Photo of the wristband, from the district court record.
The Institute for Free Speech, which litigated the case, reports on the settlement agreement:
Take off the wristbands or leave. That was the message Bow school officials gave parents and a grandfather who were silently protesting in support of female-only sports by wearing pink "XX" wristbands at a girls' high school soccer game in 2024…. After more than two years of litigation …, the Bow School District has agreed to a judgment declaring that it violated the plaintiffs' rights by barring them from wearing the wristbands at the game. U.S…. The settlement also provides $275,000 in attorneys' fees and costs.
The judgment declares that the plaintiffs "have a First Amendment right to silently wear pink wristbands bearing the XX symbol on the sidelines, in the spectator's area, or in the parking lot of any Bow District sporting event." It binds the district and its Board of Education, and it remains in effect even if the district amends its policies….
The plaintiffs wore the wristbands, whose "XX" symbols reference female chromosome structure, to protest a policy permitting a biological male to compete on the opposing girls' team. School officials, accompanied by a police officer, confronted them. The referee halted play until one spectator removed his wristband, and school officials later issued trespass orders barring Fellers and Andy Foote from school grounds, preventing them from attending their children's games and other school activities for a time….
After the district court denied a preliminary injunction in April 2025, the plaintiffs appealed. In August 2026, the U.S. Court of Appeals for the First Circuit ruled in the plaintiffs' favor, finding that they "have established a likelihood of success as to their viewpoint discrimination claim." The court concluded that the protest "fell short of harassment and disruption," and that school officials "cannot favor one side of a debate involving parental speech on an issue of prominent public concern." …
Here's my August post excerpting the First Circuit's opinion, written by First Circuit Judge Sandra Lynch, joined by Judge Jeffrey Howard:
Trump promotes the IEEPA "Liberation Day" tariffs. April 2, 2025. (CNP/AdMedia/Newscom)
On Tuesday, Trump and the Republican suffered a massive electoral defeat, losing control of both houses of Congress. Many have called it a "Blue Tsunami". The defeat was caused by multiple factors. But Trump's unconstitutional actions on tariffs, the War in Iran, and immigration played a major role. Violations of the Constitution don't always result in political setbacks for the perpetrators. But in this case they did "bigly." As Texas GOP Senator Ted Cruz put it, "Tariffs have made everything too expensive, and the Iran war has dragged on too long."
This connection is perhaps most obvious in the case of tariffs. Since returning to power in January 2025, Trump has engaged in a series of massive tariff power grabs, repeatedly attempting to usurp congressional authority in this field, and use it to impose the highest tariff schedule since the Great Depression. He started with the IEEPA tariffs. When the Supreme Court invalidated them, he tried again with Section 122 and Section 301 of the Trade Act of 1974, and the Section 338 tariffs against Canada. In each case, he illegally tried to transform relatively narrow delegations to the executive into a blank check to impose tariffs at will. The net effect of these actions has been to raise prices for consumers, reduce economic growth, and impose some $700 billion in new taxes on Americans over a 10-year period (unless courts end up striking down the new tariffs, too). The tariffs also failed to produce the promised increase manufacturing employment.
Most relevant for present purposes, affordability and price increases were clearly a huge issue in the election. And most voters have come to realize that tariffs increase prices, and damage the economy. Exit polls reveal that 66% of voters believe Trump's tariffs have hurt the national economy (compared to only 21% who believe they helped), and a similar percentage (64%) believe they hurt the economy in their area (only 14% believe they helped it). Numerous other polls show widespread opposition to the tariffs, as well (e.g. here and here). They became a major issue in the elections, linked to the broader issues of price increases and "affordability."
Polls, pundits, and even Donald Trump and Vice President J.D. Vance all agree the Iran War was a major factor in GOP losses. The military stalemate combined with resulting energy price increases have enraged voters. Exit polls showed that 74% of voters said the war was a "crucial" or "important" factor in their decisions, and the vast majority of them disapproved of Trump's conduct of it.
And, as I have argued from the beginning, that war is unconstitutional because it was never authorized by Congress. As I warned at the start of the conflict, the failure to build up the public supported needed to secure congressional authorization greatly reduced the odds of success:
This [constitutional] limitation on presidential power is more than just a technical legal point. The requirement of congressional authorization for the initiation of war is there to ensure that no one person can take the country to war on his own, and that any major military actions have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents. Trump's failure to seek and secure that kind of broad public support has ensured that only about 27 percent of Americans approve of this military action, compared to 43 percent who disapprove, according to a Reuters poll. Other surveys show similar results. This is a historically low level of public support at the start of a major military action and bodes ill for U.S. staying power if we suffer reverses or a prolonged conflict results.
