[Blake] Lively filed a complaint with the California Civil Rights Department ("CRD") against [Justin] Baldoni and his co-defendants, the Wayfarer Parties, alleging, among other things, that Baldoni and others sexually harassed her on the set of the Film {It Ends With Us} and that the Wayfarer Parties retaliated against her for raising complaints about that harassment by launching a smear campaign to tarnish her reputation….
Lively then sued over that alleged behavior, and the Wayfarer Parties "counter-sued, asserting claims, including defamation, against Lively and others for making statements that the Wayfarer Parties" engaged in or tolerated "sexually inappropriate conduct" or retaliation. The Court rejected that counterclaim, on the grounds that
"the fair report privilege … precluded the Wayfarer Parties from bringing a defamation claim against Lively for providing a copy of her CRD complaint to the New York Times,"
"the Wayfarer Parties had insufficiently alleged that text messages Lively may have provided to the Times were defamatory," and that
they hadn't adequately alleged "that Lively was responsible for any statements made by her husband Ryan Reynolds" "or publicist Leslie Sloane."
In May, the parties settled all their claims, but expressly left open whether Lively can recover attorney fees and damages under Cal. Civil Code § 47.1. (They also waived their right to appeal from any such determination.)
Section 47.1 … [seeks] to shield "survivors of sexual assault, harassment, and discrimination from defamation lawsuits"—and, in particular, the burdensome and invasive discovery process those lawsuits often entail—"by clarifying that claims made in good faith are a form of protected speech." [It also seeks] to compensate survivors for successfully defending themselves against meritless and retaliatory defamation suits by permitting them to recover attorneys' fees and damages incurred as a result of the suits.
To accomplish these goals, the law establishes that "[a] communication made by an individual, without malice, regarding an incident of sexual assault, harassment, or discrimination is privileged under Section 47." (Section 47 provides for a number of other defamation privileges, including the fair report privilege.)
Section 47.1 provides that prevailing defendants in such defamation cases (and recall that Lively was in effect a defendant as to the counterclaims) are entitled to reasonable attorney's fees as well as treble and punitive damages.
From a filing in one of the same plaintiff's other cases.
From today's decision by Judge Steven McAuliffe (D.N.H.) in Doe v. Trustees of Dartmouth College(for an earlier similar decision related to Doe's lawsuit against Penn, see here):
"Litigation by pseudonym should occur only in exceptional cases." Indeed, a "strong presumption" exists against proceeding by pseudonym, which "dims the public's perception of the matter and frustrates its oversight of judicial performance." That presumption, however, is rebuttable….
Doe alleges that he was denied admission to Dartmouth's business school because of his "non-Jewish White ethnic heritage." He says that despite his "outstanding qualifications," his application was rejected. He further asserts that Dartmouth excludes nearly all "non-Jewish Whites" from admission, unless the applicant is female, "queer" or a "veteran[] of the U.S. armed forces," because those applicants "pose no threat to the Jewish Supremacists." According to Doe, Dartmouth's admissions decisions are part of a greater plan "drafted by the Jewish Supremacists with the express goal of exterminating non-Jewish Whites."
Doe claims that he will be subject to a "significant risk of professional retaliation and social stigma within his academic and professional community, causing irreparable harm to his career and personal well-being" should his identity be publicly disclosed (presumably due to his application's rejection, but perhaps due to his litigation theories). He goes on to argue that "[p]ublic identification in a high-profile discrimination suit against a major institution like [Dartmouth] carries a significant risk of 'blacklisting' from potential future employers and professional collaborators."
Landmark German ruling declares Google's AI Overviews are Google's own words and makes it liable for false answers ….
The Regional Court of Munich hit Google with a temporary injunction barring the company from spreading false claims about two Munich-based publishers through its AI-generated search overviews (case no. 26 O 869/26). The court classified Google as a direct infringer because the "AI overview" is its own content, not just a list of search results.
Google's AI overviews had falsely tied two publishing companies to scams, subscription traps, and shady business practices for certain search queries. According to the court, the AI mixed up information about other, genuinely sketchy companies with the plaintiffs and drew connections that didn't appear in any of the linked sources. The publishers sent Google a cease-and-desist letter, but Google didn't respond appropriately….
