7/23/1936: Justice Anthony Kennedy's birthday.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Open Thread
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Second Amendment Roundup: New Jersey Rifle and Magazine Bans Bite the Dust
The Third Circuit takes Second Amendment rights seriously.
On July 17, the Third Circuit declared New Jersey's ban on semiautomatic rifles and magazines holding over ten rounds to violate the Second Amendment. The case is Ass'n of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey (AJNRPC), and the 10 to 5 en banc opinion is authored by Judge Arianna J. Freeman. This is the first circuit court decision to invalidate an "assault firearm" and magazine ban.
Some members of the court would have waited until the Supreme Court decides Viramontes/Grant (see post here), but cert was not granted on the magazine issue in those cases, plus no party sought delay. My thought is that another good reason to decide the case is Justice Kavanaugh's statement in the Snope cert denial that further appellate decisions will be forthcoming that "should assist this Court's ultimate decisionmaking on the AR–15 issue." All of the other circuit decisions have upheld bans.
The common-use test, which derives itself from the historical tradition of the banning of "dangerous and unusual" weapons, is the focus of AJNRPC. First, "in common use" refers to "common use for lawful purposes at the time of the modern restriction." Second, "lawful purposes" refers not just to self-defense, but to hunting and other lawful uses including mere possession. Third, such use excludes a "dangerous and unusual" weapon.
Criticism of the common-use test as "a popularity poll" disregards that the Supreme Court requires this test, and "the popularity of the restricted weapons bears on [the] question" of common use for a lawful purpose. Moreover, possession – whether keeping or bearing – is protected, not just the active use of pulling a trigger to shoot bullets in self-defense scenarios.
"Bruen's first step is fundamentally a textual inquiry," but the common use inquiry is not located there. It neither appears in the Second Amendment's text nor is it part of the definition of "Arms," which as Wolford noted includes "any weapon customarily used for offensive or defensive purposes." "'Customarily' distinguishes items that can be used, offensively or defensively, as weapons (e.g., bricks) from weapons normally used for offensive or defensive purposes." So common use fits into Bruen's step two (the historical tradition step), as a part of "how" a modern regulation burdens the right in comparison with any relevant historical analogue. Here, as in Heller, the "how" is a "flat ban." Once the plain text of the Second Amendment is implicated, the burden shifts to the state (here, New Jersey) to demonstrate a historical tradition that would warrant its modern-day law. Thus, in this arms ban case, New Jersey bears the burden to demonstrate that the semiautomatic rifles it bans are "dangerous and unusual" and, by necessity, not in common use.
Moving on to New Jersey's ban on its listings of firearm make and models, the AJNRPC court decides that the record encompasses the same result for all semiautomatic rifles, not just the Colt AR-15. For that, "we need not precisely define the quantity or qualities that make a weapon in common use for lawful purposes. Regardless of where those lines may be drawn, the many millions of semi-automatic rifles in circulation for lawful purposes are plainly in common use."
Contrary to the argument that rifles are not commonly "used" in self-defense, "even if a weapon is rarely employed in incidents requiring self-defense, it may still be commonly possessed for that lawful purpose or other lawful purposes, such as hunting." Moreover, "Even if semi-automatic rifles are disproportionately used in some crimes, those may still represent a small fraction of those weapons' overwhelmingly lawful use." Not to mention that interpersonal violence is "a general societal problem that has persisted since the 18th century," where Bruen's second step is "fairly straightforward."
Of course, the Third Circuit did not really need to engage in the level of analogical reasoning that it did, given that the Supreme Court in Heller had already engaged in the relevant historical spade work to identify the principle that arms that are "dangerous and unusual" can be banned consistent with the Second Amendment.
That's why antebellum and Reconstruction regulations of Bowie knives, blunt weapons, and pistols as potential analogues do not work: "They are too late in time, and none enacted an outright ban on a class of weapons in common use for lawful purposes." No Founding-era analogue exists for such restrictions, giving little weight to later restrictions. Third Circuit precedent, Lara v. Comm'r Pa. State Police (2025), holds that 1791 prevails over 1868 as the location of proper analogues.
The AJNRPC court next moves on to the magazine ban. Magazines are "arms" because they feed ammunition into certain firearms, making them functional. The label "large capacity magazine" (LCM) "is not objective: what is considered an LCM is statutorily defined." It used to be 15 rounds, now it is 10 rounds. "It would defy reason for a label devised by New Jersey's legislature to govern the reach of the Second Amendment's text." As to the argument that a firearm will still operate with a ten-round magazine, "the text of the Second Amendment does not limit 'Arms' to the minimum equipment necessary to operate a weapon."
In Bruen, the Supreme Court included "instruments that facilitate armed self defense" as part of the plain text definition of "arms." Magazines obviously do so by holding ammunition and allowing the lawful gun owner to discharge a firearm in self-defense and to train for self-defense scenarios without having manually to reload over and over.
The banned magazines easily meet the common-use test. "But the 24 million AR-15s and similar sports rifles in circulation—firearms that we have determined are in common use for lawful purposes—typically come standard with twenty- or thirty-round magazines. And there are over 100 million 30-round AR-15 magazines in circulation." (I would suggest there are far more.)
As for analogues, Founding-era gunpowder storage laws miss the mark – they were for fire safety, not crime control. Nor were concealed carry regulations, which were not outright bans, relevant.