In all three of these cases, voter backlash arose primarily because of the awful - and highly visible - practical consequences, rather than because of the constitutional issues themselves. Most voters care far more about military failure, rising prices, and visible cruelty of these policies than about their legality. Nonetheless, it is still true that unconstitutional conduct played a major role in causing the tsunami that swept away many GOP officeholders.
We should not be overly optimistic about this chain of events. It would be a mistake to assume that unconstitutional policies always lead to electoral punishment, or even usually do so. In many cases, voters are unaware of illegality or don't give it much weight if they do find out. Previous presidents have often avoided significant political backlash for violating the Constitution. Barack Obama, for example, also waged two unconstitutional wars (those against Libya and ISIS). But because the wars were (at least initially) militarily successful, led to few casualties, and had little visible negative economic impact, he largely avoided political damage. Later, Obama concluded that the Libya war was his worst mistake. But Democrats didn't pay much, if any, political price for it.
Trump's unconstitutional actions on these three issues turned out be politically costly because the negative effects were large and highly visible. Even many generally ignorant and inattentive voters noticed them.
Here, as always, I do not claim that public support for my position somehow proves I was right. As the author of Democracy and Political Ignorance: Why Smaller Government is Smarter, I recognize that majority public opinion is heavily influenced by ignorance and bias, and thus often a poor guide to goo policy. Moreover, while majority opinion agrees with me in condemning Trump's policies here, it would not go as far as I would in sweeping away nearly all tariffs and immigration restrictions.
Despite these caveats, I am glad that the public punished the GOP for these terrible unconstitutional policies. I hope this outcome might deter future presidents from imitating them. At the very least, they might hesitate to pursue them on the same massive scale as Trump did.
From McWilliams v. Meghrian, decided Monday by Georgia Court of Appeals Judges Jeffrey Watkins, Christopher McFadden, and J. Wade Padgett:
This appeal arises from a child custody modification proceeding in which the trial court, [among other things,] … permanently enjoined … Mother … from making any "disparaging" statements about Father "via social media or other means" and modified child support. Mother appeals, and for the reasons below, we vacate the trial court's final order and remand for further proceedings. The parties are the parents of one child, born in 2008….
Mother argues that the final order and accompanying parenting plan included unconstitutional prior restraints on speech. The final order directed Mother to "immediately cease all disparagement of [Father] whether via social media or other means." The final order also adopted and incorporated the parenting plan proposed by Father, which provided that the parties "will not speak badly of each other or the members of the family of the other parent." …
In this case, plaintiffs … move for an injunction pending appeal of a district court's order denying them a temporary restraining order and a preliminary injunction. If we granted the requested injunction, it would bar the defendants from enforcing, against … We The Patriots members who oppose vaccination on free exercise grounds, Maine's vaccination requirements for children enrolling in elementary and secondary schools….
Plaintiffs primarily argue that they are likely to prevail on appeal because the vaccination requirement imposes the kind of substantial burden on parental and religious exercise rights that triggers strict scrutiny, even assuming that the vaccination requirement is generally applicable. They cite Wisconsin v. Yoder (1972) (holding that Wisconsin's law requiring public or private school enrollment until the age of 16 violated Amish parents' Free Exercise rights), and two recent Supreme Court decisions applying Yoder. SeeMahmoud v. Taylor (2025) (in a preliminary injunction appeal, "hold[ing] that the [Montgomery County School] Board's introduction of the 'LGBTQ+-inclusive' storybooks — combined with its decision to withhold notice to parents and to forbid opt outs — substantially interferes with the religious development of their children and imposes the kind of burden on religious exercise that Yoder found unacceptable"; "[a] government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses 'a very real threat of undermining' the religious beliefs and practices that the parents wish to instill"); Mirabelli v. Bonta (2026) (per curiam, emergency docket) (vacating Ninth Circuit stay of permanent injunction; California's policies limiting parental notice about their children's in-school, staff-"facilitat[ed]" gender transitioning "likely trigger strict scrutiny under [the free exercise] provision because they substantially interfere with the 'right of parents to guide the religious development of their children' and 'impos[e] the kind of burden on religious exercise that Yoder found unacceptable'").