Google's AI overviews work nothing like traditional search results, the court argues. The AI rewrites and judges results "in its own words and according to its own structure," the ruling says. In the case at hand, for example, it opened with confident claims like "Yes, [company] is known for dubious business practices," then built its own structure with a summary, red flags for the alleged scam, and tips for users.
The court also found that the AI overview made claims "that are not even made in the search results." None of the linked sources drew any connection between the plaintiffs and the shady companies the AI mentioned. The court called these "the defendant's own statements." …
Earlier, I offered some high-level thoughts on the latest episode of As the Couch Turns. Here, I want to drill down into the details.
First, the Eleventh Circuit's decision to make this reprimand private must be contrasted with the Ninth Circuit's decision to make Judge Nelson's investigation public. I agree with Arthur Hellman that the Ninth Circuit had the authority to make this proceeding public, but the Chief Judge was not obligated to. Judge Nelson has been charged with minor offenses. Given his lack of criminal history, the charges are likely to be dismissed. All of this may come to nothing. But now there is a permanent statement from the Ninth Circuit that Judge Nelson may have engaged in misconduct.
The Eleventh Circuit made the incomprehensible decision to make the reprimand private, but include so many facts that her identity could be readily determined. I am inclined to follow Hanlon's Razor here to explain the explanation. If it was intentional, then the members of the Judicial Council may have engaged in misconduct to bypass the confidentiality rules by subterfuge.
Second, Judge Ross sent her three-sentence apology letters on May 27, 2026. She did this after being given a sweetheart deal that not even Alex Acosta would have approved. And she spit in the face of her colleagues. She thought she could squeak by without offering any remorse, even though her identity was widely known.
Third, Judge Ross's brazenness forced her brave law clerks to once again reach out to the judicial process that had failed them before. They told the Judicial Council they "do not believe the letters of apology we received from Judge Ross comply with the remedial measures recommended by the Special Committee and adopted by the Council. Specifically, the apologies fail to 'make clear to the recipient the sexual misconduct for which the judge is apologizing.'"
On June 10, Chief Judge Pryor then gave Judge Ross a chance to "respond to the above allegations and state whether you failed to send adequate letters of apology to your former clerks." This offer to correct the record, yet again, is inexplicable. There is nothing to explain. She failed to do what she promised she would do. Of course the rules permit "appropriate corrective action," but Judge Ross is not a first-time offender. She has proven herself to be an inveterate liar who abuses process to save her skin. No law student or law clerk or law partner would ever be given this many chances.
Judge Ross (or ChatGPT) then wrote an apology letter to the three clerks.
"I am writing to you for a second time to convey my deepest apologies for my harmful, offensive, and unprofessional behavior that made your clerkship an unpleasant experience. My initial letter was entirely deficient, as I did not take full accountability for my actions, and I failed to give you the apology that you deserve."
Ross's chambers provided this letter to Bloomberg Law (and probably others).
The following day, Judge Pryor wrote back to say he would not identify a new complaint:
Based on my review of your new apology letters, my disclosure of the June 10 inquiry to The New York Times, and your consent to disclose the apology letters to the New York Times, I have determined not to identify a new complaint under Rule 5.
I am very confused by this chronology. First, the Eleventh Circuit Judicial Council and the JC&D Committee agreed to make the reprimand private. But the Chief Judge, acting by himself, decided to publicize the matter to the New York Times? How does Chief Judge Pryor have this authority? Did the other (unnamed) members of the Council agree to this plan? Moreover, it seems that Pryor decided not to investigate Ross further based on her making her private reprimand into a public reprimand. How does he have that authority? Judge Ross would have never consented to any reprimand if it was public. Judge Pryor nullified the cornerstone of the Judicial Council's agreement with Judge Ross. Finally, she already engaged in misconduct by not following the terms of the agreement. There was on need for further fact-finding.
This entire situation stinks, and continues to stink more by the day.