The above resolves the unconstitutionality of New Jersey's ban on all of the listed semiautomatic rifles and on magazines. However, the court found the record too sparse about the shotguns and pistols defined as "assault firearms," which requires a remand to the district court for further factfinding.
Judge Paul Matey's concurrence minces no words: "Nothing has changed in the decades since the State launched its battle against the Second Amendment and its ongoing defiance of the law." The terms "LCM" and "assault firearm" have no objective meanings but are "marketing materials recycled into legislation." Although the opinion of the court doesn't mention features, Judge Matey explains, "There is too much evidence that all of the arms at issue—pistol grips, folding stocks, magazines containing eleven or more rounds, and the semiautomatic shotguns and pistols New Jersey lumped into the definition of 'assault weapons' with no real thought—are and have long been in common use for lawful purposes."
Concurring in part, Judge Peter Phipps stresses that proper historical analogues "have the purpose of regulating people who actually or imminently misuse firearms to harm or menace others." However, the New Jersey prohibitions are "based on their potential for misuse, however remote, and that is broader than actual or imminent misuse."
Judge Tamika Montgomery-Reeves concurs, but would have held the case pending the Supreme Court's resolution of Viramontes and Grant. Quoting the laws at issue in those cases, which could resolve AJNRPC, two definitions demonstrate (my observation) the utter irrationality of "assault weapon" bans. Cook County includes the feature of a rifle "without a stock attached," while Connecticut includes a rifle with a "folding or telescoping stock" attached. Which of these contradictory features pray tell make the rifle so dangerous?
Judge Jennifer Lee Mascott concurs in part, agreeing with Judge Matey that it is unnecessary to remand the case to the district court for further factfinding. She warns about misinterpretation of the "dangerous and unusual" concept: "But turning that designation into an antitype risks signaling to assertive State regulators that establishing a Second Amendment basis for regulation can be accomplished simply by labeling a firearm use 'dangerous and unusual' rather than affirmatively demonstrating historical evidence for the regulation as commanded by the Supreme Court."
Judge Cindy Chung concurs in part and dissents in part. She maintains that "common use" is determined at Bruen's step one and does not include "a type of weapon one would expect to be used for modern warfare; nor does the term embrace weapons most commonly used for criminal ends." Instead, common use includes a weapon "an ordinary person would have at home for purposes like protecting oneself against violent interpersonal confrontation, protecting the home, and hunting." At step two, Judge Chung writes that "a weapon not commonly worn in public causes a terror to the people." She opines that a remand is necessary to apply that standard.
Judge Patty Schwartz, joined by three other judges, dissents. The thrust of her opinion is that "the objective features of AR-15s and LCMs render them disproportionate to 'ordinary self-defense needs' and thus outside the scope of the Second Amendment's protection." Her opinion fails to articulate what exactly those "objective features" are. While no government in the world issues it as a standard service weapon, she asserts that the AR-15 is "an unusually dangerous tool used by the military and not an arm in common use by civilians for self-defense."
Judge Cheryl Ann Krause dissents, complaining that the majority disregards "the democratic will of the People of New Jersey" based on "the novel theory that these weapons are 'in common use' because modern-day manufacturers have pumped a sufficient (yet undefined) number of them into nationwide circulation and some (again, undefined) percentage of gunowners assert their subjective intent to use them only for lawful purposes." Apparently, consumers buy AR-15s because manufacturers make them do so, not because such rifles and magazines are superior to the inferior ones New Jersey foists upon them. And gunowners can't be trusted when they explain why they purchase them.
Finally, Judge D. Brooks Smith dissents, agreeing with two other dissents and "the persuasive reasoning of Judge Wilkinson" in the Bianchi case from the Fourth Circuit. That "persuasive reasoning" flouts the Supreme Court's common-use test and exaggerates the power of AR-15s, without regard to the caliber of any specific rifle.
It's been a long time coming. The New Jersey ban was originally enacted in 1990. I litigated a pre-Bruen challenge based on vagueness and equal protection, Coalition of New Jersey Sportsmen v. Whitman (D. N.J. 1999), aff'd (3d Cir. 2001) (no reported opinion). We demonstrated that several "assault firearm" listings like "Avtomat Kalashnikov" (which means a full automatic in Russian) are machine gun names. And the catchall "substantially identical" firearms alerted the public about like "other stuff like that" would. I recall one of the judges on the Third Circuit panel asserting that "everyone knows what an assault firearm is, it's a submachinegun with a silencer."
The Third Circuit has now taken Second Amendment rights seriously, and the tables appear to be turning.
Will Courts Uphold the EPA's Rescission of the "Endangerment Finding"?
The legal arguments put forward by the EPA are weak and unpersuasive, and could undermine the Administration's position in other climate litigation.
In February, the Environmental Protection Agency finalized a regulation rescinding the so-called "endangerment finding"--the finding that the emission of greenhouse gases from mobile sources cause or contribute to air pollution that can be reasonably anticipated to endanger public health or welfare. As expected, environmental groups and blue states have already filed suit challenging the rescission. Some of the suits raise fanciful arguments, while others advance more traditional administrative law claims. The question is now in the courts.
Rescission of the endangerment finding was one of the Trump Administration's top environmental priorities, but some of us have been skeptical that endangerment repeal does much to advance the administration's deregulatory priorities (let alone a rational climate policy).
Reviewing the EPA's final rule and it justification, I believe my skepticism was justified. As I explain in the summer issue of Regulation, the EPA's move is "a costly, symbolic gesture that will divert administration resources from more meaningful deregulatory initiatives and does nothing to advance a rational climate change policy."
