The Volokh Conspiracy

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Science Fiction

Reviews of "House of the Dragon" and "A Knight of the Seven Kingdoms"

Catching up with developments in the cinematic Game of Thrones/House of Ice and Fire Universe.

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HBO

In recent months, I have not had a chance to write many science fiction and fantasy reviews, like I used to do more often, particularly when it comes to the Game of Thrones/Song of Ice and Fire universe based on the works of George R.R. Martin. I have the excuse that I was busy with other things, such as the tariff case. But in the meantime, we have accumulated two seasons of House of the Dragon and the start of a third, plus the first season of A Knight of the Seven Kingdoms. When you play the game of reviewing Game of Thrones, you win or your connection with your audience dies! So in this post, I'm going to begin trying to make up for lost time.

Overall, I like both series, and if you like the GOT universe generally, you are likely to enjoy them, too. But House of the Dragon has a number of shortcomings that arise partly from the source material (Martin's book Fire and Blood), and partly from its own flaws. Both series also raise interesting political issues that extend the treatment of such matters in the GOT universe as a whole.

Before going on, I should note there will be some spoilers for the two series here. Most of the episodes and plotlines covered here have been out for many months, and this material is based on George R.R. Martin's books Fire and Blood and A Knight of the Seven Kingdoms, both published six or more years ago. For those who read on but still dare to complain about spoilers, I have but one word: Dracarys!

House of the Dragon

At the start of this series, the Targaryen dynasty is firmly in control of the Seven Kingdoms of Westeros, and dragons are part of the foundation of their power. The Targaryens have a monopoly over their use, and it is believed that only members of the family can successfully tame and ride them.

A succession crisis arises by virtue of the fact that King Viserys (a relatively weak ruler) has no male heirs. He therefore designates his daughter Princess Rhaenyra, as his successor. But many members of the Westerosi elite are unwilling to accept a female ruler. Viserys later marries Alicent Hightower (a member of one of the other powerful noble houses), and has sons by her. But Viserys persists in retaining Rhaenyra as the designated heir. When Viserys suddenly dies, Alicent and others claim that - at the last moment - he changed his mind and designated her son Aegon II as the new heir. Civil war soon breaks out between the Greens (supporters of Aegon) and the Blacks (those who back Rhaenyra). The war becomes known as the "Dance of the Dragons."

In the show, the conflict begins at the end of the first season. By midway through season 3 (where we are now), the fighting has massively escalated, and both sides have suffered terrible losses, while also committing various atrocities. In addition, both Green and Black leaders make foolish tactical and strategic errors. This happens in the show even more than in books. For example, Princess Rhaenys - one of the few generally competent and admirable leaders of the Black faction - early on misses a chance to wipe out most of the Green leadership, with her dragon. This event does not occur in the book.

When I reviewed the first episode of House of the Dragon, back in 2022, I highlighted a central dilemma of this story: there are virtually no major sympathetic characters in the source material. Aegon and Rhaenyra are both manifestly incompetent rulers who care little for the welfare of the people. Many of the other leaders of the two factions are even worse. Rhaenyra's uncle/husband - Prince Daemon - is a murderous megalomaniac. Aegon's brother Aemond One-Eye (who also has ambitions for the throne) is cruel and vicious. And so on.

As I suggested in the earlier review, the TV series tries to deal with this problem by making  relatively sympathetic characters out of Rhaenyra and Alicent. The former is a victim of misogyny, and the series (following the book, in some respects) plays up her grief at the deaths of two of her sons in the fighting. Alicent, for her part, comes off as a relative peace-seeker.

But the sympathy for Rhaenyra is hard to maintain given the many wrongs she herself perpetrates, and her indifference to the harm the war inflicts on the "smallfolk" - the common people of Westeros. In one recent episode, Rhaenyra's forces manage to take Kings Landing, the capital. It seems like she might be trying to turn over a new leaf. But she and her underlings soon begin a reign of terror, persecuting commoners who protest against her.

Rhaenyra at one point confiscates stores of food stockpiled by wealthy merchants and aristocrats in order to alleviate food shortages in the city. But the shortages were caused by the blockade imposed by her own naval forces. And advisers rightly point out that the confiscation program won't actually do much to end the shortage (they might have added it could even exacerbate it in the long run, by deterring production and investment). At best Rhaenyra is only modestly less awful than the even worse leaders on the Green side.

Alicent, for her part, has little influence or competence. And, like Rhaenyra, she has little interest in the welfare of the people.

Ultimately, the series drives home the point  that both factions are awful and the real problem plaguing Westeros is a system in which aristocratic elites wield power with little or no concern for the people, and no incentive to take their interests into account. This, of course, builds on the themes of the original Game of Thrones series, which also often highlighted the systemic danger of unconstrained political power.

But, in the original GOT, we also had sympathetic, well-intentioned characters like Arya Stark, her sister Sansa, Tyrion, Jon Snow, and (until late in the series) Daenerys Targaryen. There was hope that one or more of them would "break the wheel" (as Daenerys famously put it) and institute a better regime.