Judge Pryor's conduct here has not been exemplary. I say this with some pause, because I have long respected and worked with Judge Pryor on many matters. The problem speaks to a broader issue: Chief Judges have vast amounts of unstated powers. And absolute power can be wielded in improper fashions. Vindictive chief judges (like Kimberly Moore) can rule their circuits like petty tyrants. Magnanimous chief judges (like Bill Pryor) can provide too solicitous treatment of offending judges.
Earlier this week, I thought the Judge Ross scandal had reached its terminus. Indeed, I had to give Judge Ross credit. She conned her colleagues so many times, yet they kept giving her more chances.
She brazenly and repeatedly had sex in her offices within in moaning distance of her law clerks. None of her colleagues knew. When confronted, she lied about it repeatedly. She tried to obstruct the investigation by blaming her law clerk, who had the courage to blow the whistle. But after Judge Ross was caught--and she certainly knew she would be caught--she was given a second chance to correct the record. With this chance to unstain her reputation, Judge Ross finally came clean (unlike her couch).
The Eleventh Circuit was persuaded by her genuineness, looking past the fact that she had brazenly lied to them before. (If any law student is found to have made a material lie once, they are expelled and have no chance of ever sitting for the bar.) Rather than giving Judge Ross a public reprimand she so justly deserved, she was given a third chance and offered a private reprimand. After all, she expressed remorse and wanted to be rehabilitated. We all know that liars and adulterers mend their ways and never do it again, right?
The punishment was not a punishment at all. She gave up administrative responsibilities that, frankly, most judges don't really want. And she offered to write "vague" apology letters. The Judicial Council did not condition the private reprimand on the contents of the letter. Once again, the Judicial Council trusted an inveterate liar who had sex on the public fisc. This was her fourth chance, which she would waste.
Even after her story blew up and made international headlines, Judge Ross still had no remorse. Did Judge Ross take this chance to offer a sincere and genuine apology to her clerks. No, not even close. She wrote an offensive letter with offered zero contrition. The courageous law clerks once again spoke up charging that Judge Ross did not fulfill her sweetheart deal.
Did the Chief Judge of the Eleventh Circuit finally decide that Judge Ross abused the terms of the private reprimand, and throw the book at her? No, Judge Ross got yet a fifth chance to offer a new apology letter. Finally, Judge Ross (or ChatGPT) put together a letter that acknowledged her conduct. She escape consequences once again.
The judicial misconduct process is not being enforced in a consistent manner. Some judges who did nothing wrong have been put through purgatory. Other judges who engaged in actual misconduct receive an endless supply of second chances.
Judge Ross lacked any remorse, and the Chief Judge of the Eleventh Circuit gave her one too many chances to correct the record
Let me put this in perspective that all judges can understand.
When a suspect make a false statement to the FBI and obstructs the investigation, they do not get a chance to correct the record, they get indicted.
When a defendant makes an insincere apology during sentencing, they do not get leniency, they are called unremorseful and suffer the consequences.
When a defendant violates the terms of supervised release, they do not get five do-overs, they get remanded to custody.
Judges have had their careers ruined because of vindictive Chief Judges with agendas. By contrast, Judge Ross had kid glove treatment.
Judge Ross should be treated like the miscreant she is, and should not be given an unlimited number of second chances. She cannot credibly exercise the judicial power.
Judge Ross needs to be impeached. And Congress needs to review the vast discretion that Chief Judges are abusing.
Today, the US Court of Appeals for the Federal Circuit imposed a stay blocking enforcement of the Court of International Trade's ruling against Donald Trump's massive Section 122 tariffs (which impose a 10% tariff on most imports from countries around the world). The Court of International Trade had previously rejected a similar motion for a stay, but that is now overruled. The stay will continue until the appeals process concludes. The case involves two consolidated lawsuits: one filed by the Liberty Justice Center (the same public interest group that I worked with on the earlier case that led to the invalidation of Trump's IEEPA tariffs by the Supreme Court) on behalf of two small-business importers, and one brought by 24 state governments led by the state of Oregon.
Today's decision isn't a ruling on the merits of the case, and the panel that issued it likely will not be the same one that hears the merits. But it's problematic, nonetheless.
