The Volokh Conspiracy Archive

From last week's decision in Hamson v. Foothills Christian Academy Soc'y of Backus, MN, decided by Minnesota Court of Appeals Judge JaPaul Harris, joined by Judges Francis Connolly and Jon Schmidt:

The following facts derive from the evidence in the summary-judgment record and are framed in the light most favorable to [Hamson] as the nonmoving [party].

Hamson was enrolled as a student at Foothills, a private school, for the 2021-2022 academic year. At that time, Foothills used a password-protected computer grading system to track student assignments and grades. Some teachers and administrators could only unlock assignments, review student progress, and grade work, while other teachers and administrators could also change or override grades.

During the school year, a teacher's aide learned that students were logging into the system using a teacher's credentials and changing their grades. Hamson's former teacher also noticed that Hamson's assignments were being modified in the system. The teacher's aide "conducted an in-depth investigation on every student within [the] high school classroom" to discover when the grades were being overridden, and by whom. This investigation took place on April 4, 9, and 11, 2022. During this investigation, the teacher's aide gathered "strong evidence" that several students, including Hamson, used a former teacher's account to access the system and change their grades. Ecker confronted Hamson, and she admitted that she altered her grades.

On April 5, before the investigation was complete, Ecker held a school meeting to confront some of the students suspected of being involved in changing their grades. The group included students and faculty members of the school, but it did not include Hamson because her parents had removed her from Foothills. Hamson estimated that approximately 17 people were present at the school meeting. Ecker characterized this gathering as a "group session" that is "a normal session as part of the [school's] process and is designed in the form of discipline/assembly."

During this school meeting, Ecker made several statements that Hamson asserts were defamatory. Hamson claims that "[t]he entire speech" was defamatory and included several illustrative examples in the summary-judgment record. Among other statements, Ecker said:

We can be mad at [Hamson]. I would be mad at myself if I were you guys for being a part of a scheme with somebody with a poor IQ. Okay? And that's what I mean. Sitting around the table planning a bank heist, and you've got … a special ed [student] sitting across the table. Maybe it's time to get up and go, pick a new crew. Okay?

Ecker also referred to Hamson as one of the "ringleaders" of the grade-changing scheme and insinuated that she had been expelled for her conduct. Ecker does not dispute that he made these statements.

In March 2024, Hamson filed a defamation complaint against Foothills and Ecker. She asserted that Ecker made these statements "knowing they were false." And she further alleged that the statements were "repeated throughout the community," and had a "severe and negative impact" on her wellbeing….

If a plaintiff proves the elements of defamation, a defendant may argue that a privilege "operate[s] to defeat a defamation claim." Minnesota law recognizes two types of privileges as defenses against defamation claims: absolute privilege and qualified privilege. Only the existence of a qualified privilege is at issue in this case….

For qualified privilege, a statement "must be made in good faith, on a proper occasion, with a proper motive, and upon reasonable or probable cause." Qualified privilege is based on the premise that "statements made in particular contexts or on certain occasions should be encouraged despite the risk that the statements might be defamatory." The supreme court has identified a number of circumstances in which an otherwise defamatory statement is protected by qualified privilege. These instances include:

an employer's good-faith statements about a former employee in a requested character reference, statements made in relation to an employer's investigation into employee misconduct, an employer's communication to a former employee of the reasons for the employee's discharge, bad credit references from lending institutions, and [certain statements made in relation to child-abuse allegations].

Qualified privilege also extends to "a good faith report of suspected criminal activity to law enforcement officials" ….

Hamson presented evidence that: (1) Ecker knowingly made the false statements about her to cover up a long-term cheating scandal; (2) Ecker had knowledge of cheating issues for years before the current allegation; (3) Ecker knowingly gave students passwords and access to grading; and (4) Ecker made the statements about Hamson after her mother involved the school board.

This is evidence, viewed in the light most favorable to Hamson, from which a fact-finder could conclude that Ecker's statements were not made in good faith, on a proper occasion, with a proper motive, and upon reasonable or probable cause. Therefore, a genuine issue of material fact exists, and the district court erred in granting summary judgment as a matter of law on qualified-privilege grounds….

