The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The case is Roe v. Smith, just decided today by the Second District; it's only the third binding California precedent, as I see it, expressly dealing with pseudonymity (the others are DFEH v. Superior Court, from the Sixth District in 2022, and the considerably less detailed Santa Ana Police Officers Ass'n v. City of Santa Ana, from the Fourth District this Spring). For more on the facts and the substantive analysis in the case, see this post, but here are some holdings that might be especially important for California lawyers litigating about pseudonymity:

The court broadly reaffirmed the strong pseudonymity-skeptical language in DFEH, including that "Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur 'only in the rarest of circumstances.'" And this happens in a case where the bottom-line result is indeed against pseudonymity (unlike in DFEH itself). "[T]he use of pseudonyms, absent a specific statutory authorization, should be a limited and rare exception to the general rule of public access to courts."
The court made clear that pre-DFEH cases that just allowed pseudonymity without discussion aren't authority in favor of pseudonymity: "While plaintiffs correctly point out that parties have proceeded pseudonymously in many California cases, few appellate cases have addressed the issue. '[C]ases are not authority for issues not raised or decided.'"
The court also concluded that Title IX precedents allowing pseudonymity are generally not relevant outside that area. "[T]his is a case against two private individuals, not against a school or a government entity, such as in the particularly confidential Title IX context."

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The flag of Ukraine on a pole — Denys Bozduhan | Dreamstime.com

President Trump has presented a 28-point "peace" plan for the Russia-Ukraine war, which - in reality - is a demand for Ukrainian capitulation. The administration threatens to cut off military aid and intelligence sharing if Ukraine refuses.

Among other things, the proposal requires Ukraine to give up extensive territory to Russia - including key strategic regions that Russia does not currently control - and caps the size of the Ukrainian armed forces, while imposing no similar limitations on Russia's military. It also includes a variety of built-in excuses for Russia to renew the war (such as the ban on "Nazi" propaganda in Ukraine, which could be violated whenever some fringe Ukrainian nationalist group makes public statements that could be interpreted as Nazi-like).

There are no meaningful countervailing constraints on Russia. While the Russians are required to stop the war, this is the sort of agreement they have repeatedly violated over the last decade. And the loss of strategic territory combined with limits on Ukrainian military power would make Ukraine intensely vulnerable to any such Russian treachery, which in turn makes the treachery highly likely to occur.

The plan does apparently include an unspecified security "guarantee" for Ukraine. But, absent specific provisions for the use of US or other NATO forces in the event of Russian aggression, such guarantees have little value. Ukraine in fact already got such a guarantee from the US, Britain, and Russia in the 1994 Budapest agreement, in exchange for giving up its nuclear weapons. It failed miserably.

The obvious historical analogue for Trump's plan is the 1938 Munich agreement, under which Britain and France forced Czechoslovakia to give up a large part of its territory to Nazi Germany, in exchange for a promise of peace. The Germans broke the promise the very next year, seizing the rest of Czechoslovakia.

In one crucial way, the Trump deal is is even worse than the Munich agreement was. The latter at least did not limit the size of Czechoslovakia's military. The Trump proposal does just that, with respect to Ukraine.

Ukrainian President Volodymyr Zelensky seems inclined to reject the deal, and for good reason. Better to fight on with little or no US support than to accept capitulation.

There is, however, much that US and European supporters of Ukraine can do to counter the Trump plan. Europeans should finally confiscate the $300 billion in Russian state assets currently frozen in the West (mostly in Europe), and use them to fund Ukraine's war effort, thereby offsetting much of the likely decline in US assistance, and sending the Kremlin a powerful signal of allied determination.

In a November 2023 post, I rebutted a range of different objections to confiscating Russian state assets, including 1) claims that it would violate property rights protections in the US and various European constitutions, 2) sovereign immunity arguments, 3) arguments that it would be unfair to the Russian people, 4) slippery slope concerns, and 5) the danger of Russian retaliation. All of these points remain relevant today. Stephen Rademaker, former chief counsel to the House Committee on Foreign Affairs, has a recent Washington Post article further addressing the retaliation issue.