From the article:
The EPA's current position is that under the "best reading" of the CAA, Section 202 "does not authorize the Agency to prescribe emission standards in response to global climate change concerns." I have sympathy for this view, having drafted an amicus brief for the Cato Institute making just this argument. The problem is that the Supreme Court concluded otherwise in Massachusetts v. EPA (2007). The EPA offers other arguments to circumvent this holding, but they are wholly unpersuasive.
Contrary to the EPA's protestations, the Supreme Court in Massachusetts held squarely that the "EPA has the statutory authority to regulate greenhouse gas emissions from new motor vehicles." Rejecting the George W. Bush administration's arguments that Congress had not authorized the EPA to address climate change, the Court declared it had "little trouble concluding" that Section 202 "authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a 'judgment' that such emissions contribute to climate change." So much for the agency's claim that the statute can be read to preclude EPA regulation "based on global climate change concerns." . . .
It does not matter if the EPA (again) believes the Massachusetts decision was wrong and the CAA was never meant to apply to greenhouse gases. The Court has given the act a definitive interpretation to the contrary, and the Court rarely reconsiders its own prior statutory interpretations. If the Court got a statute wrong, that is a mistake for Congress to fix.
The EPA tries to claim that intervening Supreme Court decisions, such as Loper Bright Enterprises v. Raimondo (2024) and West Virginia v. EPA (2022), call for a new interpretation of the CAA, but those arguments also fall flat. In Massachusetts the Court found that the statutory text was clear and rejected the argument that it should pause before concluding Congress authorized the agency to regulate the most ubiquitous byproduct of modern civilization (what we would now call a "major question"). Were that not enough, in Loper Bright Chief Justice John Roberts, writing the majority opinion, went out of his way to make clear that the Court's decision did not "call into question" statutory interpretations reached in prior cases. Rather, he explained, the holdings of such cases, and the conclusions reached about what statutes require or what agency actions are lawful, "are still subject to statutory stare decisis."
The EPA puts forward some alternative arguments, but I do not find them any more persuasive.
Reading the EPA's rule, one might conclude that the agency understands its legal arguments are weak so long as Massachusetts v. EPA remains good law, and is hoping the Supreme Court will conclude this decision was wrongly decided and reverse it. I doubt this will happen, but would also suggest that the EPA and endangerment-finding-repeal supporters might not like what overturning Massachusetts could unleash..
Even if there are five votes to revisit Massachusetts v. EPA, those cheering endangerment rescission should be careful of what they wish for. Like it or not, it was the Supreme Court's conclusion that greenhouse gases are subject to regulation under the CAA that dictated the outcome in American Electric Power v. Connecticut (2011), in which the Court held that federal common law nuisance suits against fossil fuel emitters are displaced by federal statute. As the Court explained in American Electric Power, existing doctrine requires the displacement of federal common law causes of action where Congress has entered the field by enacting a relevant statute. Should the Massachusetts holding be undone, however, placing greenhouse gases and climate change concerns beyond the scope of the law, there would no longer be any basis to bar such suits from federal court. And were Massachusetts to be undone in this manner, it is possible that federal preemption of state greenhouse gas emission standards—such as those sought by California—would be cast aside as well. Congress may have put an end to CAA waivers for California greenhouse gas emission standards for new motor vehicles through the Congressional Review Act, but if greenhouse gas emissions from motor vehicles are no longer subject to CAA regulation, it is not clear why any such waiver would be required, or why such standards could only be adopted by California—though other statutes may still preclude state standards that operate as de facto fuel efficiency requirements.
I conclude:
The legal risks of rescinding the endangerment finding might be justified if there was no other way to scale back federal regulation of greenhouse gas emissions. Yet that is not the case. The endangerment finding itself is no obstacle to the relaxation or rescission of existing greenhouse gas emission regulations, including those imposed on motor vehicles. The relevant statutory text provides ample basis for ending regulation of such emissions from stationary sources, and there are strong legal arguments having nothing to do with endangerment that the EPA lacks the statutory authority to push automakers toward the production and promotion of electric cars. Such deregulatory moves would be quite straightforward, but they do not have the symbolic appeal of rescinding endangerment.
Administrator Zeldin called the endangerment finding "the holy grail of the climate change religion." It may be more accurate to describe it as the great white whale of the second Trump administration's EPA.
The End of Independent Agencies
The death of Humphrey's Executor was foretold, but some of the consequences may not have been anticipated.
Members of the Federal Trade Commission are no longer protected from presidential removal without cause. Humphrey's Executor--or whatever was left of it--is dead. Congress may not limit the President's authority to remove principal officers who exercise executive power (save for members of the Federal Reserve, apparently). This is the consequence of Trump v. Slaughter.
The practical effects of Slaughter may not be immediately apparent, or so I suggest in my latest Civitas Outlook column. So-called "independent agencies," such as the Federal Trade Commission, have not been meaningfully independent for some time. For years, most such agencies have aligned their agendas with that of the President. But the Slaughter decision may have some other effects on the operation of such agencies that have been under-appreciated (or so I suggest). From my column:
Just as legislative leaders have exercised less independence from presidents of their own party, members of independent agencies have divided more clearly and consistently into reliable voting blocs. Here, as elsewhere, the separation of powers has become more the separation of parties. Combined with the increased centralization of power and control by the Chairs of some agencies, as appears to have occurred at the FTC during Lina Kahn's tenure as Chair, the composition of multi-member agencies has become far less important than who holds the Chair position. At the same time, it has become common practice for agency Chairs to step aside when a new President is inaugurated, as Kahn did once Trump began his second term, even though their terms often extend well beyond a four-year presidential term.