"A qualified privilege is [also] abused and therefore lost if the plaintiff demonstrates that the defendant acted with [common-law] malice" … [meaning] "that the defendant made the statement from ill will and improper motives, or causelessly and wantonly for the purpose of injuring the plaintiff." …

Hamson argues that evidence in the summary-judgment record could support a finding of malice. In her affidavit, Hamson maintained that Ecker made insensitive comments about her intelligence, which led her peers to believe that she had a low-IQ. She also asserted that Ecker told people she had been expelled for her actions, which he knew to be untrue because she left the school by her own choice.

As to a possible motive, Hamson asserted that cheating had been an "ongoing" problem for years and that the principal placed the blame on her to avoid accountability. A former Foothills school-board member and athletic director echoed this statement in her affidavit, noting that cheating had been a problem almost from the beginning of her involvement with the school. The board member stated that "[i]t was not just normal cheating where kids try to get answers from each other, but students having passwords to see all of the online test answers." Hamson claimed that the "ordeal negatively impacted [her] mental health" and damaged her reputation among her peers, the town, and her religious community….

[E]vidence in the summary-judgment record, when viewed in the light most favorable to Hamson, presents a legally sufficient evidentiary basis for the jury to conclude that Ecker's statements that Hamson had a "poor IQ," was a "special ed" student, and was expelled were driven by an improper motive. Generally, "[m]alice cannot be implied from the statement itself." Looking beyond the statements, the record shows that Ecker made the statements during a school meeting in front of other students and faculty, and that these statements were potentially damaging to the student's reputation….

Edward R. Shaw (Ed Shaw Law) represents plaintiff.

10/28/1787: James Wilson gives speech to the Pennsylvania ratification convention, arguing that there was no need for a Bill of Rights.

Last week, I was a guest on Kim Krawiec's "Taboo Trades" podcast--"a podcast about things we are not supposed to sell, but do anyway"--to discuss how tradeable rights have helped advance marine conservation. The discussion drew upon my (co-authored) article "Learning How to Fish," which had been previously published in the UCLA Journal of Environmental Law and Policy.

As we discussed, fishery conservation is a particularly good example of how property rights and markets can advance environmental goals. This is not merely a matter or economic theory, as we now have substantial empirical evidence of how the use of such tools can work.

One thing that is particularly neat about the "Taboo Trades" podcast is that it is put together by Professor Krawiec's class on "Taboo Trades" at the University of Virginia Law School. While Prof. Krawiec invites the guests, her students do most all of the questioning, which makes for a neat experience as the guest.

For those interested, the episode is available for a listen here.

I reviewed Justice Amy Coney Barrett's Listening to the Law: Reflections on the Court and the Constitution for Civitas Outlook. My bottom line: the book is a worthwhile contribution to the shelf of books by sitting Supreme Court justices.

My review begins:

Amy Coney Barrett was not a likely judge, let alone a likely Supreme Court justice. A young Amy Coney did not even aspire to be a lawyer. She only settled on law school after college, over pursuing an English PhD, and excelled. She was an exceptional student who earned the admiration of her classmates and the profound respect of her professors, who would soon invite her to become a colleague. In 2002, she joined the faculty of the Notre Dame Law School, seeming to fulfill her professional vocation.

Just as her intellect had always attracted the notice of her peers, then-Professor Barrett attracted notice within the conservative legal movement. This led to her appointment to the U.S. Court of Appeals for the Seventh Circuit — one of several academics placed on the appellate bench during President Trump's first term — and just three years later, her elevation to the U.S. Supreme Court, replacing Justice Ruth Bader Ginsburg.

Within a year of joining the Court, Justice Barrett signed a book deal reportedly worth $2 million. The deal raised eyebrows in some quarters, even though most other recently confirmed justices have done the same, and some have earned more. Justice Barrett's book itself, Listening to the Law: Reflections on the Court and the Constitution, should not provoke much controversy, however. An instant New York Times best-seller, it is a valuable contribution to public discourse about the role of the courts and the Constitution.

Although Justice Barrett was an academic, this is not an academic book; far from it. Listening to the Law is written for an educated lay audience. It seeks to elucidate and explain, not break new ground. It is accessible and clear but not simplistic. In this regard, it has much in common with the late Chief Justice William Rehnquist's book on the Supreme Court, though it is also a bit more revealing and prescriptive. Indeed, Listening to the Law is likely the best lay introduction to the Court, the Constitution, and the reigning judicial philosophy in print. (And given how often critics of originalism struggle with fairly characterizing the target of their efforts, quite a few practitioners and legal academics would benefit from reading it too.)

