Professor Jonathan Zimmerman of the University of Pennsylvania has a worthwhile essay on the state of higher education in Liberties (a relatively new journal that is routinely filled with worthwhile material). His essay, "The President and the Universities" begins:
In March of last year, about six weeks after Donald Trump returned to the White House, I traveled to Washington for a meeting of American education scholars. The opening panel focused — appropriately enough — on Trump's threats to university funding, free speech on campus, and more. Then it was time for questions, and I raised my hand. I said that I agreed with all the critiques of Trump, but I also wondered what those of us who work in higher education might have done — or not done — to bring about this awful moment. Could we use it to look in the mirror, I asked, and not just to circle the wagons?
Dead silence. Then another member of the audience spoke up. "I just wanted to say that I was deeply offended by Professor Zimmerman's use of the term 'circle the wagons,' which connotes a hateful history of Native American displacement and genocide," she said. More awkward silence. Finally the moderator of the panel interjected herself. "Thank you for reminding us that we need to be careful in the language that we use to describe others," she said. So the panel began with a diatribe about Donald Trump's assault on free speech and it concluded with a warning to watch our words.
That signifies a loss of faith in universities themselves. For the past seventy-five years, we have been telling a story about how we enhance democratic dialogue and understanding. Yet we don't really believe it. If we did, the moderator would have asked the objecting scholar to say more about why she bridled at my phraseology. Then the moderator would have asked me to reply, and after that she would have solicited reactions from the audience. And eventually we might have gotten around to the substance of my question, which concerned the delicate matter of what degree of introspection, what sort of critical self-examination, might be required of professors and teachers amid the current crisis. None of that happened, of course. The moderator drew the panel to a moralistic and satisfyingly evasive close, and we all went out to lunch.
"Out to lunch" is where much of higher education is — oblivious about how we got here and how we might change course. Yes, Trump represents a dagger at our heart; and yes, we must join hands to resist him. But long before he came to power, growing numbers of Americans — and not just Republicans — were starting to see higher education as something of a scam. We charge ever-higher prices for degrees of dubious worth, even as we proclaim our commitment to the public good. To make good on that ideal, we cannot simply circle the wagons. We need to look in the mirror. What role have the universities themselves played in this disaster?
Zimmerman is not the first to raise this question. See, for instance, the work of Michael Clune. His essay is nonetheless a worthwhile addition to the calls for greater introspection and reform in higher education.
May Day should be a day to honor victims of an ideology that took tens of millions of lives. But we should also be open to alternative dates if they can attract broad enough support.
Today is May Day. Since 2007, I have advocated using this date as an international Victims of Communism Day. I outlined the rationale for this proposal (which was not my original idea) in my very first post on the subject:
May Day began as a holiday for socialists and labor union activists, not just communists. But over time, the date was taken over by the Soviet Union and other communist regimes and used as a propaganda tool to prop up their [authority]. I suggest that we instead use it as a day to commemorate those regimes' millions of victims. The authoritative Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century's other great totalitarian tyranny. And May Day is the most fitting day to do so….
Our comparative neglect of communist crimes has serious costs. Victims of Communism Day can serve the dual purpose of appropriately commemorating the millions of victims, and diminishing the likelihood that such atrocities will recur. Just as Holocaust Memorial Day and other similar events promote awareness of the dangers of racism, anti-Semitism, and radical nationalism, so Victims of Communism Day can increase awareness of the dangers of left-wing forms of totalitarianism, and government domination of the economy and civil society.
While communism is most closely associated with Russia, where the first communist regime was established, it had comparably horrendous effects in other nations around the world. The highest death toll for a communist regime was not in Russia, but in China. Mao Zedong's Great Leap Forward was likely the biggest episode of mass murder in the entire history of the world.
November 7, 2017 was the 100th anniversary of the Bolshevik seizure of power in Russia, which led to the establishment of the first-ever communist regime. On that day, I put up a post outlining some of the lessons to be learned from a century of experience with communism. The post explains why the lion's share of the horrors perpetrated by communist regimes were inherent flaws of the system. For the most part, they cannot be ascribed to circumstantial factors, such as flawed individual leaders, peculiarities of Russian and Chinese culture, or the absence of democracy. Some of these other factors, especially the last, probably did make the situation worse than it might have been otherwise. But, for reasons I explained in the same post, some form of dictatorship or oligarchy is virtually inevitable in a socialist economic system where the government controls all or nearly all of the economy.