There is no such hope in House of the Dragon. That, combined with the lack of sympathetic protagonists, makes the series somewhat dreary and depressing. Also, I'm not sure we need really so many episodes just to drive home the relatively simple point that the Greens and the Blacks are two sides of the same terrible coin. At times, I find myself hoping that the leading characters all die painful deaths - which may well yet happen, especially if it follows the source material!

At the same time, House of the Dragon still features lots of exciting, dramatic moments, great acting, and impressive special effects. That can often divert viewers' attention away from the dismal nature of the characters and the overall situation.

A Knight of the Seven Kingdoms

In some ways, A Knight of the Seven Kingdoms (set about 80-90 years after the Targaryen civil war) is almost the exact opposite of House of the Dragon. The two protagonists are obviously admirable and highly sympathetic. Ser Duncan the Tall (known as "Dunk") is a commoner who spent years serving "hedge knight" Ser Arlan of Pennytree as his squire (hedge knights are poor compared to other members of their class, and must serve as traveling mercenaries to make a living). Just before dying, Ser Arlan grants knighthood to Dunk, taking advantage of the custom that "any knight can make a knight." Because there are no witnesses to the ceremony besides a few birds, when Dunk tries to advance his fortune by taking part in a major tournament wealthier and more aristocratic knights doubt his credentials. Season 1 tells the story of his efforts to establish them.

In the meantime, Dunk meets Aegon (known as "Egg"), a precocious boy who seeks to become his squire. It eventually becomes clear that Egg is actually a member of the Targaryen family, who dislikes life in the royal court, and seeks adventure.

In both the book and the show, it quickly becomes evident that Dunk is a better person - and a better representative of knightly ideals - than the aristocrats who look down on him. He take seriously the knightly vows to be "brave" and "just," and "defend the young and innocent." Most notably, he gets in trouble by defending a common woman against Prince Aerion, a Targaryen who tries to sexually assault her.

Unlike in House of the Dragon, not all the aristocrats we see are venal and uncaring towards the common people. Some actually rally to support Dunk, and several join his cause when Aerion challenges him to a Trial of the Seven (a combat where each side must have seven knights).

Season 1 only recounts the beginning of Dunk and Egg's adventures described in the book. There will be more in Season 2.

Knight of the Seven Kingdoms is more tightly plotted than House of the Dragon, and doesn't rely  quite as much on contrivances and inexplicably stupid decisions by the characters to drive the story. There is, however, one small, but very fundamental problem. If "any knight can make a knight," one would expect to see knight inflation! Commoners seeking to become knights should pay poorer knights like Ser Arlan to grant them entry into this higher social class. Instead of scrounging for low-paid mercenary work, he could just sell tickets to knighthood. Paid witnesses to knighthood ceremonies could be used to get around the problem that dogged Dunk. Over time, knight status would end up getting devalued, as more and more people get it. Perhaps this is averted by norms or laws against selling access to knighthood; but one would still expect a black market to emerge. And no such restrictions are mentioned in the book or the TV series. Alternatively, maybe knighthoods granted by obscure hedge knights have little prestige. But, even if so, they are still better than remaining a commoner.

Like House of the Dragon and the original Game of Thrones series, Knight of the Seven Kingdoms highlights the systemic nature of the challenges facing Westeros. Dunk, Egg, and other relatively well-intentioned knights and aristocrats can do some real good at the margin, and viewers naturally root for them.

But the deeper evil is a social and political system in which commoners are largely at the mercy of a small hereditary elite. If a commoner runs afoul of a noble  or is just in the wrong place at the wrong time, he or she can easily end up getting robbed, subjected to forced labor, sexually assaulted, or even murdered.

Viewers familiar with the Game of Thrones series or the books it is based on also know that, even if Egg learns valuable lessons from his time with Dunk and eventually becomes king, he fails to make any significant change in this system. By the time the GOT plot begins (about a century after the events of Knight of the Seven Kingdoms), Westeros's political and social system is still just as bad as before.

At the start of GOT, as in the era of House of the Dragon, the royal succession is still sometimes unclear, which in turn leads to civil war when there are rival claimants to the Iron Throne. This, of course, is a systemic weakness of monarchy.

It may seem like we don't really need these reminders of the systemic nature of political problems. We like to think we have long since left behind aristocratic feudalism and hereditary monarchy of the kind depicted in these series. But it is nonetheless useful to remember the awful nature of these systems, at a time when "postliberals" on the right promote nostalgia for pre-modern society, and some on the far left suggest that medieval peasants were somehow freer and happier than modern workers, and worked less than we do (they didn't).

Moreover, as I have emphasized in previous writings on GOT, even many modern people who have no desire to return to medieval times tend to forget that we need systemic constraints on government power to address our political and economic problems, and cannot rely on bringing supposedly benevolent leaders to power. The GOT universe is a useful - and highly entertaining! - reminder of that vital truth.

Soccer

Some Thoughts on Law Professor Richard Epstein's Ideas for Fixing FIFA's Flawed Rulebook

His proposal to limit the next-game consequences of yellow cards and red cards deserves serious attention. But his proposals for awarding two points for a run-of-play goal and only one for a PK is flawed, as is his idea for changing soccer's overtime rule.