On the district court record and the papers before us, plaintiffs have not made the necessary heightened showing of a likelihood of success on the merits…. [I]n the posture of seeking an injunction pending appeal, "the bar is harder to clear" because "an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by [a] lower court[]" …. It is not obvious that Yoder, Mahmoud, and Mirabelli govern the situation we face given that Maine's vaccination law does not appear to require a student's submission to school-facilitated instruction.
One of the most important developments in American religion over the past several decades has been the rise of the "Nones"—people who tell pollsters they have no religious affiliation. According to the Pew Research Center, about 29% of American adults now fall into this category, compared with 16% in 2007. Among younger Americans, the figure is even higher. Many observers see these numbers as evidence of the continuing secularization of American society.
A provocative new book challenges this conventional wisdom. In The Death of Religion? Nones, Others, and the Flourishing of Faith, sociologist Byron Johnson and historian Thomas Kidd argue that surveys greatly exaggerate the decline of religion in the US. I interviewed Kidd about the book in the most recent Legal Spirits podcast.
The book maintains that conventional surveys, including those conducted by Pew, give a misleading picture of American religious life. People who identify as religiously unaffiliated are not necessarily unbelievers. Some Nones retain religious commitments even though they have no formal connection to a denomination or congregation. Some Americans belong to religious communities that surveys fail to capture adequately, particularly among racial and ethnic minorities. Consequently, surveys may systematically underestimate the vitality of religion in the US.
Of course, there is evidence of genuine decline in some traditional religious institutions, like mainline churches. I asked Kidd about this during our conversation. Still, the authors make a useful point: religious affiliation and religious belief are not the same thing, and trends in one do not necessarily establish equivalent trends in the other.
For me, the most interesting part of the book is its historical account. It turns out that Americans have been worrying about religious disaffiliation for more than two centuries. In the eighteenth and nineteenth centuries, Americans sometimes referred to people without a definite religious affiliation as "Nothingarians" and suggested doing missionary work among them. Orestes Brownson, the famous Transcendentalist-turned-Catholic, maintained that Nothingarians made up the majority of antebellum Americans.
The historical parallels raise an interesting question. Americans have long been suspicious of institutions and hierarchies. It would not be surprising if this suspicion extended to religious institutions as well. Could Americans' longstanding preference for personal autonomy and self-reliance help explain the persistence of religious disaffiliation, even among people who retain spiritual beliefs?
Whether or not one accepts all the authors' conclusions, their book offers an interesting corrective to overly simple narratives about the disappearance of religion in America. You can listen my interview with Kidd here.
Ramsi Woodcock, a tenured University of Kentucky law professor, has been under investigation for more than a year for controversial comments regarding Israel and Palestine. The alleged comments varied in both content and forum: an online petition calling for the invasion of Israel, listserv blasts to the University faculty and broader legal academy accusing Israel of genocide, the interjection of far-afield remarks about colonization at an antitrust panel in Hong Kong, shouts of "Free Palestine!" while driving two law students near campus, and more.
None of the remarks came in the classroom and none appears to have disrupted school activities. Yet all related in some manner to his role as a state-employed professor—rendering all the more curious the University's July 2025 decisions to promote him to full professor one week and call him in for questioning (literally) the next. {Curiouser still, Woodcock maintains that the remarks in question dated as far back as February 2024 and were known (at least in part) to the University since March 2024.}
The following week brought a public denunciation from the University's President, the start of a formal investigation into potential harassment under Title VI, reassignment from teaching duties to "professional development," and a (since rescinded) ban from campus. {This first of two "Notice[s] of Investigation" laid out four allegations that Woodcock "may have violated" the University's code of conduct and other policies. The notice declared (without elaboration) that the "investigation … is consistent with the First Amendment" and "addresses requirements under Title VI of the Civil Rights Act." A second notice, based on reports from four students, identified four additional allegations that may have "created a hostile environment on the basis of race, color, or national origin."}
Rather than participate in the investigation, however, Woodcock filed this [federal] lawsuit …. The pleadings characterize his treatment by leaders of the University and its law school as retaliation for protected academic or personal speech, violations of the Due Process and Establishment Clauses, and racial and religious discrimination…. The issue ripe for resolution today is Woodcock's request for temporary emergency relief halting the investigation and reinstating his teaching duties.
This is Woodcock's second or third such request, depending on how one counts. And it follows a journey so circuitous it would make a Baggins blush.