While the influence of communist ideology has declined since its mid-twentieth century peak, it is far from dead. Largely unreformed communist regimes remain in power in Cuba and North Korea. In Venezuela, the Marxist government's policies have resulted in political repression, the starvation of children, and a massive refugee crisis - the biggest in the history of the Western hemisphere. The removal of President Nicolas Maduro has so far done little to change the nature of that regime.
In Russia, the authoritarian regime of former KGB Colonel Vladimir Putin has embarked on a wholesale whitewashing of communism's historical record. Putin's brutal and indefensible invasion of Ukraine owes more to Russian nationalist ideology than communism. But it is nonetheless fed in part by his desire to recapture the supposed power and glory of the Soviet Union, and his long-held belief that the collapse of the USSR was "the greatest geopolitical catastrophe of the century." It is also telling that most communists in Russia and elsewhere have joined with far-right nationalists in backing Putin's line on the war.
In China, the Communist Party remains in power (albeit after having abandoned many of its previous socialist economic policies), and has recently become less tolerant of criticism of the mass murders of the Mao era (part of a more general turn towards greater repression).
China's horrific repression of the Uighur minority is reminiscent of similar policies under Mao and Stalin, though it has not - so far - reached the level of actual mass murder. But imprisoning over 1 million people in horrific concentration camps is more than bad enough.
Far-left support for Hamas since the horrific October 7, 2023 terrorist attack is yet another reminder of the inherently evil nature of communist ideology. Backing terrorism is part of a long history of support for repression and mass murder. Not all extreme socialists of the type who support Hamas are communists. But the latter are a subset of the former.
In the West, the popularity of "democratic socialism" in some quarters is a sign that many have failed to learn the lessons of the communist experience. Democratic socialism has many of the same flaws as its authoritarian counterpart, and - as the Venezuelan case shows - is unlikely to stay democratic for long, if implemented.
In a 2012 post, I explained why May 1 is a better date for Victims of Communism Day than the available alternatives, such as November 7 (the anniversary of the Bolshevik seizure of power in Russia) and August 23 (the anniversary of the Nazi-Soviet Pact). I also addressed various possible objections to using May Day, including claims that the date should be reserved for the celebration of labor unions.
But, as explained in my 2013 Victims of Communism Day post, I would be happy to support a different date if it turns out to be easier to build a consensus around it. If another date is chosen, I would prefer November 7; not out of any desire to diminish the significance of communist atrocities in other nations, but because it marks the establishment of the very first communist regime. November 7 has in fact been declared Victims of Communism Memorial Day by three state legislatures.
If this approach continues to spread, I would be happy to switch to November 7, even though May 1 might be still more appropriate. For that reason, I have adopted the practice of also commemorating the victims of communism on November 7.
I would also be happy to back almost any other date that could command broad support. Unless and until that happens, however, May 1 will continue to be Victims of Communism Day at the Volokh Conspiracy.
From last week's Maine high court decision in Aldarraji v. Alolwan, written by Justice Julia Lipe, dealing with Ms. Aldarraji's divorce complaint against Mr. Alolwan:
Aldarraji argues that she and Alolwan were legally married under Maine law. Because the parties' marriage ceremony did not occur in Maine, however, the proper question in assessing the legality of the marriage is whether it was valid under the laws of the jurisdiction where the marriage ceremony occurred—here, the United Arab Emirates….
See Monday's jury verdict, which awards $75K in compensatory damages plus $125K in punitive damages for each of two statements, and for each of two plaintiffs (Yaacov Apelbaum and his company XRVision). Here's an excerpt of the July decision allowing the case to go forward (Apelbaum v. Bloom):
Yaacov Apelbaum is the founder of XRVision, Ltd., a cybersecurity and analytics company. Plaintiffs Apelbaum and XRVision … attracted media attention in 2020 for their role in examining Hunter Biden's laptop computer, purportedly "analyz[ing] the contents" of a copy of the hard drive "to determine the legitimacy of the [l]aptop."
[Defendant] Jordan Arthur Bloom … is an independent journalist who maintains a blog on the platform Substack. On January 29, 2024, Defendant published an article, "The Role of Yaacov Apelbaum in the Hunter Biden Drama" ("First Article")…. The alleged defamatory statements in the First Article include:
"Yaacov Apelbaum is an Israeli spy, and the sort of Israeli spy who would have good reasons to smear American facial recognition technology, because his company, XRVision, is a competitor." [Emphasis in complaint.]
"XRVision has provided sourcing to a bunch of conservative publications, including the Washington Times. So this is an Israeli spy who's deeply involved in shaping the Hunter Biden story." [Emphasis in complaint.] …
On Wednesday, the Supreme Court decided Callais. The last paragraph of the opinion stated:
The judgment of the District Court is affirmed, and thesecases are remanded for proceedings consistent with this opinion.