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Today law professor Richard Epstein published an intriguing blog post, entitled "FIFA's Flawed Rulebook." Epstein urges that we should reexamine some of the "rot" in soccer's current rules, which leads to unfair outcomes. He makes three recommendations for  improving the great game: (1) revising yellow-card accumulation and automatic suspensions following red cards; (2) awarding two points for a run-of-play goal and only one point for a penalty-kick goal; and (3) changing overtime by gradually reducing the number of players on the field. As an avid soccer fan, I endorse Epstein's call for reviewing the rules and improving them where possible. But on the merits of his particular proposals, I like only the first but not the last two.

Revising the yellow card and red card next-game-consequences rules

Epstein proposes reconsidering how yellow cards and red cards currently operate. They both carry consequences over from one game to the next. A yellow card carries little immediate consequence in the first game where it is given. Indeed, because there is no real penalty, players often resort to "tactical fouls" to stop breakaways and other scoring opportunities. It is only when a player receives a second yellow card—even in the next game—that a serious consequence results: expulsion. Red cards also typically carry over to the next game: almost invariably, the player is suspended.

The problem with these next-game repercussions, as Epstein nicely explains, is that "they violate a fundamental principle of justice … by refusing to keep the pluses and minuses of each game self-contained, which could matter any time a red or yellow card is given." Thus, they carry "the sins of one game over to the next."

Epstein proposes that, instead of the current yellow card accumulation rule, a better approach is to track hockey by making the offending player sit out for a few minutes—an approach that can be further tweaked by extending the time a player is required to sit for a "major" foul. Similarly, for a red card in one game, the issue of a next-game suspension could be carefully reviewed during the several days leading up to the next game, with a focus on the intent of the offending player. For example, Balogun's red card suspension (which I discussed at length here and here) could have been reviewed under a predetermined set of principles and overturned.

Epstein's main point—generally keeping consequences of fouls contained to a single game—makes considerable sense. And, putting in place a more articulated set of principles for reviewing red card suspensions also makes sense, particularly in the wake of the way Balogun's suspension was reviewed under (seemingly) vague principles. Epstein's ideas should be given a test run in organized play to see how they work.

Awarding two points for a run-of-play goal and one point for a penalty kick goal.

Epstein's next proposal is much more controversial. Epstein argues that "it is imperative that scoring rules change so that a penalty shot is worth only one point and a goal from the field is worth two." Read More

Crime

Did a "Minneapolis Effect" and Later De-Policing Cause Firearms Crimes to Spike in 2020?

My essay on the topic collects the available empirical research. There is support for the theory that, as police across the nation pulled back from some forms of proactive policing after protests surrounding George Floyd's killing in Minneapolis, homicides and gun violence increased as a result.

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In 2020, major cities across the country suffered dramatic spikes in homicides and shootings. One hypothesis for explaining these spikes is de-policing: the idea that anti-police protests in the wake of George Floyd's killing in Minneapolis led police across the nation to pull back from some forms of proactive policing. The basic idea is that anti-police protests in the wake of George Floyd's killing in Minneapolis led police across the nation to pull back from some forms of proactive policing. The possible consequence, according to this hypothesis, was an increase in homicides and gun violence. This thesis, which I have called the "Minneapolis Effect," continues to warrant research and investigation. It remains a strong candidate for explaining a significant part of the nation's homicide and shooting spikes in major cities in 2020.

My chapter in a forthcoming book on violent crime argues that more research should be conducted to specifically examine the relationship between de-policing and firearms offenses. As I explain in the chapter, it is well known that, in 2020, many major cities across the country suffered from dramatic spikes in homicides and shootings. According to the National Center for Health Statistics, the homicide rate in the U.S. increased from 6.0 homicides in 2019 to 7.8 per 100,000 in 2020. This was the largest one-year increase in homicide rates ever recorded. Similarly, a major analysis of a sample of 34 cities by Professor Richard Rosenfeld et al. for the Council on Criminal Justice reported that homicides in 2020 were 30% higher than in 2019. The study also found that a structural break occurred in the homicide trends in June of that year, indicating large, statistically significant increases in homicide rates after adjusting for seasonality and long-term trends. Nationally, nearly 5,000 more Americans died that year due to the increase in homicides. And much of the increase in homicides was concentrated in the nation's major cities, apparently in impoverished areas.

While explaining trends in homicide rates in general is a long-debated topic, explaining why thousands of additional victims were killed in a recent year remains a discrete issue that would seem to be within the ken of modern social science. Read More

Slush Fund Update!

I'm sure that readers are as anxious as I am to see how Todd Blanche explains this all away during his confirmation hearings.

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When we last looked at the brilliant Trump/Blanche plan to steal $1.776 billion from US taxpayers and to put that money into the pockets of Trump's hardline supporters, I noted that the case was not going to disappear just because Acting AG Blanche has promised that the DOJ isn't "moving forward" with setting up the Slush Fund. District Judge Williams, you will recall, re-opened the Trump v. IRS case (the one the parties ostensibly "settled") in order to investigate "grievous allegations that [Trump] voluntarily dismissed this litigation solely to avoid judicial scrutiny of a lawsuit that was collusive from the start and was only filed to provide the imprimatur of legality for an unlawful settlement."