I thought I'd pass along this smart and readable analysis from Bill Otis (Ringside at the Reckoning); as I've mentioned before, he and his coauthor Paul Mirengoff are my go-to people for hardheaded, pragmatic, but principled conservative views. They are probably on balance more conservative than I am, but I always much enjoy their legal and political commentary. An excerpt:
In an election where overwhelmingly the preeminent issue was affordability — in other and more candid words, the increasingly obvious decline in the standard of living huge numbers of people are feeling — what has Trump been occupying himself with? Here's a partial list: Building the White House ballroom (from which, in a tone deaf rendition that defies description) he gave his election post-mortem; re-doing the East Potomac Golf Course to make it a "premium" experience; building a Triumphal Arch no one asked for or thought about when they elected him; demanding prosecutions for imaginary vandalism at the Reflecting Pool; invading Greenland; making Canada the 51st state; re-naming Lake Ontario; re-naming the Gulf of Mexico; and perhaps most prominently, making sure his name gets put on the Kennedy Center even though he had nothing to do with its creation. Then there are numerous other items: Trump passports, Trump one-dollar gold coins, and "commemorative" $100 bills, to name three.
Exactly what does this Adventure in Narcissism seem like to the voter — actually, the millions of voters — who feel like they're being stretched thin? You don't need a florid imagination to answer that one. They gave their answer last night.
There has been rampant speculation that one of the older conservative justices (namely Justice Sam Alito or Justice Clarence Thomas) might choose to retire before the end of the year so that President Trump could name a replacement while there is still a Republican majority in the Senate. But that is all it is: Speculation.
I have previously predicted that neither Justice Alito nor Justice Thomas would retire during this presidential term (let alone this year). I adhere to this view.
Today, the New York Times and Bloomberg each report that Justice Alito has reaffirmed that he is not planning to retire this year, and that this week's election results have not altered his intentions.
From the Times:
Justice Samuel A. Alito Jr. has told people close to him that he does not intend to retire immediately from the Supreme Court, despite Democrats' commanding win in Senate contests on Tuesday, which means Republicans will hold the chamber for only a short time longer.
As a result, Republicans may have missed the window for President Trump to name a fourth or even a fifth justice to the Supreme Court in the final two years of his presidency.
Justice Alito shared his plans with friends after the election results were clear this week, according to two people close to the justice who spoke on the condition of anonymity.
From Bloomberg:
The 76-year-old Alito, an anchor of the court's conservative wing, has been the subject of speculation that he might abruptly step down to let President Donald Trump fill the vacancy before Republicans relinquish control of the Senate in January. Such a move could extend Trump's imprint on the court by letting him add a younger, conservative jurist to serve for decades.
The chatter has continued even though Alito said in an interview with Bloomberg News in late September that he had decided to remain no matter how the election turned out. "I intend to stick around through this term," he said then, referring to the nine-month court session that runs through June. "I made that decision many months ago."
Alito indicated that stance hasn't changed despite the Democratic takeover in Tuesday's election, said the person, who asked not to be identified discussing a private conversation with the justice on Wednesday.
While there is no equivalent report on Justice Thomas, there is little reason to think he is going anywhere. Justice Thomas is on the verge of becoming the longest serving justice in the nation's history. Moreover, Justice Thomas has previously said he intends to spend at least 43 years on the Court. Were he to stick to that plan, he would have several more years to go.
While there may not be a Supreme Court nomination to keep the Senate busy during the lame-duck period, there are lower court nominations to consider, including nominees for the U.S. Courts of Appeals for the Fifth, Eighth, and Tenth Circuits. As Michael Fragoso notes in the Wall Street Journal, the lame duck may be Republicans' last opportunity to confirm conservative constitutionalist judges for some time.
Republican senators can make a difference and send a message by putting the Constitution first and confirming the originalist nominees now pending. Petty or parochial squabbles with Mr. Trump may get favorable headlines today but they will be forgotten in a week. A judicial appointment can last a lifetime.
From Schultz v. Stevenson, decided today by California Court of Appeal Judges Peter Krause, Shama Hakim Mesiwala, and Stacy Boulware Eurie:
In 2004, [the parties] purchased a residential property in Grass Valley, California, taking title as "husband and wife as joint tenants." In 2020, [husband] Schultz obtained a judgment of divorce from [wife] Stevenson in Dubai, United Arab Emirates (UAE). The Dubai divorce decree addressed marital status and child custody only; it made no findings related to division of property or spousal support.