One of the standards for determining whether a stay of an injunction is warranted is likelihood of success on the merits. Section 122 of the Trade Act of 1974 authorizes the president to impose up to 15% tariffs for up to 150 days in response to "fundamental international payments problems" that cause "large and serious United States balance-of-payments deficits" or "an imminent and significant depreciation of the dollar," or create a need to cooperate with other countries in addressing an "international balance-of-payments disequilibrium." The Court of International Trade concluded that there is no "balance-of-payments deficit" of the kind required to use the statute.
Today's Federal Circuit ruling states that "Although we do not offer our own interpretation of Section 122 at this stage, we are persuaded by the federal government's argument that the CIT majority's interpretation—that 'balance-of-payments deficit[ ]' is limited to deficits measured by liquidity, official settlements, or basic balance—may be incorrect." The panel offers little analysis to support this point, and simply ignores extensive evidence that "balance-of-payments deficit" refers to conditions that can only exist under a fixed exchange rate system of the kind in force prior to 1973 (I summarized that evidence in the amicus brief I wrote on behalf of myself and the Cato Institute). The ruling also overlooks the key point that accepting the government's interpretation of this statute would give the president virtually unlimited power to impose Section 122 tariffs anytime he wants.
That, in turn - as the CIT pointed out - leads to serious constitutional nondelegation problems (I outlined those in detail in Part III of the amicus brief). The Federal Circuit panel dismisses those concerns, saying that "There is merit to the federal government's argument that Section 122 already contains the guardrails required by the nondelegation doctrine such that it is not necessary to set out precise "balance-of-payments deficit[ ]" measurement methods for the statute to survive challenge." The problem is there are no such "guardrails" if a balance-of-payments deficit must be assumed to exist at virtually all times. For reasons noted in our brief, the 15% cap on tariff rates isn't enough, and the 150 day time limit could - if the court accepts the government's interpretation of the law - easily be circumvented.
In addition to flubbing the nondelegation issue, the panel also completely ignored the issue of the major questions doctrine. As argued by the plaintiffs, and in greater detail in Part II of my amicus brief, this rule - which played a key role in the IEEPA litigation - weighs heavily against the government's position.
Another key factor in determining whether a stay is warranted is whether a stay would result in "irreparable harm." As I have pointed out previously, importers forced to pay illegal tariffs suffer a variety of harms that cannot be made good by after-the-fact refunds, such as lost sales, disrupted supplier relationships, lost investment, and more. Last year, when the Federal Circuit stayed the injunction against the IEEPA tariffs, the resulting nearly year-long collection of illegal taxes caused grave harm of that type on a large scale. The CIT seems to have learned from that mistake. This Federal Circuit panel did not.
The Federal Circuit ruling holds that these effects can be ignored because "those alleged harms do not necessarily stem from the stay but rather are a consequence of accounting for the undisputed risk that plaintiffs may ultimately owe the tariffs." This argument makes little sense. If tariffs are being collected on each transaction right now, that cannot help but increase prices (leading to lost sales), disrupt supplier relationships, and so on, to a greater extent than a mere possibility that tariffs may be owed later - especially given that the legal case against the tariffs is very strong.
In addition, the Federal Circuit should have learned from the painful experience of the IEEPA tariff refund system. Even now, almost four months after the Supreme Court ruling, only about $20.6 billion of the $166 billion in illegally collected IEEPA tariff have been sent out for disbursement. And the government is trying to avoid repaying much of the remainder. This sorry state of affairs shows that the Federal Circuit panel should not trust the Trump Administration's assurances that, if they lose the case, any harms will be made good by prompt refunds.
Today's ruling does not necessarily prefigure a decision on the merits. The court's analysis of the substantive issues is cursory and tentative, and does not consider a number of key points at all. Moreover, the merits issue is likely to be heard by a different set of judges. Stay motions in the Federal Circuit are heard by a special motions panel, whose members' identities are not publicly revealed. So the merits issue may be considered by an entirely different panel. Alternatively, it might be heard en banc by all 11 active Federal Circuit judges (as happened with the IEEPA case).