Judge Williams has now issued her opinion and order in the case, and it's as damning an indictment of Executive Branch lawlessness as one can imagine. Particularly interesting is the manner in which the "unitary executive theory" ends up biting Trump in the ass.

In ordinary times, of course, this would all be cause for impeachment - another example, as Judge Williams puts it, of "Mr. Trump's pattern of misusing the courts to serve political purposes." Today, however, it barely registers a blip on the legal radar-scope. That is not good news for the country as it celebrates its 250th birthday.

Excerpts from Judge Williams' opinion follow below. Citations omitted; emphases supplied.

The judicial power conferred by the Constitution grants the federal judiciary the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction. A justiciable controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. Adverseness is essential to a federal court's ability to adjudicate the merits of a case where federal courts are restricted to questions presented in an adversary context.

[A]dverseness between litigants is a constitutional minimum that must be satisfied in every federal case seeking judicial determination. There is no Art. III case or controversy when the parties desire precisely the same result. Moreover, the adverseness requirement subsists through all stages of a federal judicial proceeding. With this principle in mind, a court must consider whether one party is actually and formally in control of the other party, and if so, adjudication may be refused….

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Free Speech

Political Defamation Case Can Go to Jury as to "Actual Malice" When Defendants' Couldn't Explain How They Arrived at Their Accusations

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From yesterday's Illinois Appellate Court decision in Grasso v. Mottl, decided by Justice Matthew Bertani, joined by Justices Linda Davenport and John Anderson:

Plaintiff, Gary Grasso, mayor of Burr Ridge [sued, alleging] … [opposing candidate Zachary Mottl and his campaign team] published three defamatory political mailers during a political campaign that stated he had defrauded the government in the amount of $36,000 in real estate tax exemptions.

The basis for the fraud claim originated from a research report of a third-party political research firm [America Rising] retained by defendants that indicated plaintiff had improperly received an annual $6,000 homestead exemption for a Du Page County residence while simultaneously receiving a homestead exemption for a Cook County residence. Accordingly, the $36,000 figure suggested plaintiff defrauded the government for a period of six years. However, the research report only supported a two-year overlap in homestead exemptions.

On appeal, plaintiff asserts the court erred in granting summary judgment for the defendants in that genuine questions of material fact exist regarding whether defendants were aware the mailers contained false information and whether defendants subjectively doubted the truth of that information. We hold that a triable issue exists as to whether defendants recklessly disregarded the truth in publishing the mailers, reverse the grant of summary judgment in their favor, and remand for further proceedings….

The narrow question presented in this appeal is whether the evidence of record supports that plaintiff has shown with convincing clarity that a reasonable jury might find defendants published the mailers with actual malice. In the light most favorable to plaintiff, we hold that such a triable issue exists.

[Defendant political strategist Collin] Corbett testified at deposition that defendants relied on the America Rising research report for the information they featured within the mailers. He and/or COR [Corbett's corporation] vetted that information by examining governmental records that corroborated the research report's findings concerning simultaneous homestead exemptions. In turn, defendants crafted and published the mailers. Corbett testified to his direct involvement in drafting [a mailer that included allegations] … that plaintiff had committed fraud in the amount of $36,000.

The research report indicates that plaintiff had an overlapping homeowner's exemption on his properties for a two-year period. A colorable argument may be made from the report that plaintiff received a total of $12,000 in improper homestead exemptions on his Burr Ridge residence. Corbett was unable to recall how defendants converted that information into a claim of fraud in the sum of $36,000. The research report in no way supports the notion that plaintiff received an improper exemption beyond the years 2016 and 2017. Corbett was unable to explain the "math" defendants used to formulate the $36,000 figure ….

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Politics

How Does The Supreme Court Caption Cases?

The briefs in the transgender sports cases were styled as "By next friend" but the Court captioned the case as "By her next friend."

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Every Supreme Court opinion begins with a caption. In most cases, the caption is mundane. But in some cases, the caption makes an important point. Sometimes, the court of appeals will style a case in one fashion while the petitioner styles the case in a different fashion. What is the rule? Does the Supreme Court defer to the lower court's styling of the case or to the Petitioner's styling of the case or to the Respondent's styling?

In July 2024, West Virginia filed a cert petition in a case styled, STATE OF WEST VIRGINIA, ET AL., Petitioners, V. B.P.J., BY NEXT FRIEND AND MOTHER, HEATHER JACKSON, Respondent. There was no female pronoun in the caption. It was "by next friend," not "by her next friend."

B.P.J.'s brief in opposition to cert, filed by the ACLU in October 2024, used the same caption, and did not include a female pronoun.

The Supreme Court's docket page included the female pronoun "her." The Internet Archive captured the page in early November, shortly after the BIO was filed. Again, this caption was set before the case before the case was conferenced.

 

Here, at least, the Court followed the Fourth Circuit's decision, which used the pronoun "her."

But both parties chose a caption that omitted the pronoun. And the Court disregarded that choice. Indeed, this choice truly matters. West Virginia's entire argument was that B.P.J. is not a she/her, but is a he/him.