There are exceptions here, some of which are important. Slaughter would seem to indicate that the President can remove FEC commissioners at will, but this will not enable a president to control what the FEC does. Removing members of the FEC the President does not like will not ensure the FEC aligns with the President's agenda. But it appears to allow the President to disable the FEC from acting. In the wake of Slaughter, the President removed all remaining members of the Election Assistance Commission, potentially leaving it unable to assist states with election administration or to establish rules governing mail voter registration applications.
Many of the affected boards and commissions also have quorum requirements that prevent them from taking certain actions without enough commissioners or board members in place. Removing members of such agencies may prevent them from acting contrary to the President's wishes, but it could also prevent the agency from acting at all, particularly if the Senate does not cooperate by quickly confirming a President's replacement nominees. Unlike traditional executive-branch agencies, vacancies on multi-member commissions cannot be filled with interim or acting appointments under the Federal Vacancies Reform Act. So while a President may wish to remove members of the National Labor Relations Board (NLRB) deemed too solicitous of unfair labor practice complaints filed by unions, if removing board members leaves the NLRB without a quorum, it could bar the Board from ruling in favor of complaints brought by employers as well, and prevent the revision or rejection of disfavored agency precedent.
You can read the whole thing here.
U Tennessee Track & Field Head Coach Seeks Preliminary Injunction Against "Untruthful, Derogatory and Offensive Statements" Plus More Commentary
A Magistrate Judge recommended today that the injunction be denied on First Amendment prior restraint grounds.
From a Report and Recommendations today by Magistrate Judge Jill McCook (E.D. Tenn.) in Ross v. Lambert:
According to the allegations in the Complaint, Plaintiff is a former collegiate track and field champion, 2004 Olympian, and the current Head Coach and Director of Track & Field at the University of Tennessee." In August 2022, Plaintiff hired Defendant "to serve as the track and field Recruiting Coordinator—which was a non-coaching, administrative position." Plaintiff alleges that less than a year later, in May 2023, he "advised [Defendant] that he was being terminated from his position as Recruiting Coordinator at the University of Tennessee." He claims that he "gave [Defendant] the option of 'voluntarily resigning' from his position in lieu of being fired for cause[,]" which Defendant accepted.
Plaintiff contends that on May 30, 2024, Defendant sent the Office of General Counsel at the University of Tennessee ("University") a demand letter ("May 30 Letter"), "threatening to sue the University and [Plaintiff] for 'wrongful termination and discrimination' if he did not receive payment of $150,000 from the University." According to Plaintiff, "Defendant … made a series of patently false and inflammatory allegations against [Plaintiff] in the [May 30] Letter and warned that he would go to the media with his allegations if the University did not settle." Specifically, the Complaint asserts that "[Defendant] made … knowingly false and derogatory statements[,]" including:
- "Past Misconduct: Duane Ross has a documented history of questionable behavior. He received a two-year suspension from the U.S. Anti-Doping Agency for using performance-enhancing drugs, disqualifying all his results since November 2, 2001. His involvement in the BALCO steroid case further underscores his troubled past."
- "Family Issues: His son, Randolph Ross Jr., has also been suspended for doping violations. Randolph Ross Jr.'s suspension through June 30, 2025, for whereabouts failures and tampering with an email raises questions about the environment and influence under Duane Ross's watch. Where do you think he learned that from?"
- "Athlete Violations. Under His Watch: Under Duane Ross's leadership, North Carolina A&T faced multiple suspensions of top athletes for doping violations. Grace Nwokocha was suspended right before the World Championships for doping. Additionally, Ross used an athlete who was not cleared by the NCAA, resulting in the forfeiture of team titles and performances. These incidents, though they occurred before his tenure at Tennessee, are closely tied to him and paint a picture of ongoing integrity issues."
- "Mr. Ross is not representing your brand appropriately, nor did he follow your procedures or policies, and I'm sure you provided him with all the tools to succeed and comply with your standards. This lack of competence raises serious questions about his ability to lead a program as esteemed as the University of Tennessee. At this point, he has proven to be a liability rather than an asset to the University."
The University rejected Defendant's demand.
Deliberately Arming Oneself to Answer Door to Police May Be "Privileged" Against "Obstructing Official Business" Prosecution
But I wouldn't recommend it.
From State v. Conrad, decided Monday by the Ohio Court of Appeals, in an opinion by Judge Eugene Lucci, joined by Judges Matt Lynch and Scott Ylnch:
In 2025, Conrad was living with his girlfriend and their ten-month-old son in Conrad's home in Wickliffe, Ohio. In April 2025, Conrad and his girlfriend were involved in a verbal altercation. After the girlfriend allegedly damaged Conrad's PlayStation console in the basement, Conrad called 911. He informed the dispatcher that he would be armed "because the cops are coming in here." The dispatcher responded, "Do not pick it up with your hands, okay?" Conrad stated, "Absolutely." After ending the 911 call, Conrad armed himself by holstering a handgun on his right hip and then went upstairs to await law enforcement.