As I have noted before, the injunction today's ruling stayed would not have completely blocked collection of the Section 122 tariffs, because - for technical reasons - it only applied to tariffs paid by the state of Washington and the two private importers represented by the LJC. Even so, this decision makes it unlikely that Section 122 tariff collection will be stopped or significantly limited until the appellate process concludes - which could potentially take another several months (or longer, if the case reaches the Supreme Court).
Despite its limited nature, this is a troubling and problematic ruling. The court misanalyzed a number of key issues, especially in failing to properly consider the sweeping nature of the government's claim to tariff authority. Hopefully, the panel that considers the case on the merits won't repeat those mistakes.
I am happy to pass along this guest post from Professor Arthur Hellman about Judge Nelson's case:
On Tuesday, the New York Times and NPR published reports on what the Times called the "parking lot confrontation" involving Judge Ryan D. Nelson of the Ninth Circuit Court of Appeals. Bloomberg Law has published a more in-depth account. These stories followed in the wake of the initial report the preceding Friday in the Idaho State Journal. In a guest post on Sunday evening, I explained how Judge Nelson's actions might lead to an investigation of possible judicial misconduct under the Judicial Conduct and Disability Act of 1980 (JCDA or Act). The Act defines misconduct as "conduct prejudicial to the effective and expeditious administration of the business of the courts." I won't repeat that discussion here, but some of it has been overtaken by later developments, and it will be useful to report on those.
The basic facts can be quickly stated. The "confrontation" took place in a parking lot in Idaho Falls, Idaho, on April 2. It appears to have begun when another man (who has not thus far been publicly identified) said (twice) to Judge Nelson: "Learn how to park." A video published by the Idaho State Journal shows Judge Nelson apparently knocking off the man's glasses, running after him, and then stomping on the glasses. Judge Nelson has now been charged with misdemeanor battery and malicious injury to property, also a misdemeanor.
In the Sunday evening post, I said that "the first step is for Ninth Circuit Chief Judge Mary Murguia to identify a complaint" against Judge Nelson and thereby initiate the investigatory process under the Act. That has now happened. On Monday, Judge Murguia issued an order identifying a complaint based on media reports about Judge Nelson's conduct and her own "limited inquiry of currently available information."
Ordinarily, judicial misconduct proceedings are confidential until the proceedings have concluded. That is what happened in the proceeding involving Atlanta District Judge Eleanor Ross; the public knew nothing about the investigation until the reviewing committee of the Judicial Conference of the United States issued its final order affirming the private reprimand issued by the Eleventh Circuit Judicial Council. But a provision in the Rules for Judicial-Conduct and Disability Proceedings (JC&D Rules), initially adopted in 2008, allows the chief judge to "disclose the existence of a proceeding under these Rules when necessary or appropriate to maintain public confidence in the judiciary's ability to redress misconduct or disability."
Judge Murguia relied on this provision as authorizing immediate disclosure of her Monday order. But she made clear that there will be no further interim disclosures: "All subsequent misconduct proceedings will be confidential pursuant to [the statute and the Rules]." Unless something unexpected happens, we will have to wait until final disposition to know what steps she and the Judicial Council of the Circuit have taken to resolve the complaint.
I have suggested elsewhere (pp. 371-74) that this disclosure provision appears to conflict with the confidentiality requirement of the statute. But as long as the Judiciary is willing to make some interim orders public, there is no reason why it should not disclose certain others. Here, for example, Judge Murguia may request that the Chief Justice transfer the proceeding to another circuit. If that request is granted, it would be appropriate, in my view, to make public the order of transfer.
Judge Murguia took pains to note that all of the information that prompted her order "was only very recently received." Given that the criminal charges were filed on April 22 (according to the Idaho State Journal), it is fair to conclude that Judge Nelson did not convey the information to the Chief Judge before she learned of it from the media reports.
It would have been prudent as well as courteous for Judge Nelson to have "self-reported" the episode early on. That would have enabled Chief Judge Murguia to carry out an informal inquiry, without necessarily identifying a complaint, before public scrutiny began.