In the US, Congress should pass a law granting new military assistance to Ukraine and make delivery nondiscretionary, barring the executive from withholding it. I am not optimistic that Congress will actually do any such thing. But it is worth trying. Aid for Ukraine commands broad public support, and is backed by almost all congressional Democrats, plus a substantial number of Republicans in both the House and the Senate. A concerted bipartisan effort to enact new aid probably won't be able to achieve a veto-proof majority. But it could focus attention on the issue, and make it harder for the administration to stick to its current dangerous course.

In a February 2025 post, I summarized the many moral and strategic reasons why the West should back Ukraine in this conflict, and addressed counterarguments (such as that assistance is too expensive, that it diverts resources from more important foreign policy objectives, or that Russia's war is justified by the need to "protect" the Russian-speaking population in Ukraine). Here, I will merely reiterate that appeasing Vladimir Putin is likely to prove foolish, as well as immoral. His regime has repeatedly demonstrated that it has a deep hostility to Western liberal democracy, and that it cannot be trusted to abide by any agreements, unless compelled by the threat of overwhelming force.

From today's opinion in Roe v. Smith, decided by Justice Anne Richardson, joined by Justices Elwood Lui and Victoria Chavez:

In 2022, plaintiffs [Jane Roe and John Doe] and [defendant] Jenna [Smith] were all students at the same high school in Los Angeles County…. At the time, plaintiffs were in a dating relationship, which continued at least through the date of the complaint….

In March 2023, Jenna began telling other students at the high school that John had sexually assaulted her and Jane. In April 2023, [defendant] Mother [Smith] told parents of other members of the club that John had sexually harassed Jenna….

The school launched an investigation, with which John voluntarily cooperated. While the investigation was ongoing, Jenna continued to tell other students John had engaged in sexual misconduct towards her and Jane. The "school rumor mill [ran] wild" with this information and plaintiffs received "dozens" of harassing and violent comments on their social media accounts. Plaintiffs allege Jenna was behind these comments….

The school's investigation into Jenna's complaint finally concluded in August 2023, finding John was "not responsible for any of the claims [Jenna] launched against him."

Plaintiffs sued for defamation and related torts, and "sought damages in excess of $5 million" and "an injunction ordering defendants to remove all defamatory posts from social media and to issue apologies to plaintiffs, and prohibiting defendants from publishing any future statements about plaintiffs whether written or verbal."

The court reversed the trial court's decision allowing pseudonymity to the Does (no-one objected to the pseudonymity of the Smiths):

Free Speech Right of Access

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[Note: I'm working on a book chapter with a similar theme, here is an attempt to distill it into blog post-size.]

As South Africa hosts its first ever G20 Summit, its continued pursuit of Israel under the false guise of genocide is resulting in growing diplomatic pushback. The United States and Argentina have announced they will not be attending, yet Pretoria continues to weaponize the very term "genocide" to suit its political objectives.

South Africa's pursuit of phony genocide charges forms part of a broader campaign aimed at delegitimizing and constraining Israel as it fights a multi-front war against actors openly committed to its destruction. Some are motivated by hostility to Israel, but others see an opportunity: by capitalizing on intense antagonism toward Israel within academic and NGO circles, they can advance a long-standing project of sharply restricting democracies' ability to fight non-state actors, and particularly terrorist organizations and militias. Israel thus becomes the canary in the coal mine for efforts to effectively outlaw military operations against terrorist groups embedded among civilians.

At the heart of these efforts is a misuse of international humanitarian law, a body of rules created not to restrain whichever side one dislikes, but to impose neutral, equal obligations on all parties to a conflict. IHL was never intended as a political weapon or a pacifistic tool, but as a universal framework meant to protect civilians while recognizing the realities of warfare. This neutrality is its core strength: once the framework is selectively wielded against only one side, incentives for compliance collapse.

The 1948 Genocide Convention sought to establish clear, objective standards for the crime of genocide—above all the requirement of a specific intent to destroy a protected group. Standards like this were crafted to prevent future atrocities like the Holocaust, not to be repurposed for partisan advocacy, whether rooted in intense anti-Zionism or in a strong presumption against the use of military force by Western democracies.

The current effort to redefine these standards is nowhere more visible than in South Africa's case against Israel at the International Court of Justice. The legal theory advanced by South Africa and its supporters drains the term "genocide" of its established meaning, creating dangerous precedents for future conflicts.

The Convention requires evidence of special intent — demonstrated through direct proof, or, absent that, inference only when such intent is the only reasonable conclusion. But Israel's decidedly non-genocidal stated goals in the war – to release the hostages and destroy Hamas – are supported by its conduct throughout the war.

