context to understand Harlan's position. I will have more to say about Harlan's view in separate writing. Here, I just want to lay out the background.

Josh Blackman, Brian Frye and Michael McCloskey, John Marshall Harlan: Professor of Law, 81 George Washington Law Review 1063 (2013).

Brian Frye, Josh Blackman, and Michael McCloskey, Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98, 81 George Washington Law Review Arguendo 12 (2013).

C. American Citizenship and Equal Protection

One of Harlan's most passionate lectures was his discussion of United States v. Wong Kim Ark329 on March 19, 1898.330 In Wong Kim Ark, the Supreme Court considered whether birth in the United States was sufficient to grant United States citizenship to a person of Chinese descent.331 The Court, in a 6–2 decision by Justice Gray, held that Wong Kim Ark, who was born in the United States to Chinese citizens, acquired American citizenship at birth by the principle of jus soli.332 Chief Justice Fuller, joined by Justice Harlan, dissented, arguing for the principle of jus sanguinis, under which a child inherits citizenship from his or her father, regardless of birthplace.333

Wong Kim Ark was argued on March 5 and 8, 1897.334 When Harlan discussed it in class on March 19, 1898, he expressed views closely reflecting the dissent he eventually joined.335 Harlan argued that Chinese-Americans could not be assimilated into the American populace, and thus were not entitled to birthright citizenship under the Fourteenth Amendment.336 The case would be decided nine days later on March 28, 1898, after which Harlan explained how he reconciled his views with those of the majority.337 This discussion illuminates Harlan's chimerical views on race, and juxtaposes his enlightened dissents in Plessy v. Ferguson338 and the Civil Rights Cases339 with his xenophobic views in Wong Kim Ark.

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Birthright Citizenship

The Birthright Citizenship Question that Stumped the Solicitor General

It was surprising that the Solicitor General did not appear to have thought much about the extent of Congress' legislative power under Section 5.

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In reviewing the Supreme Court oral argument in Trump v. Barbara, in which the justices considered the lawfulness of President Trump's anti-birthright-citizenship Executive Order, I was struck by an exchange in which a fairly obvious question seemed to catch the SG off guard.

Justice Kavanaugh asked the Solicitor General about the extent to which Congress might have authority to modify the contours of birthright citizenship, and the SG's response suggested he had never pondered this question before.  Here is the transcript of exchange:

JUSTICE KAVANAUGH: Of what relevance, if any, do you think Section 5 of the Fourteenth Amendment has here that gives Congress the power to enforce the article, the Fourteenth Amendment, by appropriate  legislation? Does that give Congress room here, or do you not think so?

GENERAL SAUER: I --I do think that a ruling in our favor would leave room for Congress. I --I don't think you have to rely on Section 5. I think that Congress has its own inherent power to grant citizenship by statute. So, if the Court were to rule in our favor for the classes of individuals that they say should be covered, Congress has the latitude to do that.

JUSTICE KAVANAUGH: How much room do you think Section 5 gives, if any --and it may not be any --Congress to interpret the phrase "subject to the jurisdiction thereof" or to define that? Does it --is that --is that relevant at all?

GENERAL SAUER: It's a great question, and I'm thinking about it for the first time. I assume it would be governed by the congruence and proportionality test from this Court's case law. How that would apply here, I don't know. And I don't think it's presented because our contention is that the statute means exactly the same thing. If anything is congruent and proportional, it's that. And I think the Court held that in United States against Georgia.

I understand that the SG is trying to defend the Executive Order, and it is quite unlikely that Congress is going to enact legislation on birthright citizenship any time soon, but I was nonetheless quite struck to hear the SG confess he had not previously considered the extent to which Congress might have the power to define who is "subject to the jurisdiction" of the United States for purposes of birthright citizenship, as this would seem to be quite relevant to the legal issues in play.

I previously blogged on the oral argument in Barbara here.

Upcoming Visiting Position at University of Virginia

I will be a Visiting Professor at the University of VIrginia School of Law during the Fall 2026 semester.

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UVA

I would like to take this opportunity to announce that I will be a Visiting Professor at University of Virginia School of Law during the Fall 2026 semester. It is an honor to be invited to visit at one of the nation's very top law schools. I know some UVA faculty already, and look forward to meeting more faculty and students while there.

During that semester, I will continue to be an employee of the mighty Commonwealth of Virginia (both UVA and my permanent home, George Mason University, are Virginia state universities). I will also continue my work as Simon Chair in Constitutional Studies at the Cato Institute. Similarly, I will continue to blog regularly right here at the Volokh Conspiracy site.

"The First Tell Was the File Name of the Principal Brief: 'Cocounsel Skill Results'"

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From Friday's Sixth Circuit decision in U.S. v. Farris, by Judges Eric Clay, Julia Gibbons, and Whitney Hermandorfer:

Howe [a court-appointed criminal defense lawyer appealing a drug trafficking sentence] filed two briefs—a principal brief and a reply—on behalf of Farris. Upon our initial review of the case, we began to suspect that Howe's briefs were generated, at least in part, by artificial-intelligence software. The first tell was the file name of the principal brief: "CoCounsel Skill Results." CoCounsel is the name of Westlaw's internal artificial-intelligence platform. From our vantage point, that file-name abnormality suggested that Howe's brief might have derived not from Howe's independent work, but directly from artificial-intelligence software.