Late Sunday evening, David Lat discussed the episode on his "Original Jurisdiction" Substack blog. He reported that he had reached out to Judge Nelson for comment and had received a statement from Judge Nelson's counsel. That statement read: "Mr. Nelson is embarrassed by this incident. It is out of character and does not represent how he behaves. Immediately afterwards, Mr. Nelson reached out and offered an apology and full compensation for the sunglasses. He intends to work through the proper process."
So Judge Nelson has not only offered an apology; he has also offered full compensation. Judge Murguia could well find that these actions constituted "voluntary corrective action." If so, the Act and the Rules permit her to "conclude the proceeding" without the need to determine whether Judge Nelson engaged in misconduct. That is an established practice, and I believe it is fully consistent with the forward-looking perspective of the Act.
One caveat: Judge Murguia would probably not take that course unless she had some confidence that the parking lot altercation was an isolated episode and did not reflect a pattern of behavior that might constitute misconduct. In that regard, David Lat reported that two former clerks had contacted him to say that the conduct seen in the video does not reflect the person they had come to know.
To be sure, that is not conclusive. Former Second Circuit Chief Judge Dennis Jacobs, whose analysis of a similar episode I quoted in my prior post, also said that the ultimate question is whether the judge's extrajudicial behavior "create[s] in reasonable minds a perception that the Judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." (Emphasis added.) That is the question that Chief Judge Murguia will have to address in the first instance, taking into account the apology that Judge Nelson has already offered.
An excerpt from yesterday's Sixth Circuit decision (which I think is generally quite correct) in Boddy v. Grech, written by Judge Richard Allen Griffin, joined by Judges John Bush and John Nalbandian:
During a public comment period of a Xenia School Board meeting, plaintiff Darbi Boddy attempted to express her views regarding the school district's alleged teaching of critical race theory. In prepared remarks, delivered in a calm and deliberate manner, Boddy took issue with the "cowardice" of the school district's superintendent and characterized the Board as "failing."
Displeased with the speech, Board president Mary Grech threatened to turn off Boddy's microphone. Forty seconds later, as some in the audience became disruptive in reaction to Boddy's remarks, defendant Grech abruptly seized Boddy's microphone and recessed the meeting. Boddy was denied her allotted five minutes of public comment, and she was not offered any additional time to address the Board when the meeting resumed….
[Boddy] addressed the Board calmly and deliberately:
My name is Darbi Boddy and I live in West Chester. I am a previous Board of Education member for the Lakota School District; I am on the board of Protect Ohio Children and represent the southern part of Ohio and the organization responsible for the heat map. I am also a leader for Moms for America in Butler County. I recently heard about the failing Xenia Board of Education and the cowardice [sic] superintendent who cannot perform adequately in his role ….
After speaking for only twenty-eight seconds, president Grech interrupted Boddy, shouting "Excuse me!" Boddy, however, continued. Quickly, Grech again yelled, "Ma'am, excuse me I will cut your mic." Undeterred, Boddy continued to methodically read from her prepared remarks:
This superintendent reprimanded the one good board member who was doing [his] due diligence and asking questions so he could better understand the teaching environment, make educated decisions to determine what is best for the students of Xenia and therefore help create an educational environment free of racism and division, as is his job per ORC and school policy. It appears quite obvious this board and superintendent do not advocate for transparency and want to continue pushing racist and divisive ideologies to the children of Xenia and indoctrinate them into an anti-American agenda ….
At this point, some in the crowd began to heckle Boddy with loud boos, which continued for approximately fifteen seconds.
About a minute and twenty seconds into Boddy's remarks and amid loud boos, Grech moved to recess the meeting, which another Board member quickly seconded. Yet Boddy continued to speak. A few seconds later, Grech walked up to the podium and took the microphone away as Boddy was speaking. Some in the crowd cheered; others jeered and booed. Boddy continued speaking, without a mic, as the Board shuffled out of the room. Although Boddy was prevented from using her allotted five minutes of public comment, the Board did not offer Boddy any additional time to finish her remarks after the recess.