When the first officer arrived, Conrad observed him approaching the front door on foot, at which point Conrad opened the door for the officer and informed him that he was armed. The officer responded by stating "pardon me" or "excuse me," and Conrad responded again that he was armed. The officer saw the firearm on Conrad's hip and informed him that he was going to relieve him of the gun. Conrad initially refused, stating, "No you're not," and he changed his stance by turning his right hip away from the officer. Conrad then motioned to or placed his hand on his gun, at which point the officer drew his own firearm. After loudly arguing as to whether Conrad was permitted to be armed, Conrad raised his hands and told the officer to take his gun. Approximately 23 seconds elapsed between the officer entering the home and the officer disarming Conrad.
After disarming Conrad, the officer spoke with him for several minutes regarding his decision to arm himself. During this conversation, Conrad indicated he had armed himself because he believed men were typically arrested when police were called for domestic matters, and he wanted to "eve[n] the playing field" because he was unsure how officers would respond and did not trust them. After speaking with Conrad, the first responding officer joined other officers who had arrived and were speaking to Conrad's girlfriend in the basement. The girlfriend indicated that Conrad had pushed her, and she fell back, bumping her hip against a table, during their dispute.
Conrad was acquitted of domestic violence, but convicted of violating R.C. 2921.31(A), which provides:
How Did Support for International Humanitarian Law and Norms Morph into Support for Hamas and its Goals?
At his Substack, Shany Mor reflects on the revealed preferences since 10/7 of the Western NGOS, individuals, and governmental institutions "united by loosely overlapping commitments to global and transnational justice." This group, which he dubs "Humanitarians," could have responded to 10/7 in one of four general ways:
H1: Humanitarians, especially including scholars of international law regarding armed conflict, are neutral regarding the belligerent parties in the war, and the Humanitarians collectively are genuinely committed to the humanitarian needs of civilians and noncombatants among both Israelis and Palestinians.
H2: Humanitarians are indifferent to the humanitarian needs of the Israelis but genuinely committed to the humanitarian needs of the Palestinians. Operating on imperfect information in rapidly changing conditions, and limited by what is allowable in international law and what is politically or materially feasible, they seek whatever can be done to reduce or eliminate loss of life or suffering on the part of Palestinians either as a direct or indirect consequence of the war.
H3: Humanitarians are indifferent to the immediate humanitarian needs of Palestinian civilians, but they fervently wish to see Israel defeated in the war Hamas started on October 7. They fervently believe that the only moral conclusion to the war is one that is a net gain for the Palestinians and a net loss for the Israelis. To this end, they endeavor to act as force multipliers both in theatre to preserve Hamas' power and, especially, in Western states, to push for policies that limit Israel's freedom of action, cut it off from military supplies, and apply pressure on it.
H4: Humanitarians are indifferent to the war's strategic outcome and prefer to see more death and more suffering on the Palestinian side, not as an end in and of itself but rather as a means to confirm beliefs in Israel's essentially demonic nature, and as a way of mobilizing hatred and social isolation of Jews in the West. In particular, there is a preference for any rhetoric or political action which removes what are believed to be the unfair social privileges which western Jews hold due to the memory of the Holocaust.
As Mor elaborates: "Overwhelmingly … the majority of the real-life actions of the Humanitarians are in line with the predictions of H3, with a substantial minority also in line with H4. More strikingly, only a tiny amount are plausibly aligned with H2 and virtually none with H1."
This isn't news to anyone who has been paying attention, but it does beg the question: why? Why did concern about international humanitarian law and norms morph into support for Islamist terrorist groups and visceral hatred for Israel and often Jews in general, and a general lack of concern for the actual humanitarian needs even of the side they implicitly or explicitly support (H2)?
The simple answer is that the movement was taken over by a far left strongly influenced by a combination of anti-Western "anti-colonialist" theory and the massive investment of the late USSR is spreading "antizionist" propaganda. But how and why did the relevant institutions, once proudly "liberal" in the broad sense (e.g., Amnesty International and Human Rights Watch) get taken over by the far left? There is a good book to be written on this, if anyone is so inclined.
Odd January 6 Trial Follow-On: Copying Expert's Report from Another Case, to File It in Your Case, May Infringe Copyright
From Olson v. McBride Law Firm, PLLC, decided yesterday by Judge Naomi Reice Buchwald (S.D.N.Y.); seems correct to me:
In April 2022, plaintiff [Lindsay Olson] prepared an expert report titled "Multi-District Comparative Community Attitude Study" (the "Report") at the request of two attorneys representing two criminal defendants charged in the "Oath Keepers" trial, which arose from charges against members of the Oath Keepers, an organized militia group that participated in the January 6, 2021 attack on the U.S. Capitol. The Report, prepared for use in support of motions to transfer venue, analyzed potential bias in the District of Columbia jury pool against defendants prosecuted for conduct arising from the January 6, 2021 attack and concluded that "the DC Community is saturated with potential jurors who harbor actual bias" against those defendants.
For a fee of $30,000, plaintiff licensed the Report to the two attorneys who commissioned it, authorizing its use in support of venue transfer motions. In April 2022, the attorneys filed the Report on the public docket in the "Oath Keepers" case in support of a motion to transfer venue.
Defendant Joseph D. McBride and his law firm, McBride Law Firm, PLLC, represented Richard Barnett, a defendant in a separate criminal case also arising from the January 6 Capitol attack. In September 2022, defendants obtained a copy of the Report, without plaintiff's authorization and without paying a licensing fee, and filed it in its entirety in United States v. Barnett, No. 1:21-cr-00038, as an exhibit in support of a motion to transfer venue….