Years later, Schultz commenced an action … to partition the Grass Valley property [by ordering it sold and the proceeds split -EV]. Stevenson opposed partition, arguing that the Dubai divorce decree is not enforceable in California and therefore the property is community property and not subject to partition [since California law does not allow partition of community property among married parties -EV]. The trial court ultimately … [decided] in favor of Schultz, finding that the parties are divorced and that the property is not community property….
Stevenson … argues that the trial court abused its discretion by extending comity to the Dubai divorce decree because it was based on Islamic (Sharia) laws that violate state public policy and constitutional principles of equal protection and due process…. [S]he argues that the Dubai divorce is not entitled to comity because it is based on a talaq pronouncement of divorce, which violates California's public policy favoring gender equality and constitutional protections against gender-based disparate treatment. [Generally, a talaq divorce can only be initiated by a husband. -EV] Stevenson contends therefore that she and Schultz are still married, and that the Nevada County property is community property, which is not subject to partition.
From Doe v. Roe, decided today by Fifth Circuit Judges Jennifer Walker Elrod, Carolyn Dineen King, and Carl Stewart:
After receiving notice of Jane Roe's impending California lawsuit involving allegations of sexual assault and sexual harassment, John Doe sued Roe in the Southern District of Mississippi, alleging that Roe was attempting to extort and defame him. Roe moved to proceed pseudonymously in the Mississippi lawsuit. The district court denied her permission to do so. Roe appeals that decision, raising several concerns with the district court's analysis. Because we agree with some of Roe's arguments, we vacate and remand for the district court to reconsider whether Roe should be allowed to proceed pseudonymously….
Whenever a party seeks pseudonymity, courts must determine whether "the normal practice of disclosing the parties' identities yields to a policy of protecting privacy in a very private matter." … The district court concluded that Roe was not entitled to pseudonymity … [in part because of] Roe's status as a defendant and waiver…. [But] Roe's defendant status is entitled to no weight in determining the appropriateness of pseudonymity…. A defendant is no less deserving of pseudonymity than a plaintiff simply by virtue of her being haled into court first….
Roe argues that allegations of sexual assault involve matters of the utmost intimacy [and can thus justify pseudonymity]. We agree. There is no doubt that requiring alleged rape and sexual assault victims to proceed "under their real identities would require them to disclose information of the utmost intimacy." It is no surprise, then, that numerous courts have allowed alleged victims of sexual misconduct to proceed under a pseudonym, "including when they are defendants being sued for libel and related torts."
My Stanford law school colleagues Nora and David Engstrom, as well as Berkeley law professor Jonah Gelbach and others, have asked the Advisory Committee on Civil Rules recommend a new Rule of Civil Procedure (5.3) governing the sealing of court records. I think this is an excellent idea: While there is a good deal of precedent on the question, distilling it into a rule that can easily be consulted by judges, lawyers, law clerks, and pro se litigants would be very helpful.
Just today, Third Circuit Judge Stephanos Bibas (also a former law professor), submitted a letter endorsing the proposed rule, and I thought it was much worth passing along:
Dear Members of the Advisory Committee on Civil Rules:
I write to express my strong support for proposed Rule 5.3, a much-needed recapitulation of the procedural standards governing sealing of judicial records.
The public has a presumptive right to access judicial records. This right serves several important societal functions. By exposing the records of private wrongdoing to the public eye, this right deters further wrongdoing. By forcing the government to litigate out in the open, it empowers the public "to keep a watchful eye on the workings of public agencies." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978). And by enabling the public to dig into the bases for judicial decisions, it enables the public to assure itself of the strength of judicial reasoning, the cornerstone of judicial legitimacy. This right thus not only "diminishes possibilities for injustice, incompetence, perjury, and fraud," but also provides "the public with a more complete understanding of the judicial system and a better perception of its fairness." In re Avandia Mktg., Sales Prac. & Prod. Liab. Litig., 924 F.3d 662, 672 (3d Cir. 2019) (internal quotation marks omitted).
On paper, this right looks strong. In the U.S. Court of Appeals for the Third Circuit, where I sit, a district court issuing an order to seal "must articulate the compelling, countervailing interests to be protected" and "make specific findings on the record concerning the effects of disclosure." Id. (internal quotation marks omitted). But that standard is a paper tiger—mighty in appearance, but toothless in practice. Time and again, we see cases on appeal where the parties asked to seal large parts of the record below, and the district court, with little discussion, agreed to do so.
Yesterday's events put me in mind (as I have been on other occasions) of Kipling's The Lesson; it was discussing England's very poor performance in the Boer War (though after England ultimately won that nasty conflict), but it applies to many other contexts as well. Its opening and closing stanzas seem especially apt:
Let us admit it fairly, as a business people should,
We have had no end of a lesson: it will do us no end of good.