The ultimate decision included the female pronoun.

Justice Kavanaugh's majority opinion avoided any female pronoun to refer to B.P.J. Likewise, Justice Gorsuch's concurrence avoided any female pronoun to refer to B.P.J. By contrast, Justices Sotomayor and Jackson in dissent repeatedly used female pronouns.

There is some history here. Back in 2017, the Supreme Court's clerk's office chastised litigants who refused to use the male pronoun in amicus briefs in Gloucester County School Board v. G.G. Ed Whelan described the controversy in a three-part series. At the time, the Clerk stated that parties were required to follow the name of the case as docketed.

Under that rule, the parties In B.P.J., were obligated to follow that proposed caption. But the parties did not follow that caption.

West Virginia's merits brief did not include a female pronoun.

And the ACLU's merits brief likewise did not include the female pronoun. I wonder if any of the lawyers noticed, or if they just copied the template from the earlier briefing.

In short, only the Supreme Court, and not the parties, included a female pronoun for B.P.J.

I emailed the Court's public information office, and received this response:

The Clerk's Office followed it's standard practice of using the caption language of the court of appeals.

I can think of at least one contrary example, Sossamon v. Texas.

As the case was litigated in the lower court, the defendant was styled as "The Lone Star State of Texas."

The cert petition, however, only listed the respondent as "Texas."

The Supreme Court's docket, and the ultimate decision, did not defer to the Fifth Circuit's ruling. Rather, the Supreme Court adopted the Petitioner's styling.

Fast-forward about fourteen years. The Fourth Circuit decides a case titled Planned Parenthood S. Atlantic v. Kerr. A cert petition was filed by ADF in a case styled as Kerr v. Edwards. ADF chose to name the case after Edwards, one of the Medicaid clients of Planned Parenthood. (One can imagine there were strategic reasons for doing so.) The brief in opposition filed by Planned Parenthood was styled as Kerr v. Planned Parenthood South Atlantic. Before the case was conferenced, the Court chose the style of the Fourth Circuit, and included Planned Parenthood as the lead respondent.

I welcome emails pointing out any other relevant examples.

Guns

Court Upholds Conviction for Possessing Gun as Unlawful Drug User (Who Is Presenting a Credible Threat to Safety)

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U.S. v. Baxter, decided today by the Eighth Circuit, upheld a conviction for "possessing a firearm as an unlawful drug user in violation of 18 U.S.C. § 922(g)(3). The Supreme Court's recent U.S. v. Hemani decision held that unlawful drug user (at least when the drug is marijuana) doesn't inherently strip away the user's Second Amendment rights, and thus concluded that some applications of § 922(g)(3) are unconstitutional. But it left open the question of what other applications might be constitutional:

We do not … address whether the government could bring a prosecution under § 922(g)(3) accompanied by individualized proof that the defendant's use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.

Quoting that language, the Eighth Circuit concluded that Hemani didn't dispose of the case. And it held that Baxter's conviction was indeed consistent with Second Amendment. First, from the facts:

On May 21, 2023, gang members from two gangs—Strap and C-Block— began fighting in downtown Des Moines, Iowa. Baxter, a Strap gang member, was involved in this fight. When law enforcement attempted to break up the fight, the gang members ran in opposite directions, but resumed fighting 30 minutes later. The officers again approached, and Baxter and other Strap members chased the C-Block gang. As the officers were pursuing the chase, a bystander told them that Baxter had a gun.

The officers then confronted Baxter and asked what was in his pocket. Baxter responded, "nothing" and ran from the officers. He was apprehended shortly thereafter. The officers searched Baxter and found a loaded pistol and a baggie of marijuana on his person. The officers then obtained a search warrant to test Baxter's urine for the presence of controlled substances; the test confirmed the presence of THC or marijuana metabolites….

And from the legal analysis, by Judge Bobby Shepherd, joined by Judges James Loken:

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Free Speech

Reminder: Second Annual Aspiring Free Speech Scholars Workshop

We've already received several submissions, but you can submit until August 16.

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Second Annual Aspiring Free Speech Scholars Workshop
jointly sponsored by the Sandra Day O'Connor College of Law (ASU)
and the Hoover Institution (Stanford University)

Because of a technical problem, any submissions before June 4, 2026 were lost; please resubmit (or submit for the first time) at the new URL listed below, https://tinyurl.com/aspiring-free-speech-scholars

Are you a law student, judicial law clerk, lawyer, or beginning academic hoping to publish a journal article on free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?

If so, send us your draft by Sunday, August 16, 2026. (This should still be a draft article, not an article that's already published or expected to be published within six months.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop where they can present their papers and get helpful feedback on them. The workshop will be Saturday, October 24, 2026 (with dinner the night before) at the Sandra Day O'Connor College of Law in Phoenix. We will inform the selected authors by Tuesday, September 8, 2026.

We have funds to pay for transportation and lodging for the selected authors' trips. Eligibility is limited to people who have so far published three or fewer law-related journal articles.

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Tariffs

Tariff Refund Update [Updated]

Important progress has been made on repaying illegally collected tariffs. But serious problems remain, including some caused by the Trump Administration's efforts to keep some of the illegally collected loot.