The court concluded that Boddy's speech didn't fall within any First Amendment exception:
It's hard to think of a better illustration of the dramatic changes that our President has wrought in the world of law and lawyering than the (still-very-much-unfinished) Todd Blanche story. Blanche's actions since being named Acting A.G. – the risible Comey indictment ("SeashellGate"?)[1], the "Anti-Weaponization" slush fund for Trump's cronies and January 6 insurrectionists that even Trump's long-time supporters couldn't stomach,[2] the waiver of claims against the President of the United States (his boss) that he forgot to include in the Settlement Agreement the DOJ had negotiated[3](!) – would surely, in earlier times, have gotten him fired, and possibly sanctioned or worse for having perpetrated a fraud on the court.[4]
Instead, it earned him a promotion. To paraphrase Vince Lombardi, loyalty isn't everything, it's the only thing.
But the good news is that the nomination will allow the Senate Judiciary Committee to ask Blanche some questions at his confirmation hearings. Here are some questions that I'd like Blanche to answer: Read More
For several weeks now, I have been surprised that the major newspapers have not covered the Judge Ross scandal. In particular, I was shocked to see nothing from the New York Times and the Washington Post. I even noted how Bloomberg Law was winning the coverage.
Well, it seems the Times was working on something big. Nicholas Bogel-Burroughs and Mattathias Schwartz published a story this morning about Judge Ross. And we learn a lot. They got three law clerks to speak, plus they got a copy of the "apology" letter.
The New York Times confirmed it was Judge Ross through interviews with three of her former clerks and two people familiar with the matter, and obtained a signed apology letter that she wrote as part of a judicial reprimand.
First, this "secret" was passed down from year-to-year among law clerks:
For years, Judge Eleanor Ross's secret was passed down from law clerk to law clerk.
They whispered about the sultry jazz music that emanated from her chambers when a uniformed police commander, a man they called her "visitor," disappeared into her private office. The clerks could sometimes hear the unmistakable sounds of sex from behind the door.
They chalked it up as one of the burdens of working for Judge Ross, who routinely rubber stamped their draft orders and added little else before issuing them as rulings. But the clerks in the Atlanta courthouse felt helpless: Do you report your married boss, a federal judge no less, for having a clandestine in-office affair with a law enforcement officer?
One day last year, a clerk did exactly that.
Second, Judge Fogel—unlike Judge Wood—stated the obvious. The punishment handed down was woefully inadequate.
Jeremy Fogel, a retired federal judge who consults with judges on ethics questions, said some in the judiciary disagreed with how Judge Ross's case had been resolved. "Many of the sitting judges with whom I've spoken believe the findings as a whole warranted a more significant sanction," he said.
Another judge who shall remained unnamed wrote to me, saying that my post about Judge Wood was out of line, and demanded and I should apologize. I added an update to my post, but my criticism stands even stronger in light of the correction.
The National Constitution Center's annual Supreme Court Review event is being held on July 7 in Philadelphia. I wanted to highlight it here, because three different regular Volokh Conspiracy bloggers will be among the speakers: Jonathan Adler, Keith Whittington, and myself. There are lots of other speakers - many of them highly prominent - as well. Loyal VC readers will surely want to attend, or at least watch online!
Additional information and free registration available here. You can watch either online or in person.
Gordon Wood was a towering scholar in every way. He was the best historian of the American Revolution and of the writing of the Constitution and, in general, of the period from 1760 to 1826, of all time. No-one else in the 237 years since the Constitution went into effect even comes close.
Gordon's two biggest contributions were (1) in expanding our understanding of the American Revolution by defining it as a moment of radical political and societal transformation where an older world rooted in hereditary privilege was rejected in favor of republicanism and the equality of all human beings, and (2) in explaining how Americans came to put their faith in our written and amended Constitution. Gordon knew each of the Framers vividly, and he wrote about all of their lives. He described their virtues and vices with perfect precision. He was as institutionally honest an historian as one will ever find. He did not write hagiographies, but instead painted an accurate portrait of the great men he wrote about. He was as great an historian as Herodotus and Thucydides, which is high praise indeed.