It is so ordered.
Well, it is not ordered right away. Under the Court's rules, the remand does not happen immediately. In this 2020 post, I described the process by which judgments are actually entered. Conflicts over the timing of the judgments have arisen in high profile cases, including Bush v. Gore, Boumediene, Trump v. Vance, Trump v. Mazars, DHS v. Regents, Whole Woman's Health v. Jackson, and others. Of course, after Obergefell was decided, jurisdictions outside the Sixth Circuit immediately issued marriage licenses to gay couples, even though they were bound by injunctions. Whatever, love won!
The private plaintiffs in Trump v. Callais have asked the Supreme Court to issue the judgment forthwith. Louisiana has taken no position on the request, because the issuance of the judgment is irrelevant:
The State notes that the Court's May 15, 2024 Order also states that, "[i]n the event jurisdiction is noted or postponed, this order will remain in effect pending the sending down of the judgment of this Court." That language can be read to conflict with the cited language above, which requires automatic termination of the Order if the lower court's judgment is affirmed. That potential conflict, however, has no bearing here because, whether the Order is already terminated or will be terminated when this Court sends down the judgment, nothing prevents Louisiana from adopting a constitutional map and process consistent with this Court's decision right now.
Louisiana is correct. The District Court did not issue an injunction. The Supreme Court affirmed the District Court's judgment. Nothing prohibits Louisiana from following the Supreme Court's decision as a precedent, even if there is no issued judgment. Moreover, once Louisiana adopts new maps in the next week or so, this entire dispute will be mooted.
Some excerpts from the long Complaint in Harpole v. Owens (M.D. Tenn.), just filed today (of course, recall that these are all just accusations, not court findings):
Plaintiff Brian Harpole is a citizen and resident of Texas. He is the founder and head of Integrity Security Solutions, a private security firm. In or around 2018, Harpole began working for the late Charlie Kirk, with Integrity Solutions providing security for Turning Point USA and protective services for Kirk from 2022 to 2025. Integrity Solutions provided these services for Turning Point USA and Charlie Kirk at Utah Valley University on September 10, 2025, where Kirk was fatally shot….
Shortly after the assassination, Owens began disseminating content asserting that Kirk was betrayed by individuals close to him, that the government orchestrated a cover-up of the assassination, that Turning Point USA was implicated in the event, and advancing numerous additional conspiracy theories suggesting that somebody other than Tyler Robinson was involved in the murder….
Since Charlie Kirk's assassination, Owens has intentionally proliferated a campaign intended to impugn the reputation of Harpole. Without even a modicum of substantiated evidence, she has publicly accused Harpole and Integrity Solutions of foreknowledge, participation in, and cover-up of the assassination of Charlie Kirk, as well as professional unfitness and criminal negligence. Despite Owens admitting that she had viewed Harpole's flight records, she continued to accuse him of attending a meeting at Fort Huachuca—based solely on unsubstantiated testimony from Defendant Snow. Furthermore, without any evidence that Harpole acted negligently or intentionally with regard to the assassination of Kirk, Owens spread conspiracy theories that he somehow and for some reason intended Kirk to die….
Between December 9, 2025, and December 28, 2025, Owens, through at least eight separate statements published on X and disseminated via her podcast, falsely and negligently, if not intentionally and with reckless disregard for the truth, alleged that Harpole attended a conspiracy meeting at Fort Huachuca on the day preceding Kirk's assassination and colluded with the government in connection with that assassination. She therefore also accused him of conspiracy to commit murder, a criminal offense. These statements include, but are not limited to:
The ImmigrationProf Blog site has been hosting a symposium on the birthright citizenship case oral argument, which took place before the Supreme Court earlier this month. They now have a post compiling links to the different posts, including one of my own. The other contributors are all prominent immigration law and constitutional law scholars. I include the links below:
An excerpt from Turner v. Abelle-Kiser, decided Tuesday by the Maryland Appellate Court (Judge Douglas Nazarian, joined by Chief Judge Gregory Wells and Judge Glenn Harrell):
This appeal arises from a custody dispute between appellant AshLee Smith Turner ("AST") and appellee Blair Abelle-Kiser ("BAK") over custody of their minor child, Z…. [AST] challenges the court's legal custody decision, and especially the decision to grant tiebreaking authority to BAK ….