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My Cato Institute colleagues Scott Lincicome, Alfredo Carrillo Obregon, and Chad Smitson have a helpful post updating the situation on refunds for Trump's illegally imposed IEEPA tariffs. In February, the IEEPA tariffs were invalidated by the Supreme Court, in a case I helped bring and litigate (along with the Liberty Justice Center, and others). But before that happened, the Trump administration collected some $166 billion in illegally collected tariffs. As Lincicome, Obregon, and Smitson  (LOS) explain, there has been important progress getting refunds for the importers who were illegally forced to pay, but serious problems remain:

Here's where things stand.

On February 20, 2026, the Supreme Court invalidated the tariffs that President Trump implemented last year under the International Emergency Economic Powers Act (IEEPA). As of June 29 (more than four months after the ruling), CBP has authorized $104.29 billion in refunds and paid out $71.06 billion (including interest). Based on our calculations of the total amount owed by the government as of June 29 (taking into account interest and payouts), the government still owes importers about $100.65 billion—more than half of the total owed…

CBP deserves credit for giving most eligible importers the opportunity to receive refunds—even if the process was not automatic. It's also good that CBP has now rolled out Phase 2 of its refund (CAPE) system, covering entriesflagged for reconciliation. Refunds could eventually climb to $130 billion of the $166 billion in IEEPA duties paid by importers (before interest).

Eventually.

Indeed, that only $71.06 billion of the approved $104.29 billion has actually been paid suggests that frictions built into the CAPE process are creating obstacles for importers seeking refunds. For example, CBP claims that refunds for 8,384 approved declarations have not been issued because the eligible importers lack proper automated clearinghouse or banking information.

Some of the slowness here is likely due to ordinary bureaucratic inefficiency. The federal government has never had to issue tariff refunds on such an enormous scale before. But some is also due to the Trump administration's efforts to try to keep some of the illegally collected loot. AS LOS note, the administration has appealed the injunction issued by Judge Eaton of the US Court of International Trade ordering payment of refunds to all importers who were forced to pay the illegal tariffs. At least when it comes to "finally liquidated" tariff entries, the administration claims they only have to pay refunds to those businesses that filed individual lawsuits seeking them.

In previous posts about the refund issue (see here and here), I explained why Judge Eaton was right to issue a universal injunction, even in the aftermath of the Supreme Court's ill-advised strictures against such injunctions in Trump v. CASA, Inc. (decided last year). Among other things, Trump v. CASA only applies to cases brought under the Judiciary Act of 1789 and its successors. The CIT's jurisdiction comes from a separate statute enacted in 1980.

As LOS also note, the refund process may be stacked against smaller importers, often making it difficult or impossible for them to get what they are owed.

Overall,  it's good that many victims of the illegal tariffs are getting refunds. But it's a travesty that almost 60% of the money [now about 50%; see update below] still hasn't been repaid almost five months after the Supreme Court decision. Meanwhile, interest accrues on those illegal tariffs that haven't been repaid yet, and taxpayers will be on the hook for that additional money.

LOS go on to point out that my former colleagues on the IEEPA case, the Liberty Justice Center and Georgetown law Prof. Neal Katyal (who argued our case before the Supreme Court), have filed a class certification motion to initiate a class action seeking refunds for all those importers who paid IEEPA tariffs but are not currently eligible to get refunds under the system set up by the CBP.

I am not a class action expert. But I think such a class certification makes good sense. The proposed class seems to clearly meet the requirements of Rule 23 of the Federal Rules of Civil Procedure, which include, 1) "numerosity" (the class is large enough to make joinder of all individual plaintiffs impracticable, 2) "commonality" (common questions of law and fact), 3) typicality (the claims of the class representatives litigating the case are typical of the class as a whole), and 4) "adequacy" (the representatives can adequately defend the interests of the class in court).

It is obvious the class is large enough, as it includes many thousands of businesses who paid the tariffs but cannot currently get refunds. The potential class members also have common  legal issues (they all were forced to pay the tariffs, but cannot currently get refunds for similar reasons). The claims of those of my former clients who cannot get refunds are typical of others in the same situation. And, though I may be biased in favor of my former co-counsel, more objective observers cannot deny they are capable of litigating the issues more than adequately! LJC successfully litigated the IEEPA case from start to finish, and Neal Katyal is one of the nation's leading appellate litigators.

As a practical matter, it makes little sense to require each of many thousands of importers file individual lawsuits. It would be a huge waste of time and resources, and some claimants may not be able to afford it or figure out how to do it. But the government is opposing the class action certification, and we will have to see what appellate judges decide.

I've said it before and I will say it again here: the administration's recalcitrance in paying and the various bureaucratic difficulties in getting refunds even to those the administration admits should get them, are a reason why courts should not stay injunctions against illegal tariffs while litigation continues. That's what happened in our IEEPA case, and is how we ended up with over $166 billion in illegally collected tariffs (an amount that has since grown, given accumulated interest). In addition, even full repayment of illegally collected tariffs cannot make up for all the harm they caused, as there is no compensation for higher prices paid by consumers, lost sales caused by price increases, and a number of other harms to  importers, consumers, and the US economy as a whole. Sadly, the US Court of Appeals for the Federal Circuit  failed to learn these lessons when it comes to the current litigation over Trump's illegal Section 122 tariffs.