Israel's actions, including its acceptance of ceasefire terms, its prior openness to negotiated political arrangements, and its extensive facilitation of humanitarian access to Gaza all support this goal and contradict the notion of genocidal intent. No State that facilitates vital humanitarian corridors and extensive aid entry (to date well over two million tons) or engages in sustained efforts to limit civilian harm could be, as the only reasonable conclusion, pursuing the physical destruction of a population.

One element of the Convention that South Africa emphasizes is the alleged deliberate infliction of conditions calculated to destroy the Palestinian population. The humanitarian situation in Gaza is unquestionably tragic—but Hamas, not Israel, bears primary responsibility.

And crucially, contrary to certain claims, international law does not oblige a State to provide goods it knows will be seized by enemy fighters, so long as good-faith efforts are taken to ensure civilians can receive help through alternative channels that actually reach them.

Nevertheless, Israel continued to enable massive flows of aid into Gaza throughout the conflict, even as Hamas repeatedly looted, diverted, or resold that aid, including stealing from UN warehouses. By mid-2025, UN data showed tens of thousands of tons of humanitarian assistance had been intercepted by Hamas. Israel's persistence in facilitating aid despite this pattern of theft and operational risk is fundamentally inconsistent with any claim of genocidal intent and goes well beyond what IHL requires of a state fighting an adversary embedded among civilians.

Israel's conduct—warning civilians before military action, adjusting operations to minimize harm, and confronting an enemy that intentionally situates military assets under civilian sites such as hospitals and schools—reflects an approach to urban warfare that many militaries struggle even to approximate.

Its civilian-casualty rate remains among the lowest of any comparable conflict, an especially notable fact given the extreme density of the environment and the absence of any fully safe haven outside the conflict zone. While casualty numbers alone cannot determine legality, sustained efforts to reduce civilian harm cut directly against the charge that Israel seeks the group's destruction.

The attempt to stretch the definition of genocide to encompass any high-intensity urban warfare causing civilian suffering would not protect civilians. Instead, it would hand terrorist groups a blueprint: embed deeper within civilian populations, ensure any military response causes significant civilian casualties, and weaponize legal institutions to delegitimize self-defense.

These efforts to rewrite international law to suit a political campaign against Israel would, if allowed, weaken the Genocide Convention itself. A diluted genocide standard does not protect vulnerable groups; it renders the Convention less able to confront real genocidal campaigns when they arise.

The Convention must be preserved as a principled, objective standard—not reshaped on the fly to serve particular political objectives.

From a decision earlier this month in Byrd v. Middletown Bd. of Ed., by Connecticut trial court Judge Sheila Ozalis; Byrd was a teacher who "was teaching a lesson on 'recognizing racial epithets' as a part of the Cultural Diversity Curriculum at Beman Middle School":

The plaintiff alleges that from 1997–2021, she taught eighth grade students about the District's Cultural Diversity Curriculum, along with other units in the eighth grade Health Curriculum, including internet safety, self-esteem, romantic relationships, drug education, and career education. The plaintiff alleges that Equity Training in recent years for the teachers included the idea that teachers should be challenging students about uncomfortable topics because if people stay in their comfort zone, there is no new growth.

The plaintiff alleges that while employed by the Middletown School District for over twenty years, she presented the same Cultural Diversity Curriculum at Beman Middle School to eighth graders without complaint. She also alleges that this curriculum has been used by the District for nearly ten years, was posted on its website, approved by the Defendant, and was reviewed by the District in the summer of 2021 without any changes made. As a part of the Cultural Diversity Curriculum, the Plaintiff spoke to students about the diversity within their own community. "Lesson #3" of the published and approved curriculum describes the concept of the lesson as "recognizing racial epithets" and notes the discussion of racial epithets as part of the lesson plan.

The plaintiff alleges that during this lesson, she would introduce vocabulary and examples of attitudes towards distinct groups, including language demonstrating stereotypical thinking and hostility to a specific group or prejudices about particular groups and their alleged predilections and behaviors. She alleges that her open discussion of racial and ethnic stereotypes and slurs had been an established part of the posted Cultural Diversity Curriculum for over ten years and that it was the Plaintiff's practice to verbalize and specifically name the racial slurs that would be discussed during the lesson and ask her students if they had heard that specific slur before.