The parties are parents to Z, a minor child. They married before they had Z and were granted a judgment of absolute divorce in June 2022. AST is cisgender, and BAK is transgender…. [In its child custody decision, the trial] court awarded joint physical custody … and, most relevant to this appeal, joint legal custody with conditional tiebreaking authority vested in BAK….
The court upheld the legal custody decision, and in the process said the following:
AST argues that … because Z has begun exploring their gender identity, because BAK is trans, and because BAK has been supportive in that exploration, the circuit court abused its discretion by establishing legal custody as the court did….
Importantly, AST does not challenge BAK having tiebreaking authority generally, but asks instead that the court carve gender identity-related parenting decisions out of the tiebreaker. She contends, in essence, that allowing a trans parent to have tiebreaking authority when a child has begun exploring their gender identity is inherently an abuse of discretion. We disagree.
One of the more unexpected aspects of the Birthright Citizenship case was the return of Justice John Marshall Harlan. But I think a more careful study of Harlan's lectures suggests that at least part of Trump's order may survive: specifically, the status of children whose mother is in the United States on a tourist or other limited visa. I discuss this question in a new Civitas Outlookessay. Here is the introduction:
The conventional wisdom is that the Supreme Court will strike down President Trump's entire birthright citizenship order. In 2018, I wrote that children of illegal aliens are citizens at birth. I'll admit that recent scholarship has made this question much closer than I had realized, but on balance, Trump's order should not stand for the children of illegal aliens who are domiciled in the United States. The analysis, however, differs for the second part of Trump's order, which applies to children of mothers on tourist or other temporary visas. And for authority, the Supreme Court can rely on an unexpected source who came up at oral argument: Justice John Marshall Harlan.
In a 1898 constitutional law lecture, which I analyzed more than a decade ago, Justice Harlan told his students that the children of tourists, "who cannot under the law become naturalized in the United States," would not be birthright citizens. During oral argument at the Supreme Court, Justice Neil Gorsuch and counsel for the ACLU dismissed Harlan's views because he dissented in the landmark case of United States v. Wong Kim Ark. But that decision did not set a binding precedent on the status of temporary sojourners. More importantly, the views of the Great Dissenter, whose dissents were often vindicated by history, should not be dismissed so casually. If Harlan was right, then the Supreme Court could split the difference on Trump's order: the children of illegal aliens who intend to stay in the United States would retain birthright citizenship, but pregnant women could no longer come to the United States on temporary visas for the purpose of giving birth to citizens.
Wong Kim Ark certainly addressed the issue of birth to a tourist, but I do not think a holding was set on that question. If so, the value of Wong Kim Ark is persuasive, and not binding. Here, the Harlan dissent should warrant a closer look. After all, Harlan's other dissents have come to be vindicated:
The Fourteenth Amendment was ratified in 1868. Wong Kim Ark, which was decided three decades later, should not be seen as a clear reflection of the original public meaning of the Fourteenth Amendment. The justices in the majority and dissent, who all lived through the ratification of the Reconstruction Amendments, vigorously disagreed on that original meaning. The value of Wong Kim Ark lies in its status as a judicial decision. Wong Kim Ark set a precedent about the status of children born to aliens who are domiciled in the United States, but there is no similar holding about temporary sojourners who do not intend to stay in the United States.
Where there is not a binding precedent about the original meaning of the Fourteenth Amendment, I would line up behind Harlan over other members of the Court from the late nineteenth century. Consider Harlan's track record. In 1896, the Supreme Court decided the notorious case of Plessy v. Ferguson by an 8-1 vote. The majority established the so-called "separate but equal" doctrine, which approved the Jim Crow regime. Justice Harlan was the only member who recognized that separate cannot be equal. Five members of the Wong Kim Ark majority also joined the Plessy majority. Harlan's dissents would also be vindicated in other landmark cases. In The Civil Rights Cases (1883), Harlan recognized that Congress had the power to eradicate the vestiges of slavery. In Pollock v. Farmers' Loan & Trust Co. (1895), Harlan found that the federal income tax was constitutional. In United States v. E.C. Knight (1895), Harlan found that Congress could regulate manufacturing as a form of commerce. In Lochner v. New York (1905), Justice Harlan upheld a law regulating bakers' hours. And I could go on. The track record for Justice Horace Gray pales in comparison.
Very little of the briefing focused on the birth tourism issue, so Harlan's lecture notes warrant a closer look.
From Carvajal v. Ferretti, decided yesterday by the Florida Court of Appeal, in an opinion by Justice Mark Klingensmith, joined by Justices Shannon Shaw and Johnathan Lott:
Wife and her husband separated in 2021 and initiated divorce proceedings in 2022. Girlfriend began a relationship with the husband in 2019, prior to the dissolution proceedings.