Thus, the tariff refund saga seems likely to continue, perhaps for many months to come. I tentatively expect that a large majority of the illegally collected tariffs will eventually be repaid, with interest. But some of the harm they caused cannot and will not ever be addressed.

NOTE: As I have previously noted, I am no longer a member of the V.O.S. Selections legal team, because my role ended after the Supreme Court issued its decision. Thus, I am not involved in the refund phase of this litigation.

UPDATE: Today, after I wrote this post, CBP submitted a new declaration to Judge Eaton of the US Court of International Trade, updating the refund data. They report that, as of July 10, $86.3 billion has been repaid and a total of $121.75 billion has been accepted for procession, up from about $71 billion and $104 billion, respectively, two weeks earlier. This is notable additional progress. But it still means that only about 50% of the total owed has been repaid. And additional interest accumulates every day. Moreover, as noted above, the administration continues to claim it should be able to keep at least some of the money.

UPDATE 2: I have made minor additions to this post.

 

Right of Access

How to Avoid Annoying Your Judge with Your Sealing Requests

Among other things, "Don't do things that shift work from lawyer to judge."

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Good advice from Judge Joshua Wolson (E.D. Pa.) July 8 in Estate of Funkhouser v. Delaware County:

Lawyering requires care and attention to detail. No less an authority than Daniel Webster explained, "If he would be a great lawyer, he must first consent to become a great drudge."

A lawyer who comes to court and asks a judge to do something for his client has a professional obligation to take time to think carefully and in granular detail about the relief that he's requesting to make sure it's warranted. In addition, the lawyer should do his level best to make the judge's life as easy as possible. Make exhibits accessible. Prepare them in a way that makes sense. Review and comply with the judge's procedures. Don't do things that shift work from lawyer to judge. In short, think about a submission as a whole—whether it enables the judge to address it or whether it interferes with those efforts, and whether it conveys to the judge that a lawyer gave its preparation due care.

The lawyers in this case have fallen short of those obligations in connection with their submissions of summary judgment motions, a supporting statement of facts and exhibits, and a related motion to seal. They do not identify the specific documents they seek to seal or even which documents fall into the categories of information they seek to seal. They propose to seal categories of documents for which there could be no possible basis to seal. And they submitted a summary judgment record that is unnecessarily difficult for me to parse because they have submitted exhibits that are at the same time duplicative and needlessly disjointed.

The fact that these problems arise in the context of a motion to seal is, unfortunately, no surprise. Too often, lawyers treat those motions as an afterthought. The result is a submission that lacks detail about the reasons for sealing and the specific harm that would arise from disclosure of any particular piece of information.

Those failures leave me, as the steward of the public's interest in access to judicial records, to do work that the lawyers should have done to justify whether a document belongs under seal. That's what has happened in this case. It shouldn't be my job to do the lawyers' work for them, and so this opinion will call out the multitude of ways that the lawyers in this case have fallen short in their submissions.

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Politics

Congratulations To Kirill Muzyka, Repeat Chief Justice of FantasySCOTUS for OT 2025

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Kirill Muzyka

The October 2025 Term of FantasySCOTUS finally came to a close. On the whole, this term was a one of the most predictable terms I can recall. In the aggregate, our crowd predicted 94.74% of the cases accurately, up from 76.36% of the cases accurately last term.

I am happy to announce that the Chief Justice is Kirill Muzyka. He is a repeat winner from last term. Players receive ten points for each correct prediction of a Justice's vote. We recorded 57 merits cases (DIGs do not count).

Here is the Top 10:

I usually ask the winner several questions to figure out their approach to predicting cases. Kirill's response was so thorough and insightful, that I reproduce it in its entirety:

As a reminder, I am Kirill Muzyka, originally from Russia and still living in London — though no longer as a student, but now trying to find a job. This term, partly because I had more free time, I spent even more of it following the Supreme Court — and occasionally wondering whether I should apply to a U.S. law school. In the meantime, I have also started a small media project in Russian, where I try to make the American political and legal systems more accessible to a Russian-speaking audience.

My approach to predictions remains broadly the same. I start with oral argument, make my first prediction based on what the Justices said there, and only then bring in background considerations such as previous votes or judicial philosophy.I prefer this mathod because many wrong predictions, I think, come from interpreting oral argument through a preexisting narrative. For example, I was puzzled by how many commentators seemed to think there was serious doubt about Justice Barrett's vote in Watson v. RNC. To me, she clearly telegraphed at argument that she was going to side with Mississippi. My guess is that the uncertainty came less from the argument itself than from background assumptions about the case and about her.

The current oral argument format makes this method more useful. Because each Justice now has extended time to ask questions, they usually have enough room to identify the concerns that actually matter to them. Some Justices are more transparent than others. Justice Jackson, for instance, often makes it possible to predict not only her vote, but almost the structure of her eventual opinion, based on her questions — or, really, her monologues. But the broader point is that the format gives close listeners a lot of information.