The whole review is here.

Ilya Shapiro, my friend and frequent co-author, reviewed The Heritage Guide to the Constitution in the Washington Free Beacon.

Here is the introduction:

There's a familiar lament among constitutionalists—one heard at law schools, in courtrooms, and across think tank hallways—that most Americans know next to nothing about the nation's founding document. Ask a random college graduate about the Emoluments Clause or the Compact Clause and you'll get a blank stare. Yet even among lawyers and judges, constitutional knowledge is often shallow, piecemeal, or warped by ideology.

What's been missing is a single, reliable, readable, and comprehensive reference work that explains what the Constitution actually says, what its words meant to those who wrote and ratified them, and how those meanings have been interpreted over time

Enter The Heritage Guide to the Constitution, now in its third edition and more indispensable than ever. Originally published in 2005, with an updated edition in 2014, this volume has long been a mainstay for those of us who care about constitutional text, structure, and history. But the new edition isn't just an update. It's a major expansion and refinement, reflecting nearly a decade of scholarship, jurisprudence, and debate.

If the Constitution is our civic scripture, this is the annotated commentary you want by your side—with a foreword by former attorney general Edwin Meese and an introduction by Justice Samuel Alito! Kudos to lead editors Josh Blackman and John Malcolm (both friends and professional collaborators of mine).

And from the conclusion:

The Heritage Foundation has always seen itself as a steward of America's Founding principles, and this book is one of its finest contributions to that mission. In an era when too many view the Constitution as a "living" document to be bent toward whatever policy end is fashionable, the Heritage Guide offers a refreshing alternative: rigorous, sober, historically grounded analysis of the document as it is.

No single volume can settle every constitutional debate, but if you want a reference that will make you smarter every time you open it, this is it. It is, quite simply, the most thorough, useful, and readable guide to our fundamental law available today. And at a time when constitutional literacy has never been more needed, that makes it a civic treasure.

The Heritage Guide to the Constitution is what every serious student of American government—and every citizen who wants to remain free—should own. It doesn't tell you what to think; it gives you the tools to think constitutionally.

If you've purchased the book on Amazon, please leave a review!

From an L.A. Superior Court order earlier this month in Yasiel Puig Valdes v. All3 Media, LLC:

In reply, Moving Defendants contend that Plaintiff's opposition should be stricken for citing fabricated cases. Upon review of Plaintiff's opposition, the court confirms that Plaintiff improperly cited to "Edwards v. Hearst Corp. (1991) 53 Cal.3d 30, 43" and "Heath v. San Joaquin Comm. Hosp. Dist. (1993) 15 Cal.App.4th 708, 713-14". (Opp., at p. 5.) These cases apparently do not exist. At the hearing, the Plaintiff's counsel confirmed that those citations do not exist and appeared when Plaintiff's counsel sought the assistance of ChatGPT to assist him in filing the Opposition.

10/27/1787: First Federalist Paper is published.

Donald Trump continues to order strikes on boats carrying supposed drug traffickers in the Carribean and the Pacific, killing an estimated 43 people so far. I have previously written about why these attacks are both illegal and unjust. See also insightful analyses by Brian Finucane at Just Security (here and here). Drug smuggling is, at most, a criminal law issue, not an act of war. And, in many cases, the people targeted either were not actually smuggling drugs or were not on their way to the US (US law cannot and does not forbid mere possession of drugs in international waters).

The most common answer to such critiques is that the strikes are justified because the supposed smugglers are transporting fentanyl, and fentanyl overdoses kill thousands of Americans each year. Thus, it is claimed, fentanyl smuggling represents a threat akin to terrorism (labeled "narco-terrorism" by the administration), and Trump is justified in using military force to forestall it.

This equation of drug overdoses with terrorist attacks overlooks the fundamental moral and legal difference between deaths that occur as a result of violent attack and those that occur because consumers voluntarily imbibed a dangerous drug. Many people die every year, at least in part because they chose to adopt dangerous consumer habits. For example, many thousands of deaths per year are obesity-related (far more than are caused by fentanyl). Obesity is greatly exacerbated by bad diets. It doesn't follow that manufacturers and sellers of junk food are the moral equivalent of terrorists, and that the US government would be justified in killing them without any due process. The same goes for producers of many other products whose consumption contributes to poor health outcomes, such as alcohol, cigarettes, and more.