The plaintiff alleges that she would discuss each word's meaning and history and ask students why racial slurs were used to put people down and why people enjoy making jokes about and ridiculing minority groups. The Plaintiff would focus on the group targeted by the words and how the words hurt members of that group to assist in helping students make better decisions in life, including in their use of language, by providing a better understanding of the words, their origins, and society's pernicious use of them. The Plaintiff also alleges that she sought to make the students better citizens in a multicultural world.

Politics

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11/21/1926: Justice Joseph McKenna died.

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A mortarboard sits on a pile of U.S. hundred-dollar bills. — Steven Cukrov | Dreamstime.com

US News and World Report just published an op ed I coauthored with four other legal scholars entitled "Colleges Must Reject Trump's 'Compact' To Protect Our Democracy." The four other authors are Rick Garnett (Notre Dame), Serena Mayeri (University of Pennsylvania), Amanda Shanor (University of Pennsylvania), and Alexander "Sasha" Volokh (Emory, also my co-blogger here at the Volokh Conspiracy).

To put it mildly, the five of us have widely divergent views on political and legal issues. Serena Mayeri and Amanda Shanor are prominent progressive constitutional law scholars. Rick Garnett is a leading conservative constitutional law and law and religion specialist. Sasha Volokh and I are libertarians (him perhaps somewhat more radical than me).

But we all agree colleges should reject the "compact" for both constitutional and other reasons. Here's an excerpt from the article:

We teach law at four different U.S. universities and come from a range of political and legal perspectives. But we all agree that universities should vehemently and unanimously reject the Trump administration's "Compact for Academic Excellence in Higher Education."

The federal Department of Education first sent this compact to nine universities in October, stating that signatories would receive preferential consideration for federal grants. The compact itself conditions benefits such as federal contracts, tax-exempt status, student loans and student visas on the adoption of various government prescriptions for admissions, hiring, tuition, curriculum, discipline, international student enrollment, grading and free speech….

Universities that have balked at – or outright rejected – the compact are correct to do so. The administration's proposal contains five fundamental causes for alarm:

First, the compact tramples upon the constitutional rights that allow us to debate and disagree without fearing reprisals from our universities or from the government….

Second, the compact amounts to a federal takeover of private institutions and state entities. It threatens to withdraw federal benefits from any university that does not submit to the federal government's demands. Such imposed ideological uniformity would undermine the competition that spurs innovation and empowers students and faculty to "vote with their feet" for the schools that best meet their needs.

Moreover, the compact's approach to federal funding is unlawful and unconstitutional: Conditions on federal grants to state governments, including state universities, must be clearly stated in advance, related to the funds' purposes and not unduly coercive….

Third, the compact violates the constitutional separation of powers. Under the Constitution, Congress, not the executive, wields the power of the purse. An executive agency – here, the Department of Education – cannot withhold funds or place new conditions on monies Congress has allocated without clear and explicit legislative authorization….

Fourth, the compact places universities in a dangerous financial position, facing draconian penalties without due process – or any process at all. The compact authorizes the government and private donors to claw back federal dollars whenever federal officials are displeased with a university's actions. Signatories to this agreement would forfeit their autonomy and the fundamental freedoms of their community members….

Finally, the compact is riddled with internal inconsistencies that render it both incoherent and dangerous. The agreement claims to value "merit" in higher education, but offers preferential consideration for federal grant money based on universities' adherence to government-mandated ideology rather than scientific excellence. It prohibits discrimination based on "political ideology" while requiring special protection for "conservative ideas," and exclusion of foreign students based on their speech and political views.

Some of the issues raised in the US News article are addressed more fully in my forthcoming book chapter, "How Speech-Based Immigration Restrictions Threaten Academic Freedom," Academic Freedom in the Era of Trump, Lee Bollinger and Geoffrey Stone, eds. (Oxford University Press, forthcoming). Ideological and speech restrictions on foreign students are a major element of Trump's Compact.

As we note in the US News article, many prominent schools have already rejected the Compact, including eight of the nine to whom it was initially offered. But a few less well-known institutions have expressed willingness to join it. We hope no more do so.

For those keeping score, I have, in the past, extensively criticized constitutionally dubious higher education policies advanced by Democratic administrations, such as racial preferences in admissions and Biden's massive (and illegal) student loan forgiveness program.