Not on a single issue, or in one direction or twain,
But conclusively, comprehensively, and several times and again ….
It was our fault, and our very great fault—and now we must turn it to use.
We have forty million reasons for failure, but not a single excuse.
So the more we work and the less we talk the better results we shall get—
We have had an Imperial lesson; it may make us an Empire yet!
Change what needs to be changed (the lesson is political, not Imperial), and it's good advice for many situations. The question is whether enough of us will take the advice—and, of course, whether the lesson we learn is the correct one.
The Court assumes the following alleged facts are true. Stabbin' Wagon is a Medford non-profit that provides clean needles, food and aid, and outreach services to unhoused people, particularly those suffering from drug addiction and mental illnesses. Plaintiff Jones was the founder and executive director of Stabbin' Wagon and Plaintiff Strong was an employee. Plaintiffs frequently criticized the City's arrests of unhoused individuals and its failure to provide outreach services to those individuals.
Defendants Brian Sjothun, Randy Sparacino, Justin Ivens, Darrel Graham, Geoff Kirkpatrick, Trevor Arnold, Arturo Vega, and John and Jane Does (collectively, "City Defendants") are current and former Medford city officials and police officers. City Defendants have criticized Plaintiffs and their needle exchange program. Starting around 2021, Defendants Graham, Kirkpatrick, and Sparacino monitored the Plaintiffs' social media activities, protest attendance, and interviews with newspapers. City Defendants removed Plaintiffs from police communications which alerted local outreach services when the police swept an encampment of unhoused individuals. Medford police have also stopped, arrested, and cited Stabbin' Wagon employees on several occasions from 2020 to 2023.
In 2023, Plaintiffs received a $1.5 million grant from the Oregon Health Authority ("OHA") to open a 'respite center' to provide more outreach services to unhoused people. Defendants Sjothun, Ivens, Arnold, and Kirkpatrick attempted to persuade OHA to rescind the grant. Plaintiffs allege that these Defendants "disseminated inflammatory, false, and disparaging information about Plaintiffs to other providers, state officials, and community leaders" in their attempt to reverse the grant.
Defendant Ryan Mallory is "a law-enforcement-adjacent figure in Southern Oregon" who operates social media platforms and companies that investigate, report, and consult on matters related to law enforcement, including the Medford Police Department. Defendant Mallory supported City Defendants' attempt to rescind the grant. He expressed his opposition to Plaintiffs' OHA grant on his Facebook group which has over 100,000 followers. His followers commented in support, and on September 13, 2023, one approached Plaintiffs while they were working and threatened to call the police. On August 4, 2023, Defendant Mallory posted Plaintiffs' personal information, including their home addresses and birthdays, in a graphic with Plaintiffs' likenesses resembling "law enforcement booking records." On September 7, 2023, Defendant Mallory posted a video and a comment that urged the public to oppose the OHA grant, stating in part:
By design, our American legal system largely lets different states make different rules. Most states recognize a tort of disclosure of private facts; some don't. A few recognize a tort of alienation of affections; most don't. Some states allow first-cousin marriage; others don't. Some set a one-year statute of limitations for defamation; some set it at two or three years. The list goes on.
Much conduct happens in one state, and the resulting disputes arise in the courts of that state. But other matters are multi-state affairs. Indeed, some are multinational affairs, even though they end up in one country's courts: What happens if a contract was entered into in France, performed in Canada, but plaintiff sues defendant over an alleged breach where they now both live, in Illinois?
There is therefore a body of law called "conflict of laws" (or "choice of laws") that tries to resolve these questions. As it happens, that is itself state law, so different states can have different conflicts rules, with at least three major schools of thought on the matter. (Think that's confusing? Don't get me started on renvoi and dépeçage.)
Here's a scenario that arose in the recent Texas Campbell v. State case:
Appellant was charged, in Harris County, Texas, with murdering his girlfriend. His girlfriend was killed in Texas. And then Appellant went to his mother's home in North Carolina.
While he was in North Carolina, Appellant's mother urged Appellant to speak with a bishop on the telephone. While he was on the phone with the bishop, and allegedly with his mother still in the room, Appellant made a statement admitting that he killed his girlfriend. During trial, the bishop was called to testify as a witness about the contents of Appellant's statement….
Texas Rule of Evidence 505(b) sets forth a clergy-penitent testimonial privilege:
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