In the case of illegal drugs, the negative health effects are actually exacerbated by prohibition. The fentanyl crisis is itself largely a result of the War on Drugs, a predictable consequence of the "Iron Law" of prohibition, under which banning legal markets incentivizes dealers and users to turn to harder, more potent drugs.

In my view, the real evil here is the War on Drugs, which causes immense harm, and violates the fundamental principle of bodily autonomy. People should be able to decide for themselves whether the benefits of taking a given drug are worth the costs, including negative effects on health. The same goes for eating junk food, drinking alcohol, and so on. Ending the War on Drugs would simultaneously protect liberty and greatly reduce the role of organized crime and drug cartels in the drug trade - just as the end of alcohol Prohibition greatly curtailed the role of criminal organizations in that industry.

But at the very least, there is no moral or legal justification for turning the War on Drugs into a real war by executive fiat. Only Congress can authorize war, and it has not done so here (and for good reason).

But don't take my word for the importance of the distinction between terrorism and fentanyl smuggling. Take that of John Yoo! Prof. Yoo, a prominent conservative legal scholar, is the leading champion of sweeping executive power over national security issues. But he nonetheless concludes, in a recent Washington Post op ed, that Trump has gone too far, here:

These attacks risk crossing the line between crime-fighting and war. The Trump administration is right that illicit drugs are inflicting more harm on the U.S. than most armed conflicts have. More than 800,000 Americans have died of opioid overdoses since 1999….

But the U.S. cannot wage war against any source of harm to Americans. Americans have died in car wrecks at an annual rate of about 40,000 in recent years; the nation does not wage war on auto companies. American law instead relies upon the criminal justice or civil tort systems to respond to broad, persistent social harms. In war, nations use extraordinary powers against other nations to prevent future attacks on their citizens and territory. Our military and intelligence agents seek to prevent foreign attacks that might happen in the future, not to punish past conduct….

As an official in the Justice Department's Office of Legal Counsel, I was at my desk on Sept. 11, 2001. I advised that the U.S. could wage war against al-Qaeda without blurring the distinction between crime and war. After 9/11, the U.S. declared that it would wage war for the first time against an organization, rather than a nation. But the drug cartels alone do not present a similar challenge that rises to the level of war.

Crime is generally committed for personal gain or profit rather than a political goal. Drug cartels employ murder, kidnapping, robbery and destruction to create a distribution network, grab turf from other gangs, intimidate rivals or customers, and even retaliate against law enforcement. National security threats, such as terrorist groups, might resemble organized crime in some respects, but the Mafia and drug cartels are unconcerned with ideology and are primarily out to satisfy their greed.

Like a nation, a terrorist group conducts attacks that are highly organized, military in nature, and aimed at achieving ideological and political objectives. A terrorist group might resort to crime for funding, such as stealing money or defrauding charities, but terrorist groups use the money for military and intelligence efforts rather than the mere accumulation of wealth. An enemy's conscious political objective distinguishes war from general crime, which exists at a persistent level, and which society will never completely extinguish.

I think Yoo's analysis here understates the harm caused by the War on Drugs, even in its conventional criminal-justice form. But he's absolutely right about the distinction between crime and war.

There is no war here. Thus, Trump's boat strikes do not even qualify as war crimes. They are just plain ordinary crimes, a form of extrajudicial murder.

10/26/1774: First Continental Congress ends its first session in Philadelphia.

My son Sam, as some of you know, is an accomplished pianist and composer here in DC. [his website's here] He and Ralitza Patcheva, a close friend and colleague (and masterful Bach interpreter), have just released an album on Acis Records that is generating (deservedly so, in my opinion) some buzz: The Well-"Tampered" Clavier, in which each of the 24 Preludes and Fugues in Book 1 of JS Bach's magisterial "Well-Tempered Clavier" are rhythmically re-worked and re-imagined.

It's pretty wild: think Bach meets Scott Joplin, Dmitri Shostakovich, and Thelonious Monk.

The CD, and streaming links and other info, are all available here. Have a listen. I realize that a father's recommendation is by its very nature of questionable reliability, and that, ties of blood being what they are, I might urge you to listen even if I didn't think the music was very good. But that doesn't mean that I think this music is not very good - quite the contrary. I am very much a worshipper at the Bach altar, and I think Sam and Ralitza have come up with something that deepens one's engagement with the original while being new and interesting and fun to listen to. See if you agree!