[An excerpt from the plaintiff's Complaint.]

From Jeanpierre v. Trump, decided Tuesday by Magistrate Judge Daphne Oberg (D. Utah):

Mr. Jeanpierre is the founder of a religious organization called the Black Flag….He claims President Trump's Executive Order 14253 violates his religious freedoms under the First Amendment and the Religious Freedom Restoration Act (RFRA),as well as Article 18 of the United Nations' Universal Declaration of Human Rights.

The Black Flag is a tax-exempt religious organization with various tenets. The central tenet: Mr. Jeanpierre can do whatever he "feel[s] like doing." A "Principle of Autonomy" grants him "autonomy of mind, body, spirit, emotion, and execution of will regardless of opinion of any and all other individual(s), entity, or entities." The Black Flag prohibits prejudice and discrimination "against any member, guest, or affiliated party based on race, color, gender, sexual orientation, national origin, age, disability, or socioeconomic status." The religion "mandates recognition of systemic racism, inequity, and historical injustice," imposes "a religious duty to actively engage in dismantling systems of oppression," and requires "active engagement in outreach programs and protective measures" for marginalized or vulnerable groups.

On March 27, 2025, President Trump issued Executive Order 14253, titled "Restoring Truth and Sanity to American History." As characterized in the complaint, the executive order "directs federal agencies to remove … 'divisive race-centered ideology' from the Smithsonian Institution and to restore monuments that have been 'removed or changed to perpetuate a false reconstruction of American history.'" The order refers to a historical revisionist movement which "seeks to undermine the remarkable achievements of the United States by casting its founding principles and historical milestones in a negative light."

Mr. Jeanpierre claims the order "opposes narratives that present American history as 'inherently racist, sexist, oppressive, or otherwise irredeemably flawed.'" It "prohibits 'exhibits or programs that degrade shared American values, divide Americans by race, or promote ideologies inconsistent with Federal law,' and targets changes made to historical presentations since January 1, 2020." And it "directs the Department of the Interior to ensure that monuments and memorials do not contain content that 'inappropriately disparage Americans past or living (including persons living in colonial times).'"

According to Mr. Jeanpierre, this executive order "effectively establishes a state-sponsored religious doctrine of American historical exceptionalism" and, as a result, is "a direct attack on the foundational tenets of [his] sincerely held religious beliefs." He alleges the order prevents Mr. Jeanpierre "from exercising his religious autonomy to perceive and interpret history according to his religious conscience." He alleges the order's "prohibition against depicting American history as 'inherently racist, sexist, oppressive, or otherwise irredeemably flawed'" impedes his "religious mandate to identify and confront … historical realities" and interferes with his "religious practice of acknowledging and addressing systemic racism" by "imposing a sanitized historical narrative that contradicts [his] religious understanding of reality."

Religion and the Law

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From Monday's opinion by Justice Frank Menetrez, joined by Justices Richard Fields and Michael Raphael, in Schlichter v. Kennedy:

Grotke's approach differs from those taken by the attorneys in Noland and Alvarez [two previous cases involving hallucinated citations]. Grotke has not admitted that the Writ and the AOB [Appellant's Opening Brief] contain hallucinated citations that were produced by generative AI. Grotke admitted that he used AI in some fashion when preparing the AOB and that it was "possible" that he used AI in some fashion when preparing the Writ. But he maintains that the four spurious citations resulted from clerical error and that he intended to cite the actually existing cases for the propositions described in the declaration that he filed in response to our order to show cause. We find that Grotke's claims are not credible.

It is difficult to understand how Grotke's four spurious citations could possibly be mere clerical errors, and Grotke has not intelligibly explained how it would be possible. The spurious citations do not involve the mere omission or addition or transposition of one or several digits. Rather, all four spurious citations are completely different from the correct citations for the actually existing cases that have those case names. Grotke's spurious citations bear the hallmarks of hallucinated citations produced by generative AI. "[H]allucinated cases look like real cases. They are identified by a case name, a citation to a reporter, the name of a district or appellate court, and the year of the decision. [Citation.] But, they are not real cases."

AI in Court

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From Mizzou Students for Justice in Palestine v. Choi, decided earlier this month by Judge Stephen Bough (W.D. Mo.):

Plaintiff Mizzou Students for Justice in Palestine ("MSJP") is a registered student organization at the University of Missouri ("the University" or "MU"). MSJP is dedicated to advocating for Palestinian rights by raising "awareness on campus of the historical and ongoing injustices committed against Palestinians." MSJP has hosted dozens of events, including "marches, lectures, and panel discussions."