Further suspicions arose when, during our substantive review of the briefs, we discovered three problematic citations:

Page 4 of the principal brief states, "The Guidelines' commentary makes clear that '[m]ere presence or knowledge of the offense is not sufficient to make a person a participant.' U.S.S.G. § 3B1.1 cmt. n.1."

Page 10 of the principal brief states, "The Sixth Circuit has reversed role enhancements on similar facts. In Washington, the Court held that 'simply facilitating the offense without exercising decision-making authority is insufficient.' 715 F.3d at 985."

Page 10 of the principal brief states, "Likewise, in Anthony, the Court vacated a § 3B1.1 enhancement because '[t]here was no evidence [the defendant] directed or supervised anyone else.'"

The reply brief repeats the latter two quotations. Each of these citations references genuine legal authorities. But the purported direct quotations do not appear in their cited sources. And upon deeper review, we were unable to locate any relevant legal authority that contained the same or substantially similar language as the above quotations. So, it did not appear that the misattributions involved mere citation mix-ups or transcription errors.

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Second Amendment Roundup: U.S. Supports Rehearing in D.C. Magazine Ban Case

The issue is whether the invalid magazine ban infects the registration-licensing convictions.

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The United States has filed a Response to the District of Columbia's Petition for Rehearing En Banc in Benson v. United States, in which the D.C. Court of Appeals held the District's magazine ban to violate the Second Amendment.  Applying Heller and Bruen, the court held that magazines "are unquestionably arms, they are in not only common but ubiquitous use for lawful purposes, and there is no history or tradition of blanket bans on arms in such common use…."  The U.S. agrees with that, but argues that the ban should have been held unconstitutional as applied, not facially.

Mr. Benson possessed a 30-round magazine, but that number is statutorily irrelevant, as the District bans any magazine holding over 10 rounds.  The court explained:

The 11+ magazine ban is facially unconstitutional because it is unconstitutional on its plain terms, not just in some idiosyncratic applications, and it is not readily susceptible to any judicial narrowing that avoids its constitutional infirmities. The fact that it captures some conduct that hypothetically could have been proscribed by a more narrow statute is beside the point. It might be that a ban on 30-round magazines, or on 100-round magazines, would pass constitutional muster. But in no sense does that mean that this law could be constitutionally applied to prosecute those who possess those larger magazines. Because this law does not require the government to prove those higher capacities, it has not drawn the line in a constitutionally permissible place.

The United States objects based on the theory that the statute is not unconstitutional in all applications, such as a ban on a 100-round magazine might be.  It states: "In other words, because the statute had some unconstitutional applications—namely, banning (say) 12-round magazines—the entire statute has to fall. That analysis gets the Rahimi inquiry backwards: the statute should survive if it 'is constitutional in some of its applications.'"  (Emphasis added.)  But what the U.S. calls "the statute" is not this statute.  The actual statute here includes no constitutionally-permissible application.  By contrast, in Rahimi itself, the law was not unconstitutional in all applications because the defendant himself was found to represent "a credible threat to the physical safety" of an intimate partner or child, the exact terms of the law.

The Supreme Court in Heller held the D.C. handgun ban to be unconstitutional in all applications, even though fully-automatic handguns or possession by a felon could be banned under some other laws.  Bruen held New York's carry ban unconstitutional in all applications to be violative of the Second Amendment, even though carrying of handguns could be banned in courts under separate laws.

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Free Speech

D.C. Circuit Declines to Stay Department of War's "Supply-Chain Risk" Designation of Claude

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From today's order by Judges Karen LeCraft Henderson, Gregory Katsas, and Neomi Rao in Anthropic PBC v. U.S. Dep't of War:

Anthropic PBC develops Claude, a family of advanced artificial-intelligence models. In 2024, the Department of Defense (which now calls itself the Department of War) began using Claude in connection with various military operations.

But on March 3, 2026, Secretary of War Pete Hegseth determined that procuring AI goods or services from Anthropic presents a supply-chain risk to national security under 41 U.S.C. § 4713. The impetus for the determination was Anthropic's refusal to contractually authorize the Department to use Claude for mass domestic surveillance or lethal autonomous warfare. As a result, the Department has canceled its contracts with Anthropic, begun to remove Claude from its systems, and prohibited its other contractors from using Anthropic as a subcontractor on work performed for the Department. The Department has not prohibited contractors from using Claude for work performed for entities other than the Department.

Anthropic seeks review of the Secretary's determination under section 4713 to bar the company from providing goods or services to the Department. It claims that the determination was contrary to law, unconstitutional, and arbitrary. Anthropic seeks a stay pending review on the merits or, in the alternative, expedited consideration of the merits.

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More

Recent Volokh Posts

1

DOGE, the Social Security Administration, and How Inferior Courts Should Treat S. Ct. Interim Orders

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

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Ninth Circuit Dismisses Kids Climate Case Against Discounting in Cost-Benefit Analysis

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Massachusetts High Court: Claim Against Meta for Alleged Addiction of Children Can Go Forward Notwithstanding § 230

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Allegations of Conspiracy Between Univ. of S. Florida and Jewish Groups, Brought by Students for Democratic Society Chapter, Rejected

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Today in Supreme Court History: April 10, 1967

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Open Thread

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Justice Sotomayor Opens Up About Her Colleagues

9

Did the Solicitor General Misrepresent Flournoy Article in Birthright Citizenship Oral Argument

10

"There Is No Constitutional Right to Possess a Cell Phone in Class"

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