Olson sued for copyright infringement, and the court denied a motion to dismiss. The court held that plaintiff had plausibly alleged that defendant's use was presumptively infringing:
Today in Supreme Court History: July 22, 1937
7/22/1937: The Senate voted down President Roosevelt's Court-Packing plan, 70-20.
Open Thread
What’s on your mind?
Fired U.S. Attorney In Washington Files Case That Should Overrule Whatever Remains Of Morrison v. Olson
Justice Scalia was right. Federal courts should not be allowed to appoint federal prosecutors who cannot be fired.
Randy Barnett and I recently finished maxing out (to use the lingo of the day) the Separation of Powers chapter for the Fifth Edition of our casebook. We went back-and-forth about whether it was even necessary to keep Morrison v. Olson. Ultimately we decided to, in large part, because Chief Justice Rehnquist explains the line of precedents from Myers to Humphrey's Executor. Moreover, Justice Scalia's iconic dissent would later be vindicated in Slaughter. Students should not forget how we got to the present moment.
Still, we recognized that very little of Morrison survived. The Independent Counsel statute, as well as the special prosecutor regulations, barely survived Trump v. United States, and are dead after Slaughter. But one facet of Morrison remains: can federal judges appoint prosecutors who are not subject to presidential removal. Now, there is a case to overrule that last glimmer of Morrison.
The U.S. District Court for the Western District of Washington appointed Roger Rogoff as United States Attorney. Trump promptly fired Rogoff. Now Rogoff has sued Trump, seeking a preliminary injunction to invalidate the "purported removal." Rogoff argues that Trump's firing violates the Appointments Clause, even after. Slaughter.
Slaughter is not to the contrary because it did not address the propriety of removal protections for inferior officers. Before Slaughter, the Supreme Court had long recognized "two exceptions" to the general rule that the President enjoys unbounded removal power: the first authorized Congress to "provide tenure protections to certain inferior officers," and the second to limit removal in "expert agencies led by a group of principal officers." Seila Law, 591 U.S. at 204 (emphases omitted). Slaughter eliminated the latter but left the former in place. 2026 WL 1855612 at *15, *18 ("Nor do we determine the fate of officials not before us.").
And I call attention to Footnote 1 of the brief:
U.S. Attorneys are not the only Executive Branch prosecutors the Judiciary appoints. Historically, they have (on application) appointed independent counsel. 28 U.S.C. § 593; Morrison v. Olson, 487 U.S. 654, 676 (1988) ("[W]e do not think it impermissible for Congress Case 2:26-cv-02566 Document 8 Filed 07/21/26 Page 11 of 32 to vest the power to appoint independent counsel in a specially created federal court."). They likewise appoint special prosecutors pursuing criminal contempt. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987) ("[I]t is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt."); see also United States v. Donziger, 38 F.4th 290, 294 (2d Cir. 2022) (appointment of special counsel by court did not violate separation of powers).
Yeah, about that. Morrison is not long for this world. The Second Circuit's decision in Donziger was wrong. Hey, if Justice Gorsuch and Steve Vladeck agree, they can't both be wrong! And I dare Judge Boasberg to appoint a private attorney to prosecute DOJ officials. He would deserve that benchslap.
Federal judges should not be allowed to make appointments to the executive branch--especially United States attorneys who cannot be fired by the President. Moreover, I am not at all convinced U.S. Attorneys are actually "inferior" officers. Lower courts have reached this holding with very conclusory logic, but the Supreme Court has never settled the issue.
If there is a conflict between the executive branch and congress, it should not fall to the judicial branch to resolve the matter.
I would expect the judges of this District Court to recuse, so some other well-meaning Washington judge will rule against Trump. And the Ninth Circuit will issue a decision that should be reversed.
"So You're About to Start Law School"
A video lecture for entering 1Ls.
Last year, I recorded a 41-minute talk for incoming law students on how to approach the first month of law school. It's targeted at students who don't know much about how law school works, with the hope that they can start school more informed about the weird ways of studying law. You can watch it here:
Chief Justice Roberts Broke The Fourth Wall in Cook
This unusual opinion suggests something happened behind the scenes over the past ten months.
For years, Justice Kagan was overtly critical of the Supreme Court's approach to emergency applications. In written dissents and public speeches, Kagan fed into the nefarious "shadow docket" narrative. She may as well have blurbed Steve Vladeck's book. Yet, I've noticed over the past year or so that rhetoric from Justice Kagan has faded. Indeed, Kagan testified that she would rather "not now . . . call it the shadow docket . . . because we have done . . . a better job . . . where appropriate [of] explaining ourselves, at least to a moderate degree." Kagan added, "we have gotten more experienced in these constant requests that are coming to us about requests for emergency relief . . . and we have issued opinions, and sometimes majority and dissenting opinions accordingly."
Kagan was almost certainly referring to Trump v. Cook, which might be the slowest emergency docket case of all time. Remember, President Trump purported to remove Governor Lisa Cook from the Federal Reserve on August 25, 2025. Twelve days later the District Court granted a preliminary injunction. Four days after that, the D.C. Circuit denied the government's motion to stay. The case reached the Supreme Court on September 18, 2025. It would take the Court more than 280 days to decide the case in its "interim" posture, with more than 80 pages of majority, concurring, and dissenting opinions.
Justice Alito's dissent laid out the glacial chronology.