The University hosts an annual Homecoming Parade. In the fall of 2024, MSJP applied to be part of the Homecoming Parade for the first time. MSJP planned to perform a traditional Palestinian dance and pass out Palestinian sweets. It also planned on displaying signs that read "Ceasefire Now" and "Stop the Genocide." Dr. Choi is the Chancellor of MU. Although MSJP initially believed that its application to participate in the 2024 Homecoming Parade had been approved, Dr. Choi ultimately denied the application, citing concerns related to safety….

The Free Speech Clause restricts the government's regulation of private speech, but does not regulate government speech…. In determining whether "the government intends to speak for itself or to regulate private expression[,]" [this Court] … is driven by a case's context rather than the rote application of rigid factors [and looks to] … the history of expression at issue; the public's likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression." Shurtleff v. City of Boston (2022)….

[a.] History of Expression

Under the history of the expression at issue factor, the Court looks to both the specific history of the MU Homecoming Parade and homecoming parades in general. The Complaint alleges that "[t]he University of Missouri has hosted an annual homecoming celebration for over 100 years. The University's Homecoming Parade is one of the oldest homecoming traditions in the country, with some even touting it as the very first homecoming tradition by an American university" and that "[t]he Homecoming Parade has long been a place for the expression of political and social messages, including ones widely considered controversial or offensive."

The Complaint further alleges that "[t]he Homecoming Parade has welcomed political campaigns and activist groups of all kinds, including many that people would find controversial or offensive." Finally, the Complaint alleges that "[e]ntities across the spectrum—from local businesses to student organizations—participated in the [2024] Homecoming Parade."

Free Speech Campus Free Speech

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11/20/1910: Justice William Henry Moody retired.

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I am happy to pass along this guest post from Professor Seth Barrett Tillman, which concerns how best to understand Alexander Hamilton's analysis in Federalist No. 77. This topic is once again very timely in light of the ongoing litigation over the President's removal power. And, once again, Tillman offers a correction to scholars who misread Hamilton. Make sure you read till the end.

***

As readers of this blog will know, there is a long-standing debate about the scope of the President's and Senate's appointment and removal powers. That debate has been shaped by the language of the Appointments Clause (referring to the Senate's "advice and consent" power), ratification era debates, including Hamilton's Federalist No. 77, debates in the First Congress, and, of course, subsequent executive branch practice, legislation, judicial decisions, and commentary.

In 2010, I attempted to make a modest contribution to this debate. Without opining either on the constitutional issue per se or on the meaning of the Appointments Clause, I argued that Hamilton's Federalist No 77 was not speaking to removal at all—at least, not removal as we think about it today.

In Federalist No. 77, Hamilton stated: "The consent of th[e] [Senate] would be necessary to displace as well as to appoint." 20th century and 21st century commentators have uniformly understood Hamilton's "displace" language as speaking to "removal." (Albeit, there have been a few exceptions over the last one hundred years.) My modest contribution was to point out that "displace" has two potential meanings. "Displace" can mean "remove," but it can also mean "replace." This latter meaning is, in my view, more consistent with the overall language of the entire paragraph in which Hamilton's "displace as well as to appoint" statement appears.

Hamilton wrote:

It has been mentioned as one of the advantages to be expected from the co-operation of the senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the chief magistrate therefore would not occasion so violent or so general a revolution in the officers of the government, as might be expected if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained from attempting a change, in favour of a person more agreeable to him, by the apprehension that the discountenance of the senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision, which connects the official existence of public men with the approbation or disapprobation of that body, which from the greater permanency of its own composition, will in all probability be less subject to inconstancy, than any other member of the government. [bold and italics added]

Likewise, Hamilton, on other occasions, used "displace" in the "replace" sense. See, e.g., Letter from Alexander Hamilton, Concerning the Public Conduct and Character of John Adams, Esq. President of the United States [24 October 1800] ("But the truth most probably is, that the measure was a mere precaution to bring under frequent review the propriety of continuing a Minister at a particular Court, and to facilitate the removal of a disagreeable one, without the harshness of formally displacing him."); Alexander Hamilton to the Electors of the State of New York [7 April 1789] ("It has been said, that Judge Yates is only made use of on account of his popularity, as an instrument to displace Governor Clinton; in order that at a future election some one of the great families may be introduced.").