[Update 10-26: Apologies to the good folks at NYU Law School for mistakenly attributing JustSecurity.com to the Law School at Michigan (where they run a different compendium of legal actions against the Administration at the Civil Rights Clearinghouse.]

[There was a rather fascinating panel discussion at the Society for the Rule of Law summit this past week. [see a summary here ] Three retired federal judges -- Paul Grimm (ex-D MD), Nancy Gertner (ex- D MA), and Michael Luttig (ex- CA4), moderated by Benjamin Wittes of Lawfare -- spoke for an hour about what Judge Luttig called "the most important moment in all of American history . . . when the nation needs the federal judiciary more than it has ever needed it, and will ever need it again."

Judge Luttig[1] described the crisis this way:

Every day of the week, for the past 10 months, [district court] judges are facing the President of the United States and Attorney General of the United States… lying to their face. Lying to the judges. The prosecutors are lying to the federal courts. Meanwhile, outside the courtroom, the President of the United States, and the Attorney General of the United States, are trashing the federal courts. Trashing the individual judges. Calling them every name in the book. Never in American history has this ever happened.

The arguments that are being made… by the Department of Justice attorneys under Pam Bondi are contemptuous. Not just of the Constitution and the rule of law, but contemptuous of the federal courts, and even, if not especially, contemptuous of the individual judges that are hearing the cases. Not only has this never happened in all of American history, not one argument, but the arguments that these people are making to the federal courts has ever been made in American history, dripping with the contempt that these arguments are.

Judge Gertner put it this way:

It's not just an issue of the arguments they're making. They're lying. They are misrepresenting things. One of the things I thought after Trump was elected, and when the political debate made it into the courts, one of the things we know about courts is that there's a level of civility. That the lawyers, true to their oaths, will not lie, will not misrepresent, will not say they do x and do y. What is the most shocking of all — at a time when you're always shocked — is that that's not true. That's not true with respect to the Department of Justice lawyers. They will say x, they will do y, and recent whistleblower accounts suggest that they are openly and brazenly misrepresenting to the court. The system fractures what it happens.

If you think they're exaggerating - "Trump Derangement Syndrome!!" - here is the study Judge Gertner cited, from the ~~Michigan~~ NYU Law School's "Just Security" project, detailing 43 cases where federal court judges have called out the DOJ for having made serious misrepresentations - including a substantial number of outright, bald-faced lies - to the courts.

I know . . . what else is new? "Dog bites man." No point getting worked up about it, since it's only #6, or #17, on the ranked list of threats to constitutional norms and the constitutional order. But even if it's only for the future historian compiling a history of the Trump Era, it is worth noting.

And on a considerably more optimistic note, the panelists expressed a number of interesting thoughts on what they all agreed has been a "spectacular" performance by federal district court judges of all political stripes in the face of this onslaught. A ray of hope in this dismal prospect. They also discussed at length the question of whether or not the Supreme Court has given the lower courts adequate support for their efforts - a subject I'll leave for a future post.

[i] Judge Luttig was appointed to the 4th Circuit by George HW Bush in 1991, and I think it is fair to say that he is as rock-ribbed a Republican – in the old, honorable sense – as they come, and also that he is boiling with rage at the Administration's many-fronted attack on the rule of law.

10/25/1795: Justice John Blair resigns from the Supreme Court.

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

The Volokh Conspiracy

Calling High School Student "Low IQ" and "Special Ed" at School Meeting About Cheating Can Be Defamatory

Today in Supreme Court History: October 28, 1787

How Property Rights and Markets Are Overcoming the Marine Tragedy of the Commons

Monday Open Thread

Listening to Justice Barrett

Review of The Heritage Guide to the Constitution in the Washington Free Beacon

Yasiel Puig, AI-Hallucinated Citations, Gambling, and Libel

Today in Supreme Court History: October 27, 1787

Why Fentanyl Smuggling isn't War and Cannot Justify Extrajudicial Killing

Today in Supreme Court History: October 26, 1774

Sunday Open Thread

JS Bach, Re-Imagined

Lying Lawyers

Today in Supreme Court History: October 25, 1795

Today in Supreme Court History: October 25, 1795

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

Governor Abbott Appoints Kyle Hawkins As Justice Of The Supreme Court Of Texas

Friday Open Thread

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