Gordon was also a brave man—a public intellectual who was not afraid to challenge popular errors. He led the effort to denounce the New York Times' 1619 Project, which argued that the Framers were all about slavery and the triumph of racism. Gordon earned some heated criticism for his courageous stance against the DEI effort to paint the founders as racist villains. To Gordon, the abolition of slavery, women's right to vote, and the civil rights movement of the 1960's followed from the founding principles in the Declaration of Independence.
He was equally outspoken in criticizing Vice President J.D. Vance for arguing that Americans were defined by their bloodlines and not, as Gordon believed, by their devotion to the principles of the Declaration of Independence and of the Constitution. In a speech within the last year, and an op-ed in the Wall Street Journal, Gordon wrote that the United States has always been a creedal nation. He saw us all as from the start of our history as being defined by believing in the idea that all human beings are created equal and have an inalienable right to Life, Liberty, and the Pursuit of Happiness. We are Americans because we believe in that idea whether our ancestors were English, French, German, Italian, Irish, Polish, Jewish, or of African or Asian dissent. Gordon was just as adamant in denouncing nativism as he was in denouncing the 1619 Project. Gordon also never overstated or understated his case on any point or person of historical interest.
From State ex rel. Yost v. Google, LLC, decided Monday by the Ohio Court of Appeals (Judge Andrew J. King, joined by Judges Craig R. Baldwin and Robert G. Montgomery):
On June 8, 2021, the State filed a complaint against Google out of a concern that Google prioritized the information it provided that best boosted its bottom line instead of providing the most useful and relevant information to the public…. [It] sought a declaration that Google was a … common carrier under Ohio common law….
The court concluded:
Google Search is not a common carrier under Ohio common law. It fails under either prong of our traditional test. While the Attorney General points to facts such as monopoly power and suggests a more robust judicial intervention is required, we decline to depart from our precedent. Among other reasons, the apparent preemption and free speech issues, together with the expressive character of search outputs under the Munn framework, counsel against departing from our traditional two-prong test.
This conclusion is consistent with the historical limits of the common carrier doctrine, the practical mismatch between traditional rate regulation and modern platform economics, and the judiciary's proper role in deferring complex policy choices involving speech and technology to the legislative branch….
The court began with a broad historical outline; an excerpt:
I'm delighted to pass along this item from Prof. Broyde, who teaches legal ethics at Emory and who has written about judicial ethics in particular:
A federal judge does not lose life tenure merely by becoming embarrassing. Nor should Congress threaten judges because it dislikes their opinions, their interpretive methods, or their politics. Judicial independence is one of the central achievements of the Constitution.
But independence is not impunity. The Constitution does not say that federal judges hold office for life no matter what they do. It says they "shall hold their Offices during good Behaviour." That phrase is not an ornament. It is the condition attached to the extraordinary protection of life tenure.
The recent Eleventh Circuit judicial misconduct matter shows why that condition still matters. According to the judicial misconduct materials, an unnamed district judge engaged in an extramarital relationship with a high-ranking law-enforcement officer, including sexual activity in chambers during business hours and within hearing distance of court staff.
The judge initially denied the relationship to judicial investigators, later admitted it, created a deeply uncomfortable workplace, and generated serious concerns about conflicts of interest and vulnerability to blackmail. The judge also attended a partisan political event.
The sanction was a private reprimand, apology letters to former law clerks, and commitments not to seek certain leadership roles. News organizations have identified the unnamed judge as U.S. District Court Judge Eleanor Ross of the Northern District of Georgia. Resolutions of impeachment were introduced by two Georgia Members of Congress.
That identification, and the resulting calls for impeachment, should not obscure the underlying constitutional issue. Some commentators have treated the case mainly as a question of criminal law: whether the judge's initial denials constituted a federal false-statement offense, or whether the misconduct fits neatly within the familiar impeachment phrase "high Crimes and Misdemeanors." Those questions are not trivial. But they are too narrow.
The deeper question is whether a judge who uses chambers this way has continued to satisfy the constitutional condition on which judicial tenure rests for good behavior. I do not think so.