Similarly, Justice Story expressly adopted the "replace" view of Federalist No. 77. Joseph Story, Commentaries on the Constitution of the United States §§ 1532–1533 (Boston, Hilliard, Gray, & Co. 1833) ("§ 1532. … [R]emoval takes place in virtue of the new appointment, by mere operation of law. It results, and is not separable, from the [subsequent] appointment itself. § 1533. This was the doctrine maintained with great earnestness by the Federalist [No. 77] . . . ." (emphasis added)).

More recently, it appears, although one cannot be entirely sure, that Justice Kagan has adopted the "replace" interpretation of Federalist No. 77. Kagan wrote:

In Federalist No. 77, Hamilton presumed that under the new Constitution '[t]he consent of [the Senate] would be necessary to displace as well as to appoint' officers of the United States. He thought that scheme would promote 'steady administration': 'Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained' from substituting 'a person more agreeable to him.' [quoting Federalist No. 77] [bold added]

Seila Law LLC v. CFPB, 591 U.S. 197, 261, 270 (2020) (Kagan, J., concurring in the judgment with respect to severability and dissenting in part). "Substituting" is, in my opinion, akin to "replace."

However, in a 2025 article in California Law Review (at note 225), Professors Joshua C. Macey and Brian M. Richardson discuss both Federalist No. 77 and Joseph Story's interpretation of Federalist No. 77. Macey and Richardson wrote: "Joseph Story's Commentaries interpreted Federalist 77's reference to 'dismissal' to refer plainly to removal." There are three errors here. First, why is "dismissal" in quotation marks? It does not appear either in Federalist No. 77 or in Story's Commentaries, at least not in the sections under our consideration. Second, Story adopted the "displace" means "replace" view. And third, the issue is not "plain." We all make mistakes. In my view, this was a mistake on Macey and Richardson's part.

Macey and Richardson then write: "Notably, Chancellor [James] Kent, in a letter, attributed Story's interpretation to the original text of Federalist 77, an error which was repeated both in nineteenth-century histories of removal and by Chief Justice Taft's law clerk in connection with Taft's decision in Myers [v. United States]." Id. at note 225. Macey and Richardson cite two publications by Professor Robert Post in support of this view, but they do not cite any original, transcript, or reproduction of Kent's letter. This sentence of theirs is a Gordion knot. I have made some effort to cut this knot. Let me start by saying that, as best as I can tell, Kent's letter is from 1830, and Story wrote in 1833. So I suggest there was no way for Kent to attribute or misattribute anything by Story. Macey and Richardson are not entirely at fault. The error is in some substantial part Professor Robert Post's, and the concomitant error, by Macey and Richardson, is their (all too understandable) willingness to rely on Post and their failure to look up Kent's actual letter. Still, for reasons I explain below, Macey and Richardson have done modern scholars a valuable service—for which I thank them. (And, no, this is not sarcasm.)

To summarize: Macey and Richardson rely on Robert Post. Post is quoting Chief Justice Taft's researcher: William Hayden Smith. And William Hayden Smith is quoting Chancellor Kent. We are four levels deep—so, it is hardly surprising that one or more mistakes and misstatements creep into the literature.

From Doe v. Albemarle County School Bd., decided yesterday by Judge Jasmine Yoon (W.D. Va.):

This matter is before the court on Plaintiff J. Doe's motion for a temporary restraining order, and motion for a preliminary injunction, both filed on November 17, 2025. Doe requests that the court prohibit Defendant Albemarle County School Board ("the School Board") from allowing the Western Albemarle High School's Turning Point USA club ("TPUSA club") to host Victoria Cobb as a guest speaker for an event titled "Two Genders: One Truth." The event is scheduled for November 19, 2025, at 12:00 p.m. The court held a hearing on the motion for a temporary restraining order on November 18, 2025. The court finds that Doe has not made a clear showing that they are likely to succeed on the merits of the "deliberate indifference" element of the Title IX claim. Accordingly, the court will deny Doe's motions for a temporary restraining order and preliminary injunction….