The President then applied for a stay from this Court. When that application arrived here, this litigation was just 21 days old. There had been only two rounds of abbreviated briefing below and no meaningful development of a factual record. Indeed, the record does not even contain copies of Cook's allegedly fraudulent mortgage applications. Of course, parties may appropriately seek (and courts may appropriately grant) stays early in a litigation. No court, including this Court, should sit on its hands when interim relief is appropriate. But this does not mean that the Court must reach out to opine on each issue that could conceivably arise in a case's future. Here, the incipiency of this case and the complexity of the issues that it presents counseled in favor of a light touch by this Court, regardless of whether we granted or denied the application. To that end, the Court should have resolved the President's application shortly after we received it. And in doing so, we should have focused on the few issues that the courts addressed below. If a majority had desired, we could have issued a statement explaining our decision. That is exactly how we have handled nearly all our stay applications in recent years.
Had the Court denied the stay in September or October of 2025, the lower courts could have proceeded to decide the case on the merits, and presented the Supreme Court with a regular appeal. But the Court (and by Court, I mean the Chief Justice) chose a different path. Alito explains further:
Although the panel performed admirably given the four days that it had to decide the President's stay motion, nobody can doubt that the panel would have produced more comprehensive opinions if it had even a fraction of the 280-plus days that this Court has spent with the case. Either way, this Court could have reentered the fray when we inevitably granted certiorari. Instead, the Court departed from its normal practice and "deferred" ruling on this application, bringing proceedings in the lower courts to a 9-month standstill. 606 U. S. 1062 (2025). We then ordered the parties to submit more briefing than they had filed at any other point in this litigation. In January, we held oral argument, marking just the second in-court proceeding in this entire suit. The Court now issues a full-length opinion that purports to resolve many complicated and novel legal questions on an underdeveloped record while ignoring lurking jurisdictional issues."Either out of humility or out of self-respect (one or the other), the Court should decline to answer" these "incredibly difficult" questions in this case's current posture. PGA TOUR, Inc. v. Martin, 532 U. S. 661, 700 (2001) (Scalia, J., dissenting).
Moreover, the Court reached out to decide several significant constitutional questions that were not necessary to decide. Is the Federal Reserve's so-called "independence" consistent with the separation of powers? Do the federal courts even have jurisdiction to review the President's termination of a Governor? Did Cook even have a "cause of action" to challenge her removal? Justice Barrett raises these, and other questions in her concurrence. But the Supreme Court was content to decide a landmark case on its "emergency" docket, leapfrogging over all prudence. This unusual posture was sure to placate Justice Kagan and the Court's critics, but is at odds with the Chief's self-professed modus operandi.
Indeed, something seems to have happened behind-the-scenes in this case. In most cases, the Chief Justice barely acknowledges the dissent, and offers sparse responses, if that. In Barbara, the dissents were more than five times as long as the majority. Roberts didn't care to respond because he had five votes.
I've Seen Fake Cites on Both Sides Now (II)
From Evans v. Robertson, decided today by Judge Judith Levy (E.D. Mich.) (for the original on the Magistrate Judge's September 2025 post decision in this case, see here):
Plaintiff and Defendant's objections will be stricken because they contain factitious citations.
The litigants in this case have been repeatedly warned that factitious citations will not be tolerated by the Court. Magistrate Judge Elizabeth A. Stafford ordered Plaintiff and Defendant to "include a written representation that [they have] personally checked each legal citation and each citation is accurate and stands for its asserted proposition" and warned that a failure to do so may result in sanctions. Despite Judge Stafford's order and this Court's repeated warnings, both Plaintiff and Defendant have violated the Court's express requirements numerous times.
On November 20, 2025, the Court imposed sanctions on both Plaintiff and Defendant for their repeated use of factitious citations and have stricken the parties' filings when they contain factitious citations. The parties have been warned that additional sanctions may be imposed if future filings contain factitious citations….
Plaintiff's objections contain factitious citations. Plaintiff declares in her objection that she "reviewed the citations and representations contained herein and that, to the best of [her] knowledge, information, and belief formed after reasonable inquiry, they are accurate and supported by the record." However, in her objections, Plaintiff argues,
Supreme Court Will Consider Excessive Fines Clause Asset Forfeiture Case
It will review Alaska's confiscation of a $95,000 plane arising from the pilot's illegal transportation of up to 72 cans of beer.
In Timbs v. Indiana (2019), the Supreme Court unanimously ruled that the Excessive Fines Clause of the Eighth Amendment is incorporated against state governments. It also ruled that asset forfeitures - confiscation of property that may have been used to facilitate commission of a crime - qualify as fines. But it gave little guidance on what exactly qualifies as "excessive." This lack of clarity stimulated all sorts of uncertainty and disagreement in lower state and federal courts.
Recently, the Court decided to hear the case of Jouppi v. Alaska. Jouppi is an Alaska "bush pilot," flying passengers to remote areas. In 2012, Alaska authorities caught him transporting a passenger who had 72 cans of beer with her, to a "dry" village where importation of alcohol is banned. State law criminalizes transportation of alcoholic beverages there.
For this crime, Jouppi was fined $1500 and sentenced to three days in jail. But the state then used its asset forfeiture law to confiscate Jouppi's plane (worth about $95,000). There is some dispute about whether Jouppi was aware of all 72 cans, or just the one six-pack that was visible. But the Alaska Supreme Court concluded this issue is irrelevant, because courts must heavily defer to the legislature on the issue of what qualifies as a serious enough offense to justify massive forfeitures, and "[i]t is clear to us that the legislature determined that the harm from even a six-pack of beer knowingly imported into a dry village is severe enough to warrant forfeiture of an aircraft."