In October 2024, Wife filed a petition for an injunction for protection against stalking, alleging four categories of conduct occurring between August 2023 and October 2024:
August 2023 social media post: Girlfriend accused Wife of manipulating others, using her child to spy, and included language Wife perceived as threatening.
February 2024 social media post: Girlfriend again accused Wife of stalking behavior, tagged Wife's workplace, and warned others about her. Wife testified this led to a meeting with her employer.
October 16, 2024 text message: Girlfriend contacted Wife regarding a child support payment being sent via Zelle and requested identifying information. Wife provided the information and confirmed receipt through a court-approved communication application.
October 23, 2024 communications: Following an incident involving Wife's cousin, Girlfriend sent Wife a series of messages calling her derogatory names, accusing her of stalking, and telling her to stay away. When Wife blocked her number, Girlfriend resent the same messages via WhatsApp and email within minutes and referenced possibly appearing at Wife's workplace….
The trial court found the statutory requirements satisfied and entered a three-year injunction prohibiting Girlfriend from contacting Wife….
4/30/1789: President Washington's inauguration. He would appoint eleven members to the Supreme Court: Chief Justices Jay, Rutledge, and Ellsworth, and Justices Wilson, Blair, Cushing, Rutledge, Iredell, Johnson, Paterson, and Chase.
After much anticipation, the Supreme Court finally decided Louisiana v. Callais. (The Chief Justice pronounced it as waylay.) I have some preliminary thoughts.
First, more than five months elapsed from the oral argument in October till decision day. The longer this case dragged on, the harder it would be for Republican legislatures to redistrict. There was some speculation that the dissenters were dragging out the case to run out the clock. Are these insinuations accurate? Justice Alito's majority opinion in somewhat unusual in that it barely engages with the dissent. There are a few paragraphs on the penultimate page of the opinion that address the dissent. This isn't the sort of drafting process that required many opinions going back-and-forth for revisions. Moreover, there were no concurrences. The majority opinion had six clean votes. Indeed, I suspect Justice Alito circulated this draft shortly after conference. And I can't imagine there was much disagreement between Justices Kagan, Sotomayor, and Jackson. Is five months an unusually long period of time for a 90-page decision when the majority doesn't respond to the dissent? Not usually, but where there is an incentive on one side to go quick, the other side may not have been in a hurry. (I will leave aside the claim in Molly Hemmingway's new book that the Dobbs dissenters refused to expedited the release of the opinion after the leak.) Let's wait to see what the leaks reveal.
Second, I think back to Allen v. Milligan, which was decided a few weeks before SFFA. At the time, there was speculation that Chief Justice Roberts and Justice Kavanaugh (mostly) ruled against Alabama to soften the blow of (largely) ending affirmative action. Barely three years later, the Court relies on SFFA to (arguably) scale back Milligan. On the surface at least, there is no daylight between Justice Alito and the Chief Justice. Then again, it may have been Roberts's preference to not invalidate Section 2, to at least maintain the fiction of stare decisis. Remember, the Chief Justice knows to the decimal point what percentage of cases overrule precedents.
Third, this decision eliminates the Voting Rights Act asymmetry. Democrats will lose their bonus in conservative states. For the 2026 midterms, it is not clear how much of an impact this ruling will have. But in the long run, especially after the 2030 census, Callais will be significant. Still, I think it is shortsighted to think that political dynamics will not change. For the first time in generations, black and hispanic voters will live in districts where the winner is not preordained. Callais may shift how politicians on both sides of the aisle appeal to a demographic that historically has been neglected. Minority voters may even strategically vote in republican primaries to affect narrow races. As I often say, ignore all predictions that the sky will fall after a Supreme Court decision. Institutions can adapt to changed circumstances.
I've finished reviewing the Supreme Court's 92-page decision in Louisiana v. Callais (rhymes with waylay). I've distilled it down to about 16 pages for the 2026 Barnett/Blackman supplement. My focus here was on the ConLaw aspects of the case, so much of the history of Section 2, the 1982 amendments, and Gingles is trimmed. I also did not include the lengthy and complicated procedural posture. I'm not sure that it will matter too much as the Court found the application of the "updated" standard to be easy.
I'll have more to say about the case in another post.
Jane and I lay out the structure of American defamation law, using the recent lawsuits brought by FBI Director Kash Patel as a launching point. Special bonus: Almost no discussion of New York Times v. Sullivan (an important case but one that listeners have doubtless heard much about elsewhere).