While the court recognizes and sympathizes with Doe and their anxiety and distress surrounding the event, … Doe is not able to make a "clear showing that [they are] likely to succeed at trial" on their Title IX claim. A Title IX claim premised on sexual harassment, as here, requires the plaintiff to prove that: "(1) the educational institution receives federal funds; (2) the plaintiff was subjected to harassment based on her sex; (3) the harassment was sufficiently severe or pervasive to create a hostile (or abusive) environment in an educational program or activity; and (4) there is a basis for imputing liability to the institution."

Under the fourth prong, liability may only be imputed to the institution in cases of deliberate indifference. Specifically, the Supreme Court has held that an institution may be liable for third-party harassment "only where [its] response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Davis v. Monroe Cnty. Bd. of Educ. (1999). The Davis standard "sets the bar high for deliberate indifference."

Specifically, the Davis Court held that "it would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims." Here, the School Board was exposed to both statutory and constitutional claims after Principal Jennifer Sublette announced her decision to move the original event from lunch to evening. The demand letter—sent from Michael B. Sylvester on behalf of the TPUSA club, sponsoring teacher, and Cobb—delineated these potential claims, which included First Amendment viewpoint discrimination and federal Equal Access Act violations. The letter asked the Board to correct the "unlawful act" "immediately."

Free Speech Trans

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From Doe v. Doe, decided today by Judge F. Kay Behm (E.D. Mich.):

Plaintiff [John Doe] and Defendant [Jane Doe] are half-siblings and have known each other for over forty years. Plaintiff owns a law firm that operates nationwide, with a primary business address in Oakland County, Michigan. The relationship between Plaintiff and Defendant deteriorated when Defendant allegedly failed to perform on a contract to work for Plaintiff, and defaulted on a personal loan. A few days after Plaintiff terminated the contract for Defendant to work for Plaintiff, Defendant called Plaintiff's former spouse and told her that 30 years ago Plaintiff got Defendant drunk and sexually assaulted her. Plaintiff says this statement by Defendant is false and defamatory….

Generally, there is a presumption of open judicial proceedings in the federal courts; proceeding pseudonymously is the exception rather than the rule. Rule 10 of the Federal Rules of Civil Procedure requires that the complaint state the names of all parties. In order to circumvent this requirement, it must be shown that the need for anonymity substantially outweighs the presumption that parties' identities are public information and the risk of unfairness to the opposing parties….

[Plaintiff argues that] "[c]ourts generally allow a plaintiff to litigate under a pseudonym in cases containing allegations of sexual assault because they concern highly sensitive and personal subjects." And because Defendant is his half-sibling, the disclosure of either party would lead to the inevitable disclosure of the other.

Free Speech Right of Access

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If so, consider nominating them for this award, by Dec. 15; note that the award is limited to relatively junior faculty members:

The AALS Section on Law and Religion seeks nominations for the 2025 Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that has made an outstanding scholarly contribution to the field of law and religion. To be eligible, a paper must have been published between July 15, 2024, and November 15, 2025. The author must be a faculty member at an AALS Member School (with no more than 10 years' experience as a faculty member) or a full-time fellow or VAP at an AALS member school. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Self-nominations are accepted. Nominations should be sent to Rick Garnett (rgarnett@nd.edu), Chair of the Berman Prize Committee, by December 15, 2025.

Religion and the Law

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Stanford Political Science Prof. Andy Hall, a colleague of mine at Hoover, has this very interesting post at his new Free Systems Substack. An excerpt:

I've studied political prediction markets for years, and their early history is full of clever designs and unrealized promise. But what's happening now is fundamentally different. The scale, the liquidity, and the attention these markets are attracting represent a break from efforts of the past.

My broader project is to understand how we preserve liberty in an increasingly algorithmic world. Prediction markets are a fascinating case where individuals, freely pursuing their own incentives and acting on their own information, can generate a public good for the digital era: a clearer shared picture of a highly complex political environment. At the same time, they can also create strange feedback loops that require careful governance. So they're well worth studying.

To learn more, I decided to see them up close. Two weeks ago, I flew to New York City for election night and joined a group of academics, technologists, and prediction-market traders to run a real-time experiment betting on actual elections.

Over the course of the night, I witnessed a technology that has incredible potential to make us smarter and more informed about politics and the world—and which raises profound questions about what politics looks like in a world of live probability feeds where truth is often contested and frictionless information overwhelms our narrow attention spans….

Three questions that will make or break prediction markets for politics

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