I think it is obvious that even the illegal transportation of 72 cans of beer (let alone just six) is nowhere near severe enough an offense to justify forfeiture of a plane worth $95,000. In a previous case, the Supreme indicated that a fine is "excessive" if it is "grossly disproportionate" to the "gravity" of the underlying offense. That's far from a clear standard, and the Court should flesh it out in greater detail. But if the Jouppi forfeiture is not "grossly disproportionate," I do not know what is.
In addition, the Alaska Supreme Court was wrong to rule that courts must give the legislature broad deference on such issues. That defeats the whole point of the Excessive Fines Clause, which is to limit legislative power. By this logic, the legislature could exempt almost any fine from invalidation so long as it claims the underlying offense is really, really bad. You could, for example, justify the forfeiture of a $1 million house because the owner used it to store an illegally purchased cigarette. Indeed, that fact pattern isn't so much worse than what happened in Jouppi!
The Alaska Supreme Court's reasoning is another example of the tendency of many jurists to defer to the legislature on property rights issues in a way they would never accept when it comes to other constitutional rights. The Kelo "public use" takings case is a particularly notorious example of this problem.
There are other problems with the Alaska Supreme Court's decision. Its reasoning about the severity of the crime here is not premised on any notion that illegal transportation of alcohol is itself a grave offense, but that it indirectly contributes to excessive drinking, which in turns leads to crime and social pathology in rural parts of Alaska, where (as the lower court found) law enforcement has limited resources to deal with it.
This whole chain of reasoning is extremely dubious. The experience of the Prohibition era showed that prohibiting alcohol sales is a poor strategy for combating crime, and indeed actually exacerbates it, by facilitating the rise of organized crime and its associated violence. And if the problem is that Alaska law enforcement has too few resources to deal with crimes arising from alcohol abuse, then it shouldn't be wasting those scarce resources on the less effective tactic of enforcing prohibition! Instead, have more cops on the beat actually targeting violent crime.
These last few points might be seen as policy considerations, normally left to the legislature. But courts should scrutinize them if - as in this case - they are part of the government's rationale for arguing that the fine here is not "excessive." In that event, the accuracy of the state's claims is relevant to the court's resolution of the constitutional issue before it.
Jouppi is represented by the Institute for Justice, the libertarian-leaning public interest law firm that also successfully litigated the Timbs case. I am guardedly optimistic they will prevail here, too. If we are lucky, the Court might in the process establish a clearer and more restrictive standard for what qualifies as an "excessive" fine. But, all too often, these kinds of predictions aren't worth much more than what you're not paying for them!
NOTE: As indicated above, Jouppi is represented by the Institute for Justice. I have longstanding connections with IJ, and for which I have done pro bono work on other property rights cases. I did not, however, have any involvement in this case. IJ has an informative website devoted to the Jouppi case here.
Did no one else notice Justices Kagan and Barrett's Sartorial Choices?
Kagan was in red and Barrett was in blue!
I apologize for the light blogging of late. Well, light for me at least. Randy and I just submitted the final chapter of the Fifth Edition of our casebook to the publisher. It took us nearly two weeks to figure out how to present Trump v. Barbara. I think we figured out a really innovative and accessible way of presenting the different issues, so students can easily contrast the majority and dissenting opinions. We hope to share an excerpt once the page proofs are ready.
I still have not finished reading all of the opinions from the end of the term. Plus, I have a host of half-finished posts about Slaughter, Cook, Barbara, the TPS case, West Virginia v. B.P.J., and more. I hope to get those done over the next few weeks. (I could not resist dumping on the "Aloha spirit" breaking news.)
Now, as I slowly climb out of the backlog, let me highlight something that I was surprised didn't get much attention: Justice Kagan and Barrett's sartorial choices.
Did no one else notice that Justice Kagan was wearing a bright red suit while Justice Barrett was wearing a dark blue suit? You see, the colors are reversed! I suppose this could have been coincidental. I found a few photos of Kagan wearing red in the past. Still, I'd like to think this was a subliminal attempt at bipartisanship.
I agree with David Lat and others that Kagan and Barrett are the perfect spokespersons for the Court at this moment. I wrote an essay that should be out this summer about why the Justices should hold regular press conferences to help rehabilitate the public's image. Kagan and Barrett should be the first ones to the mic.
New Academic Freedom Podcast on Pernell Decision
A conversation with a lead attorney for one of the most significant academic freedom cases in recent years
A new episode of the Academic Freedom Podcast has been released. The podcast is sponsored by the Academic Freedom Alliance and the Center for Academic Freedom and Free Speech at Yale Law School.
This episode features a conversation with Greg Greubel, a senior attorney at the Foundation for Individual Rights and Expression (FIRE) and one of the lead attorneys who argued the case against Florida's Stop W.O.K.E. Act restrictions of faculty speech in public university classrooms. The 11th Circuit just handed down an opinion in that case, Pernell v. Florida Board of Governors. It is one of the most consequential academic freedom cases of recent years.
In the new podcast episode, we discuss the case and its background, break down the First Amendment law surrounding academic freedom issues at public universities, and consider some of the implications of this decision for future cases, including ongoing litigation arising out of "divisive concepts" policies in Alabama and Texas. Give it a listen here.