At the same time, this approach has real limits. Because I still do not usually read the briefs before making predictions, I sometimes miss nuances that are not fully visible from oral argument alone. The Justices may sound hostile to the broadest version of a party's theory, but still vote for that party on narrower grounds. Particular dispositions can also be hard to predict. My biggest mistake this term was Case v. Montana: based on oral argument, I thought the Court would vacate because the wrong standard had been applied, but it instead applied the correct one and affirmed. I had a similar problem in Pung v. Isabella County. It was clear the Justices would reject the petitioner's theory, as they did, but I was much less sure whether they would affirm or vacate. 

There is also the familiar problem that Justices sometimes play devil's advocate. Justice Alito, for example, can be very aggressive toward a side he is usually unsympathetic to — criminal defendants, for instance — even when the case ultimately ends in a unanimous decision that he joins without writing separately. Abouammo and Ellingburg were two such cases this term. The Chief Justice and Justice Kagan also tend to ask hard questions of both sides, which makes them harder to read; that is how I missed their votes in Monsanto and Al Otro Lado, respectively. The Chief also speaks relatively little.

I like to relisten to oral arguments after reading the opinions, to see how the argument translated into the final decision. Sometimes that makes the outcome much clearer in retrospect. But there are still missed predictions I cannot fully explain even afterward. I was almost certain Justice Kavanaugh would vote with the liberals in Saba, and after relistening to the argument I still think that was the most reasonable conclusion to draw from them. I was also very surprised by the unanimous result in Hemani: after the argument, it seemed almost certain to me that Chief Justice Roberts and Justice Alito would vote against Hemani, and quite likely that Justice Kagan would as well. Galette was another case that left me confused. After oral argument, I was certain that the Justices were divided, but the final decision was unanimous, with no separate writings. As I said last year, high-profile cases are often easier to predict, though not always. I was still very surprised by Justice Gorsuch's vote in Barbara and Justice Barrett's vote in Cook, where, based only on oral argument, they seemed inclined to vote the other way.

I am still working through all the final opinions. This year, I am trying to read not only the opinions themselves, but also some of the most relevant precedents. For example, with Slaughter, I also read Myers, Humphrey's Executor, Morrison v. Olson, and Seila Law, trying to understand the issue properly and decide what I actually think about it.

One broader conclusion I have reached from that is that the quality of judicial writing has improved enormously over time. The current Justices' opinions are much easier to read than many older ones. I also appreciate that most of them try to make their reasoning accessible, so that an educated non-specialist can understand what they are saying. As I said last year, I particularly enjoy the writing of Justices Kagan, Gorsuch, and Barrett. For that reason, I was a little sad that Justice Kagan did not write the dissent in Slaughter. With all respect to Justice Sotomayor, Kagan's dissent in Seila Law made a much stronger — and more fun to read — case against the unitary executive. 

More generally, accessible judicial writing is one of the great strengths of the American legal system. Back home in Russia, judicial opinions are often close to unreadable, which makes it difficult for a bystander to follow the reasoning behind decisions (if such a reasoning exists at all). In most SCOTUS cases, by contrast, even if I have a strong view about the question or the outcome, I can usually understand why other Justices took a different path. I also greatly enjoy the Divided Argument podcast, which puts many of these debates in context and gives them useful perspective.

That said, it was disappointing to see so many cases divided along ideological lines. Those are the easiest to predict, but I generally find cases that do not split the Justices in the expected way more interesting, because they reveal more about each Justice's individual approach. When they do not simply vote with "their side," they show their own methods, instincts, and willingness to think outside the usual boxes. In many ideologically divided cases, by contrast, it can feel as though neither side is really questioning its own premises. 

I hope next term brings fewer of those cases. In the meantime, I am looking forward to reading the remaining opinions over the next few weeks — and then, of course, to the start of the next term.

Standing

Lawsuit Challenging Military Aid to Israel Thrown Out

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From Rowley v. Finstad, decided Friday by Judge Eric Tostrud (D. Minn.); I think this is correct—if people disapprove of such military aid, or what Israel is doing with it, their remedy is through the political process, not by trying to get a federal court to stop such aid:

In April 2024, the United States Congress passed a bill providing military aid to Israel. Plaintiffs are Minnesota residents and federal taxpayers who object to the legislation because they believe the funds support genocide in Gaza. They sue members of Congress from Minnesota and the former and current Secretaries of Defense seeking a declaration that the challenged law violates the Constitution, international treaties, and other federal law. They also seek an order enjoining the law's enforcement….. Because Plaintiffs have not plausibly alleged that they are directly injured by Defendants' conduct, they do not have standing to sue …

The Complaint raises two causes of action under the Constitution…. [One], brought against the Congressional Defendants, arises under the Taxing and Spending Clause and the Ninth Amendment … ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."). [Another is asserted] against the Defense Secretary Defendants, citing the previous constitutional provisions as well as Article VI of the Constitution and the Administrative Procedure Act…. They seek a declaratory judgment that the Act violates the U.S. Constitution, customary international law, and federal common and statutory law, and they request an injunction preventing Secretary Hegseth and any successor Defense Secretary from enforcing the Act….

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Open Thread

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